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November 24, 1971

Edward J. Kiernan et al., Plaintiffs,
John V. Lindsay et al., Defendants

Mulligan, Circuit Judge, Edelstein, Chief Judge, District Court, and Bryan, District Judge.

The opinion of the court was delivered by: MULLIGAN


Action by Patrolmen of the New York City Police Department challenging the constitutionality of penalties imposed under a New York statute for violating a prohibition against strikes by public employees. The United States District Court for the Southern District of New York, sitting as a three-judge court, Mulligan, Circuit Judge, held that there was want of jurisdiction, and that in any event this was a proper case for abstention.

 The plaintiffs, New York City patrolmen suing on behalf of themselves and others similarly situated, bring this action seeking a declaratory judgment of unconstitutionality and an injunction against the enforcement of New York Civil Service Law § 210(2) (McKinney Supp. 1970) on the ground that the section is violative of the fourteenth amendment to the United States Constitution.

 The defendants, the City of New York and a number of its officials cross-moved to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure on the grounds that the court lacks jurisdiction over the subject matter of the action, and that the complaint fails to state a claim upon which relief can be granted. In their briefs they also argued that even if the court should find that jurisdiction exists, it should abstain from exercising it in this case.

 The action arose out of a violation of the Taylor Law, N.Y. Civ. Serv. Law § 210 (McKinney Supp. 1970) *fn1" consisting of an alleged six-day strike by New York City policemen in January, 1971. Following the procedures mandated by that law, the Mayor of the City of New York determined that specific patrolmen in the New York City Police Department had violated the Taylor Law on one or more of the six days on which the strike occurred (January 14-19, 1971). He imposed the penalties prescribed by Civil Service Law § 210(2) and notified each of the offending patrolmen that he would be on probation, serving without tenure, for a period of one year, and that the City Comptroller, having been notified of the Mayor's determination, would deduct from the compensation of such patrolman two days pay for each day he was determined to be absent in violation of the law. At the time that this case was argued the deductions from compensation had been made, and the probationary period had commenced.

 Under the provisions of § 210(2)(h) every patrolman who received such notice may file an objection with the Mayor stating why he believes that the determination was incorrect. Virtually all of the 21,000 patrolmen involved have filed an objection. Based solely on the affidavit submitted, the Mayor may sustain or deny the objection. However, if a question of fact arises, a hearing will be held at which the patrolman must demonstrate by a preponderance of the evidence that he did not violate the section. All these determinations are judicially reviewable pursuant to article Seventy-Eight of the Civil Practice Law & Rules. N.Y. Civ. Serv. Law § 210(2)(h) (McKinney Supp. 1970). Both sides concede that if a hearing were to be held for each of the 21,000 patrolmen, it would take an extremely long time to complete the procedure, and it is possible that the last man would not be heard until some years after the one year probation period had expired.

 It is the imposition of the pay and probationary penalties without a prior adversary hearing which the plaintiffs principally claim to be a deprivation of due process of law as guaranteed by the fourteenth amendment of the United States Constitution.

 At the plaintiffs' request, a three-judge court was convened pursuant to 28 U.S.C. § 2282 and § 2284. Since the motion papers were supplemented by affidavits, the matter was treated as a motion for summary judgment, Fed. R. Civ. Proc. 12(c), and argument was heard on the merits and on the jurisdictional and abstention objections. We shall first examine the jurisdictional questions.

 Plaintiffs contend that this court has jurisdiction over their claims for injunctive relief and for declaratory relief pursuant to 28 U.S.C. § 2201 and § 2202 under both 28 U.S.C. § 1331, general federal question jurisdiction and 28 U.S.C. § 1343(3), which confers original jurisdiction on the district courts over cases involving a deprivation of the privileges and immunities protected in 42 U.S.C. § 1983. We shall consider the jurisdictional bases separately.

 Section 1331

 Title 28 U.S.C. § 1331(a) is the general federal question statute. It requires not only that the suit arise under the Constitution, laws or treaties of the United States, but also that the "matter in controversy" exceed "the sum or value of $10,000." Since a resolution of plaintiffs' claim that the imposition of the Taylor Law penalties without a prior hearing is a deprivation of due process of law depends entirely on the construction of the fourteenth amendment of the Constitution, there can be no dispute that a federal question is involved.

 Defendants do claim, however, that the plaintiffs, despite the allegations in their complaint, have failed to demonstrate that the amount in controversy exceeds $10,000, and therefore no jurisdiction exists. In determining the question we must examine the various penalties imposed to see if the monetary requirement has been met.

 Civil Service Law § 210(2)(g) provides that any public employee determined to have participated in an illegal strike "shall have deducted from his compensation . . . an amount equal to twice his daily rate of pay for each day or part thereof that it was determined that he had violated this subdivision." Since the strike in question lasted only six days, the highest actual monetary loss to be suffered by any individual patrolman, under this aspect of the statutory penalties, is conceded by the plaintiffs to be only $600. Since the individual patrolmen cannot aggregate their claims in order to reach the $10,000 requirement, Snyder v. Harris, 394 U.S. 332, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969); Hague v. C I O, 307 U.S. 496, 83 L. Ed. 1423, 59 S. Ct. 954 (1939), Local 1497, National Federation of Federal Employees v. City and County of Denver, 301 F. Supp. 1108 (D. Colo.), appeal dismissed, 396 U.S. 273, 24 L. Ed. 2d 464, 90 S. Ct. 561 (1969), it is apparent that the monetary penalty alone will not support § 1331 jurisdiction.

 If the jurisdictional monetary amount is to be satisfied, it must be based on a valuation of that portion of the Taylor Law penalties which provides that a public employee determined to have been engaged in an illegal strike will be placed "on probation for a term of one year following such determination during which period he shall serve without tenure." N.Y. Civ. Serv. Law § 210(2)(f) ...

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