Cerrano v. Fleishman, 73
| Decision Date | 28 December 1964 |
| Docket Number | No. 73,Docket 28833.,73 |
| Parties | Louis F. CERRANO, Plaintiff-Appellant, v. Lawrence FLEISHMAN, as Supervising Customs Agent, Region 1, Bureau of Customs, United States Treasury Department, John W. Macy, Jr., as Chairman, and A. J. Andolsek and Robert E. Hampton as Commissioners constituting the United States Civil Service Commission, Defendants-Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
Louis F. Cerrano, pro se.
Edward Berlin, Department of Justice, Washigton, D. C. (John W. Douglas, Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Eastern District of New York, Morton Hollander, Atty., Dept. of Justice, Washington, D. C., on the brief), for defendants-respondents.
Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.
On October 2, 1962, the Bureau of Customs filed with the Civil Service Commission an application for the involuntary retirement of the appellant, Louis F. Cerrano, because of his disability. This action was taken pursuant to the provisions of the statute, 41 Stat. 614, as amended, 5 U.S.C. § 2257(a), the pertinent portion of which is as follows:
"Any employee who completes five years of civilian service and who is found by the Commission to have become disabled shall, upon his own application or upon application by his department or agency, be retired on an annuity computed as provided in section 2259 of this title * * *."
The appellant, after five years employment in the Customs Service, held the position of Customs Enforcement Officer. His grade was GS-5. The Commission, after having Cerrano examined under the direction of its own medical director and by the United States Public Health Service, and after having studied the medical and psychiatric reports submitted by these officials, made a preliminary finding that Cerrano was, as a result of a mental condition, totally disabled for useful and efficient service in the position he then held. The appellant was given an opportunity to offer evidence in rebuttal, and he submitted the reports of two doctors of his own who found him to be "physically fit for work." The Commission ruled that Cerrano be retired for disability. He appealed to the Commission's Board of Appeals and Review which considered the case, with the addition of a report of an examination, made at appellant's request, by the Veterans Administration Clinic at Brooklyn, New York. The Commission's order of retirement and the allowance of a disability annuity were affirmed by the Board. The appellant then instituted the present action in the District Court. The appellees, Fleishman, Supervising Customs Agent, et al., filed a motion for summary judgment which was granted. It is from this judgment that Cerrano appeals. We affirm.
The errors assigned both in the court below and on this appeal are that the Commission reached its conclusions on insufficient evidence and without considering all of the medical evidence available and that appellant was given no opportunity to see or hear the medical reports received by the Commission nor was he afforded a hearing as a veteran under the "Veterans' Preference Act," 5 U.S.C. § 851 et seq. The Commission's decision on the question of disability is, in the words of the statute, "final and conclusive and shall not be subject to review," 5 U.S.C. § 2266(c). The Commission is not required to hold a hearing, and the regulations, which are not here questioned, provide for the submission to the employee's own physician the kind of evidence sought by the appellant, which concerned appellant's mental condition. The...
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Doe v. Hampton
...which a mentally or physically handicapped employee can satisfactorily perform despite his or her disabilities. Cf. Cerrano v. Fleishman, 339 F.2d 929, 931 (2d Cir. 1964), cert. denied, 382 U.S. 855, 86 S.Ct. 106, 15 L.Ed.2d 93 (1965) (no reassignment efforts necessary as a condition to a v......
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...hold that no hearing is required under the Act or the regulations. Smith v. Dulles, supra; Murphy v. Wilson, supra; Cerrano v. Fleishman, 2 Cir., 1964, 339 F.2d 929, cert. denied, 1965, 382 U.S. 855, 86 S.Ct. 106, 15 L.Ed.2d 93; Rosenblum v. United States Civil Service Comm., W. D.Pa.1963, ......
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Turner v. Office of Personnel Management, 82-1436
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