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HOTEL & RESTAURANT EMPLES. INTL. UNION LOCAL 54 V.

November 26, 1984

HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL 54 and FRANK GERACE, PRESIDENT, Plaintiffs, and FRANK GERACE and FRANK MATERIO, INDIVIDUALLY, Intervening Plaintiffs,
v.
WALTER N. READ, CHAIRMAN, DONALD THOMAS, COMMISSIONER, CARL ZEITZ, COMMISSIONER, JOEL JACOBSON, COMMISSIONER, and E. KENNETH BURDGE, COMMISSIONER, CONSTITUTING THE NEW JERSEY CASINO CONTROL COMMISSION and THOMAS O'BRIEN, DIRECTOR DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF GAMING ENFORCEMENT and DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF GAMING ENFORCEMENT and THOMAS KEAN, GOVERNOR, Defendants



The opinion of the court was delivered by: BROTMAN

 BROTMAN, District Judge.

 Hotel and Restaurant Employees and Bartenders International Union Local 54 (hereinafter "Local 54"), and its president, Frank Gerace, filed this action seeking an injunction prohibiting enforcement of certain provisions of New Jersey's Casino Control Act, L. 1977, c. 110, para. 1 et seq., as amended by L. 1978, c. 7, § 1 et seq., N.J. Stat. Ann. § 5:12-1 et seq. (West Supp. 1984) ("the Act") against them. Both plaintiffs alleged that orders issued by the defendant Casino Control Commission ("the Commission") applied section 86(f) of the Act to Frank Gerace and Frank Materio in a manner violative of the Union's rights guaranteed by the First, Fifth and Fourteenth amendments to the United States Constitution. The court granted a motion by Gerace and Materio to intervene as plaintiffs in their individual capacity in order to assert similar claims. Plaintiffs also seek relief in the form of damages and a declaration that section 86(f) is unconstitutional as applied. Plaintiffs have invoked this court's jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 (West Supp. 1984).

 Plaintiffs sought to enjoin enforcement of the Commission's orders disqualifying the individual plaintiffs from their positions as officers of Local 54 and directing their removal from such posts. The court denied plaintiffs' motion for preliminary injunctive relief on November 5, 1984. In addition, the court stayed further proceedings under the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), pending a resolution of underlying issues of state law in the courts of the State of New Jersey. (See Opinion and Order, November 5, 1984, 597 F. Supp. 1431).

 The matter is currently before the court on the motion of plaintiffs Local 54 and Frank Gerace, as President of Local 54, for a temporary injunction pending appeal, which the court has authority to grant under Rule 62(c), Fed. R. Civ. P. The intervening plaintiffs in their individual capacity have declined to join in this motion. Rule 62(c) reads in part: "When an appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms . . . as it considers proper for the security of the rights of the adverse party." Id. Local 54 and its President have filed a notice of appeal from the decision of November 5, 1984, purportedly under the provisions of 28 U.S.C. § 1292(a) (West Supp. 1984).

 On a motion for an injunction authorized by Rule 62, Fed. R. Civ. P., it is well established that the court must evaluate the extent to which the moving party has made a showing as to the following four factors:

 
(1) the likelihood of the moving party's success on the merits of its appeal;
 
(2) the likelihood of irreparable injury to the moving party if the injunction is denied;
 
(3) the extent to which the opposing parties will be harmed if the injunction sought is issued; and
 
(4) the likelihood that there will be no substantial harm to the public interest if the injunction sought is issued.

 Long v. Robinson, 432 F.2d 977 (4th Cir. 1970); Chevron Chemical Co. v. Costle, 499 F. Supp. 745, 747 (D. Del. 1980); Philadelphia Council of Neighborhood Organizations v. Adams, 451 F. Supp. 114 (E.D. Pa. 1978); Evans v. Buchanan, 435 F. Supp. 832 (D. Del. 1977); Resident Advisory Board v. Rizzo, 429 F. Supp. 222 (E.D. Pa. 1977). Of course, no single factor is controlling, and the court must balance the strength of the plaintiffs' showing on each of these four factors as part of its exercise of discretion in considering the motion. Chevron Chemical Co. v. Costle, 499 F. Supp. at 747; Phila. Council of Neighborhood Organizations, supra, 451 F. Supp. at 116. The court will discuss each of these four factors below.

 I. Likelihood of Success on the Merits of the Appeal

 Plaintiffs' contention that they are likely to succeed on appeal has two components. First, plaintiffs argue that there is no basis for abstention under Pullman as to Local 54 and its President. Second, plaintiffs maintain that there is a substantial probability they will ...


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