The opinion of the court was delivered by: SOFAER
This is an action by employee members of the Security Services Unit of New York state to enjoin the state from deducting from their wages the penalty for illegal strikes provided by Section 210 of the New York Civil Service Law, commonly known as the Taylor Law.
A motion for a temporary restraining order and a preliminary injunction was granted on September 8, 1979, to the limited extent described in the order filed. Thereafter additional argument was heard and evidence presented. The parties have agreed that their submissions to date should be treated as complete, and that a final opinion and judgment is now appropriate.
The named plaintiffs represent some 6,500 employees who work in security positions at New York State's prisons, mental institutions, universities, and other places requiring security personnel. The New York State Inspection, Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO ("Council 82") is their collective bargaining agent. Also included in the plaintiff class are additional employees who joined in the same strike, and to whom Section 210 is equally applicable.
The class has been duly certified.
On April 18, 1979, employees in the plaintiff class engaged in a work stoppage, determined by the Director of the Office of Employee Relations ("Director") to be an illegal strike. The stoppage continued for sixteen days, until May 4, 1979. Defendants allege without contravention that considerable disruption ensued. During the stoppage, prisoners were kept in their cells for much longer periods than usual, the National Guard was called up to serve on an emergency basis, and visitors were advised to stay home. Plaintiffs contend that the strike resulted from unwarranted provocation in particular, from an announcement by state negotiators that a new contract had been reached when in fact no such agreement had been made. Although there appears to be some truth to this allegation,
it is clearly insufficient under state law to justify a strike. Consequently, soon after the strike, the Director commenced proceedings under Section 210 for imposing penalties.
Striking state employees automatically lose their pay for the days they are out. Plaintiffs do not seek to be paid, or to recoup, any wages for days on which they did not perform normal services. But under the Taylor Law, striking employees may be fined an additional day's pay for every day they are on strike. Plaintiffs assert that the procedure by which this two-for-one penalty is imposed is constitutionally deficient in that it deprives them of their wages without due process.
The procedure followed by the Director, and mandated by statute, is described in detail in Sanford v. Rockefeller, 35 N.Y.2d 547, 364 N.Y.S.2d 450, 324 N.E.2d 113 (1974), appeal dismissed, 421 U.S. 973, 95 S. Ct. 1972, 44 L. Ed. 2d 465 (1975). In that case, the Court of Appeals upheld the two-for-one penalty when challenged by school teachers on the same grounds raised by plaintiffs in this case. In a careful and persuasive opinion, the court held that due process did not require a hearing before the penalty was exacted, because the procedure for imposing the penalty was reasonably reliable and because adequate procedures existed after imposition of the penalty to review challenges. The court dealt at length with the Supreme Court's decisions in Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), and related cases, and concluded that a loss of wages under the circumstances was not so substantial a deprivation as to mandate a hearing before the deduction of wages. The Supreme Court dismissed the appeal in Sanford for want of a substantial federal question.
Defendants claim this suit should be dismissed or transferred due to improper or inconvenient venue. This claim raises a number of interesting and difficult issues. The principal governing statute, 28 U.S.C. § 1391(b), is among the most restrictive venue provisions in the Code:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose. . . .
The statute has been periodically liberalized since its adoption in 1877, but it continues to create substantial obstacles for certain classes of plaintiffs. In particular, plaintiffs suing state officers on federal constitutional grounds must often overcome venue limitations not otherwise confronted by federal litigants. Unlike 28 U.S.C. § 1391(a), applicable in diversity cases, Section 1391(b) fails to authorize venue on the basis of plaintiffs' residence. And, it is far more restrictive in permitting venue than 28 U.S.C. § 1391(e), which provides several bases of venue in suits against federal officers, including the residence of any plaintiff or defendant.
A. Venue Based on Defendants' Residence Under 28 U.S.C. § 1391(b)
Plaintiffs claim they meet the requirements of Section 1391(b) in that all the defendants "reside" in the Southern District of New York. The difficulty plaintiffs face is that several of the defendants, and in particular those actually responsible for the allegedly illegal acts, maintain their offices and perform their duties in Albany, in the Northern District of New York.
The "residence" of a public officer under Section 1391 means his "official" not "actual" residence. Butterworth v. Hill, 114 U.S. 128, 5 S. Ct. 796, 29 L. Ed. 119 (1885). See 1 Moore, Modern Federal Practice P 0.142(5.-1-2), at 1396 (1978). Moreover, in cases involving federal officers, the courts have found only one official residence for venue purposes. See, e.g., Reuben H. Donnelley Corp. v. F. T. C., 580 F.2d 264, 266-67 (7th Cir. 1978). Whatever the rationale for this rule, a different result with respect to state officers seems warranted. As Judge Frankel reasoned in Buffalo Teachers' Federation v. Helsby, 426 F. Supp. 828 (S.D.N.Y.1976), the potential inconvenience to federal officials resulting from a rule recognizing multiple official residences is far greater than for state officials, who can never be deemed to reside in another state. Moreover, the fact that a plaintiff can generally sue federal officials in the district in which the plaintiff resides, 28 U.S.C. § 1391(e), makes a multiple-residence rule far less necessary in cases against federal officials. Therefore, in suits against state officials, courts should be willing to consider whether any defendant has more than one official residence for purposes of the particular litigation. But see Procario v. Ambach, 466 F. Supp. 452 (S.D.N.Y.1979).
Whether a state defendant has a second official residence would seem to turn on three factors: (1) the defendant's presence in the district in which the plaintiff has sued; (2) the extent of defendant's official activities in the district; and (3) the relationship of the defendant's activities within the district to the cause of action asserted.
The complaint here names several defendants including the Governor, the Office of Employee Relations and its Director, the State Comptroller, and officials in charge of agencies or institutions employing security officers. Many of the defendants have offices in the Southern District of New York. But the only defendants necessary for plaintiffs to gain relief and the only ones whose conduct is challenged appear to be the Office of Employee Relations (by its Director) and the Comptroller. These are the defendants who determined that plaintiffs were on strike in violation of Section 210 and who are withholding penalties from plaintiffs' wages.
The Office of Employee Relations has no office in the Southern District. Plaintiffs argue, however, that the Office is part of the Executive Branch, which maintains a substantial office in this district, and that the Director has acted on behalf of "the chief fiscal officer of the government involved." Civil Service Law § 210(3)(h). Such contacts are insufficient to constitute a presence in this district for purposes of venue. They have nothing to do with the state official actually being sued. Although the State Comptroller (Department of Audit and Control) maintains an office in this district, his involvement with this litigation extends only to the issuance of plaintiffs' pay checks. No part of the payroll function is performed here, and all the deductions from plaintiffs' checks take place in Albany. Under the circumstances, venue cannot be found under § 1391(b).
B. Venue Based on Defendants' Residence Under 28 U.S.C. § 1392(a)
Although the present record precludes a finding that all defendants reside in this district, 28 U.S.C. § 1392(a) offers an alternative means of basing venue on the residences of the defendants. That section provides:
Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.
In this case, all the defendants reside in New York. Furthermore, some of the defendants do seem to have official residences in this district; the complaint names as defendants, among others, the Governor of New York, who conducts significant amounts of business from offices in the Southern District; the Acting Director of the Department of Correctional Services, which maintains offices and operates many state prisons in this district; the Commissioner of the Office of Mental Hygiene, which operates many facilities in this district; and the Chancellor of the State University of New York, which operates several educational institutions in this district. Plaintiffs allege that over half the plaintiff class are in fact employed in facilities run by these named defendants. ...