The opinion of the court was delivered by: GURFEIN
This is an action against the Police Commissioner of the City of New York and other city officials by Elliott H. Velger who alleges that he was a Patrolman Trainee employed by the Police Department and that he was discharged without a hearing and without stated reasons other than his "capacity having been unsatisfactory to the Police Commissioner."
He claims federal question jurisdiction, 28 U.S.C. § 1331, violation of constitutional rights under the 14th Amendment, and deprivation of constitutional rights under 28 U.S.C. § 1343(3) and (4). He seeks declaratory relief under 28 U.S.C. §§ 2201 and 2202, and Fed.R.Civ.P. 57, and injunctive relief under 42 U.S.C. § 1983.
The defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
The plaintiff moves under 28 U.S.C. §§ 2281 and 2284 for an order to convene a three-judge court to declare Section 63 of the New York State Civil Service Law, McKinney's Consol.Laws, c. 7, unconstitutional.
The complaint alleges that the plaintiff successfully competed in an open competitive written examination for "Patrolman, Police Trainee," and was duly appointed from an eligible list established by the New York City Civil Service Commission as a result of such examination on January 31, 1970. On that day, the plaintiff purchased $500 worth of necessary equipment, gear and uniform and enrolled in the John Jay College of Criminal Justice and Long Island University. On February 16, 1973, after three years of employment, the plaintiff received a notice of termination from the Police Department. At the time of his dismissal, he was earning $11,200 per annum. As a result of his dismissal he was forced to quit the colleges where he was studying for a Police Science Degree, and both Universities are now claiming reimbursement.
He alleges that: 1) the refusal to afford him a hearing is a denial of due process; 2) the refusal to state the reason for his dismissal makes it impossible for the plaintiff to determine whether his civil rights have been violated; 3) his property right to his position has been summarily taken away, as a result of which dismissal "plaintiff's name has been placed on a list which disqualifies him from competing in Civil Service Examinations for employment in the City and State of New York for at least one year."
The plaintiff seeks the following relief:
1) Mandamus directing the defendants to reinstate plaintiff to his quondam position;
2) A declaratory judgment that he has been denied procedural due process;
3) A temporary restraining order restraining the defendants from continuing to refuse to employ him;
4) A preliminary and permanent injunction to the same effect;
5) A final judgment annuling his ...