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May 3, 1995


Thomas J. McAvoy, Chief U.S. District Judge

The opinion of the court was delivered by: THOMAS J. MCAVOY


 Plaintiffs are legislative employees of the State of New York ("State"). They have been employed to provide services either for the duration of each legislative session or on an annual basis. Each of these legislative employees is generally paid a bi-weekly salary pursuant to New York State Finance Law § 200. Plaintiffs have not been paid for work performed for the State since March 31, 1995 notwithstanding the fact that payment for work performed through April 5, 1995 was due on April 19, 1995.

 As background, Governor Pataki took office on January 1, 1995 and has since repeatedly stated that he would take a series of actions if the legislature did not pass a timely budget by April 1, 1995. If the budget was not passed on time he stated that he would, along with other actions, refuse to take any steps necessary to pay members of the legislature and its employees. To date, the budget has not been passed and the Governor has carried out the plan to refuse payment to legislative employees while ensuring continuing salary payments to most employees of the executive and judiciary branches through supplemental appropriation bills.

 Under § 40 of New York State Finance Law, appropriations cease to be effective on March 31 except for payment obligations incurred prior to the end of the fiscal year. As a result, historically, when budgets have not been enacted prior to the start of the fiscal year, the governor has submitted special appropriation bills which have provided money for salary payments to all state employees until passage of the new budget. On April 13, 1995, the Governor submitted a special appropriation bill to pay the salaries of certain employees in the executive, legislative and judicial branches for the period of March 23, 1995 to April 5, 1995. This bill covered the salaries of almost all state employees except a few in the executive chamber and certain officers and employees of the judiciary. In the legislative branch, however, the bill only covered the salaries of the legislative library employees, nurses and messengers. Plaintiffs presume that the library employees were paid because they are subject to the Fair Labor Standards Act, but assert that they cannot find a reason for the distinction made between the nurses and messengers and the other legislative employees who are not being paid. It appears, however, that this nonpayment of salaries will not effect employee benefits such as health insurance and retirement benefits. A letter by Sheldon Silver to legislative employees notes that according to the Civil Service Department and State Comptroller's Office all deductions for health and retirement benefits will be taken as soon as the Governor allows paychecks to resume. Pltf. Exh. at Affidavits Section; see also Pltf. Exh. B.

 Under Article VII, § 5 of the New York State Constitution, in the absence of action on all the appropriation bills submitted by the Governor, the legislature may not consider any other appropriation bill "except on message from the governor certifying to the necessity of the immediate passage of such a bill." Therefore, without the Governor's consent by way of a message of necessity, the legislature has no power to appropriate money for the salaries of the legislative employees. Governor Pataki has repeatedly stated that he would not request an appropriation for the payment of such salaries and would not sign a bill providing for such salaries. Thus, plaintiffs contend that he will not issue a message of necessity for a special appropriation bill providing for such payment. Plaintiffs assert that Governor Pataki has been 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 ...

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