The opinion of the court was delivered by: RICHEY
Plaintiff, Albert J. Massman, seeks a declaratory judgment and mandatory injunction herein against defendants, the Secretary of Housing and Urban Development, Commissioner of the Federal Housing Administration and Chairman and Commissioners of the United States Civil Service Commission, fixing, declaring and determining his rights as a Veterans' Preference civil service employee of the United States to be restored to the position in the Montana office of the Federal Housing Administration from which he was suspended on May 12, 1966, and removed on June 10, 1966.
Plaintiff and defendants each filed Motions for Summary Judgment and advised the Court that there is no genuine issue as to any material fact herein. Said motions came on for hearing on September 8, 1971, and the Court having considered the pleadings herein, the statements of material facts submitted by the parties pursuant to Local Rule 9(h) and the exhibits filed in support of said motions, the points and authorities filed in support of same by each of the parties, and having heard oral argument of counsel, and the Court, having concluded that there are no genuine issues of fact involved in this case requiring a trial on the merits and that Plaintiff's Motion for Summary Judgment should be granted and Defendants' Cross-motion for Summary Judgment denied for the reasons stated in the Court's oral opinion of September 8, 1971, and the findings of fact and conclusions of law hereinafter set forth:
1. During the periods from 1948 to February, 1955 and from 1961 to June 10, 1966, Plaintiff, Albert J. Massman, was a Veterans' Preference civil service employee of the United States employed by the Federal Housing Administration at its District office in Montana. During the period from 1948 to February, 1955, Plaintiff held consecutively the positions of Loan Examiner, Chief Loan Examiner and Executive Assistant to the Director of the Agency's Montana office. In February, 1955, Plaintiff resigned from the Federal service to engage in the real estate business, but in 1961 he was re-employed by the Federal Housing Administration as Director of its Montana office (Grade GS-14), a position he held until his removal on June 10, 1966.
2. On or about April, 1966, Plaintiff apparently incurred the enmity and displeasure of some of his superiors in the Federal Housing Administration, and, he was therefore, summoned to a meeting in Washington, D.C., where his superiors suggested that, in order to avoid trouble, Plaintiff should resign from his position. When Plaintiff refused to resign, the said superiors stated that charges would be prepared against him in Washington and that when same were ready, they would be utilized as a basis for plaintiff's removal from his position.
3. Plaintiff's superiors thereupon placed plaintiff on non-duty status effective April 21, 1966, and they directed him to remain out of the agency's office in Montana, although at that time no charges had been served on plaintiff and he had not received any formal or written notice of proposed suspension or removal.
4. Approximately 15 days later, i.e. on May 6, 1966, the Director of Personnel of the Federal Housing Administration in Washington sent plaintiff a five-page memorandum entitled " Subject: Proposals to Remove and to Suspend." Said memorandum stated the charges against plaintiff as follows:
(1) Failure to exercise the qualities of leadership necessary to inspire loyalty, enthusiasm and integrity in your staff;
(2) Display of poor judgment in discharging your personnel management responsibilities; and
(3) Significant failures in promoting and maintaining effective personal working relationships with firms doing business with FHA."
5. The said memorandum thereupon concluded with the following advice regarding the agency's proposal to suspend plaintiff from his position prior to removal:
"You are further notified that it is proposed to effect your suspension not less than 72 hours following your receipt of this notice and to continue said suspension through the advance notice period for your proposed removal. Your suspension is proposed because the charges against you are of such nature and your position is such that your retention in an active duty status during the advance notice period for your proposed removal, would be detrimental to the interests of the FHA. * * *
"No decision to suspend you or to remove you has been made or will be made until after full consideration is given to any answer that you submit to the respective proposals."
6. On May 11, 1966, Plaintiff, while still under instructions to remain away from the agency's office, replied in writing and objected (a) to the proposed suspension and (b) to the prior action whereby he had been effectively suspended from his position on April 21, 1966, i. ...