Hagan et al v. Quinn et al
Filing
12
OPINION denying 2 Motion for Preliminary Injunction. Entered by Judge Sue E. Myerscough on 7/29/2011. (CT, ilcd)
E-FILED
Friday, 29 July, 2011 04:07:18 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KATHLEEN A. HAGAN, JOSEPH PRIETO,
RICHARD A PETERSON, PETER AKEMANN,
and GILBERTO GALICIA,
Plaintiffs,
v.
PATRICK J. QUINN, Governor of Illinois,
MITCH WEISZ, Chairman of the Illinois
Workers’ Compensation Commission,
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MARIO BASURTO, KEVIN LAMBORN,
YOLAINE DAUPHIN, NANCY LINDSAY,
JAMES DEMUNNO, MOLLY MASON,
DAN DONOHOO, THOMAS, TYRRELL, and
DAVID GORE, Commissioners of the Illinois
Workers’ Compensation Commission,
Defendants.
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No. 11-3213
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OPINION
SUE E. MYERSCOUGH, United States District Judge.
On July 12, 2011, Plaintiffs, Kathleen A. Hagan; Joseph V. Prieto;
Richard A. Peterson; Peter Akemann; and Gilberto Galicia, all of whom
are arbitrators on the Illinois Workers Compensation Commission
(Commission), filed a three-count Complaint pursuant to 42 U.S.C. §
1983 against Defendants Patrick J. Quinn, the Governor of Illinois;
Mitch Weisz, the Chairman of the Commission; and the following
commissioners: Mario Basurto; Kevin Lamborn; Yolaine Dauphin; Nancy
Lindsay; James Demunno; Molly Mason; Dan Donohoo, Thomas Tyrrell;
and David Gore. Plaintiffs filed the Complaint after the enactment of
Public Act 97-18, signed into law by Governor Quinn on June 28, 2011,
which contained reforms to the Workers Compensation Act (Act) (820
ILCS 305/1, et seq.).
One of the provisions of the new legislation provided that Plaintiffs’
terms of office as arbitrators expired effective July 1, 2011. In Count I of
the Complaint, Plaintiffs allege that their due process rights were violated
by the legislation because they were deprived of a property interest in
their jobs without due process of law.
Plaintiffs also filed a Motion for Preliminary Injunction based on
the alleged denial of their property interest in their jobs as arbitrators.
Plaintiffs have asked this Court to grant them a preliminary injunction
prohibiting Defendants from removing them from office or from
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appointing anyone to those terms of office pending trial in this cause.
This Court held an evidentiary hearing on July 28, 2011, on the
Motion for Preliminary Injunction. At the hearing, the parties tendered
an Amended Stipulation (Joint Exhibit No. 1, d/e 11) of facts solely for
the purpose of the hearing.
Based on the pleadings, the Amended Stipulation, and arguments
made at the hearing, this Court denies the Motion for Preliminary
Injunction. Plaintiffs have failed to demonstrate: (1) a likelihood of
success on the merits; (2) they have no adequate remedy at law; and (3)
irreparable harm will be suffered if the preliminary injunction is not
granted. Further, even if Plaintiffs had demonstrated some likelihood of
success on the merits, no adequate remedy at law, and irreparable harm,
the balance of factors do not heavily weigh in Plaintiffs’ favor. Despite
the Plaintiffs’ unfortunate plight, Plaintiffs are not entitled to a
preliminary injunction for these reasons.
I. FACTS
The following facts are taken from the parties’ Amended
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Stipulation and the Complaint.
Plaintiffs are all arbitrators under the Act. Hagan was appointed to
the position of arbitrator effective July 1989, and Galicia was appointed
in 1984. Hagan’s and Galicia’s appointments, in accordance with State
law at the time, had no set termination date and they served under the
protections of the Illinois Personnel Code (20 ILCS 415/1, et seq.),
including that they could only be removed for just cause.
Prieto, Peterson, and Akemann were appointed subsequent to 1989
and reappointed at various points thereafter for six-year terms. Prieto
was last appointed in 2008, Peterson in 2009, and Akemann in 2006.
Their appointments, in accordance with State law at that time, had the
protections of the Illinois Personnel Code, including protection that they
could only be removed for just cause during their six-year term.
After July 2005 and until the recent reform, the Act provided that
arbitrators were appointed to specific terms of office subject to
reappointment:
Each arbitrator appointed after the effective date
of this amendatory Act of 1989 shall be appointed
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for a term of 6 years. Each arbitrator shall be
appointed for a subsequent term unless the
Chairman makes a recommendation to the
Commission, no later than 60 days prior to the
expiration of the term, not to reappoint the
arbitrator. Notice of such a recommendation shall
also be given to the arbitrator no later than 60
days prior to the expiration of the term. Upon
such recommendation by the Chairman, the
arbitrator shall be appointed for a subsequent term
unless 8 of 10 members of the Commission,
including the Chairman, vote not to reappoint the
arbitrator.
820 ILCS 305/14. Public Act 97-18 removed this provision and added
the following:
Notwithstanding any other provision of this
Section, the term of all arbitrators serving on the
effective date of this amendatory Act of the 97th
General Assembly, including any arbitrators on
administrative leave, shall terminate at the close of
business on July 1, 2011, but the incumbents shall
continue to exercise all of their duties until they
are reappointed or their successors are appointed.
The parties stipulated that Plaintiffs continue to serve until their
successors are duly appointed. The parties further stipulated that
Plaintiffs may apply for the positions and, therefore, may be the
successors. The amendments made pursuant to Public Act 97-18 also
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provided for three-year terms and required that all arbitrators who had
not previously served as arbitrators be authorized to practice law in
Illinois.
The Act, as amended, still provides that “[a]ll arbitrators shall be
subject to the provisions of the Personnel Code,” but now also states:
“The changes made to this Section by this amendatory Act of the 97th
General Assembly shall prevail over any conflict with the Personnel
Code.”
The parties stipulated that Plaintiffs have not been given notice of
any charges that would constitute legal cause for terminating their
employment. No such charges are pending against Plaintiffs.
II. LEGAL STANDARD
“[A] preliminary injunction is an extraordinary and drastic remedy,
one that should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (citation omitted). A party seeking a preliminary injunction
must initially demonstrate: (1) some likelihood of succeeding on the
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merits; (2) no adequate remedy at law exists; and (3) irreparable harm if
preliminary relief is denied. Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of the United States of America, Inc., 549 F.3d 1079, 1086 (7th
Cir. 2008). If the moving party does not demonstrate any one of these
three initial requirements, the request for a preliminary injunction must
be denied. Id.
If, however, the party has met the initial threshold, the Court then
“weighs the irreparable harm that the moving party would endure
without the protection of the preliminary injunction against any
irreparable harm the nonmoving party would suffer if the court were to
grant the requested relief.” Id. When balancing the harms, the Court
employs a sliding-scale approach. See Roland Machinery Co. v. Dresser
Industries, Inc., 749 F.2d 380, 388 (7th Cir. 1984). That is, the greater
the movant’s chance of success, the less strong of a showing the movant
must make that the balance of harms is in the movant’s favor, and vice
versa. Id. at 387. In balancing the harm to each party, the Court should
also consider the public interest. Judge v. Quinn, 612 F.3d 537, 546 (7th
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Cir. 2010), opinion am’d on denial of reh’g by 387 Fed.Appx. 629 (7th
Cir. 2010).
Whether to grant a preliminary injunction is within this Court’s
discretion. Ashcroft v. American Civil Liberties Union, 542 U.S. 656,
664 (2004) (noting that the Supreme Court and appellate courts review
preliminary injunctions for an abuse of discretion); but see, Roland, 749
F.2d 380; (discussing whether the abuse-of-discretion standard is
appropriate, ultimately concluding the trial court committed clear factual
and legal errors by granting the motion for a preliminary injunction).
III. ANALYSIS
Plaintiffs assert that by virtue of the Personnel Code and the Act as
it existed prior to Public Act 97-18, Plaintiffs have a protected property
interest in their employment as arbitrators. Plaintiffs seek an injunction
prohibiting Defendants from wrongfully removing Plaintiffs from office
in a manner that deprives them of their property interest without due
process of law.
A.
Likelihood of Success on the Merits
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To establish a likelihood of success on the merits, Plaintiffs must
demonstrate that they have “some prospect of prevailing on the merits.”
Hoosier Energy Rural Elec. Co-Op., Inc. v. John Hancock Life Ins. Co.,
582 F.3d 721, 730 (7th Cir. 2009). When determining the likelihood of
success on the merits in a preliminary injunction action, the Court is not
deciding the merits of the case. See Government Suppliers Consolidating
Services, Inc. v. Bayh, 734 F.Supp. 853, 869 (S.D. Ind. 1990). A
determination that a movant has shown a likelihood of success on the
merits “is merely a decision that the suit has enough merit–which need
not be great merit–to justify an order that will freeze the situation, in the
plaintiff's favor, for such time as it may take to determine whether the
suit is, or is not, meritorious.” Ayres v. City of Chicago, 125 F.3d 1010,
1013 (7th Cir. 1997).
“To succeed in a Section 1983 action, [a plaintiff] must establish
that the conduct complained of was carried out under color of state law
and that this conduct deprived him of rights, privileges[,] or immunities
guaranteed by the Constitution or laws of the United States.” Bordelon
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v. Chicago School Reform Board of Trustees, 8 F.Supp.2d 779, 786
(N.D. Ill. 1998). The Due Process Clause of the Fourteenth Amendment
forbids a state to deprive any person of “life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1.
Plaintiffs assert they have demonstrated a likelihood of success on
the merits because: (1) they have a property interest in their positions
because they were appointed to their offices subject to the protections of
the Personnel Code, which provides they cannot be fired except on just
cause; and (2) their property interest was taken without due process by
the enactment of Public Act 97-18.
Defendants assert Plaintiffs cannot show a likelihood of success on
the merits because the Eleventh Amendment bars Plaintiffs’ claim for
injunctive relief. Defendants also argue that the legislature could
constitutionally alter Plaintiffs’ terms in office without violating
Plaintiffs’ due process rights.
1.
Eleventh Amendment
Plaintiffs sued Defendants in their official capacity for injunctive
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relief. A suit against a state official in his official capacity is a suit against
the State. Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000). A suit
against the State, or state official in his official capacity, is barred by the
Eleventh Amendment unless: (1) Congress has abrogated the State’s
immunity from suit, (2) a State has waived its immunity and consented
to suit, or (3) the suit is one for prospective injunctive relief pursuant to
Ex Parte Young, 209 U.S. 123, 15-60 (1908). Sonnleitner v. York, 304
F.3d 704, 717 (7th Cir. 2002).
The only of these exceptions at issue here is whether the suit is one
for prospective injunctive relief. To determine whether this exception
applies, “a court need only conduct a ‘straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and
seeks relief property characterized as prospective.’” Verizon Maryland,
Inc. v. Public Service Com’n of Maryland, 535 U.S. 635, 645 (2002),
quoting Idaho v. Coeur d’Alene Tribe of Idaho 521 U.S. 261, 296
(1997) (O’Connor, J., joined by Scalia and Thomas, JJ., concurring in
part and concurring in the judgment).
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Defendants argue that the alleged violation of due process is not an
ongoing violation. In support thereof, Defendants cite Sonnleitner v.
York, 304 F.3d 704, 718 (7th Cir. 2002), which held that the “underlying
procedural due process claim” could not be “reasonably construed as
‘ongoing.’” The Seventh Circuit noted that, even assuming the plaintiff’s
constitutional rights were violated, the violation was not the demotion
but the fact that the demotion occurred without an adequate opportunity
to be heard. Id., 304 F.3d at 718. The Seventh Circuit found this was a
past violation, not an ongoing one. Id., 304 F.3d at 719. See also In
Garcia v. Illinois State Police, 2006 WL 2191341, *3 (C.D. Ill. 2006)
(denial of pretermination hearing cannot give rise to a procedural due
process claim under Ex parte Young).
However, at least one court has distinguished Sonnleitner.
In Kinney v. Anglin, 2011 WL 1899345, *7 (C.D. Ill. 2011), the court
noted that in Sonnleitner, the plaintiff was ultimately given the
opportunity to refute the claims against him and a personnel commission
determined his demotion was found improper. Kinney, 2011 WL
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1899345, at *7. The Kinney court also noted that “the Seventh Circuit
has continued to indicate that when an individual’s termination or
dismissal directly violates a federal constitutional guarantee, he may
maintain a suit for reinstatement.” Kinney, 2011 WL 1899345, at *7;
See also, Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000) (“an
injunction that orders a state employee who has been demoted because of
his exercise of a federally protected right to be restored to his previous
position is not barred by the Eleventh Amendment even though it
imposes a salary obligation on the state”).
Nonetheless, this issue is more appropriately raised in a Motion to
Dismiss. For purposes of the Motion for Preliminary Injunction only,
this Court finds that the Eleventh Amendment does not bar the claim.
2. Count I: Property Interest
In Count I, Plaintiffs claim that Defendants violated their rights to
due process. Plaintiffs assert they have shown a likelihood of success on
the merits on Count I because there was no cause for their removal.
Essentially, Plaintiffs are claiming that the General Assembly could not
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amend the Act to terminate their employment.
This Court must first determine whether Plaintiffs have shown a
likelihood of demonstrating they have a property interest in their
employment. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.
1996) (court must ascertain whether the plaintiff had been deprived of a
protected property interest and, if so, what process is constitutionally
due); Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir. 1992) (“To
recover on a procedural due process claim, a plaintiff must prove that he
has a protectible interest in his employment”). Property interests in
employment “are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as
state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985). In Illinois, “[a] person has a property interest in his job where he
has a legitimate expectation of continued employment . . . based on a
legitimate claim of entitlement.” Draghi v. County of Cook, 184 F.3d
689, 692 (7th Cir. 1999), quoting Faustrum v. Board of Fire & Police
Comm’rs., 240 Ill. App. 3d 947, 949 (1993). A legitimate expectation of
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employment may come from an ordinance, State law, or contract that
limits the ability of the government agency to discharge him. Faustrum,
240 Ill. App. 3d at 949.
Plaintiffs have shown a strong likelihood that they had a property
interest in their employment. The Personnel Code–which the Act
specifically indicates applies (820 ILCS 305/14)– allows for termination
only for cause. See 20 ILCS 415/11. Courts generally find that a public
employee who cannot be discharged absent cause has a property interest
in his employment. See Loudermill, 470 U.S. at 538-39 (1985) (Ohio
employees classified as civil service employees who could only be
dismissed for misfeasance had a property right in continued
employment); Gorman, 977 F.2d at 356-57 (finding protectible property
interest where the housing authority employee could only be terminated
for just cause).
However, even though Plaintiffs had a property interest in
continued employment before the amendment, they cannot show a
strong likelihood of success on the merits because the legislature has the
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power to legislatively change the duration of employment and the
legislative process provided Plaintiffs with all the process they were due.
“The presumption is that laws do not create private contractual or
vested rights, but merely declare a policy to be pursued until the
legislature ordains otherwise.” People ex rel., Sklodowski v. State of
Illinois, 182 Ill. 2d 220, 232 (1998) (involving a funding provision in the
Pension Code)1. “There is no vested right in the mere continuance of a
law.” Id.; see also Grobsmith v. Kempiners, 88 Ill. 2d 399, 404-05
(1982) (“civil service status is not a vested right”). There is “no
constitutional impediment to the power of the General Assembly to
change the duration of the term of appointments or the method of fixing
the time when presently existing terms would terminate.” Id. The
General Assembly, having enacted a statute that created a right, “retains
the power to enact new legislation altering or eliminating the right, and
Different rules apply to State contracts. “The legislature can by amending the
statute eliminate the property right; but if the statute created a contract right against
the state, then the amendment would impair the obligations of contract.” See
Pittman v. Chicago Bd. of Educ., 64 F.3d 1098, 1104 (1995) (noting that “a statute
is not presumed to create contractual rights”).
1
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that elimination does not contravene the Due Process [Clause].” Story v.
Green, 978 F.2d 60, 63 (2nd Cir. 1992), citing Atkins v. Parker, 472 U.S.
115, 129 (1985); see also Gattis v. Gravett, 806 F.2d 778, 781 (1986)
(finding that the plaintiffs were not entitled to any procedural
protections when they were discharged because the legislature had
terminated or extinguished the property interest previously conferred).
In fact, the legislative process gives Plaintiffs all the process to
which they are due. For instance, in Fumarolo v. Chicago Bd. of Educ.,
142 Ill. 2d 54, 107 (1991), the Illinois Supreme Court found the
plaintiffs had a property interest in continued employment due to state
law and the reiteration of state law by the Board. Therefore, the
plaintiffs were entitled to due process before their permanent tenure was
reduced to term employment. However, the court found that “the
legislative process itself created all the procedural safeguards necessary to
provide the plaintiffs with due process.” Fumarolo, 142 Ill. 2d at 107.
Plaintiffs cite East St. Louis Federation of Teachers, Local 1220,
American Federation of Teachers, AFL-CIO v. East St. Louis School Dist.
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No. 189 Financial Oversight Panel, 178 Ill. 2d 399 (1997), in support of
their position that the legislature could not divest them of their property
interest. This Court finds that case distinguishable, however, because
there the statute in question did not, in and of itself, extinguish or
terminate the plaintiffs’ term of office. East St. Louis, 178 Ill. 2d at 405
(statute gave oversight panel the authority to remove school board
members from their office for failure to follow a valid order of the panel).
That statute gave the authority to do so to an oversight panel. East St.
Louis, 178 Ill. 2d at 405. The Illinois Supreme Court determined that
when the oversight panel exercised its power to terminate the plaintiffs’
term of office, the panel must afford the office holders due process. East
St. Louis, 178 Ill. 2d at 419. Further, in East St. Louis, the legislation
did not constitute due process because the legislature did not interfere
with the property right. In contrast, here, the legislation itself ended
Plaintiffs’ terms of office and constituted all the process to which
Plaintiffs were due. See Fumarolo, 142 Ill. 2d at 107 (finding the
legislative process itself created all the procedural safeguards necessary to
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provide the plaintiffs with due process).
An exception to the legislative process itself providing sufficient due
process applies if the legislative process was arbitrary or irrational. See
Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982) (a federal
interest remains in “protecting the individual citizen from state action
that is wholly arbitrary and irrational)(internal citations omitted). As
stated in Conway v. Sorrell, 894 F.Supp. 794, 802 (D. Vt. 1995):
[A]s the United States Supreme Court indicated in
Logan, the principle that the legislative
determination satisfies due process is not
necessarily true if due process is invoked to
“protect[ ] the individual citizen from state action
that is wholly arbitrary or irrational.” 455 U.S. at
433, 102 S.Ct. at 1156 (emphasis added).
Similarly, the Atkins Court indicated that the
general rule would not apply if the claimant
questioned the procedural fairness of an individual
determination and alleged that the legislative
process itself had been somehow defective. 472
U.S. at 129, 130, 105 S.Ct. at 2528, 2529.
Id. (finding question of fact remained whether the legislature was “merely
making a general policy decision” when it converted their jobs from
“classified” to “exempt” status); see also Story, 978 F.2d at 63 (citing
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Atkins and reiterating that general rule that the legislature can alter or
eliminate a right previously conferred applies “absent any indication of
some defect in the legislative process”)2.
Plaintiffs have not yet identified evidence suggesting that a defect
in the legislative process occurred or that the enactment of Public Act 9718 was anything more than a general policy decision. Therefore, for
purposes of the Motion for Preliminary Injunction, Plaintiffs have not
shown a likelihood of success on the merits.
B. Irreparable Harm and Inadequate Remedy at Law
To obtain a preliminary injunction, the movant must “establish
that it will be irreparably harmed if it does not receive preliminary relief,
and that money damages and/or an injunction ordered at final judgment
This analysis is similar to the reorganization rule. See Schulz v. Green
County, State of Wisc.,
F.3d , 2011 WL 2864429, *2 (7th Cir. 2011) (“When a
government eliminates an employee’s position in connection with a ‘legitimate
governmental reorganization,’ . . . the employee is not entitled to notice or a hearing”;
however, if the reorganization affects only one person or a small number of
individuals, a court may examine whether the reorganization was designed to harm a
specific employee or small number of employees). At this stage in the proceedings, no
evidence has been presented that the legislation constituted an unlawful
governmental reorganization.
2
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would not rectify that harm.” Abbott Laboratories v. Mead Johnson &
Co, 971 F.2d 6, 16 (7th Cir. 1992). As stated in Roland Machinery, 749
F.2d at 386:
The absence of an adequate remedy at law is a
precondition to any form of equitable relief. The
requirement of irreparable harm is needed to take
care of the case where although the ultimate relief
that the plaintiff is seeking is equitable, implying
that he has no adequate remedy at law, he can
easily wait till the end of trial to get that relief.
Money damages may be insufficient where (1) the plaintiff is so poor he
would be harmed in the interim by the loss of the monetary benefits, (2)
the plaintiff would be unable to finance the lawsuit without the money
he wishes to recover, (3) damages from the defendant would be
unobtainable because the defendant will be insolvent prior to the final
judgment, and (4) the nature of the plaintiff’s loss may make damages
difficult to calculate. Id., 749 F.2d at 386.
Plaintiffs assert they have no adequate remedy at law and will suffer
irreparable harm because (1) their positions are a form of public office,
“far more than mere employment” and (2) the delay in restoring them to
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their positions affects their docket of pending cases and would delay and
interrupt the claims of workers. Plaintiffs also assert they are “vulnerable
to suddenly being removed from office (and not being paid) while at the
same time being unable to secure other employment due to the risk that
such action would be used in a new attempt to remove [them] from office
for ‘neglect of duty’.”
Defendants respond that–while not conceding that Plaintiffs are
entitled to an award of damages–damages would be an adequate remedy
at law. Defendants also assert that no irreparable harm would occur here
without an injunction. Plaintiffs are still working as arbitrators and have
been encouraged to apply for reappointment. If they are not
reappointed, they can look for new employment. According to
Defendants, any assertion that they will not be reappointed is
speculative. Defendants further argue that, if Plaintiffs are not
reappointed, no delay will occur in their cases because the parties can
stipulate to the record of evidence being submitted to a new judge or the
case can be retried before a new judge.
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“The Supreme Court set a high standard for obtaining preliminary
injunctions restraining termination of employment in Sampson v.
Murray, 415 U.S. 61 (1974).” Bedrossian v. Northwestern Memorial
Hospital, 409 F.3d 840, 845 (7th Cir. 2005) (finding the district court
did not abuse its discretion in finding the plaintiff failed to show
irreparable harm where the plaintiff alleged lost income and damaged
reputation). More than speculation of irreparable harm is necessary to
afford a party preliminary injunctive relief. See Matta-Ballesteros ex rel.
Stolar v. Henman, 697 F.Supp. 1036, 1038 (S.D. Ill. 1988). In addition,
inability to find another job is not irreparable harm. Bedrossian, 409
F.3d at 846.
The damages Plaintiffs are likely to suffer if they are removed from
their positions and not reappointed are compensable by money damages.
Plaintiffs have not met their burden of showing that non-economic
damages that they might suffer–such as a loss of seniority–would not be
compensable. See, e.g., Bordelon, 8 F. Supp. 2d at 789 (reassignment of
principal to an administrative position resulted in irreparable injury
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where the court found that non-economic benefits associated with his
position as principal would not be compensable through an award of
money damages); Ardito v. City of Providence, 263 F.Supp.2d 358, 372
(D.R.I. 2003) (finding the police academy applicants demonstrated
irreparable injury where they would lose seniority rights and seniority
affected job assignments, vacation selection, promotions, and layoffs;
court found it would be virtually impossible to measure the value of
seniority).
This Court recognizes that money damages are not an adequte
remedy for some constitutional violations. See Campbell v. Miller, 373
F.3d 834, 835 (7th Cir. 2004) (concerning Fourth Amendment
unreasonable search claim; cautioning against the assumption “that
money damages never is an adequate remedy for a constitutional
wrong”); Milwaukee County Pavers Ass'n v. Fiedler, 707 F.Supp. 1016,
1032 (W.D. Wis. 1989) (involving equal protection violation and noting
“[w]here violations of constitutional rights are alleged, further showing of
irreparable injury may not be required if more than merely money is at
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stake”); Jessen v. Village of Lyndon Station, 519 F.Supp. 1183, 1189
(W.D. Wis. 1981) (finding irreparable harm where even if the plaintiff
who was summarily fired ultimately prevails, he will have lost his
constitutional right to a pretermination hearing). However, even in a
procedural due process claim, “there is no harm where the injury is
ultimately redressable through monetary compensation.” Hamlyn v.
Rock Island County Metropolitan Mass Transit Dist., 960 F.Supp. 160,
163 (C.D. Ill. 1997) (involving an exclusion from a mass transit reduced
fare program).
Moreover, this Court has found, for purposes of the Motion for
Preliminary Injunction, that Plaintiffs likely received all the process they
were due through the legislative process. As such, they were not likely
entitled to a pretermination hearing. Oburn v. Shapp, 521 F.2d 142,
151 (3rd Cir. 1975) (allegation that the plaintiffs had been irreparably
harmed by the denial of Fourteenth Amendment rights was not
compelling where serious doubt existed regarding the validity of the legal
premise underlying the claim of a constitutional deprivation). This Court
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finds that Plaintiffs have not demonstrated that they have no adequate
remedy at law or that they will be irreparably harmed absent a
preliminary injunction.
C. Balancing of the Harms
Because Plaintiffs have not shown a likelihood of success on the
merits, irreparable harm, and no adequate remedy at law, this Court need
not balance the harms. See Girl Scouts of Manitou Council, Inc., 549
F.3d at 1086 (only if the party has shown a likelihood of success on the
merits, irreparable harm, and no adequate remedy at law does the court
balance the harms). However, even if Plaintiffs had shown some
likelihood of success on the merits, irreparable harm, and no adequate
remedy at law, the balance of harms does not strongly favor Plaintiffs.
When balancing the harms, this Court must weigh the irreparable
harm that Plaintiffs would endure without the protection of the
preliminary injunction against any irreparable harm Defendants would
suffer if the Court were to grant the requested relief. See Roland
Machinery, 749 F.2d at 388. The greater Plaintiffs’ chance of success,
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the less strong of a showing Plaintiffs must make that the balance of
harms is in Plaintiffs’ favor and vice versa. Id., 749 F.2d at 388.
Plaintiffs argue the balance of the harms favors Plaintiffs because
the remedy at law would be inadequate and no significant harm would
result to Defendants. Plaintiffs assert that, if the injunction is not
granted, the Governor will fill the positions with other candidates.
Plaintiffs also assert the public interest favors granting the preliminary
injunction because claimants and employers have an interest in assuring
that decisions of the Commission are final and not called into question
on the basis of the authority of the arbitrator.
Defendants argue the integrity of the Workers’ Compensation
Commission is at stake. According to Defendants, Plaintiffs are asking
the Court to stay a part of a comprehensive package of changes that the
General Assembly believed was in the public interest.
The public has an interest in the Court enjoining unconstitutional
legislation. Back v. Carter, 933 F. Supp. 738, 761 (N.D. Ind. 1996).
However, this Court has determined, for purposes of the Motion for
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Preliminary Injunction, that the legislation is likely constitutional. In
these circumstances, this Court is hesitant to usurp the power of the
legislature. See, e.g., McKeown v. Pacheko, 2011 WL 1335199, *2
(D.S.C. 2011) (denying preliminary injunction, finding the plaintiff
could not “justify the public harm that would occur if the court were to
usurp prison medical personnel decision making”).
Because Plaintiffs can only show, at most, a small likelihood of
success on the merits, the balance of harms must weigh heavily in their
favor. Plaintiffs cannot meet that burden.
IV. CONCLUSION
For these reasons, Plaintiffs’ Motion for Preliminary Injunction (d/e
2) is DENIED. IT IS SO ORDERED.
ENTERED: July 29, 2011
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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