(dissenting):
It is crucial to remember that this case comes before us on defendant’s motion to dismiss the petition, and that defendant has not given us a single document, official paper, or affidavit to support its bare legal argument. Plaintiff, on the other hand, has furnished several documents and has somewhat expanded his petition by additional allegations in his papers opposing the defendant’s motion. In that posture of the case, we should, in my view, generously construe the petition, as supplemented by the assertions in plaintiff’s opposition, to see whether any claim is set forth which warrants further investigation. Plaintiff has not moved for judgment and we are not asked to dispose of the case in his favor. All that we are required to decide is whether there is any possibility at all that he may be able to make a, case for recovery.
Plaintiff alleges that the Redevelopment Land Agency dealt with him in the first part of 1966, inducing him to make arrangements to relocate, and then turned around in December 1966, cut off further relations with him, and dealt with Thorpe, his landlord at the old premises. The court thinks it knows why this change occurred, but at this stage the defendant has not given us any basis on which to decide or even speculate, and the plaintiff’s own exhibits do not supply any answer. To me, the reason is not at all obvious, and only pure guesses can be made. I would like to be enlightened by a trial or other further proceeding. Plaintiff, not Thorpe, was carrying on the business, and plaintiff asserts that he had an interest in the furniture and fixtures. It is hard for me to believe that, if that was so, the Land Agency treated Thorpe as the only owner, either of the tangibles or of the business. It is more consistent (or, at the least, just as consistent) with the plaintiff’s allegations that the Agency first considered him eligible and then changed its mind, for some as yet unexplained reason. I can conjure up explanations different from those of the court, but the important thing at this stage is not for us to speculate but to try to get the facts.
The “finality provision” which the court invokes, 42 U.S.C. § 1465(e), is not a bar at this point. In the first place, the controlling regulations of the Department of Housing and Urban Development, 24 C.F.R. § 3.104(c), as I read them, do not accord finality unless the eligibility determination has been properly made and issued. One of the regulations’ requirements is that the Agency “maintain in its files complete and proper documentation supporting the determination” of eligibility or non-eligibility. In my understanding, no determination of eligibility is proper (or can be accorded finality) if there has not been compliance with this specific provi*763sion. But in this case we do not even know, as yet, whether (i) any determination of eligibility or noneligibility was made as to Thorpe, or (ii) as to plaintiff, or (iii) whether the Agency’s files contain the required “complete and proper documentation” as to either determination. The defendant has not even certified to us that a proper determination of eligibility was made as to anyone involved in this matter.
Second, I would construe these finality clauses — in the same way as the Veterans Administration’s “finality” clause (38 U.S.C. § 211(a)) has been interpreted by one court, see Tracy v. Gleason, 126 U.S.App.D.C. 415, 379 F.2d 469 (1967), but see Di Silvestro v. United States, 405 F.2d 150, 153-154, (C.A.2 1968) — as not applying to an attempt by the Agency to undo a determination of eligibility which has already been made. That may be the case here, under the plaintiff’s as yet undenied (and untested) allegations. Moreover, we have held that, notwithstanding the finality provisions of the Civil Service Retirement Act, Section 16(c), 70 Stat. 758 (1956); 5 U.S.C. § 2266(c) (1964), a court can set aside the Commission’s determination in an involuntary disability retirement case where there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination. See Gaines v. United States, 158 Ct.Cl. 497, 501-502 (1962), cert. denied, 371 U.S. 936, 83 S.Ct. 309, 9 L.Ed.2d 271 (1962).
As for the representations made by Agency people, I cannot at this stage say they were unauthorized since defendant has not favored us with any pertinent material on the representatives’ authority. And if there was no proper determination of eligibility, which is also a possibility, then the “finality” provisions would be inapplicable, and there might be a basis for implying a contractual commitment from the Agency’s dealings with plaintiff (which seem to have been strong and definite enough to cause him to undertake substantial commitments as to relocating his business).
The burden of my dissent, as I hope appears by now, is that this is no case in which to dismiss the petition on its face. Rather, it is a case which we should not dispose of until we know more about what actually happened, either through a trial or the furnishing of pertinent documentary material.
DURFEE and SKELTON, JJ., join in the foregoing dissenting opinion.