State of Florida v. United States of America, No. 4:00cv445-RH (D.C. N.D. Fla Dec. 13, 2000) (case below 2000-CAA-19)

STATE OF FLORIDA, et al.,     Plaintiffs,     v. UNITED STATES OF AMERICA, et al.,     Defendants.

CASE NO.4:00cv445-RH

   In this action the State of Florida seeks to block an grounds at sovereign immunity and Eleventh Amendment immunity an ongoing administrative proceeding before the United States Department of Labor in which a former State of Florida employee seeks redress for allegedly having been fired by the State in violation of federal law. The State has moved for a temporary restraining order and preliminary

injunction.

   For the reasons set forth on the record of the hearing of December 1, 2000, I grant a preliminary injunction for a limited period in order to allow briefing and full and fair consideration of the substantial issues presented by this proceeding. For purposes solely of this ruling, I find that the State has a substantial likelihood of success on the merits, that the State will suffer irreparable harm if the administrative proceeding goes forward prior to resolution of these issues, that the potential harm to the State outweighs any harm that will result to defendants from the brief delay imposed by this order, and that the public interest favors issuance of this order. In the context of the proper consideration of these four factors as a whole, my finding that the State has a "substantial likelihood of success on the merits" does not prejudge the merits or indicate that the likelihood of success exceeds 50 percent; my finding is simply that the likelihood of success is sufficient, considered in conjunction with the other three factors, to warrant issuance of this order.

   For these reasons, and consistent with the parties' agreements on procedural issues as announced on the record of the hearing,

   IT IS ORDERED:

   1. Notwithstanding the requirements of Federal Rule of Civil Procedure 26(d), defendants may commence discovery without awaiting an attorney conference under Federal Rule of Civil Procedure 26(f), provided, however, that such discovery shall be limited to the issue of waiver of sovereign or Eleventh Amendment immunity. Interrogatories that may be served under this paragraph shall not exceed three in number. Plaintiffs shall respond to interrogatories, and shall produce documents or serve objections in response to requests for production, within five days after service. For purposes of calculating deadlines under this paragraph, service by facsimile shall be deemed service by delivery.

   2. Plaintiffs' motion for temporary restraining order or preliminary injunction (document 1) is GRANTED IN PART and DEFERRED FOR FURTHER CONSIDERATION IN PART.

   3. Defendants are ordered to proceed no further with the case of Omar Shafey, Complainant, v. Florida Department of Health and State of Florida, Respondents, United States Department of Labor Case No. 2000- CAA-0019, until the earlier of (a) issuance of an order of this court authorizing that case to proceed or (b) January 16, 2001. All deadlines and schedules in that case are stayed by the number of days in the period from December 1, 2001, to the earlier of (a) issuance of an order of this court authorizing that case to proceed or (b) January 16, 2001. No party's procedural rights shall be diminished in that case as a result of this order.

   4. Except for entry of the interim preliminary injunction set forth in paragraph 3 above, plaintiffs' motion for preliminary injunction remains pending. The motion for preliminary injunction will be taken under advisement based on the record of the December 1, 2000 hearing and all materials served by December 22, 2000, in accordance with this order.

   5. No further hearing on plaintiff's motion for

preliminary injunction will, be conducted unless requested by a party by separate document served on or before December 22, 2000, or scheduled by the court sua sponte.

   6. Consideration of the motion for preliminary injunction will be consolidated with the merits and a final judgment entered unless any party objects to that procedure by separate document served on or before December 22, 2000; failure to file such an objection by separate document will be deemed consent to the consolidation of the motion for preliminary injunction with the merits and consent to the procedures set forth in this order.

   7. The federal defendants shall serve by December 15, 2000, their memorandum in response to plaintiffs' motion for preliminary injunction. Any other party may serve by December 15, 2000, any supplemental memorandum addressing plaintiffs' motion for preliminary injunction. Any party may serve by December 15, 2000, any other material the party asserts should be considered in connection with plaintiffs' motion for preliminaaW injunction.

   8. Any party may serve by December 22, 2000, a

memorandum replying to any memorandum served by any other party on or after December 8, 2000. Any party may serve by December 22, 2000, any other material that (a) responds to material served by any other party on or after December S, 2000, and that (b) the party asserts should be considered in connection with plaintiffs' motion for preliminary injunction.

   9. Service of papers under paragraphs 7 and a above shall be effected by delivery or facsimile except that bulky attachments, if any, may be served by overnight courier.

   10. As security for the payment of such costs and damages as may be incurred by any party who is found to have been wrongfully enjoined, plaintiffs have undertaken, on the record, the payment of such amounts, not to exceed ,000, and defendants have agreed to accept such undertaking in lieu of the posting of cash, surety bond, or other security.

   11. Plaintiffs motion for temporary restraining order or preliminary injunction (document 1) will be deemed plaintiffs' complaint in this action. The deadline for serving a response to the complaint is hereby,set as 21 days

after the court's final ruling on the motion for preliminary injunction. Defendants may respond to the complaint at any earlier time and shall serve by December 22, 2000, any response to the complaint that they contend should be considered in connection with the motion for preliminary injunction (or in connection with adjudication of the merits, if the merits are consolidated with the motion for preliminary injunction in accordance with this order).

   SO ORDERED this 13th day of December, 2000.

       Robert L. Hinkle
       United States District Judge