the Hearing Officer's opinion, after quoting from the applicable regulations (24 C.F.R. § 24.12(a)(2)), found on adequate evidence that the "violation of the terms of the purchase orders constitutes 'causes of such serious and compelling nature, affecting responsibility'" as therein defined and demonstrated at least implicitly that suspension under the facts of the case was in the best interests of HUD. Moreover, this determination was sustained by the Assistant Secretary, a high-ranking official who must be presumed, absent a contrary indication in the record, to be acting in the best interests of the Department. The suspension is not faulty in this regard.
Plaintiffs also attack the length of time that the suspension has been in effect. In particular, they contend that a prompt hearing preliminarily to review the suspension was not afforded as required by Horne Brothers, Inc. v. Laird, 150 U.S.App.D.C. 177, 463 F.2d 1268 (1972). However, as the administrative record makes clear, and as orally represented to the Court by counsel for defendants and unchallenged by counsel for plaintiffs, the plaintiffs never pressed their demand for a hearing, the period between the official notice of suspension and the original date for the hearing was filled with numerous discussions and negotiations between plaintiffs and HUD, and the plaintiffs apparently sought to resolve the matter by means other than the adjudicatory process. Horne Brothers directs only that an opportunity to be heard be provided to the suspended party, and it neither requires the agency to force a hearing on an unwilling participant nor prevents efforts by mutual agreement to dispose of the case in an informal way. As with other similar rights, this right to a hearing can be waived, D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1974), and, especially in dealing with business entities acting with the advice of counsel, such waiver may be inferred from conduct inconsistent with the desire for a prompt proceeding. The facts fully support the conclusion that this is what occurred here.
Under 24 C.F.R. § 24.13, the suspension is for "a temporary period pending the completion of an investigation and such legal proceedings as may ensue." According to HUD's construction of the regulation, the investigation includes consideration of the suspended party's arguments and contentions as established in Horne Brothers. This interpretation seems reasonable and proper. Thus the investigation continues through and includes the preliminary decision process on suspension. This phase ended here on April 19. Accordingly, HUD now has a reasonable time to complete its investigation and initiate such legal proceedings as may ensue. On the record now before the Court, and irrespective of the factual dispute between the parties, a reasonable time for this purpose would be until May 27, 1976.
Since plaintiffs have not demonstrated a reasonable or substantial probability of success on the merits, their application for a preliminary injunction is denied. The foregoing resolution of the legal issues appears to the Court to conclude the case, and therefore, unless plaintiffs on or before April 28 formally give notice of their intention to proceed further, this Memorandum and Order shall constitute the final denial of their prayer for a permanent injunction.