UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
January 10, 1980;
In the Matter of the Application of RONNIE CHEESEMAN; LEWIS POLLACK; ROCCO C. LaBELLA, JR.; JAMES MANN; PETER SCANNELL; RICHARD WATSON; ROBERT VOSPER; BRIAN GUMMOE; THOMAS RYAN; RICHARD F. O'CONNELL; AMBROSE BURGER; STEPHEN KURPIL; TED KOTT; BRUCE SMITH; JAMES MULLEN:, DAVID GUNDRUM; individually and on behalf of all others similarly situated, Plaintiffs, against HUGH CAREY, as the duly elected Governor and Chief Executive Officer of the State of New York; THE GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS; MEYER S. FRUCHER, as Director of the New York State Office of Employee Relations; EDWARD REGAN, as The Comptroller of the State of New York; THOMAS COUGHLIN, as The Acting Director of the New York State Department of Correctional Services; JAMES A. PREVOST, as The Commissioner of the Office of Mental Hygiene; CLIFTON R. WHARTON, as The Chancellor of the State University of New York; JAMES C. O'SHEA, as The Commissioner of the Office of General Services of the State of New York, Defendants.
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. In Kirkland v. New York State Department of Correctional Services, 358 F. Supp. 1349 (S.D.N.Y.1973), a case involving similar circumstances, Judge Lasker found venue to lie under Section 1392(c).
The state seeks, in effect, to distinguish Kirkland by arguing that the defendants in this case who can reasonably be found to have official residences in the Southern District are not necessary parties to this action. Plaintiffs should be able to obtain all the relief they seek, the state contends, without the participation of any defendant who resides in this district. By contrast, in Kirkland, where the requested relief apparently pertained to prison practices or conditions, the Department of Correctional Services was a necessary party. Defendants' argument rests on the unarticulated premise that Section 1392(a) becomes a device to circumvent Section 1391(b) if a plaintiff can obtain venue in non-diversity cases by simply joining as a defendant a non-essential party who resides in the district of plaintiff's choice.
Only a handful of dated cases have examined this question. Most of these cases rest on a distinction between "necessary parties" defendants whose joinder is needed for plaintiff to obtain relief and "nominal" or "formal parties" defendants who, although proper parties, are not essential for plaintiff to obtain relief. Relying on predecessor statutes to Section 1392(a), the courts in those cases held that venue could lie only if "necessary" parties resided in the forum district. United Office & Prof. Workers of America v. Smiley, 75 F. Supp. 695 (E.D.Pa.1946); Nakken Patents Corp. v. Westinghouse Elec. & Mfg. Co., 21 F. Supp. 336 (E.D.Pa.1937); Baltimore & O. R. Co. v. Board of Public Works, 17 F. Supp. 170 (N.D.W.Va.1936).
In Gunn v. Mathis, 157 F. Supp. 169 (W.D.Ark.1957 & 1958), seemingly the most recent case on point, the court adopted a significantly more flexible approach. It held that an unnecessary party's residence in the district could establish venue if that party was nevertheless "proper" and had a "substantial connection" to the lawsuit in question.
The test suggested by Gunn is preferable to the approach of the earlier cases. Nothing in the history or language of Section 1392(a) suggests an ungenerous application.
Indeed, to limit its scope to "necessary" parties, would cut against the legislative policy that favors permissive joinder of non-essential but proper parties. Rule 20(a) of the Federal Rules of Civil Procedure permits the joinder "as defendants" of "all persons" if "there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence . . . and if any question of law or fact common to all defendants will arise in the action." This provision represents a considered determination, reached over years of experience and after several revisions, that the convenience of parties and of the courts is most effectively advanced by permitting the joinder of parties even if their presence is neither indispensable nor necessary. See generally, Moore, supra P 20. Venue rules should be applied consistently with this strongly expressed congressional policy.
Furthermore, the danger posed by possible circumvention of Section 1391(b) can easily be exaggerated. Section 1392(a) applies only when multiple defendants are involved, all of whom reside in a single state. It applies, moreover, only to transitory actions, not local actions. It is, as Wright, Miller & Cooper have called it, "a limited statutory escape" from the normal rule. Federal Practice & Procedure § 3807, p. 38 (1976). Even where Section 1392(a) would apply, if construed as in Gunn, no drastic consequences would result. At worst, defendants residing in a single state would have to answer in a district in which they do not reside. And, even then, discretion would remain under 28 U.S.C. § 1404(a) to transfer the case to other proper districts in the interests of justice. For these reasons, any defendant who is not merely a formal or nominal party, and who can properly be joined under the Federal Rules of Civil Procedure, should be considered a defendant upon whose residence venue may be based under Section 1392(a). See Moore, supra P 19.02.
In the present case, the wardens and other institutional directors are not necessary parties, since plaintiffs can obtain all the relief they seek without joining these defendants. Nevertheless, these heads of institutions are more than merely formal or nominal parties. They have a substantial relationship to plaintiffs, and are officers who enforce the state's policy against strikes by public employees. They may have considerable information to contribute to the proper resolution of the litigation, and their presence facilitates the implementation of discovery, trial, and the preliminary and final determinations of the court. They are, moreover, parties with a significant interest in the outcome of the litigation, since they will be responsible for operating the institutions in which plaintiffs work. They are, in short, proper parties, since their interests stem from the same transactions and events as those of the other defendants, and since the same questions of fact and law must be resolved as to all defendants. Given these circumstances, the fact that plaintiffs may have joined some defendants for the purpose of obtaining venue is not controlling. Their substantial interest in and relationship to the litigation make them proper defendants for purposes of applying Section 1392(a).
C. Venue Based on Where the Claim Arose Under 28 U.S.C. § 1391(b)
Plaintiffs argue that, even if venue were not found under Section 1392(a), venue is proper under Section 1391(b) because this is "the district . . . in which the claim arose . . . ."
Section 1391(b) creates problems even more difficult than those engendered by Section 1392(a). The greatest difficulty is that posed by the language of Section 1391(b), also found in Section 1391(a). The statute specifically states that venue may be established "only" in "the" district where "the" claim arose. Professor Moore surely understates when he writes that this language lends "some inference that the draftsmen assumed that every claim arises in some one district." Moore, supra P 0.142(5.-2) at p. 1431. The language is as clear as Congress could have made it, thereby suggesting that a claim can arise only in a single district.
Moore's suggestion that Congress gave no thought to what it had done, see Moore, supra, P 0.142(5.-2), p. 1426, is speculative, and seems dubious in light of the precedents and discussion of this question prior to 1966.
The only legislative history available supports the view that Congress intended to ensure that plaintiffs in all federal suits would be able to find a district in which venue is proper when no other basis for venue exists.
This limited objective supports a literal reading of Sections 1391(a) and (b), and implicitly refutes the view that the statutory language can be ignored as mere legislative blunder.
Despite this background, many cases have avoided the statute's clear language, holding without explanation that the section allows suit in multiple districts. E. g., Miller v. Cousins Properties, Inc., 378 F. Supp. 711 (D.Vt.1974); and cases cited in Wood, supra, at 410-11. Other decisions at least discuss the policy considerations supporting the results reached. See generally, Wood, supra, at 399-400. But these cases many based on the notion that suit may be brought in any district in which substantial contacts relating to the claim occurred fail to explain adequately the statutory language. E. g., Ghazoul v. International Management Services, Inc., 398 F. Supp. 307, 315 (S.D.N.Y.1975); United States ex rel. Flemings v. Chafee, 330 F. Supp. 193, 194 (E.D.N.Y.1971), aff'd, 458 F.2d 544 (2d Cir. 1972), rev'd on other grounds, 413 U.S. 665, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973); Iranian Shipping Lines v. Moraites, 377 F. Supp. 644, 648 (S.D.N.Y.1974) (quoting from a case arising under Section 1391(c)). But see Honda Associates, Inc. v. Nozawa Trading, Inc., 374 F. Supp. 886, 889-90 (S.D.N.Y.1974) (explaining why venue does not automatically follow contacts justifying personal jurisdiction). To the extent that substantial contacts can exist simultaneously in more than one forum, these decisions are inconsistent with the plain meaning of the statute.
The Supreme Court has recently refused to rule on whether Section 1391(b) permits suit in more than one district. Leroy v. Great Western United Corp., 443 U.S. 173, 99 S. Ct. 2710, 2717, 61 L. Ed. 2d 464 (1979). If the Supreme Court were to read Section 1391(b) to require the designation of a single district as the one in which "the claim arose," presumably on the basis of its being the place having the most substantial contacts with the claim,
venue would not lie in this district. However substantial the contacts or relationship of the overall claim to the Southern District, no court could reasonably hold that the case can be brought here if the ruling meant that the case could not as a result be brought in the Northern District. See Weil v. New York State Dep't of Transportation, 400 F. Supp. 1364 (S.D.N.Y.1975).
But the Court in Leroy left room for a construction of Section 1391(b) that would permit courts to find a claim arose in more than one district. The Court found "arguably acceptable" the following interpretation (99 S. Ct. at 2718):
In the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not the plaintiff) may be assigned as the locus of the claim.
Whether this is the "unusual case" in which it is unclear that the claim arose in only one specific district is difficult to know. Many courts have attempted to determine the district in which a claim arose, and the varying tests used and results reached do not indicate that claims arise in multiple districts only in "unusual" cases. Courts have frequently found that claims arose in multiple districts because of substantial contacts with more than one forum, or because of a significant relationship with more than one district, or because of a substantial impact in more than one district.
The Court's analysis would seem clearly to preclude at least some prior approaches. At a minimum, the Court has indicated that no approach is permissible (or "arguable" as the Court put it) which would lead to multi-district venue in all but a few cases. Multidistrict venue would appear permissible only where the claim had very substantial contacts with, or a close relationship to, each of the districts claimed as potentially appropriate.
In this case, all the officials who determined that plaintiffs' pay should be reduced reside in Albany and made their decisions there. The effects of their decisions were profoundly felt in the Southern District, however. Many prisons and other institutions in which approximately half the members of the plaintiff class work are located here. Furthermore, the Albany decision makers were not merely initiating a policy which had an impact in this district. They were reacting to an apparent strike, which had its roots in the institutions and the conditions of employment that prevailed in those institutions. This district would appear, therefore, to have a substantial relationship to the claim.
Assuming the Southern District is a potentially proper forum under Leroy, the plaintiff must also show that this district may "with approximately equal plausibility (as the Northern District) . . . be assigned as the locus of the claim." And the plausibility of such an assertion must turn on "the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not the plaintiff) . . . " 99 S. Ct. at 2718. In this respect, the argument for venue in this district is far stronger than plaintiff's argument for venue in Leroy. A finding of venue in the Texas district in which plaintiff resided in Leroy, would have subjected the Idaho defendants to suit in virtually every district in the nation. All the important witnesses and evidence were located in Idaho, moreover, and the federal judges in Idaho were presumed more able to handle the many state law issues that were involved. By contrast, defendants in this case will be subjected to potential suit only in districts within New York, perhaps only in the Southern District in light of the relatively large number of guarded institutions here. This district is not an inconvenient forum for defendants, since it is close to Albany, and since most state agencies have facilities and offices here. Furthermore, location of the necessary evidence is insignificant in this case, since no issues of fact exist; the entire matter was presented by affidavits. Finally, the federal judges of this district would appear presumptively as able to construe and apply New York law as federal judges in any other district within this state.
This analysis suggests that, even under the relatively restrictive but "arguably acceptable" test adopted in Leroy, an alternative basis for venue in this district exists under Section 1391(b), and that basis is hereby adopted.
Some doubt must persist, however, as to the Supreme Court's willingness to accept any interpretation of the claim-arising language of Section 1391(b) that does more than fill a "venue gap" in particular cases. The majority in Leroy expressly adopted the suggestion in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 n. 8, 92 S. Ct. 1936, 1939, 32 L. Ed. 2d 428 (1972), that the "claim arose" language was added to the venue statutes in 1966 because Congress wanted to fill the venue gap that occasionally confronted plaintiffs prior to that time by assuring them at least one proper district. If venue gap filling was Congress' only purpose in amending Sections 1391(a) and (b), it would appear that any given cause of action should be deemed to arise in only one district, since at that point the venue gap would be filled. And the most suitable analytical tool for determining in which district venue should lie would seem to be the "most significant contacts" or "weight of the contacts" approach. See Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F. Supp. 252 (E.D.Pa.1968). In this case, that test would place venue in the Northern District of New York.
The difficulties posed by Leroy seem certain to make venue issues an even greater problem for the lower federal courts than they were before the Supreme Court spoke. Pressures for increased venue flexibility have caused successive statutory liberalizations since the Judiciary Act of 1887,
and the liberal rules developed over the years by numerous judges in literally hundreds of cases reflect their desire to prevent the needless expenditure of judicial and litigative resources on technical and abstruse constructions of venue provisions, the true purposes of which can never be known with confidence.
The Court in Leroy referred to virtually none of the many lower federal court decisions construing the claim-arising language, relying instead on the premise that the language was adopted only to fill venue gaps and not for the convenience of plaintiffs. However indisputable this proposition now becomes, by reason of the Court's having stated it, the significance of the claim-arising language under Section 1391(e) remains unexplained, although it would appear to have been the most relevant analogy in construing Sections 1391(a) and (b),
and the possibility of protecting defendants while at the same time accommodating plaintiffs remains unexplored.
D. Request for Transfer Under 28 U.S.C. § 1404(a)
Defendants' request for a transfer under Section 1404(a) is the final venue issue presented. The Northern District of New York, defendants claim, is more convenient for the parties and witnesses in this case than this district. Moreover, they argue that a transfer is "in the interest of justice" because plaintiffs engaged in forum shopping by bringing suit far from the place where all the important witnesses and records are located, and far from where plaintiffs initiated their state court actions.
In fact, the principal witnesses in this case will be state officials, most of whom have offices in Albany. Little need exists for the testimony of members of the plaintiff class who reside here. Even the lawyers in this case are from Albany. However welcome such able counsel may be in this district, one cannot help but be suspicious of a party's motivations when his attorney has to travel several hours to attend a session in his chosen forum. Plaintiffs' counsel concedes that he consciously chose the Southern District despite its distance from his office. He argues, however, that his motivation was not to inconvenience defendants, but to avoid anticipated delays in an overburdened forum.
Section 1404(a) poses little difficulty for courts resolved either to grant or deny motions for transfer. If a court is inclined to grant a transfer, it has available the established doctrine that the section was intended to prevent forum shopping. If a court is inclined to deny a transfer, it usually suffices to invoke the equally well established doctrines that a plaintiff's choice of forum is entitled to respect, and that a moving defendant has the burden of proving a case for transfer. See generally, Moore, supra P 0.145(5).
A court seeking reasons for choosing one or the other of these conflicting doctrines is inevitably led to Mr. Justice Jackson's analysis of the doctrine of forum non conveniens in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Forum shopping is no more an evil than any other tactical determination a party makes in its behalf. Any competent lawyer chooses a forum with his or her client's interests in mind. This is undoubtedly why Justice Jackson made clear that a party had to do more than forum shop to justify invoking forum non conveniens ; the choice of forum must have been made "with some harassment" in mind to have justified dismissal of the action. Id. at 507, 67 S. Ct. 839.
Among the factors identified in Gulf Oil as warranting consideration in determining whether to invoke forum non conveniens was the fact, alleged in this case, that court congestion in a forum may cause administrative difficulties. Furthermore, that the defendants here have offices in the Southern District, and are represented by the State Attorney General whose principal office is in this district, are also facts to which Justice Jackson would have given considerable weight. In addition, Gulf Oil would require that consideration be given to the fact that plaintiffs' counsel has a fairly substantial practice in this district, despite its distance from his office, and that many of the plaintiffs' attendance records are located here. Finally, Justice Jackson's analysis would incorporate the fundamental fact that this case does not require a trial in which the Albany based witnesses would need to appear.
It is true that Section 1404 permits "courts to grant transfers upon a lesser showing of inconvenience" than had been required to dismiss an action under the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S. Ct. 544, 546, 99 L. Ed. 789 (1955). But nothing written since the 1948 passage of Section 1404 negates Justice Jackson's reasoning, particularly with respect to the significance of forum shopping. Courts continue to recognize that the relative condition of dockets in alternative districts is a proper consideration in deciding motions to transfer. E. g., Solomon v. Continental American Life Insurance Co., 472 F.2d 1043, 1047 (3d Cir. 1973); Buffalo Teachers' Federation, supra, 426 F. Supp. at 830; Farbenfabriken Bayer A. G. v. National Distillers & Chemical Corp., 324 F. Supp. 156 (S.D.N.Y.1971). In this case, speed of disposition was a particularly important objective, since plaintiffs were seeking to stop a program of payroll deductions that, absent judicial intervention, would have been completed in less than two months.
Had plaintiffs selected this forum to avoid specific precedents in the Northern District, the case for a transfer would have been far stronger. Just as this district's local rules are designed to prevent shopping for individual judges and thereby for the application of some anticipated view of the law efforts to select one district to avoid or to obtain specific rulings of another district court should be disfavored and discouraged. No such argument can be made here, however. Defendants concede that no ruling has been rendered by any Northern District judge that would predictably control the decision of this case. Under the circumstances, plaintiffs appear to be proceeding in this district for legitimate tactical considerations, and not for the purpose of harassing defendants. No substantial injustice is caused by plaintiffs' choice.
Defendants also seek dismissal of plaintiffs' complaint on the theory that this court should abstain. Defendants note that plaintiffs have brought two separate cases in state court challenging the Director's determination, but have carefully refrained from raising or pursuing their constitutional claims in the state actions. They argue that, since plaintiffs had the opportunity to present their federal claims in state court, plaintiffs should be precluded from doing so here.
"Abstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (1976). At the time this action was brought, it appeared to fall into none of the categories in which the Supreme Court has indicated that federal court abstention is appropriate. Id. at 813-20, 96 S. Ct. 1236. See generally, 17 Wright, Miller & Cooper, Federal Practice and Procedure § 4241 (1978).
Defendants initially relied on the principles of federal judicial restraint established by Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1941), and its progeny involving civil litigation. See, e.g., Moore v. Sims, 442 U.S. 415, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1978); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977). But these principles are inapplicable here. Younger problems arise when the federal plaintiff is a defendant in a state judicial proceeding in which the state or a private litigant has sued to enforce an important state interest. The purpose of the federal suit is to vindicate a constitutional right by either enjoining the state judicial proceeding or by obtaining declaratory relief which effectively moots that proceeding. In such cases, principles of equity, comity and federalism have been held by the Supreme Court to require that federal courts not interfere with the state judicial proceeding, absent a showing of bad faith, if the federal constitutional right asserted by the federal plaintiff can be vindicated in the state judicial proceeding.
Plaintiffs here are not defendants in state court and do not seek to enjoin or curtail any judicial proceeding brought to enforce a state interest. The decision to implement the Taylor Law was administrative, and no effort has been made, or is presently needed under the statute, to enforce that decision in the state courts. The injunction sought is against state officers who, through executive action, will allegedly violate plaintiffs' constitutional rights. Exercise of federal jurisdiction in such a case is singularly appropriate. As the Supreme Court has noted, "there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy." Zablocki v. Redhail, 434 U.S. 374, 379 n. 5, 98 S. Ct. 673, 678, 54 L. Ed. 2d 618 (1978).
Defendants also suggested abstention because plaintiffs could have raised their federal claims in the state court actions they brought. The Supreme Court has recognized that, under "exceptional" circumstances, "considerations of "wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation,' " may justify dismissal of a federal action in light of a concurrent state proceeding. Colorado River Water Conservation District v. United States, supra, 424 U.S. at 817-18, 96 S. Ct. at 1246. But absent "exceptional" circumstances, the general rule "as between state and federal courts . . . is that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .' " Id. at 817, 96 S. Ct. at 1246. "Only the clearest of justifications will warrant dismissal." Id. at 819, 96 S. Ct. at 1247.
No "exceptional" circumstances are present here. This forum is clearly convenient. Further, the fact that the state actions were brought first is not in itself determinative. Although it is generally desirable to avoid piecemeal litigation, the concurrent pendency of these suits may in fact enhance the efficient administration of justice. The legal issues raised in each action are addressed to the expertise of the respective fora; the state courts are considering statutory questions while this court is asked to decide a federal issue. Moreover, those legal issues can be determined directly and expeditiously by the respective courts, since no material facts are in dispute. Indeed, the absence of disputed facts in itself eliminates the greatest potential problems of concurrent adjudications. Finally, this case originally came before the court on an order to show cause and a motion for a temporary restraining order. To have abstained at that time might have mooted plaintiffs' argument that the extent to which their salaries were being reduced without prior hearing violated due process.
At the outset of this litigation, defendants also mentioned, but did not press, the possibility of abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). That case requires federal courts to abstain from deciding federal constitutional questions when a state court decision on state law grounds might obviate the need to reach the federal constitutional question. Pullman initially seemed inapposite because plaintiffs brought this suit as a broad challenge to the Taylor Law's penalty provision, arguing that the deduction of an amount as great as that imposed after their strike violated due process. Defendants properly argued that the broad challenge had been rejected in the state courts, and in the Supreme Court as well. Further, plaintiffs' efforts to distinguish Sanford as involving a de minimus penalty,
and as involving a determination challenged by far fewer employees,
were not persuasive.
After plaintiffs' broad contentions were rejected on the motion for preliminary relief, an additional argument was advanced based on the speed at which the penalties were being taken from plaintiffs' salaries.
The state assumed in its presentation that the statute left no discretion to either the Director or to the state courts to construe or to apply the Taylor Law so as to enable the Director to extend the period for imposing the penalty beyond ninety (90) days of his determination.
The fact that both parties shared this assumption, together with the absence of any ambiguity on the face of the statute, indicated that Pullman abstention was unwarranted. An order was therefore entered on federal constitutional grounds, preliminarily enjoining defendants to exact the statutory penalty over a longer period of time than the Taylor Law seemed to require.
The preliminary injunction rested on the proposition that, although the absolute amount of the penalties contemplated in this case may be justifiable under due process, without a prior hearing, the speed with which the penalty was being exacted constituted a matter of independent concern. Because the state claimed it was bound by Section 210 to deduct the full penalty no more than ninety days after the Director's determination, it proposed a schedule whereby approximately 33% of gross and over 50% of take-home salary would be deducted from the pay of all plaintiffs for four consecutive two-week periods.
To have left employees with so small a portion of their wages, for a two-month period, would have created substantial hardship for all and extreme hardship for many;
the state's effort to controvert this hardship was not persuasive.
Furthermore, the arguments pressed by the state to justify this stringent exaction were unconvincing; plaintiffs clearly have a property interest in their salaries, which the state has not (and probably could not) deny them.
Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974) is distinguishable; in the context of this case a suspension without pay would have less severe economic consequences than the deductions contemplated, at least in the short run.
In light of widely adopted policies limiting wage garnishment to at most 25% of gross income,
which policies are fully pertinent here,
the length of time that can be expected to pass before plaintiffs would be afforded hearings, and the fact that a large proportion of plaintiffs seemed likely to secure some degree of relief as a result of the hearings,
it appeared that plaintiffs were likely to succeed on the merits and would suffer irreparable harm if an injunction did not issue.
Neither party appealed from the preliminary injunction requiring a longer payout period but denying relief on plaintiffs' more sweeping claims. Both parties recently agreed, moreover, to an entry of final judgment without further proceedings. Nevertheless, a recent state court decision brings this case squarely within the scope of Pullman and requires abstention on the merits.
During November 1979, a suit was filed in this District which challenged the application of the Taylor Law penalty provision to workers at New York's Off-Track Betting Corporation. Plaintiffs claimed, as in this case, that the state was constitutionally required to limit withholding of their pay to sums approximating those allowed by the preliminary injunction in this case. Judge Duffy abstained in an oral opinion, dismissing the complaint on the ground that "the question of the constitutionality and legality of the application of that state law should be determined primarily by a state court." Local 2021 of Dist. Council 37 v. Off-Track Betting Corp., 79 Civ. 6005, Transcript, p. 3 (S.D.N.Y. November, 1979).
This ruling, though doctrinally difficult to rationalize, proved sound in retrospect. Plaintiffs proceeded to state court and promptly obtained from New York County Supreme Court an injunction mandating a longer period of withholding than the statute appears to authorize. Characterizing the state's statutory argument as "a harsh, strict interpretation of the law," Justice Okin held that principles of equity, and the unlikelihood that the legislature intended to reduce civil servants to paupers, justified reading the statute to enable alleged strikers "to provide for their families basic needs and monthly necessities." Taking notice of the impending holiday season, and of the fact that two of the three deductions had already been effected, the Court ordered that no further deduction take place until after December 25. Local 2021 of Dist. Council 37 v. N.Y.C. Off-Track Betting Corp., Index No. 6065/79, Memo. Decision, pp. 2-3 (Sup.Ct. N.Y.Co. Nov. 30, 1979).
The state court's decision in Local 2021 makes clear that both the parties in this case may have been mistaken in assuming that no state law question was lurking here, the decision of which might eliminate the need to decide the constitutional claim. The state courts may well, by construing the Taylor Law, place restraints upon the state's power to enforce the Act that would sufficiently ameliorate the plight of employees in plaintiffs' position to eliminate what otherwise seems a substantial constitutional issue. Granted, abstention at this stage is inefficient because much of the work of deciding this litigation has already been done. But Pullman abstention has always been inefficient. See generally Field, The Abstention Doctrine Today, 125 U.Pa.L.Rev. 590 (1977). It is mandated by the Supreme Court as a means for avoiding constitutional questions, and in that sense it applies even at this stage of the case, since the only decision reached on the merits in this case that a preliminary injunction should issue was not a final adjudication of the constitutional question.
One modification of ordinary Pullman abstention practice does seem appropriate, however. While Pullman abstention normally requires the federal court to retain jurisdiction in case the need to decide the federal question is not obviated by state court action on state law grounds, a dismissal here seems proper. The deduction schedule established by the preliminary injunction should by now be complete. Nothing therefore remains for federal courts to correct in this controversy, except perhaps on appeal from this ruling, which a dismissal should facilitate. See Field, supra, 125 U.Pa.L.Rev. at 592-601.
The complaint is therefore dismissed on the ground that it would be improper to decide the constitutional question presented.