Detroit Police Lieutenants and Sergeants Association v. City of Detroit Police Department et al

Filing 22

OPINION AND ORDER denying 2 Motion for Preliminary Injunction. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Detroit Police Lieutenants and Sergeants Association,
Plaintiff,
v.

Case No. 12-cv-15296

City of Detroit Police Department and
Lamont Satchell,

Sean F. Cox
United States District Judge

Defendants.

_____________________________/
OPINION AND ORDER
DENYING PLAINTIFF DETROIT POLICE LIEUTENANTS AND SERGEANTS
ASSOCIATION’S MOTION FOR PRELIMINARY INJUNCTION
Before this Court is Plaintiff Detroit Police Lieutenants and Sergeants Association’s (“the
DPLSA”) Motion for Preliminary Injunction. In its motion, the DPLSA requests that this Court
declare the alleged confiscation of its members’ banked sick, comp, and leave time by the City of
Detroit Police Department and Lamont Satchell (“Satchell”), Labor Relations Director of the City
of Detroit’s Human Resource Department’s Labor Relations Division, unconstitutional and restore
those funds to its members. In the alternative, the DPLSA requests that this Court “place funds
necessary to remedy Plaintiff’s outstanding [constitutional] disputes aside in a neutral third party
escrow pending resolution of [a related grievance that it previously filed with the Michigan
Employment Relations Commission.]” (Docket No. 2, at 1–2.)

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This action was filed in this Court based on federal question jurisdiction over the DPLSA’s
constitutional claims. It is yet unclear how this Court has jurisdiction to issue a preliminary
injunction, pending the resolution of an arbitration proceeding in a state court, as the parties have
not provided any convincing case law suggesting otherwise. Even if this Court has subject matter
jurisdiction, the Court finds that DPLSA has not met its burden for this Court to issue a preliminary
injunction.
For the reasons that follow, this Court DENIES the DPLSA’s Motion for Preliminary
Injunction [Docket No. 2].
BACKGROUND
Although the Detroit Police Officer Association (the “DPOA”) is not a party to this action,
its collective bargaining agreement with the City of Detroit is relevant to this case.
In Article 33.N of the 1998-2001 Collective Bargaining Agreement between the City of
Detroit and the DPOA, the City of Detroit instituted a Deferred Retirement Option Program, which
read as follows:
Effective July 21, 2000, a Deferred Retirement Option Program (DROP) plan option
shall be made available as a retirement option with the following features:
1.

To participate in the program a member must have at least twentyfive (25) years of active service with the City as a member of the
Policemen and Firemen Retirement System . . . .

4.

A DROP accumulation account will be established with an outside
investment company chosen by the Union.

5.

The amount paid into the DROP accumulation account shall be 75%
of the member’s regular retirement allowance plus the annual
escalator (2.25% x the full regular retirement allowance x 75%).

6.

Once a member has chosen to place his/her DROP proceeds into the
DROP accumulation account, the member shall not be allowed to
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remove those funds until the member permanently retires.
7.

Upon permanent retirement, the member shall be given the right to
remove funds from the DROP accumulation account.

8.

When a member permanently retires, the member will receive a
regular retirement allowance calculated as if the member retired on
the day the DROP account started. The member’s retirement
allowance shall include all annual escalator amounts (2.25%) that
would have been added while the member was participating in the
DROP plan . . . .

10.

This program shall be effective only for as long as it is cost-neutral
to the City, provided however, that the DROP plan shall continue
during the pendency of proceedings, described below, designed to
restore the Plan to cost neutrality.

11.

If the City contends that the program is costing it money, including,
but not limited to making the City’s annual contribution to the P &
F Pension System higher than it would be if the DROP Plan was not
in effect, the parties, along with the Plan’s actuary as well as the
actuary appointed by the City, shall meet and confer in good faith
regarding the cost. If the parties are unable to reach an
understanding, the matter shall be submitted to a third, independent,
actuary . . . .

12.

In the event the DROP Plan cannot be changed to restore cost
neutrality, it shall be discontinued and participants shall have the
option of either (a) retiring, or (b) continuing active employment and
resuming participation in the regular retirement plan.

(Docket No. 19-7, at 7–8.)
On July 6, 2009, the DPOA filed a grievance with the Voluntary Labor Arbitration Tribunal
(“the VLAT”). The matter was referred to Umpire, George T. Roumell, Jr. (“Roumell”). Roumell
summarized the issues in that proceeding as follows:
Essentially, the grievance raised the issue as to whether there was a mutual
mistake as to the years of active service that was set forth in the signed 2004-2009
Agreement required before a member can participate in the [DROP] . . . plan option
set forth in the 2004-2009 Agreement. The grievance also addresses a dispute
between the parties over the payout rate for the accumulated sick time when an
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officer elects not to receive payment for their accumulated sick time at the time of
selecting the DROP Plan, but waits until the officer’s actual retirement to receive the
payout of accumulated time including sick time.
(Id. at 1–4.)
On or around November 12, 2009, Roumell issued an Opinion and Award, stating in relevant
part:
[T]his Umpire is persuaded that the proper rate of pay for all accumulated
(including available sick) time for an officer that selects the DROP plan but does not
cash out the accumulated time at the time of selecting the DROP plan and instead
banks the accumulated time until actual retirement is his/her prevailing rate of pay
at the time of actual retirement, not the rate at the time of selecting DROP.
AWARD
The grievance of the DPOA is granted in part and denied in part in that the
2004-2009 Agreement will not be reformed to reduce the DROP plan eligibility to
20 years of service from 25 years. However, the rate of payout of all accumulated
banked time including available sick time that is not cashed out or used to calculate
final average compensation at the time of DROP selection but cashed out upon the
officer’s actual retirement shall be paid at the officer’s prevailing rate of pay at the
time of the officer’s actual retirement, and not the officer’s rate at the time of the
DROP selection.
(Id. at 33.)
On November 20, 2009, Roumell received a letter from counsel for the DPOA, stating in
relevant part:
Dear Mr. Roumell: . . .
This is written on behalf of the Association to request that you schedule a
conference and, if appropriate, a hearing, to clarify an issue arising out of your
Opinion and Award in this case. The issue in question was discussed but not
contested in the above-captioned case but the Association believes the best interests
of the parties would be served through the issuance of a clarifying Supplemental
Award that would eliminate any potential misunderstandings.
In your decision your correctly observed, at pages 9 and 10, that an officer’s
options at the time of an election to participate in the DROP included either
‘cash[ing] out 100% of their accumulated time at their current rate’ or applying 25%
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of their accumulated time toward computing of their average final compensation
used to compute the computation of their ‘average final compensation used to
compute the officer’s service pension of his/her retirement allowance’ and cashing
out the remaining 75% at the time of the DROP election. The third option is to keep
accumulated time banked and cash it out upon actual retirement; the later issue was
disputed and you resolved that issue.
As a consequence of the uncertainty concerning what you identified as the
third (and contested) option, when officers began to elect to participate in the DROP
beginning last summer, they were not in a position to make an election decision and
most did not. As a result of your ruling, officers are now able to make a fullyinformed decision and to the extent they did not do so when they elected to
participate in the DROP over the last several months they should now be given that
opportunity. Accordingly, the Association believes a Supplementary Award is
necessary to make it clear that officers who elected to DROP prior to the issuance
of your November 12, 2009 ruling must be given the opportunity to exercise their
right to cash out (with or without applying the 25% to the computation of AFC)
retroactive to the time of their DROP election . . . .
(Docket No. 19-8, at 3–4.)
The portions of Roumell’s November 12th Opinion and Award that counsel for the DPOA
cites in his letter are contained in the background section of the November 12th Opinion and Award,
and state as follows:
[As explained to the Umpire and set forth in Article 33.N, officers/members of the
Detroit Police Officer’s Association,] [a]t the time of a DROP selection, officers
have three options regarding accumulated time such as sick time, vacation time and
comp time. First, officers may elect to cash out 100% of their accumulated time at
their current pay rate. Second, officers may elect not to cash out the 25% of their
accumulated sick time, but cash out the remaining accumulated time at the officer’s
current rate, and have the 25% non-cashed out accumulated sick time included in the
average final compensation used to compute the officer’s service pension of his/her
retirement allowance. Lastly, an officer may elect not to cash out any of his/her
accumulated time, with only 25% of the accumulated sick time added to his/her
average final compensation for retirement calculations. Upon retirement, the officer
would receive a payout of the 75% accumulated time payout.
(Docket No. 19-7, at 9–10.)
On or around April 20, 2010, in order to remedy the concerns outlined in the letter, Roumell

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issued a Supplemental Award. In the Supplemental Award, Roumell recognized that:
the issue of rehearing or a conference with the Umpire initially arose when the
Association asked the Umpire to issue a statement stating that the Award was
retroactive. The reason for this is that the Award came out on November 12, 2009,
whereas the DROP Plan was implemented in either June or July 2009. Officers at
the time began electing to participate in the DROP Plan but, because there was no
decision on the rate to be assigned for accumulated sick leave at the time of
permanent retirement or actual retirement, whatever one wishes to call it, officers did
not know whether to elect to cash out accumulated sick time at the time of selecting
the DROP Plan or in some cases even whether to make a 25% contribution toward
the average final compensation. In fairness to the officers, the officers should have
the opportunity at this time, retroactively, to make a decision concerning their sick
time. The Supplemental Award that follows will so provide.
(Docket No. 19-8, at 18–19.)
The remedy that Roumell fashioned to address the officers’ concerns states in relevant part:
2. The Department or City shall notify any officer within (35) days of this
Award who has already elected to participate in the DROP Plan of a one-time
retroactive opportunity effective with the date of DROP election to cash out some or
all of the officer’s accumulated time/leave bank including sick leave as well as to
have 25% of the officer’s accumulated sick leave bank contributed toward
determining final average compensation. The notice shall be written notice to those
who had elected to participate in the DROP Plan and shall advise those officers that
such election shall be sixty (60) calendar days from the officer’s receipt of notice of
the opportunity to do so.
3. In the event an officer makes no election within the time limits set forth
herein, accumulated sick time/leave bank may not be cashed out until time of
permanent retirement.
4. The written notice required by this Award to be provided by the
Department shall advise officers who have or elect to participate in the DROP Plan
that they are entitled to elect one of the options set forth below at the time of DROP
election. Where an officer makes no election, subparagraph (b) shall apply.
Available options are:
(a)
elect to cash out 100% of accumulated time/leave banks at the then
current pay rate; or
(b)
decline to cash out any accumulated time/leave banks including sick
leave and wait to cash out accumulated time at the time of permanent
retirement (at the rate of pay the officer is receiving at the time of
permanent retirement); or
(c)
have 25% of accumulated sick leave bank included in average final
compensation for computation of the officer’s retirement allowance
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and either
(i)
retain other accumulated time/leave banks including sick
leave to be cashed out at the time of permanent retirement at
the rate of pay the officer is receiving at the time of
permanent retirement (not the rate at the time of DROP
election) or
(ii)

immediately cash out remaining accumulated time/leave
banks including sick leave at the rate of pay the officer is
receiving at the time of the DROP election.

(Id. at 20–21.)
Thus, during the VLAT proceeding, there was concern by various officers over the rate to
be assigned for accumulated sick leave at the time of retirement. The members were allegedly
confused over whether to cash out accumulated sick time or to make a contribution to their average
final compensation. (Docket No. 19, 4–5.) The Defendants contend that “[t]o address the officers
who were already DROP participants at the time of his April 2010 [Supplemental] [A]ward,
Roumell fashioned a remedy which allowed only these members a one time opportunity to cash out
their sick bank prior to retirement.” (Id.)
The Plaintiff in this action, DPLSA, was not a party to the aforementioned arbitration
proceedings. But, DPLSA members are subject to a similar collective bargaining agreement that
contains a DROP plan provision for its members. (See Docket No. 3-2, at 71.) The DPLSA has not
established whether or not the DPLSA is bound by the ruling of the VLAT.
On May 24, 2010, in compliance with the Supplemental Award, former Director of Labor
Relations, Joseph Martinico, sent a letter and an election form to all the unions who may have
members who will be affected by the temporary remedy outlined in the Supplemental Award,
including the DPLSA. The letter advised that any officer, who had already elected to participate in
the DROP, would be provided with a “one-time opportunity to make an election concerning the bank
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and accumulated time [that he or she] . . . had at the time . . . [he or she] elected to participate in the
Deferred Retirement Option Plan (DROP).” (Docket No. 19-9, at 2.) The letter further stated that
the officers have sixty days from the date of the letter to notify the City of Detroit Police and Fire
Retirement System of their election. (Id.)
The Election Form contains the following four options:
[1.]

Have all of my unused accumulated Sick Leave and all other
accumulated Banked Time Paid to me Now in the usual manner at the
current rate and rank. I understand that this will result in NOT
having the value of 25% of my unused Sick Leave On Retirement
benefit included in my Average Final Compensation calculation.

[2.]

Have NO unused accumulated Sick Leave and all other accumulated
Banked Time paid to me at this time. All accumulated and unused
Sick Leave and other Banked Time will be paid upon separation at
my then-current rate and rank.

[3.]

Have the value of 25% of my unused accumulated Sick Leave On
Retirement benefit included in my Average Final Compensation
calculation AND the remaining unused accumulated Sick Leave and
all other accumulated Banked Time paid out NOW at my current rate
and rank.

[4.]

Have the value of 25% of my unused accumulated Sick Leave On
Retirement benefit included in my Average Final Compensation
calculation AND the remaining unused accumulated Sick Leave and
all other accumulated Banked Time left in banks to be paid upon
separation at my then-current rate and rank.

(Docket No. 19-9.)
On or around November 16, 2012, City of Detroit Labor Relations Director, Lamont Satchel,
sent a letter to Junetta Wynn, President of the DPLSA, asserting as follows:
In accordance with your collective bargaining agreement, lump sum payments for
banked time, other than sick time, are paid out within thirty (30) calendar days of
separation. Pursuant to Article 35(L): Retirement and Death Sick Leave Payment sick leave payments are paid out immediately preceding the effective date of
retirement. The Labor Relations Division has prepared a Declaration for DROP
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Retirement form and it has been forwarded to the Pension Office for use by your
members. A copy of the document is attached for your files . . . .
(Docket No. 19-10, at 2.)
The “Declaration for Drop Retirement form” described in the letter, states that it only applies
to “DPLSA and DPLSA/DFFA Allied Members Only.” (Id. at 3.) The election form includes only
DROP options 2 and 4, meaning that DPLSA members, who elect the DROP, may no longer select
DROP options 1 and 3, which essentially means that DPLSA members can only receive their banked
time when they separate from employment. (Docket No. 19-10; Docket No. 2, at 5.) Thus, DPLSA
members no longer have the option of having their banked time paid to them at the time they select
to DROP.
On November 23, 2011, the Plaintiff filed a complaint in Wayne County Circuit Court that
was assigned to Wayne County Circuit Court Judge Robert Columbo, Detroit Police Lieutenants
and Sergeants Ass’n v. City of Detroit, Wayne County Circuit Case No. 11-014543-CL. (Docket
No. 19, at 2.) The Defendants allege that, in that case, the DPLSA filed a motion to compel
arbitration. (Id. at 2.) The Defendants contend that it is their understanding that, with regard to
those proceedings, “a motion to reopen the case must be made first, and that has not yet occurred.”
(Id.) At the February 4, 2013, motion hearing, counsel for the DPLSA, advised this Court that, there
is currently no arbitration proceeding pending because he has not yet filed a motion with the Wayne
County Circuit Court.
The Plaintiff also filed an unfair labor practice charge with the Michigan Employment
Relations Commission (“the MERC”). (Docket No. 19-5, at 2.) The exact date of that filing is
unclear. The Charge contends that the City violated the DPLSA’s collective bargaining agreement
by eliminating DROP options 1 and 3. The Charge further states that “[t]he City made this change
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without notice to the union or opportunity to bargain about such. This change represented unilateral
modification of a mandatory term and condition of employment.” (Docket No. 2-8, at 3.) That
Charge is still pending.
The parties have not provided documents that would fully apprise this Court of the nature
of those proceedings, the relief requested in those proceedings, the issues addressed in those
proceedings, etc. Instead, this Court only knows that there is a grievance filed with the MERC
addressing the issue of whether or not DROP options (1) and (3) have become incorporated into the
DPLSA members’ collective bargaining agreement.
On November 30, 2012, the DPLSA filed its Complaint for Declaratory and Injunctive Relief
in this Court, naming the City of Detroit Police Department and Lamont Satchel as defendants.
(Docket No. 1, at 1.) In its Complaint, the DPLSA asserts that the Defendants violated its members’
rights under the takings and contracts clauses of the United States Constitution and the Michigan
Constitution by eliminating DROP options 1 and 3, which the DPLSA contends have been impliedly
incorporated into the collective bargaining agreement. (Id. 7–8.)
This Court may exercise federal question jurisdiction in this matter over the DPLSA’s claims
under the United States Constitution.
In its Complaint, the DPLSA seeks injunctive relief pending resolution of the constitutional
claims brought before this Court, as well as the grievance proceeding. (Id. at 9.)
On November 30, 2012, the DPLSA filed its motion for Preliminary Injunction, requesting
“that the Court declare Defendants’ confiscation of Plaintiff’s contractually promised benefits
unconstitutional and restore the status quo ante prior to the change in policy, and awarding any due
benefits to Plaintiff’s members, or, in the alternative, direct Defendants to place funds necessary to

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remedy Plaintiff’s outstanding disputes aside in a neutral third party escrow pending resolution of
the Plaintiff’s grievance.” (Docket No. 2, at 1–2, 19.)
ANALYSIS
A.

This Court DENIES the DPLSA’s Motion for a Preliminary Injunction
“A preliminary injunction is an extraordinary remedy designed to preserve the relative

positions of the parties until a trial on the merits can be held.” Tenn. Scrap Recyclers Ass'n v.
Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). The party advancing a motion for preliminary
injunction bears the burden of establishing entitlement to such relief. Sisay v. Smith, 310 Fed. App’x
832, 843–44 (6th Cir. 2009). When considering a motion for a preliminary injunction, the district
court must weigh the following factors: “[(1)] that he is likely to succeed on the merits, [(2)] that
he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of
equities tips in his favor, and [(4)] that an injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 374 (2008).
1.

The Plaintiff Is Not Likely to Succeed on the Merits

The DPLSA asserts that its claims before this Court, as well as its claims before the MERC,
have a reasonable likelihood of success on the merits because DROP options (1) and have (3)
become an implied part of the collective bargaining agreement under the past practices doctrine, and
the Defendants have taken their banked time, by no longer offering the cash out early options
mentioned above, without just compensation in violation of the takings clause and contract clause.
In support of its takings and contract clause claims, the DPLSA relies on AFT Michigan v.
State, Case No. 303702, 2012 WL 3537789 (Mich. Ct. App. Aug. 16, 2012).
In AFT Michigan, various public school employees and their unions filed suit, asserting that

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M.C.L. § 38.1343e violated the takings and contract clauses of the United States and Michigan
constitutions. Id. at *1. The statute required employers to withhold three percent of employees’
wages for contributions into the employee health trust fund. Id. The contribution rate depended,
in part, on the employee’s start date and salary. Id. The teachers, whose salaries were affected by
the statute, were subject to a contract that fixed their salaries. Id. The Michigan Court of Appeals
held that the statute impaired a contractual right “because the statute requires that school employees
be paid three percent less than the amount they and their employers freely agreed on in contracts,”
and effectively took the teachers wages without just compensation, contrary to the takings clause,
because “[the statute] does not merely create a general obligation on the part of active employees
to pay a certain sum, but instead directs that unique definable monies in which plaintiff employees
have a property interest be confiscated by governmental employers. Moreover the confiscated
wages are then used to pay the statutorily mandated employers’ contributions to a state fund.” Id.
In this action, by contrast, the parties do not dispute that DROP program options (1) and (3)
are not expressly contained within the collective bargaining agreement unlike the teachers contracts
in AFT Michigan. Furthermore, all the documents that the parties provided with their briefs suggest
that DROP options (1) and (3) were created temporarily in order to remedy the confusion regarding
the arbitration awards, unlike the permanent contribution requirement in AFT Michigan.
Presumably, in order to liken their situation to that of the teachers in AFT Michigan, the
DPLSA argues that DROP options (1) and (3) have become an implied term in the collective
bargaining agreement through the past practices doctrine discussed in Port Huron Educ. Ass’n v.
Port Huron Area Sch. Dist., 452 Mich. 309, 325–31, 550 N.W.2d 228, 237–240 (1996).
In Port Huron, the Michigan Supreme Court held that “[i]n order to create a term or

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condition of employment through past practice, the practice must be mutually accepted by both
parties. Where the collective bargaining agreement is ambiguous or silent on the subject for which
the past practice has developed, there need only be tacit agreement that the practice would continue.
However, where the agreement unambiguously covers a term of employment that conflicts with a
parties’ past behavior, requiring a higher standard of proof facilitates the primary goal of the
PERA—to promote collective bargaining to reduce labor-management strife. A less stringent
standard would discourage clarity in bargained terms, destabilize union-management relations, and
undermine the employers’ incentive to commit to clearly delineated obligations . . . .” Port Huron,
452 Mich. at 325–26, 550 N.W.2d at 237–38. (internal citations and quotations omitted).
Based on the limited evidence that the DPLSA has provided to support its claims, this Court
is unable to effectively determine whether or not the past practices doctrine is applicable. The
DPLSA has not met its “higher standard of proof” under Port Huron. Here, the DPLSA has not
provided any evidence suggesting that DROP Options (1) and (3) have become mutually accepted
by the parties. The DPLSA has not provided anything describing how many employees exercised
those options and whether the options were in effect after the expiration date described in the May
21st letter. Furthermore, the DPLSA has not provided any documents or letters suggesting that the
Defendants led the officers to believe that those options would remain in effect after the expiration
date described in the May 21st letter. Instead, as mentioned before, all the documents that have been
submitted to this Court tend to suggest that DROP options (1) and (3) were temporary remedies to
address the confusion regarding Roumell’s award. The May 21st and November 16th letters, when
read together, add further support to this assertion.
Furthermore, the collective bargaining agreement, relating to DPLSA members, that the

13

DPLSA provided this Court in support of its motion, was in place since at least 2001. (Docket No.
3-2, at 2.) The May 24th election form, which contained DROP options 1 and 3 and were based of
Roumell’s Supplemental Award, were a “one-time opportunity.” (Docket No. 19-9, at 2; Docket
No. 19-8, at 18–21.)
As outlined in Port Huron, “the courts require clear and unmistakable evidence of waiver
and have tended to construe waivers narrowly.” Id. at 327, 550 N.W.2d at 238. (internal citations
omitted). Furthermore, “[a] collective bargaining agreement, like any other contract, is the product
of informed understanding and mutual assent. To require a party to bargain anew before enforcing
a right set forth in a contract required proof that the parties knowingly, voluntarily, and mutually
agreed to the new obligations.” Id.
The DPLSA has not even made a minimal showing that the Defendants “knowingly”
extended DROP options (1) and (3) beyond the expiration date set forth in Martinico’s May 24th
letter “in disregard of contract language to the contrary . . . with the intent that [the permanent
extension] would supplant the agreement.” Id. at 331, 550 N.W.2d at 240.
The other cases that the DPLSA cites to, in support of its contract and taking clauses claims,
are inapposite for the reasons mentioned above. There is a lack of supporting evidence that the
parties intended to change the collective bargaining agreement. Instead, the evidence before this
Court points to the contrary.

DROP options 1 and 3 are not express terms in the collective

bargaining agreement, and the DPLSA has failed to make even a minimal showing that they were
so intended.
The DPLSA did not even request an evidentiary hearing to address these concerns.
2.

The Plaintiff Is Not Likely to Suffer Irreparable Harm Because There is An
Adequate Remedy at Law
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The DPLSA argues that irreparable harm is found in cases involving constitutional rights and
in instances where the monetary consequences of an adverse arbitration award would likely cause
great financial hardship to the State. The Plaintiff also contends that its members will be irreparably
harmed because they will lose the opportunity to invest their banked time before they retire.
The DPLSA contends that there is no adequate remedy at law because it is seeking to protect
its constitutional rights, which the DPLSA contends have no monetary value.
The Plaintiff cannot establish that it is likely to suffer irreparable harm because any injury
in this action can be remedied by damages at law. This Court rejects the DPLSA’s assertion that
a court cannot fashion damages to include lost investment income and remedy constitutional
violations, especially constitutional violations involving contracts. Courts often fashion damages
to address constitutional violations and lost investment income. See, e.g., Titlow v. Corr. Med.
Servs., Inc., Case No. 11-2535, 2012 WL 6097337, *4 (6th Cir. 2012) (“Plaintiffs may seek money
damages from government officials who have violated their constitutional rights. But the officials
may claim qualified immunity ‘so long as they have not violated a clearly established right.”’)
(internal citations omitted); In re Dow Corning Corp. 419 F.3d 543, 551–52 (6th Cir. 2005)
(discussing investment opportunity damages as not being “difficult to estimate” in the context of a
liquidated damages clause).
Furthermore, the DPLSA has not provided any evidence, besides mere speculation, that any
arbitration award or MERC award in its favor would be so great as to force the City of Detroit into
great financial hardship. During the February 4, 2013, motion hearing, counsel for the DPLSA
stressed that the City of Detroit may or may not be considering bankruptcy and has considered
amending its contractual relationship with unions and its employees. The DPLSA offers only

15

speculation. Counsel for the DPLSA offered no convincing support for these assertions in its briefs
or during that hearing. The fact that a city may or may not be considering bankruptcy is irrelevant
to the matter before the Court.
During the February 4, 2013, motion hearing, counsel for the DPLSA also contended that
the Defendants have been misusing the DROP funds and that there has been a general inability to
access DROP funds. The DPLSA provided no convincing evidence with their motion to support
these assertions.
3.

The Harm to the Public Interest Outweighs Any Harm That May Be Suffered
by the DPLSA Members, and the Injunction is Clearly Not in the Public
Interest

Here, the harm to the public interest by essentially requiring the city to put banked time in
escrow prior to any determination by this Court with regard to the DPLSA’s constitutional claims,
as well as the DPLSA’s claims before the MERC, outweighs the marginal harm that the members
would suffer for their lost investment income potential. Here, as mentioned before, there is an
adequate remedy at law, i.e., money damages, which can factor in interest that reflects investment
income or investment opportunity.
Likewise, the public interest is not served by putting banked time in an escrow account,
given the tenuous nature of the claims advanced by the DPLSA and the general lack of support for
those claims provided by the DPLSA.
Injunctive relief is an extraordinary remedy, the DPLSA has filed to meet its burden.
CONCLUSION AND ORDER
IT IS ORDERED that the DPLSA’s Motion for Preliminary Injunction [Docket No. 2] is

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DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: February 11, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 11, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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