The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court is Plaintiffs Whistleblower 1 and Whistleblower 2‟s ("Plaintiffs") application for a Preliminary Injunction and an Order to Show Cause pursuant to Fed. R. Civ. P. 65 to enjoin Defendants, temporarily and permanently, from conducting an investigation to ascertain Plaintiffs‟ identities. Defendants filed a brief in opposition. Oral argument was held before this Court on November 16, 2011. The Court has reviewed the submissions of the parties, and for the reasons set forth below, Plaintiffs‟ request for relief is DENIED.
Plaintiffs are employees of the Board of Education of the City of Elizabeth, New Jersey ("the Board"). (Compl. ¶ 1.) Defendants are the Board; Renaissance Associates, Ltd ("Renaissance"), a "Digital Forensics Investigations consulting group"; Harold E. Kennedy, Elizabeth Public Schools‟ Business Administrator and Board Secretary; Donald Graves, the Board‟s Secretary; Karen Murray, the Board‟s Director of Human Resources and in house counsel; John La Perla and Kevin Barrows, who are both principal members of Renaissance*fn1
(collectively "Defendants"). (Id. ¶¶ 2-8.)
Plaintiffs allege that they "became aware that children of at least one Board member and two Board employees were receiving free lunch . . . in violation of government regulations." (Id. ¶ 9.) Subsequently, Plaintiffs allegedly disclosed this information to the Union County Prosecutor‟s office. (Id.) Thereafter, on August 21, 2011, the Newark Star Ledger reported that three of the Board‟s employees had applied for and received the benefit of the free lunch program even though their incomes exceeded the program‟s limit. (Id. at ¶ 10.) Consequently, the Board sought to conduct an internal forensic investigation to identify the individuals responsible for the information breach. (See id. ¶ 12.) As a result, in September 2011, the Board issued a Request for Proposal seeking bid proposals from companies eligible to conduct forensic investigations. (Nelson Decl. Ex. A.) On September 19, 2011, the Board awarded the bid to Renaissance. (Id. at Ex. B.) Plaintiffs seek to enjoin Defendants from conducting the forensic investigation. Plaintiffs allege that the Board‟s contract with Renaissance is illegal because it is in violation of N.J. Stat. Ann. §18A:18A-1 et seq. (West 2011) (Count One), Defendants‟ conduct constitutes a violation of the New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-3 et seq. (West 2011) ("CEPA") (Count Two), and Defendants‟ actions are retaliatory and in violation of 42 U.S.C. § 1983, the First Amendment and the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302 ("WPA") (Count Three).
"[A]n injunction is "an extraordinary remedy, which should be granted only in limited circumstances.‟" Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002) (quoting Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). "The decision whether to enter a preliminary injunction is committed to the sound discretion of the trial court." Duraco Prods., Inc. v. Joy Plastic Enters., 40 F.3d 1431, 1438 (3d Cir. 1994). In considering whether to grant a preliminary injunction, a court must review the following factors: "(1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest." Shire U.S., Inc. v. Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003).
I.Likelihood of Success on the Merits
Plaintiffs seek this Court to enjoin the Board‟s contract with Renaissance because it is illegal and in violation of N.J. Stat. Ann. § 18A:18A-1 et seq. (Compl. ¶¶ 32, 41.) However, this Court has no jurisdiction to examine the Board‟s contract with Renaissance. N.J.A.C. § 6A:23A-1.1 places oversight of New Jersey boards of educations‟ spending with the New Jersey Commissioner of Education (the "Commissioner") and N.J.A.C. § 6A:23A-5.1 details the appropriate procedure to address concerns about a New Jersey school district‟s inefficient and ineffective spending. N.J.A.C. § 6A:23A-5.1(a) provides:
If the Department of Education identifies ineffective or inefficient expenditure(s) by a school district or county vocational school district, including, but not limited to, the practices prohibited in N.J.A.C. [§] 6A:23A-5.2 through 5.9, the Commissioner shall, except as otherwise provided in (h) below, provide the school district or county vocational school district the opportunity to be heard as to why the amount of the ineffective or inefficient expenditure(s) shall not be withheld from State aid or refunded to the Department. (emphasis added).
Plaintiffs‟ argument that the Board‟s contract with Renaissance is in violation of N.J. Stat. Ann. § 18A:18A-1 et seq. also suffers from the same flaw because N.J.A.C. § 6A:23A-5.4 places review of an alleged violation of public school contracts law with the Commissioner. Consequently, this Court does not have jurisdiction to ...