able to prevent payment of their salaries through such inaction.
Plaintiffs also contend that because Governor Pataki has stated that he will continue to take action to prevent the appropriations until the legislature passes a budget, the Governor is withholding payment to plaintiffs and others in order to coerce the legislature into agreeing to his budget proposals. Plaintiffs point out the fact that they are powerless to strike or take action to protest this situation under the New York State Fair Employment Act, New York Civil Service Law § 200 et seq. (the "Taylor Law").
Defendants, on the other hand, assert that the legislature was free to add additional provisions to the appropriations bills they have already passed, and thus, they could have added language supplying payment for the legislative employees. Although they note that Governor Pataki was free to use his line-item veto against such changes to the appropriations bills, they state that the legislature could have overridden this veto by a two-thirds majority. Therefore, they blame the legislature for the problem.
Plaintiffs now seek a preliminary injunction requiring defendants to pay them, and others similarly situated, on a biweekly basis. They ask that the initial payment be made as of April 19, 1995 and bi-weekly thereafter pending the final outcome of this action.
The court first notes that although not mentioned in the motion papers, this suit can be nothing other than an action pursuant to 42 U.S.C. § 1983, and the court will entertain it as such.
A. Eleventh Amendment Bar
Defendants claim that this § 1983 suit, and the associated preliminary injunction motion, are barred by the Eleventh Amendment. Defendants argue that because the named defendants are the State of New York and Governor Pataki, named only in his official capacity, the plaintiffs seek to enjoin the State itself, an action barred by the Eleventh Amendment.
Clearly defendants are correct in their assertions regarding defendant New York State. There can be no argument but that the Eleventh Amendment bars suits against the states themselves whether brought by citizens of other states or citizens of the state named as a defendant. Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 450, 52 L. Ed. 714 (1908). Accordingly, the court must dismiss the State of New York as a defendant to this action.
Defendants' application of the Eleventh Amendment is flawed, however, in regard to Governor Pataki as named in his official capacity. Case law makes clear that a suit against a state official in his or her official capacity, which is essentially a suit against the state itself, may be barred by the Eleventh Amendment regardless of whether injunctive or monetary relief is sought. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 909, 79 L. Ed. 2d 67 (1984). However, the Supreme Court has carved an exception to this rule finding that a "suit challenging the constitutionality of a state official's action is not one against the State." Id. Because this action clearly challenges the constitutionality of the Governor's actions, or inactions as the case may be, it is not barred by the Eleventh Amendment.
Moreover, the Eleventh Amendment does not bar this suit or the preliminary injunction sought here simply because they may cause expenditures from the state treasury. Eleventh Amendment principles bar actions against state officials to the extent that they seek an "award of an accrued monetary liability" in the form of retroactive payments. Nonetheless, actions against the state are proper insofar as they seek "payment of state funds as a necessary consequence of compliance in the future with a substantive federal-question determination." Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 2762, 53 L. Ed. 2d 745 (1977), quoting, Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 1358, 39 L. Ed. 2d 662 (1974). Thus, insofar as the plaintiffs here seek a preliminary injunction which will require the Governor to make all required future bi-weekly payments from the date of a court order on this matter, it is not in violation of the Eleventh Amendment. The Eleventh Amendment can only bar injunctive relief insofar as it seeks payment of any biweekly checks already due. The ancillary effect on the state coffers which would be the result of a forward looking preliminary injunction is not a bar to the relief sought.
In reaching this conclusion, however, the court must also note that it is specifically barred under the Eleventh Amendment from granting relief against state officials, such as the Governor, based on alleged violations of state law. As the Supreme Court has noted, whether retroactive or prospective relief is sought, "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment." Pennhurst, 104 S. Ct. at 911. Thus, insofar as the plaintiffs' suit and request for injunctive relief are based on alleged state law violations, such as alleged violations of New York Finance Law and state separation of powers doctrine, they are barred.
B. Standard for Preliminary Injunction
In order to obtain a preliminary injunction in the Second Circuit, the movant must make a showing of: (1) irreparable harm; and either (2) likelihood of success on the merits; or (3) sufficiently serious questions going to the merits to make them a fair ground for litigation; and (4) a balance of hardships tipping decidedly in favor of the movant. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). The defendants allude to Second Circuit case law which states that:
where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair-ground-for-litigation standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim.
Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989).
The court finds, however, that its examination in this case is not constrained only to the first two prongs of the Jackson Dairy test by the Plaza Health holding because the court does not see, nor have the defendants attempted to provide, a reason why the court should view the government actions at issue as part of a statutory or regulatory scheme taken in the public interest.
The Plaza Health rationale has been applied to actions involving statutes and their corresponding regulations which are set up in order to protect the public interest. See, e.g., Union Carbide Agricultural Prods. Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980) (applying the requirement to an action involving FIFRA); Medical Soc'y of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977) (applying this requirement to an action involving New York State Social Services Law). The case at hand, however, only involves the alleged failure of the Governor to make appropriations for the payment of wages to legislative workers. This can hardly be classified as part of a statutory or regulatory scheme, and has, at best, attenuated and dubious connections to the public interest.
Nevertheless, another consideration does lead the court to limit its review of the facts to the first two prongs of the Jackson Dairy test. It is clear that the preliminary injunction sought here is a mandatory rather than a negative injunction: plaintiffs seek a court order essentially commanding the Governor to appropriate funds for the payment of their wages until such time as a final decision on the merits is reached. "While ordinarily the function of a preliminary injunction is to preserve the status quo until a final determination upon the merits can be made, situations may arise which justify the issuance of those sorts of temporary injunctions that require the defendant[s] to take affirmative actions." United States v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 144 (N.D. Ind. 1980).
Requests for mandatory injunctions are "cautiously viewed and sparingly used." Ohio-Sealy Mattress Mfg. Co. v. Duncan, 548 F. Supp. 75, 77 (N.D. Ill. 1982). It has long been held that "mandatory injunctions ... are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages." Clune v. Publishers' Ass'n of New York City, 214 F. Supp. 520, 531 (S.D.N.Y. 1963). "Mandatory injunctions are not granted in doubtful cases in which the facts and law do not clearly favor the moving party." Zurn Constructors, Inc. v. B.F. Goodrich Co., 685 F. Supp. 1172, 1181 (D. Kan. 1988). Thus, in order to properly issue a mandatory preliminary injunction there must be a strong showing of irreparable harm and a likelihood of success on the merits. Accordingly, the court will restrict its examination to these factors.
1. Irreparable Harm
Irreparable harm "means an injury for which a monetary award cannot be adequate compensation." Jackson Dairy, Inc., 596 F.2d at 72. It is the most significant requirement for the issuance of a preliminary injunction. Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990). To make a proper showing of irreparable harm, the moving party must assert facts proving that the harm is imminent and not remote or speculative. Id. The Supreme Court has set up a particularly stringent standard for showing irreparable harm in cases involving the discharge of government personnel which has necessarily been adopted by the Second Circuit, and it is this line of cases on which the defendants rely to show that no irreparable harm is present in this case. See Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 199 (2d Cir. 1985) (citing Sampson v. Murray, infra).
In Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974), the Supreme Court stated that:
we have held that an insufficiency of savings or difficulties in immediately obtaining other employment -- external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself -- will not support a finding of irreparable injury, however severely they may affect a particular individual.