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April 27, 1976

JOSEPH McINTYRE et al., Plaintiffs,

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Plaintiffs in this purported class action move, pursuant to Rule 65(a), Fed.R.Civ.P., for an order preliminarily enjoining defendants from suspending plaintiffs or members of their class from their civil service positions, pursuant to Section 75(3) of the New York Civil Service Law (McKinney 1973). A hearing was held on March 5, 1976 at which counsel for plaintiffs waived all factual issues and rested on their contention that the challenged statute is facially unconstitutional.

 Plaintiffs, tenured corrections officers employed by New York City, assert that they have been suspended from work without pay for up to 30 days, pursuant to Section 75(3), without a prior hearing on, and determination of, the grounds for such suspensions. It is claimed that they have thus been deprived of property without due process of law in violation of the Fourteenth Amendment.

 Defendants admit that plaintiffs were suspended without a prior hearing, but contend that there is no lack of due process because plaintiffs are entitled to a full evidentiary hearing after suspension and because an individual, if acquitted of the charge against him, is reinstated with full back pay. Defendants argue that, in light of the competing interests between the government and its employees, such a procedure satisfies due process.

 To prevail on this motion for a preliminary injunction, plaintiffs must demonstrate either a combination of probable success and the possibility of irreparable injury, or that they have raised serious questions going to the merits and that the balance of hardships tips sharply in their favor. *fn1" We find that plaintiffs have not satisfied either of these requirements.

 Disciplinary proceedings against tenured civil service employees are governed by Section 75 of the Civil Service Law. These employees may be removed or otherwise penalized only for "incompetency or misconduct shown after a hearing . . .." The employee is entitled to written notice of the charges and an opportunity to respond. He has a right to be represented at the hearing by counsel and to summon witnesses on his behalf. The burden of proof rests upon the person asserting the misconduct or incompetence.

 The challenged statute, Section 75(3), provides in part:

"Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days."

 There is no question that civil service employment is a property right which cannot be taken by procedures not comporting with due process requirements. *fn2" The question here, therefore, is whether due process mandates a hearing prior to suspension.

 Plaintiffs cite a number of recent Supreme Court decisions holding that a non-final deprivation of property violates due process in the absence of a prior hearing. *fn3" They rely, in particular, upon Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), where the Court struck down Florida and Pennsylvania replevin statutes permitting the ex parte seizure of goods. These cases, however, have since been limited. *fn4"

 In Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974), the Court addressed itself to the question of whether the dismissal of a nonprobationary federal employee without a pretermination hearing violated due process. Mr. Justice Rehnquist, writing for a plurality of the Court, upheld the constitutionality of such a procedure, distinguishing the cases on which plaintiffs in the instant case rely, as dealing with areas

"dissimilar to the area of governmental employer-employee relationships with which we deal here. The types of 'liberty' and 'property' protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests." *fn5"

 Mr. Justice Powell, in a concurring opinion, stated that a nonprobationary public employee was entitled to a hearing but that the question of whether a pretermination hearing is required

"depends on a balancing process in which the Government's interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment." ...

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