Cheeseman v. Carey

623 F.2d 1387, 104 L.R.R.M. (BNA) 3165
CourtCourt of Appeals for the Second Circuit
DecidedJuly 17, 1980
DocketNo. 1182, Docket 80-7142
StatusPublished
Cited by6 cases

This text of 623 F.2d 1387 (Cheeseman v. Carey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheeseman v. Carey, 623 F.2d 1387, 104 L.R.R.M. (BNA) 3165 (2d Cir. 1980).

Opinion

FRIENDLY, Circuit Judge:

This action was brought by employee members of the Security Services Unit of the New York Inspection, Security and Law Enforcement Employees, District Council 82, to enjoin the State, on federal constitutional grounds, from deducting from their wages the penalty for strikes provided by § 210 of the New York Civil Service Law, commonly known as the Taylor Law.1 [1389]*1389Some 6,500 members of the 11,000 member Unit were determined to have engaged in a work stoppage lasting 16 days in April and May, 1979, which, as the district court found, had caused considerable disruption, particularly in prisons, and had required the mobilization of the National Guard. Class certification was granted. F.R.Civ.P. 23(c)(1). The complaint focused on the lack of a pre-deduction hearing to determine whether an employee’s absence from work on a particular day or days was in fact due to his having engaged in a strike declared illegal by the Taylor Law, § 210(2)(g). Plaintiffs have also brought two actions in the New York courts to challenge the proposed deductions, in which they have refrained from raising federal constitutional claims.2

The present action was instituted against a background of challenges to the Taylor Law, all predicated on substantially the [1390]*1390same grounds, which stretches back to 1972.3 In an action initially entitled Sanford v. Rockefeller, 32 N.Y.2d 788, 298 N.E.2d 681, 345 N.Y.S.2d 543 (1973), the New York Court of Appeals affirmed an order of the Appellate Division rejecting a constitutional challenge to the deduction procedure, 40 A.D.2d 82, 337 N.Y.S.2d 688 (3d Dep’t 1972). The Supreme Court, sub nom. Sanford v. Wilson, 416 U.S. 977, 94 S.Ct. 2377, 40 L.Ed.2d 755 (1974), vacated the judgment of the Court of Appeals and remanded for further consideration in light of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). On remand the Court of Appeals, in a thorough opinion by Judge Gabrielli, adhered to its determination, with one judge dissenting, 35 N.Y.2d 547, 324 N.E.2d 113, 364 N.Y.S.2d 450 (1974). On a renewed appeal the Supreme Court dismissed “for want of substantial federal question”, Sanford v. Carey and Collins v. Carey, 421 U.S. 973, 95 S.Ct. 1972, 44 L.Ed.2d 465 (1975).4

Despite this the plaintiffs here moved on a broad front for a temporary injunction against the deductions. In an opinion filed on September 8, 1979, the district judge concluded that “it does not seem likely that plaintiffs will succeed on the merits of their more general claims”. He approved the reasoning in the Court of Appeals’ second Sanford decision and noted the Supreme Court’s dismissal of the appeal for want of a substantial federal question. This, as held in Hicks v. Miranda, 422 U.S. 332, 343-45, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223 (1975), was binding upon him in any event.5 He found no legal significance in plaintiffs’ primary attempts to distinguish Sanford: the arguments that the deprivations in that case were calculated on the basis of two strike days while the fines in the present action might be for an average of 12 strike days,6 and that the strike here at issue had involved more employees than the Sanford walk-out with the consequent probability that larger numbers of objections would be filed. However, he found possible merit in one of plaintiffs’ contentions, namely, that absent a pre-deduction hearing, due process might be violated by the combined effect of the magnitude of the deductions in this case, the likelihood of erroneous strike determinations, and the rapid pace of the penalty deductions (with [1391]*1391attendant harm to employee cash flow) that was seemingly mandated by the requirement that deductions be made not earlier than 30 days or later than 90 days after the chief executive officer of the appropriate department determines that an employee has struck illegally, § 210(l)(g).7 For reasons outlined in his opinion he entered an order allowing the State to deduct up to two days’ wages per pay period.8 Neither side appealed from this decision.

The issuance of the temporary injunction was followed by additional argument, presentation of evidence, and a further opinion, 485 F.Supp. 203, issued on March 11, 1980, which recited at the outset that:

[t]he parties have agreed that their submissions to date should be treated as complete, and that a final opinion and judgment is now appropriate,

id. at 206. After a scholarly discussion of several venue issues, not now before us, the March 11 opinion turned to defendants’ request for abstention. Although rejecting most of the grounds urged in support of this request,9 the district judge concluded that a recent state court decision, Local 2021 of Dist. Council 37 v. N.Y.C. Off-Track Betting Corp., Index No. 6065-79 (S.Ct.N.Y. Co., Nov. 11, 1979) (appeal pending), argued for Pullman -type abstention 10 from final determination of the narrow due process issue that had prompted his preliminary injunction, 485 F.Supp. at 220. He noted that a federal court had abstained from deciding a similar rate-of-deduction issue in the Off-Track Betting litigation, see Local 2021 of Dist. Council 37 v. N.Y.C. Off-Track Betting Corp., supra note 3, and that shortly thereafter, Justice Okin of the Supreme Court of New York County issued an opinion extending Taylor Law deductions over a period longer than the statutorily-prescribed 60-day interval, on the basis that principles of equity empowered New York courts “to ameliorate a harsh and unduly burdensome enforcement of a particular law,” Local 2021 of Dist. Council 37, supra, at 2. Judge Sofaer reasoned that if this holding were followed by other New York courts, it would eliminate the only potential due process claim against the Taylor Law enforcement provisions, and thus leave the federal courts with nothing to decide. He went on to say:

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 [1392]*1392federal courts to correct in this controversy, except perhaps on appeal from this ruling, which a dismissal should facilitate, [citation omitted.] 485 F.Supp. at 220.

Accordingly he dismissed the complaint “on the ground that it would be improper to decide the constitutional question presented.” Id. at 221. This appeal followed.

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Related

Wolkenstein v. Reville
694 F.2d 35 (Second Circuit, 1982)
Engblom v. Carey
522 F. Supp. 57 (S.D. New York, 1981)
Cheeseman v. Carey
623 F.2d 1387 (Second Circuit, 1980)

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Bluebook (online)
623 F.2d 1387, 104 L.R.R.M. (BNA) 3165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheeseman-v-carey-ca2-1980.