petitions. Although these regulations are not directly applicable
in this proceeding, the Secretary argues that they are
instructive, so I will briefly describe them here.
An individual seeking a "Certification of Exemption" from the
Commission must submit a sworn application including, inter
alia, a list of disqualifying convictions; a description of the
position for which a certificate is sought; and a "full
explanation of the reasons or grounds relied upon to establish
that the applicant's service in the office or employment for
which a Certificate of Exemption is sought would not be contrary
to the purposes of the applicable Act." 28 C.F.R. § 4.3. In
addition, the applicant is required to submit a list of all
felony and misdemeanor arrests and convictions; a statement as to
whether he has ever been on probation or parole; a description of
positions he has held with labor organizations or employee
benefit plans; and detailed financial information. See id. §
4.4. The applicant must also submit six letters regarding his
character and reputation. See id. § 4.5. Those letters may not
come from relatives, prospective employers, or anyone associated
with a labor organization or employee benefit plan. See id.
The Commission will hold a hearing on applications (unless all
parties agree to waive it), at which the applicant is required to
testify. See id. §§ 4.10, 4.11(a). Other witnesses may appear
if the Commission, in its discretion, allows it. See id. §
4.11(c). The applicant has a right to cross-examine any witnesses
testifying against him; the Secretary and any prosecutor opposing
the application may also cross-examine witnesses and present
evidence. See id. § 4.11(b). If, after these proceedings, the
Commission issues a Certificate of Exemption, it will "extend
only to the stated employment with the prospective employer named
in the application." See id. § 4.15.
B. The Procedure to Be Followed in This Case
Carollo seeks an immediate declaration from the Court based on
the current record. I refuse the request for several reasons.
First, although oral argument was held on the plaintiff's order
to show cause, no hearing has been held within the contemplation
of § 504. Moreover, the plaintiff did not request, and the Court
did not provide, the statutorily-required notice to the District
Attorney for Richmond County. See LMDRA § 504, 29 U.S.C. § 504.
Second, the plaintiff has not come forward with sufficient
information for me to make the required determination. Put
another way, if he chooses to rely on the current record in his
effort to "clear[ly] demonstrat[e]" his rehabilitation and
trustworthiness to hold the position of union delegate, his
application will be denied.
I have scheduled a hearing for April 20, 2000, at 2 p.m. I will
provide notice to the District Attorney for Richmond County.*fn2
So that the parties know what to expect, I will briefly describe
how I plan to proceed at the hearing.
The government argues, and I agree, that the Parole
Commission's regulations are instructive. However, I will not go
as far as the government suggests and require Carollo to complete
an application fitting the specifications of the Parole
Commission's regulations and then submit it to the Secretary for
consideration. The Court, not the Secretary, is vested with the
statutory responsibility of making this determination.
Generally, I will follow the procedures applicable to the
resolution of disputed factors at sentencings. See U.S.S.G. §
6A1.3. Carollo, who will bear the burden of persuasion, will make
the kind of evidentiary presentation that he believes will allow
him to carry that burden. He may
offer live testimony, affidavits, or both. Union and Benefit
Funds witnesses are not incompetent (as the government argues
they should be, in accord with 28 C.F.R. § 4.5), but their
testimony may deserve less weight than other witnesses. The
Secretary (and the District Attorney for Richmond County, should
he choose to participate) will also have an opportunity to offer
witness testimony and/or documentary evidence.*fn3 To the extent
live testimony is offered and permitted, each side will of course
have an opportunity to cross-examine the other's witnesses.
Carollo and the Secretary are directed to provide each other
with witness lists and copies of all exhibits on or before April
13, 2000, unless I direct otherwise.*fn4 The witness list
(copies of which should be provided to the Court) shall include a
brief description of each witness's expected testimony.
C. The Preliminary Injunction Application
In his order to show cause, Carollo requested a temporary
restraining order, which I denied. In his reply papers, he has
renewed the request. The order he requests would state that the
defendants are "enjoined and restrained from interfering in any
way with the rights of the Plaintiff in his capacity as a
delegate of the New York City District Council of Carpenters or
any other labor organization [or] with respect to his employment
at the New York City District Council of Carpenters Fringe
Benefit Fund." Since the defendants have had notice and an
opportunity to respond to Carollo's request, I will deem his
request as one seeking a preliminary injunction, rather than a
temporary restraining order. See Fed.R.Civ.P. 65(a). The
request is denied.
A party seeking a preliminary injunction must establish that
"1) absent injunctive relief, it will suffer irreparable harm,
and 2) either a) that it is likely to succeed on the merits, or
b) that there are sufficiently serious questions going to the
merits to make them a fair ground for litigation, and that the
balance of hardships tips decidedly in favor of the moving
party." Statharos v. New York City Taxi & Limousine Comm'n,
198 F.3d 317, 321 (2d Cir. 1999) (quoting Otokoyama Co. Ltd. v. Wine
of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999)).
However, when a party seeks an injunction "to prevent government
action taken pursuant to statutory authority, which is presumed
to be in the public interest, only the likelihood of success
standard applies." Id. (quoting Molloy v. Metro. Transp.
Auth., 94 F.3d 808, 811 (2d Cir. 1996)) (internal quotation
Carollo's application presents several potential problems,
including the following. First, the centerpiece of Carollo's
claim of irreparable harm is that he has lost his job at the
Benefit Funds, and the Benefit Funds is not a party. There is no
reason to believe that relief directed to the defendants here
will have any effect on Carollo's loss of employment. Second, to
the extent Carollo seeks injunctive relief against the
government, he seeks an order preventing it from enforcing § 504.
But § 504 is a criminal statute; the only means of enforcing it
is through prosecution under § 504(b). See United States v.
Jalas, 409 F.2d 358, 360 (7th Cir. 1969) ("[T]he sole remedy for
the complained-of wrong is criminal prosecution."). Therefore,
Carollo is effectively seeking an injunction against criminal
prosecution, an exceedingly difficult remedy to obtain because of
separation of powers concerns. See La-Rouche v. Webster,
566 F. Supp. 415, 417 (S.D.N.Y. 1983) ("The constitutional separation
of powers prevents the courts from interfering with the exercise
of prosecutorial discretion except under the rarest of
circumstances."). Moreover, he has not named any official at the
Department of Justice, which initiates criminal prosecutions, as
a defendant. Third, and dispositive here, is the requirement that
the plaintiff show irreparable harm. He alleges that his
suspension without pay and loss of benefits meets the standard. I
will assume without deciding that he has stated a sufficient
injury; he still fails to show irreparable injury because of his
delay in seeking relief. See Citibank, N.A. v. Citytrust,
756 F.2d 273, 276 (2d Cir. 1985) ("Preliminary injunctions are
generally granted under the theory that there is an urgent need
for speedy action to protect the plaintiffs' rights. Delay in
seeking enforcement of those rights, however, tends to indicate
at least a reduced need for such drastic, speedy action."). The
urgency of Carollo's application is entirely of his own making.
He could have sought a § 504 exemption before standing for
election as a union delegate in September 1999 or before going to
work for the Benefit Funds in December 1995. That he waited to
bring this application until he was found out disentitles him to
the extraordinary equitable remedy he seeks.
The plaintiff's request for a preliminary injunction is denied.
A hearing will be held on April 20, 2000, as described in this