Plaintiff asserts that his civil rights were violated when he was denied oral presentation of his case. Neither plaintiff nor his doctor were permitted to present oral testimony before the Board of Trustees. However, Plaintiff was given the opportunity to present his case before the board of Trustees in writing. Plaintiff's doctor was likewise afforded the opportunity to present evidence regarding his opinion of the cause of Plaintiff's disability.
Plaintiff further asserts that the Board of Trustees is bound by the finding of causation by the Medical Board and therefore must retire Plaintiff on ADR. By making this argument, Plaintiff suggests that the vote of the Trustees was improper, and the deadlock invalid.
A property interest cannot be taken from an individual without due process. U.S. Const. amend. V. Plaintiff has a property interest in his retirement. See McDarby, 907 F.2d at 1336 (citations omitted). The Code sets out the procedures involved in determining disability. These procedures, by which the Trustees are bound, have been tested and endorsed by this court and affirmed by the Second Circuit. Id., at 1337.
The Supreme Court has enumerated three factors to be considered in determining if a procedure satisfies Due Process. See Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The court must examine:
1) the private interest which will be effected by the official action;
2) the risk of an erroneous deprivation of such interest through the procedures used; and
3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335.
The first two factors can be treated without difficulty. The interest to be effected is the retiree's pension fund. The procedures are set up to determine through which pension fund he will receive benefits. Although these procedures are not necessarily without faults, they provide a mechanism which minimizes the risk of an erroneous determination. Plaintiff focuses on the third factor in which he suggests that an additional requirement be imposed.
Plaintiff contends that due process requires that the Trustees conduct a hearing prior to determining the category of disability under which he will be retired. Due Process requires only an opportunity to be heard, that is, to present argument and evidence which support the applicant's position to the Board or person making the determination. Due Process does not guarantee an opportunity to be heard in person. See Basciano v. Herkimer, 605 F.2d 605, 610 (2d Cir. 1978) cert. denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979). Plaintiff submitted his argument and the opinion of his doctor in writing, and thus was given an opportunity to present evidence on his behalf in his claim for entitlement to ADR. There is no constitutional violation merely because Plaintiff's witnesses were not permitted to testify orally. There is no support for the assertion that oral testimony of a plaintiff assures a more reliable determination than written evidence. See Basciano, 605 F.2d 605, 611 (2d Cir. 1978). The additional measures are not required by due process as Plaintiff suggests. Due process was satisfied when Plaintiff was given the opportunity to present evidence by his doctors attesting to his disability. This procedure does not detrimentally effect the determination of Plaintiff's disability retirement.
In light of the above findings, Plaintiff's civil rights claim is meritless, and the Due Process violation unfounded. There are no material issues of genuine fact to be tried. Accordingly, Defendants' motion for summary judgment is granted and Plaintiff's motion for summary judgment is denied. Accordingly, the complaint is dismissed in its entirety.
DATED: New York, New York
February 21, 1995
KEVIN THOMAS DUFFY, U.S.D.J.