The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
This action alleges that plaintiff wrongfully was denied recertification to the Assigned Counsel Plan's Criminal Courts Panel, commonly referred to as the 18B Panel. Plaintiff contends that the Screening Committee refused to recertify him to the 18B Panel solely due to his age and seeks redress under 42 U.S.C. § 1983, alleging violations of the Fourteenth Amendment of the United States Constitution, the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. § 621 et seq., and the New York Human Rights Law, N.Y. EXEC. L. § 296(1)(a) (McKinney 1994). Plaintiff moves for a preliminary injunction requiring his reinstatement pendente lite. Defendants move to dismiss the complaint under FED.R. CIV.P. 12(b)(6).
Plaintiff is a seventy-eight year old attorney who has been a member of the 18B Panel for the past twenty-five years. Membership on the 18B Panel allowed plaintiff to represent indigent defendants in criminal proceedings in the state courts and to be compensated by the state for his work.
On or about March 29, 1994, plaintiff completed and returned an application for recertification to the panel. Plaintiff never had been asked to apply for recertification before. On or about October 4, 1995, he was informed that his application had been denied. No rationale for the denial was advanced in the letter informing plaintiff of the Screening Committee's decision, and the Committee refused to disclose its reasoning, or plaintiff's file, upon later request of plaintiff's counsel. Plaintiff states that his "knowledge of the law, legal judgement, ability to prepare cases, vigor of advocacy, punctuality, candor with the court, or courtesy, had rarely if ever, been questioned." (Cpt P 21) He has submitted letters from a number of state court judges attesting to his character and competence.
As defendants' motion to dismiss is potentially dispositive, the Court considers it at the outset.
Defendants argue that plaintiff fails to state a valid claim because "the Eleventh Amendment to the United States Constitution bars suit against the State of New York in federal court, regardless of the relief sought." (Def.Mem.at 3) While the Eleventh Amendment bars suits against a state in federal court, it is well established that a federal court, in certain circumstances, may entertain an action by an individual for prospective injunctive relief against state officials. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). "[A] suit challenging the constitutionality of a state official's action is not one against the state." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).
Plaintiff's claim is excepted from the Eleventh Amendment under Pennhurst. An injunction ordering the heads of a government agency to reinstate a privilege enjoyed by a plaintiff is the sort of prospective injunctive relief that is not prohibited the Eleventh Amendment. Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985), modified, 793 F.2d 457 (2d Cir. 1986). The court in Dwyer held that "reinstatement is purely prospective injunctive relief that orders the state official to return the former employee to the state's payroll." Dwyer, 777 F.2d at 836; accord, Russell v. Dunston, 896 F.2d 664, 668 (2d Cir. 1990), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990) (quoting Dwyer and citing Edelman).
Thus, insofar as plaintiff's claim seeks to order defendants to reinstate him, it is not barred by the Eleventh Amendment.
Plaintiff claims that the defendants deprived him of his liberty and property without due process of law, in contravention of the Fourteenth Amendment. In order to prevail on his due process claim, plaintiff must show that he had a constitutionally protected liberty or property interest and that his protected interest was violated by the defendants' actions. Though plaintiff undoubtedly has a great personal interest in continued certification to the 18B Panel, it is not the magnitude but the type of interest that controls the determination of a due process claim. There is a well developed body of case law ...