College Entrance Examination Bd. v. Cuomo

• Decision Date: 23 March 1992
• Docket Number: No. 90-CV-437.,90-CV-437.
• Citation: 788 F. Supp. 134
• Parties: COLLEGE ENTRANCE EXAMINATION BOARD, Graduate Management Admission Council, Inc., Graduate Record Examination Board, Test of English as a Foreign Language Policy Council and Educational Testing Service, Plaintiffs, v. Mario M. CUOMO, as Governor of the State of New York; Thomas Sobol, as Commissioner of Education of the State of New York; Regents of the University of the State of New York; Martin C. Barell, as Chancellor, Board of Regents of the University of the State of New York; R. Carlos Carballada, as Vice Chancellor, Board of Regents of the University of the State of New York; Jorge L. Batista, Shirley C. Brown, Laura Bradley Chodos, Walter Cooper, Willard A. Genrich, Norma Gluck, Emlyn I. Griffith, Carl T. Hayden, Mimi Levin Lieber, Floyd S. Linton, Gerald J. Lustig, Louise P. Matteoni, J. Edward Meyer and Adelaide L. Sanford, as Members of the Board of Regents of the University of the State of New York; and Robert Abrams, as Attorney General of the State of New York, Defendants.
• Court: U.S. District Court — Northern District of New York

788 F. Supp. 134

COLLEGE ENTRANCE EXAMINATION BOARD, Graduate Management Admission Council, Inc., Graduate Record Examination Board, Test of English as a Foreign Language Policy Council and Educational Testing Service, Plaintiffs, v. Mario M. CUOMO, as Governor of the State of New York; Thomas Sobol, as Commissioner of Education of the State of New York; Regents of the University of the State of New York; Martin C. Barell, as Chancellor, Board of Regents of the University of the State of New York; R. Carlos Carballada, as Vice Chancellor, Board of Regents of the University of the State of New York; Jorge L. Batista, Shirley C. Brown, Laura Bradley Chodos, Walter Cooper, Willard A. Genrich, Norma Gluck, Emlyn I. Griffith, Carl T. Hayden, Mimi Levin Lieber, Floyd S. Linton, Gerald J. Lustig, Louise P. Matteoni, J. Edward Meyer and Adelaide L. Sanford, as Members of the Board of Regents of the University of the State of New York; and Robert Abrams, as Attorney General of the State of New York, Defendants.

No. 90-CV-437.

United States District Court, N.D. New York.

March 23, 1992.

COPYRIGHT MATERIAL OMITTED

Nixon Hargrave Devans & Doyle, Rochester, N.Y. (Harold A. Kurland, of counsel), Perkins & Coie, Washington, D.C. (David T. Biderman, John M. DeVaney, Karl L. Kellar, of counsel), for plaintiff Graduate Management Admission Council, Inc.

Wilmer Cutler & Pickering, Washington, D.C. (Howard P. Willens, Thomas P. Olson, of counsel), for plaintiffs Graduate Record Examination Bd., Test of English as a Foreign Language Policy Council, and Educational Testing Service.

Stanford Von Mayrhauser, Princeton, N.J., for plaintiff Educational Testing Service.

Sullivan & Cromwell, New York City (Edward W. Keane, Henry Christensen III, of counsel), for plaintiff College Entrance Examination Bd.

Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y. (David B. Roberts, Asst. Atty. Gen., of counsel), for defendants.

MEMORANDUM DECISION AND ORDER

McCURN, Chief Judge.

INTRODUCTION

Plaintiff, Graduate Management Admission Council ("GMAC"), moves pursuant to Fed.R.Civ.P. 65 for a preliminary injunction enjoining defendants (collectively referred to as "the State") from enforcing New York Education Law sections 341 and 342 ("Standardized Testing Act" or "STA") against GMAC or in connection with tests or related material which GMAC develops, sponsors or administers. As a basis for this motion, GMAC contends that the STA conflicts with, and is therefore preempted by, the Federal Copyright Act ("Act") of 1976. In addition, GMAC claims that its ultimate success on the merits is probable and that it will suffer irreparable injury if the court does not grant this motion.

BACKGROUND

GMAC is one of five plaintiffs¹ who commenced this suit in 1990 seeking a declaration that sections 341 and 342 of the STA ("the disclosure provisions") as applied to them (1) conflict with, and therefore are preempted by, the Federal Copyright Act of 1976, (2) constitute direct and contributory copyright infringement, (3) violate the Commerce Clause of the United States Constitution, (4) constitute a taking of plaintiffs' property without just compensation in violation of the Fifth and Fourteenth Amendments, and (5) deprive plaintiffs of their property without due process of law in violation of the Fourteenth Amendment.² See Plaintiffs' Complaint at ¶ 1. In addition, plaintiffs sought a judgment permanently enjoining the State from enforcing sections 341 and 342 of the STA against them. See id.

Upon commencing this action, all of the plaintiffs except GMAC moved for a preliminary injunction seeking to enjoin enforcement of the STA against them.³ In support of their motion, plaintiffs claimed that in the years between 1979 when the STA was enacted and 1990, they had curtailed the number of tests that they offered in New York while at the same time increasing the number of test dates nationwide because they did not want to subject additional tests to the STA's disclosure requirements. Moreover, the moving plaintiffs asserted that if the court granted their motion, they would increase the number of administrations of their tests in New York to national levels and would continue to disclose the same number of tests as they had in prior years.

Shortly before plaintiffs commenced this action, this court granted summary judgment to the plaintiff ("AAMC") in Association of Am. Medical Colleges v. Carey, 728 F.Supp. 873 (N.D.N.Y.1990), reversed, vacated and remanded, 928 F.2d 519 (2d Cir.1991), and permanently enjoined the State from enforcing sections 341 and 342 of the STA against it. At the time the present action was commenced, an appeal from this court's order in AAMC was pending before the Second Circuit. In light of the status of that case, the State decided to enter into an agreement with regard to the temporary relief sought by plaintiffs in the present suit rather than risk the entry of a preliminary injunction. Thus, the motion for preliminary injunction was resolved by a stipulation in which it was agreed that in the 1990-1991 test year the moving plaintiffs would continue to disclose their tests in New York at the same rate as they had in the past. In addition, plaintiffs would offer New York residents additional administrations of their tests with the understanding that these additional administrations would not be subject to the STA's disclosure provisions. Although GMAC was not one of the moving parties, it signed the stipulation which, as applied to it, stated "plaintiff Graduate Management Admission Council, Inc. shall voluntarily comply with the filing and disclosure requirements set forth in Sections 341 and 342 of the New York Education Law for the 1990-1991 test year; ..." See Stipulation dated May 11, 1990, at 2.⁴

The terms of the stipulation were to expire when all appellate proceedings were concluded in the AAMC litigation. The Second Circuit reversed the judgment of this court, vacated the permanent injunction and remanded the case for further proceedings on March 12, 1991. In addition, the court enjoined the State from enforcing the STA provisions against AAMC during the pendency of the remand proceedings. Association of Am. Medical Colleges v. Cuomo, 928 F.2d 519 (2d Cir. 1991). AAMC then applied for a writ of certiorari which was denied by the Supreme Court on October 7, 1991. Due to the fact that the appellate proceedings in AAMC extended into the 1991-1992 test year, all of the plaintiffs in the present suit had a right, under the stipulation, to curtail the disclosure and filing of their test forms in that year. Only GMAC availed itself of this opportunity. While the other plaintiffs continued to disclose tests at their historic rates, GMAC cut the number of disclosed tests in half (from 4 tests to 2 tests).

In November 1991, plaintiffs initiated discussions with the State to extend the stipulation regarding preliminary injunctive relief for a period of one more year. All of the plaintiffs, except GMAC, were willing to continue disclosing their tests at the same rates as they had done in the 1990-1991 test year. GMAC, on the other hand, was willing to disclose only two of the four tests that it would administer in the 1992-1993 test year. A stipulation extending the original compromise was executed by all plaintiffs except GMAC on December 24, 1991, and filed on January 21, 1992. GMAC then filed and served the present motion for a preliminary injunction on February 20, 1992.

DISCUSSION

Any time a court is called upon to grant preliminary relief, it must keep in mind the well-settled rule that a preliminary injunction is an extraordinary remedy that should be granted only upon a clear showing that there is a likelihood of success on the merits and irreparable injury. Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of New York, 544 F.2d 571 (2d Cir.1976) (citing Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969)); Sanders v. Air Line Pilots Ass'n Int'l, 473 F.2d 244, 248 (2d Cir.1972). Ordinarily, in the Second Circuit, a party seeking a preliminary injunction must demonstrate irreparable injury and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Laureyssens v. Idea Group, Inc., 768 F.Supp. 1036, 1046 (S.D.N.Y.1991) (citing Wallace Int'l Silversmiths, Inc. v. Godinger Silver Art Co., 916 F.2d 76, 78 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1622, 113 L.Ed.2d 720 (1991) (citing in turn Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979))). However, "where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim." Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989). Accordingly, because GMAC seeks to challenge the State's right to compel it to disclose all of its tests pursuant to the statutory scheme established by the STA, GMAC is entitled to injunctive relief only if it is able to demonstrate irreparable injury and a likelihood of success on the merits.

Finally, in its determination of this motion, the court is cognizant of its obligations pursuant to Fed.R.Civ.P. 52(a) to "set forth the findings of fact and conclusions of law which constitute the grounds of its action" in granting or refusing to grant interlocutory injunctions. See Fed. R.Civ.P. 52(a); Fengler v. Numismatic Americana, Inc., 832 F.2d 745 (2d Cir. 1987) (quoting Inverness Corp. v. Whitehall Lab., 819 F.2d 48, 50 (2d Cir.1987)) (Rule 52's requirements are...