No.

:________________

In The

Supreme Court of the United States

Brian Burke, Petitioner v. Metropolitan Transportation Authority/NYC Transit Authority, Public Employment Relations Board, New York Attorney General Andrew M. Cuomo, Respondents
On Petition For A Writ of Certiorari to the United States Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Brian Burke Petitioner pro se 145 East 23rd Street #4R New York, NY 10010 212-614-8515 briantburke@gmail.com Date 08/13/2011

Rule 14-1(a)

QUESTIONS PRESENTED
1. Pleading standards in the Second Circuit and the Southern District of New York have been raised to an Unconstitutional level, violating Due Process & Seventh Amendment. This new higher standard, violates current standards in other Circuits, The Supreme Court & prior Second Circuit and SDNY case law and Fed. R. Civ. P. 8. 2. The rights of Self-Represented for Remedy are now significantly less than for the represented, violating Due Process & Equal Protection and outstanding case law in other Circuits and prior Supreme Court Opinions. 3. The Public Employees Fair Employment Act, Article 14 NYS Civil Service Law, a.k.a. the Taylor Law, violates U. S. Constitutional Amendments I, IV, V, VI, VII, VIII, IX, X, XIII, XIV facially and as applied under U.S.C. Title 42, Chapter 21, 1983.

TABLE OF CONTENTS
Page Cover 1 Questions Presented 2 Table of Contents 3 Table of Authorities 3,4,5 Opinions Below 5 Jurisdiction 7 Statutory Provisions Involved 8,9,10 Statement of Case 11-16 Reasons to Grant Writ 17-20 Conclusion 20 Appendix Court Orders 21-31 Pertinent Taylor Law 31-41

TABLE OF AUTHORITIES
page 15 Buffalo Teachers Fedn, Inc. v. Helsby, 676 F.2d 28, 29-30(2d Cir. 1982) 15 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) 18 Cabrera v. Peters et. al. 23 F. 3d 410 C. A. Seventh Circuit 16 Cheeseman v. Carey, 623 F.2d 1387, 1389-93 (2d Cir. 1980) 19 CITY OF SAN JOSE v. OPERATING ENGINEERS LOCAL UNION NO. 3. 49 Cal.4th 597 (2010). 110 Cal. Rptr. 3d 718. 232 P.3d 701 14 Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) 14 Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)

4 12 Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) 7 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983) 14 In re: Gilead Sciences Sec. Litig., 536 F.3d 1049 (9th Cir. 2008), cert. denied, 129 S.Ct. 1993 (2009) 18 Los Angeles Metropolitan Transit Authority v. Brotherhood of Railroad Trainmen, 54 Cal. 2d 684, 355 P.2d 905. (1960) 7 Louisville & Nashville v. Mottley, 211 U.S. 149 (1908) 11 Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452 11,19 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 11 Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816) 16 Margiotta v. Kaye, 283 F. Supp. 2d 857, 863-65 (E.D.N.Y. 2003) 14,20 McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 6 Neitzke v. Williams, 490 U.S. 319, 325 (1989) 16 New York City Transit Auth. v. Transp. Workers Union of America, 822 N.Y.S.2d 579, 591-92 (2d Dept 2006) 16 N.Y. State Inspection, Sec. & Law Enforcement Employees, Dist. Council 82 v. N.Y. State Pub. Employment Relations Bd., 629 F. Supp. 33, 54 16 OBrien v. Bd. of Educ., 498 F. Supp. 1033, 103738 (S.D.N.Y. 1980) 7 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 818-19 (1824) 14 Riddle v. Mondragon, 83 F.3d 1197, 1201-02 (10th Cir.1996) 15 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) 12 Stromberg v. California, 283 U. S. 359, 283 U. S. 369-370

5 11,13 United States v. Carolene Products Co., 304 U.S. 144 (1938) 14 Van Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir.2007) 7 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) 15 Worldcom, Inc. v.Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003) STATUTES 2 Fed. R. Civ. P. 8 10,12,15, Fed. R. Civ. P. 12(b)6 2,10,12,19,20 Public Employees Fair Employment Act, Article 14 NYS Civil Service Law 2,8,9,10,12,13,14,17,18,19, U. S. Constitutional Amendments I, IV, V, VI, VII, VIII, IX, X, XIII, XIV 2,10,11,12,15,17, 18,19, U.S.C. Title 42, Chapter 21, 1983 6,12 28 U.S.C. 1915(e) 7 U. S. Constitution Articles III Section 2 & IV Supremacy Clause 7 Supreme Court Rule 29.4(b).(c)

Rule 14-1(d)

OPINIONS BELOW
1. Memorandum Opinion And Order, Honorable John G. Koeltl, Distict Judge SDNY, Dated November 24, 2009, in Joint Appendix. 2. Order from esteemed Panel, Circuit Judges Sack, Katzmann & Wesley: Appellant, pro se, moves for appointment of counsel. Upon due consideration, it is

6 hereby ORDERED that the motion is DENIED and the appeal is DISMISSED because it lacks an arguable basis in law or fact. See 28 U.S.C. 1915(e); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (defining when an action lacks an arguable basis in law or fact). 3. Order Appellant Brian Burke filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request as a motion for reconsideration, and the active members of the Court have considered the request for rehearing en banc. IT IS HEREBY ORDERED that the motion and petition are denied. May 20, 2011 4. Mandate issued May 27, 2011 5. Scheduling Order, Judge Koeltl October 14, 2009 6. Scheduling Order, Judge Koeltl October 26, 2009 7. Endorsed Consent Letter May 5, 2009 Rule 14-1(e)

JURISDICTION
(i) (ii) (iii) (iv) Second Circuit Order of Dismissal, March 22, 2011. Second Circuit Order respecting rehearing, Denied on May 20, 2011 re. tolling Not Applicable The Statutory provisions conferring Supreme Court Jurisdiction are Articles III Section 2 & IV Supremacy Clause, 28 U.S.C. Section 1331, 1332, 1257, 1254(1). See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 818-19 (1824), Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983), Louisville & Nashville v. Mottley, 211 U.S. 149 (1908), Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983). Petitioner would request guidance regarding Rule 29.4(b). Defendant MTA claims Federal Railway Act requires ongoing Disparate Treatment between Similarly Situated Employees, without further evidence. Plaintiff challenges same FRA under Equal Protection if that requirement is verified. U. S. Attorney General has been sent a Letter regarding case. NY Attorney General has been notified, as he is a party, regarding 29.4 (c).

(v)

Rule 14-1(f)

STATUTORY PROVISIONS INVOLVED

United States Constitution: 1. Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 2. Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 3. Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 4. Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district

9 wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 5. Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 6. Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 7. Amendment IX: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. 8. Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 9. Amendment XIII: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. 10. Amendment XIV: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall

10 make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. 11. Title 42, Chapter 21, 1983. Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 12 Public Employees Fair Employment Act included in Joint Appendix/Appendix. 13 Fed. R. Civ. P. 12(b)6 : (6) failure to state a claim upon which relief can be granted;

Rule 14-1(g)

11

STATEMENT OF CASE
(ii) Review of a Judgment of the Second Circuit Court of Appeals is sought. The basis for federal jurisdiction in the Southern District of New York is due to ongoing violations, by Defendants, of Title 42 Section 1983 by concerted violations of Petitioners Amendment(s) I, IV, V, VI, VII, VIII, IX, X, XIII, XIV Constitutional Rights by enforcing Unconstitutional Taylor Law. Petitioners Standing, Personal Jurisdiction and Choice of Venue were not challenged. Defendants challenged and the District Court Dismissed case under Fed. R. Civ. P. 12(b)6 & (c). The Second Circuit Dismissed under 28 U.S.C. 1915(e) because it lacks an arguable basis in law or fact. Defendants claim, and the lower Courts agree, that this Case has already been tried!!! If Petitioner/ Appellant understands the implied, but not admitted, premise (as they could not state such an outrageous premise), No Plaintiffs with Standing will ever be allowed to bring a case challenging the Constitutionality of the Taylor Law (Public Employees Fair Employment Act). This is unfortunate and violates Due Process and Federal Courts undisputed (in other than instant case) right to review accused Unconstitutional Federal & State Statutes, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), United States v. Carolene Products Co., 304 U.S. 144 (1938)1.
1

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on

12 its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359, 283 U. S. 369-370; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452.
2 (5)

Plaintiff, never having been convicted of a crime, is covered by the Thirteenth Amendment to the United States Constitution, as well as, upon information and belief, virtually all or all colleagues under Taylor Law writ. Petitioner contends that the Taylor Law's requirement that Local 100 work without a contract and during a "strike" constitute "involuntary servitude" by definition. No contract no work. (6) Petitioner contends that the attempted and/or actual prior restraint of "strike", "work to rule" "work slowdown" and/or other job actions constitute prima facial violations of the First Amendment to the United States Constitution. In addition, attempted and/or actual Injunctive Relief, apparently not in violation of the Taylor Law and applied only to the peasants/chattal, literally blocking using the word "strike" or discussing same, constitute the most egregious violation of the First Amendment since it's implementation. Banning of a "strike" or picketing violates Freedom of Assembly, by definition. (7) The Taylor Law violates the Fourth and Fifth Amendment's Rights to Privacy, Due Process and self incrimination. There is no and/or inadequate Due Process under the Taylor Law. The tolling under said law rewards the employer for performing conspiracies/ coverups/destruction of evidence/ subornation regarding unlawful adverse job actions etc. by blocking all potential remedy for employee within Taylor Law process and access to all other Courts. Double Jeopardy occurred by prosecutions/contempt hearings/ injunctive relief within and outside of the Taylor Law. (8) The Taylor Law violates the Sixth and Seventh Amendments by denying the fundamental right to a Jury Trial. There is no Jury Trial right within the context of the Law. (9) The Taylor Law violates the Eighth Amendment by instituting, and not

13 Under Carolene, the Taylor Law and the instant case require the highest level of scrutiny. Plaintiff is an MTA/NYC Transit/Department of Subways/Rapid
blocking by "injunctive relief" by other Courts, excessive and ruinous fines. These fines and threats thereof were instituted against Plaintiff and colleagues as well as Local 100. (10) The Taylor Law violate the Ninth and Tenth Amendments as the rights to Organize, "strike", perform job actions (including "Work to Rule"), and withdraw labor from the market in absence of current contract (no contract no work) would be covered by said amendments and violated by Taylor Law. These rights are available to and undisputed for the vast majority of Americans, including identical/similar title holders within the MTA (see L.I.R.R. & Metro-North etc.).(11) The Taylor Law violates the Thirteenth and Fourteenth Amendments by compelling Union Members/ Employees to work without current contracts and during "strikes" (involuntary servitude) under threat of, no due process or jury trial, excessive/ ruinous fines and/or prison, as occurred to Union Officers, the Union itself and members individually. The Taylor Law and the MTA violates Equal Protection and Due Process by granting the right to "strike" etc. to some similarly/identically situated MTA employees while denying the same to others. This results in unequal/ disparate pay and benefits between the two groups of employees. The substantially different demographic within the Transit Authority vis--vis MetroNorth and Long Island Railroad. There is a substantially higher percentage of historically discriminated against groups within NYC Transit than Metro-North & L.I.R.R., resulting outcome for in the two groups differ in one respect. There is a sole reason and the vast difference in pay and benefits between selfsame subsidiaries of the MTA.

14 Transit Operations Employee. RTO is a wholly owned subsidiary of D.O.S., which is a wholly owned subsidiary of NYC Transit, which is a wholly owned subsidiary of MTA. The MTA pays its Similarly Situated (if not Identically Situated) employees in NYC Transit substantially less (pay & benefits) then its otherwise identical employees in its other Subsidiaries, Long Island Railroad & Metro North. There are two, and only two, differences ; 1. A vastly different racial demographic, the exact numbers which could be provided by a so far denied Discovery, and 2. Coverage of Similarly Situated NYC Transit Employees by the Taylor Law, which results in same lower pay & benefits and bars Freedom to Contract. The Taylor Law facially violates the Constitution under up to 10 Amendments, but is required to violate only one, in order to be voided. See McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010). In admitted Third Amended Complaint2 substantial facts evidencing highly plausible (see Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)) Unconstitutional conduct by Defendants. There is also considerable split between Circuits regarding Pleading Standards, see Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007), Riddle v. Mondragon, 83 F.3d 1197, 1201-02 (10th Cir.1996), Van Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir.2007), In re: Gilead Sciences Sec. Litig., 536 F.3d 1049 (9th Cir. 2008), cert. denied, 129 S.Ct. 1993 (2009)3.
3

Jeanne Phillips (Phillips), individually and in her capacity as administrator of the estate of her son, decedent Mark

15 Admittedly Defendants, and the Second Circuit, believe any amendments would be futile, as, previously stated, This Case Has Already Been Tried. According to their implied theory, regarding plausibility/futility, we have either Collateral Estoppel, Res Judicata or Stare Decisis. This is not the case. Moving against Third Amended Complaint Defendants controverted no facts and instead relied on case law involving other parties, Amendments not included in Complaint, facts entirely different than in instant case & issues and theories inapposite. Under this theory Defendants would deny Jurisdiction to Federal Courts for the heroic case Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). The precedent in the instant case would neuter the Federal Courts with regard to constitutional review of Statutes. Lets review this Dispositive case law quoted in SDNY Decision. In Buffalo Teachers Fedn, Inc. v. Helsby, 676 F.2d 28, 29-30(2d Cir. 1982) Plaintiffs attempted Injunctive Relief regarding dues check-off, an entirely different claim, which this Petitioner would have no standing to raise an did not. In
Phillips, appeals the District Courts dismissal of her claims against various defendants for violations of 42 U.S.C. 1983. The District Court, in deciding a motion under FED.R.CIV.P. 12(b)(6), was required to accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to Phillips. Worldcom, Inc. v.Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Moreover, in the event a complaint fails to state a claim, unless amendment would be futile, the District Court must give a plaintiff the opportunity to amend her complaint. Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). Because the District Court did not follow these dictates, we will reverse in part and remand.

16 Cheeseman v. Carey, 623 F.2d 1387, 1389-93 (2d Cir. 1980) the Court suggested Petitioners argument that granting a Union a hearing and denying one to individuals violates Equal Protection as frivolous. This argument is again inapposite to our contention that Defendants actions under the Taylor Law result in less pay & benefits for Similarly Situated historically discriminated against employees in NYC Transit versus same, but different demographically, employees at L.I.R.R. & Metro North, all M.T.A. Employees. Equal Protection facts could not be more different and are deserving of a full hearing in the Supreme Court or a Remand. In Margiotta v. Kaye, 283 F. Supp. 2d 857, 863-65 (E.D.N.Y. 2003) Court Officers demanded a right to Binding Arbitration, again inapposite, unrelated to instant claim. In N.Y. State Inspection, Sec. & Law Enforcement Employees, Dist. Council 82 v. N.Y. State Pub. Employment Relations Bd., 629 F. Supp. 33, 54 (N.D.N.Y. 1984) involved allegations of PERB bias and dues check-off, again apposite/irrelevant. In OBrien v. Bd. of Educ., 498 F. Supp. 1033, 1037-38 (S.D.N.Y. 1980) we have entirely different claims/action, facts and parties. In New York City Transit Auth. v. Transp. Workers Union of America, 822 N.Y.S.2d 579, 591-92 (2d Dept 2006), we have the Union challenging loss of dues checkoff which again this petitioner would have no standing to claim or challenge.

17

REASONS FOR GRANTING THE WRIT

First this Court must review case due to the required Highest Level of Scrutiny of the lower paid Similarly Situated demographically different (higher % of historically discriminated against employees), from other MTA (L.I.R.R. & Metro North) performing identical/similar work. This Disparate Treatment is due solely to the coverage of the lower paid employees by Taylor Law. 2. No facts in petitioners pleadings were controverted by Defendant or lower Courts. This Collateral Estoppel? was based on case law involving other parties, other facts, other Amendments, etc.. The Plausibility pleading hurdle will apparently trip up any future plaintiff under any theory, facts or even a new Amendment. 3. Of the 10 Amendments petitioner contends Defendants are violating under Equal Protection and 1983 many were not even covered by the inapposite case law. 4. To take one, we have no jury trial right for those individually fined by PERB/MTA. Petitioner contended in Pleadings this violates Amendments VI or VII. The absolute right to a jury trial (when not waived) is additionally guaranteed by New York Constitution4and this issue was sadly not addressed
4

2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the

18 by Defendants or Courts. In addition Petitioner prominently mentioned in Complaint that the inequitable absolute 120 day tolling by PERB to file a case encourage misinformation, intransigence, cover-ups and malfeasance by employers. This was not disputed by Defendants or Courts, see "Any material fact set forth by the moving papers and not controverted by the opposing papers is deemed admitted"Cabrera v. Peters et. al. 23 F. 3d 410 C. A. Seventh Circuit. 5. Violations of Petitioners Amendments IX and X rights under Equal Protection and 1983 were neither answered nor disputed by Defendants or Courts, other than the litany of inapposite case law. The so called Right to Strike (which is really just Freedom to Contract) is an unambiguous right inalienable to the vast majority of Americans, including similar/identical employees within the MTA (not to be confused with the Los Angeles MTA which has had this right for public servants since 1960 (see Los Angeles Metropolitan Transit Authority v. Brotherhood of Railroad Trainmen, 54 Cal. 2d 684, 355 P.2d 905. (1960)). In addition, the vast majority of Train Men/Operators/ Engineers have and have had the right to strike since the 19 century. In fact, not only our fellow L.I.R.R. & Metro
defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.

19 North workers have this essential (to a living wage in our nations most expensive city) Right to Contract but we in the Department of Subways had this right (other than the IND) prior to our ownership to the MTA. 6. Not just our colleagues in Los Angeles have this essential Natural Right to Contract/Strike but all Public Employees (other than Essential Public Safety workers) in our great nations most populous state. See CITY OF SAN JOSE v. OPERATING ENGINEERS LOCAL UNION NO. 3. 49 Cal.4th 597 (2010). 110 Cal. Rptr. 3d 718. 232 P.3d 701. Throughout our nation and the world Similarly Situated Railroad/Subway employees, in London, Paris, Los Angeles etc., have this Right to Contract. 7. The Second Circuit dismissed case under the lowest possible hurdle, contending case is frivolous. This Precedent, conflicting with other Circuits, will be used to further erode the Civil Rights of the indigent, incarcerated, self-represented and others with important Public Policy questions seeking Remedy and Access to Courts (see Amendment VII) to Review what is, at the very least believed to be, unconstitutional Statues under Marbury & 1983. 8. What may be most damaging of all, the very pretzel logic employed by defendants, and mimicked by the Courts, appear to end even the very hope of Remedy regarding unconstitutional laws. Defendants Affirmative Defense utilized this Mobius Strip/Catch 22 syllogism, that since the Taylor Law has not already been thrown out it can not, or no longer be, challenged. That since other Plaintiffs, with entirely different claims, theories, issues, standing, facts, failed to prevail there may be no

20 more challenges to the Taylor Law and the courthouse door is slammed shut for ever.

CONCLUSION
Frankly, Petitioner is disappointed, but not surprised, the lower Courts have abrogated their obligation to toss this facially & as applied unconstitutional Taylor Law. This case challenges same for MTA employees only, due to the special circumstances previously iterated and for reasons of standing. The Courts, following Defendants lead, merely followed what they seem to believe, incorrectly, are dispositive or relevant case law. As shown, they are not, and the lower courts took the apparent expedient and safe course of punting to this August and Honorable Highest Court. This Court has shown the courage of applying lawful remedy to unconstitutional laws such as with McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010). This case requires the highest level of scrutiny, as previously mentioned. Plaintiff prays this Honorable Supreme Court accept this Petition for Writ of Certiorari and ultimately void of the Taylor Law as applying to MTA/NYC Transit workers and for all and such relief this Court may deem fit Respectfully Submitted ________________________ Brian Burke, Petitioner Pro Se

APPENDIX
S.D.N.Y.-N.Y.C. 09-cv-3291 Koeltl, J.

United States Court of Appeals

a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day of March, two thousand eleven, Present: Robert D. Sack, Robert A. Katzmann, Richard C. Wesley, Circuit Judges.
FOR THE SECOND

CIRCUIT At

Brian Burke, ORDER Plaintiff-Appellant, Docket Number 10-97 V Metropolitan Transportation Authority, NYC Transit Authority, Public Employment Relations Board, Andrew M. Cuomo, New York State Attorney General, Defendants-Appellees. Appellant, pro se, moves for appointment of counsel. Upon due consideration, it is hereby ORDERED that the motion is DENIED and the appeal is DISMISSED because it lacks an arguable basis in law or fact. See 28 U.S.C. 1915(e); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (defining when an

action lacks an arguable basis in law or fact). FOR THE COURT: Catherine OHagan Wolfe, Clerk

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT __________________________________________

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 20th day of May, two thousand eleven, ______________________________ ORDER Docket Number: 10-97 Brian Burke, Plaintiff-Appellant, v. Metropolitan Transportation Authority, NYC Transit Authority, Public Employment Relations Board, Andrew M. Cuomo, New York State Attorney General, Defendants-Appellees. ______________________________ Appellant Brian Burke filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request as a motion for reconsideration, and the active members of the Court have considered the request for rehearing en banc. IT IS HEREBY ORDERED that the motion and petition are denied. For the Court: Catherine O'Hagan Wolfe, Clerk UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK B RIAN BURKE, Plaintiff, - against -

METROPOLITIAN TRANSPORTATION AUTHORITY, ET AL., Defendants. 09 Civ. 3291 (JGK) MEMORANDUM OPINION AND ORDER JOHN G. KOELTL, District Judge: The plaintiff, Brian Burke, brought this action pro se purportedly pursuant to 42 U.S.C. 1983 against the New York City Transit Authority (NYCTA), the Metropolitan Transportation Authority (MTA), the New York Public Employment Relations Board (PERB), and the New York State Attorney General. The plaintiff was fined for participating in a strike against his employer, the NYCTA, pursuant to New Yorks Public Employees Fair Employment Act, N.Y. Civ. Serv. Law 200-14 (1999) (commonly known as the Taylor Law). He seeks declaratory and injunctive relief, as well as money damages. Defendants NYCTA and the MTA each filed motions to dismiss the plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The New York PERB and the New York State Attorney General filed a joint motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). The plaintiff has made several motions, including a motion to admit a Third Amended Complaint, which names the City of New York as an additional defendant, as did a previous Amended Complaint. Because the City of New York is a separate entity from the plaintiffs employer, the NYCTA, and because the Third Amended Complaint contains no allegations against the City of New York, the plaintiffs motion to join the City of New York is denied. The plaintiffs motion to admit the

remainder of his Third Amended Complaint is granted. The defendants have requested that the Court apply their previous motions to dismiss against the plaintiffs Third Amended Complaint and the Court will do so. I In defending a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of proving the Courts jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the Complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch.,386 F.3d 107,110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiffs favor. Id.; Graubar v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir.1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In doing so, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also Donelli v. County of Sullivan, No. 07 Civ. 2157, 2009 WL 2365551, at *1(S.D.N.Y. July 31, 2009); Tsering v. Wong, No. 08 Civ. 5633, 2008 WL 4525471, at *1(S.D.N.Y. Oct. 3, 2008); Melnitzky v. HSBC Bank USA, No. 06 Civ. 13526, 2007 WL 1159639, at *5 (S.D.N.Y. Apr. 18, 2007). On a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the

Complaint are accepted as true. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss pursuant to Rule 12(b)(6), all reasonable inferences must be drawn in the plaintiffs favor. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Courts function on a motion to dismiss is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the Complaint if the plaintiff has stated enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. at 1949; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007); Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002); Powe v. Cambium Learning Co., No. 08 Civ. 1963, 2009 WL 2001440, at *1 (S.D.N.Y. July 9,2009). The pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of Rules 12(b)(1) and 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-

46 (2d Cir. 2002). Additionally, the submissions of a pro se litigant should be interpreted to raise the strongest arguments that they suggest. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Tsering, 2008 WL4525471, at *1. II The following facts are undisputed and are taken from the plaintiffs Third Amended Complaint. Mr. Burke is, and was at time of the events in this case, a NYCTA train operator. (Third Am. Compl. 2.) He was fined under the Taylor Law for his participation in the December 2005 New York City transit strike. (Third Am. Compl. 2.) Mr. Burke sought to challenge the fine before the New York PERB, but he was unsuccessful. (Third Am. Compl. 2.) The plaintiff now argues that the Taylor Law is unconstitutional under the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments. He seeks declaratory judgment invalidating the law, an injunction blocking future enforcement of the law by the defendants, and he asks that all fines assessed as a result of the December 2005 strike be returned to those who paid them. All of the defendants move to dismiss the plaintiffs claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The New York PERB and the New York State Attorney General also move to dismiss pursuant Rule 12(b)(1). III The New York PERB and New York State Attorney General argue that this Court does not have subject matter jurisdiction over the plaintiffs claims against them because they are entitled to Eleventh Amendment immunity. Under the Eleventh Amendment, a state cannot be sued in federal court unless it consents or Congress, pursuant to a valid

exercise of its power, unequivocally states its intent to abrogate the state[]s[]immunity. New York City Health and Hosps. Corp. v. Perales, 50 F.3d 129, 134 (2d Cir. 1995). State immunity to suit in federal court extends to state agencies, such as the New York PERB, which cannot be sued absent a waiver or clear congressional abrogation. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). There is no evidence of such a waiver or abrogation in this case. Eleventh Amendment immunity does not bar suits to enjoin prospectively unconstitutional conduct by state officials acting in their official capacities. See Ex parte Young, 209 U.S. 123,159-60 (1908). To the extent the plaintiff is seeking such injunctive relief against the New York State Attorney General in this case, the Eleventh Amendment would not be a bar to his constitutional claims. See Dube v. State Univ. of N.Y., 900 F.2d 587, 595 (2d Cir. 1990). Any claims for retroactive money damages would be barred. See Edelman v. Jordan, 415 U.S. 651, 677 (1974). In any event, however, the plaintiff has failed to state a claim against the New York State Attorney General, the New York PERB, the NYCTA, or the MTA. All of the plaintiffs claims are rooted in his argument that the Taylor Law is unconstitutional. However, the Taylor Law has long been held constitutional. See, e.g., Buffalo Teachers Fedn, Inc. v. Helsby, 676 F.2d 28,29-30 (2d Cir. 1982) (per curiam) (finding that fine assessed under Taylor Law against worker who participated in strike did not violate Equal Protection Clause); Cheeseman v. Carey, 623 F.2d 1387, 1389-93 (2d Cir. 1980) (Friendly, J.) (reviewing previous unsuccessful constitutional challenges to Taylor Law and finding that one Equal Protection claim borders on the

frivolous); Margiotta v. Kaye, 283 F. Supp. 2d 857, 863-65 (E.D.N.Y. 2003) (rejecting constitutional challenges to Taylor Law); N.Y. State Inspection, Sec. & Law Enforcement Employees, Dist. Council 82 v. N.Y. State Pub. Employment Relations Bd., 629 F. Supp. 33, 54 (N.D.N.Y. 1984) (finding Taylor Law did not violate First or Fourteenth Amendments); OBrien v. Bd. of Educ., 498 F. Supp. 1033, 1037-38 (S.D.N.Y. 1980) (rejecting constitutional challenges to the Taylor Law, including under Eighth Amendment); New York City Transit Auth. v. Transp. Workers Union of America, 822 N.Y.S.2d 579, 591-92 (2d Dept 2006) (rejecting challenges to Taylor Law under Sixth and Fourteenth Amendments); Lawson v. Bd. of Educ., 315 N.Y.S.2d 877, 878 (3d Dept 1970) (noting that court did not perceive any merit as to the . . . contentions in regard to the constitutionality of Taylor Law), appeal denied, 269 N.E.2d 834 (1971), appeal dismissed, 404 U.S. 907 (1971). The plaintiff appears to recognize this fact, noting that he cannot claim any case law throwing out the Taylor Law for [c]onstitutional violations. (Pl.s Oppn & Cross-Mot. Affirmation 7.) The plaintiff offers no convincing argument for the Court to fail to follow the settled precedent holding the Taylor Law constitutional. The plaintiff has failed to provide any plausible basis to find the Taylor Law unconstitutional. Therefore, the plaintiffs claims against the defendants in this case have no legal basis. IV The plaintiff has also made a motion for sanctions against defendant MTAs counsel pursuant to Rule 11 for their continual, unremitting, satanic, seditionist, actionable attack on the Constitution. (Pl.s Oppn & Cross-Mot. Affirmation 2.) The plaintiff has alleged no conduct

by the MTAs counsel that would violate Rule 11. Therefore, that motion is denied. Finally, the plaintiff has made a motion for a continuance of a motion for summary judgment to allow discovery pursuant to Rule 56(f). The plaintiff seeks information, in the control of defendants, regarding MTAs actions as Plaintiffs employer and actions to institute egregious and ruinous fines. (Pl.s Oppn & Cross-Mot. Affirmation 7.) First, neither party made a motion for summary judgment in this case, and, for the reasons stated above, there is no need to convert the defendants motions to dismiss into motions for summary judgment. Second, the plaintiff has not presented an affidavit as required by the Rule, nor has he made any showing of how the facts he seeks would create a material issue of fact, what efforts he made to obtain those facts, and why they were unsuccessful. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994). Therefore, the plaintiffs Rule 56(f) motion is denied. CONCLUSION The Court has carefully considered all of the partiesarguments. To the extent not specifically addressed in this Opinion they are either moot or without merit. For the reasons stated above, the defendants motions to dismiss the plaintiffs Third Amended Complaint are Granted. The Third Amended Complaint is dismissed with prejudice. The Clerk is directed to dismiss any additional pending motions without prejudice as moot. The Clerk is also directed to enter Judgment and to close this case. SO ORDERED Dated: New York, New York November 24, 2009 John G. Koeltl United States District Judge UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK BRIAN BU RKE, Plaintiff, - against METROPOLITIAN TRANSPORTATION AUTHORITY, ET AL., Defendants. 09 Civ. 3291 (JGK) ORDER JOHN G. KOELTL, District Judge: The Court has received a courtesy copy of the fully briefed motion to dismiss of defendants New York State Public Employment Relations Board and the New York Attorney General. Defendant Metropolitan Transportation Authority shall submit courtesy copies of its motion to dismiss (Docket Nos. 5 and 8) by October 23, 2009. Defendant New York City Transportation Authority shall submit courtesy copies of its motion to dismiss (Docket No. 13) by October 23, 2009. The defendants shall also submit courtesy copies of the pro se plaintiffs motions (Docket Nos. 19, 23, and 29) by October 23, 2009 to the extent they are fully briefed motions and not otherwise included as the plaintiffs responses to the defendant motions to dismiss. SO ORDERED. Dated: New York, New York October 14, 2009 John G. Koeltl United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK BURKE, Plaintiff, - against METROPOLITIAN TRANSPORTATION AUTHORITY, ET AL., Defendants.

 09 Civ. 3291 (JGK) ORDER JOHN G. KOELTL, District Judge: The Court has received the pro se plaintiffs motion to admit his third amended complaint, The defendants should respond by November 9, 2009 and indicate whether they oppose the plaintiffs motion and if so, on what grounds. The defendants should also indicate if their prior motions to dismiss should be directed towards the plaintiffs motion or proposed third amended complaint and should indicate if they wish to make any additions to their prior submissions. The plaintiff may submit a reply, if any, by November 23, 2009. SO ORDERED. Dated: New York New York John G. Koeltl United States District Judge The Taylor Law (Public Employees' Fair Employment Act) Civil Service Law, Article 14 SECTION 200 Statement of Policy 200 Statement of Policy: The legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. These policies are best effectuated by (a) granting to public employees the right of organization and representation, (b) requiring the state, local governments and other political subdivisions to negotiate with, and enter into written agreements with employee organizations representing public employees which have been certified or recognized, (c) encouraging such public employers and such

employee organizations to agree upon procedures for resolving disputes, (d) creating a public employment relations board to assist in resolving disputes between public employees and public employers, and (e) continuing the prohibition against strikes by public employees and providing remedies for violations of such prohibition. 201 Definitions: 9. The term "strike" means any strike or other concerted stoppage of work or slowdown by public employees. 210 Prohibition of Strikes: 1. No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike. 2. Violations and penalties; presumption; prohibition against consent to strike; determination; notice; probation; payroll deductions; objections; and restoration. (a) Violations and penalties. A public employee shall violate this subdivision by engaging in a strike or violating paragraph (c) of this subdivision and shall be liable as provided in this subdivision pursuant to the procedures contained herein. In addition, any public employee who violates subdivision one of this section may be subject to removal or other disciplinary action provided by law for misconduct. (b) Presumption. For purposes of this subdivision an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his normal manner without permission, on the date or dates when a strike occurs, shall be presumed to have engaged in such strike on such date or dates. (c) Prohibition against consent to strike. No person exercising on behalf of any public employer any

authority, supervision or direction over any public employee shall have the power to authorize, approve, condone or consent to a strike, or the engaging in a strike, by one or more public employees, and such person shall not authorize, approve, condone or consent to such strike or engagement. (d) Determination. In the event that it appears that a violation of this subdivision may have occurred, the chief executive officer of the government involved shall, on the basis of such investigation and affidavits as he may deem appropriate, determine whether or not such violation has occurred and the date or dates of such violation. If the chief executive officer determines that such violation has occurred, he shall further determine, on the basis of such further investigation and affidavits as he may deem appropriate, the names of employees who committed such violation and the date or dates thereof. Such determination shall not be deemed to be final until the completion of the procedures provided for in this subdivision. (e) Notice. The chief executive officer shall forthwith notify each employee that he has been found to have committed such violation, the date or dates thereof and of his right to object to such determination pursuant to paragraph (g) of this subdivision; he shall also notify the chief fiscal officer of the names of all such employees and of the total number of days, or part thereof, on which it has been determined that such violation occurred. Notice to each employee shall be by personal service or by certified mail to his last address filed by him with his employer. (f) Payroll deductions. Not earlier than thirty nor later than ninety days following the date of such

determination, the chief fiscal officer of the government involved shall deduct from the compensation of each such public employee an amount equal to twice his daily rate of pay for each day or part thereof that it was determined that he had violated this subdivision; such rate of pay to be computed as of the time of such violation. In computing such deduction, credit shall be allowed for amounts already withheld from such employee's compensation on account of his absence from work or other withholding of services on such day or days. In computing the aforesaid thirty to ninety day period of time following the determination of a violation pursuant to subdivision (d) of paragraph two of this section and where the employee's annual compensation is paid over a period of time which is less than fifty-two weeks, that period of time between the last day of the last payroll period of the employment term in which the violation occurred and the first day of the first payroll period of the next succeeding employment term shall be disregarded and not counted. (g) Objections and restoration. Any employee determined to have violated this subdivision may object to such determination by filing with the chief executive officer, (within twenty days of the date on which notice was served or mailed to him pursuant to paragraph (e) of this subdivision) his sworn affidavit, supported by available documentary proof, containing a short and plain statement of the facts upon which he relies to show that such determination was incorrect. Such affidavit shall be subject to the penalties of perjury. If the chief executive officer shall determine that the affidavit and supporting proof establishes that the employee did not violate this

subdivision, he shall sustain the objection. If the chief executive officer shall determine that the affidavit and supporting proof fails to establish that the employee did not violate this subdivision, he shall dismiss the objection and so notify the employee. If the chief executive officer shall determine that the affidavit and supporting proof raises a question of fact which, if resolved in favor of the employee, would establish that the employee did not violate this subdivision, he shall appoint a hearing officer to determine whether in fact the employee did violate this subdivision after a hearing at which such employee shall bear the burden of proof. If the hearing officer shall determine that the employee failed to establish that he did not violate this subdivision, the chief executive officer shall so notify the employee. If the chief executive officer sustains an objection or the hearing officer determines on a preponderance of the evidence that such employee did not violate this subdivision, the chief executive officer shall forthwith notify the chief fiscal officer who shall thereupon cease all further deductions and refund any deductions previously made pursuant to this subdivision. The determinations provided in this paragraph shall be reviewable pursuant to article seventy-eight of the civil practice law and rules. 3.(a) An employee organization which is determined by the board to have violated the provisions of subdivision one of this section shall, in accordance with the provisions of this section, lose the rights granted pursuant to the provisions of paragraph (b) of subdivision one of section two hundred eight of this chapter. (b) In the event that it appears that a violation of subdivision one of this

section may have occurred, it shall be the duty of the chief executive officer of the public employer involved (i) forthwith to so notify the board and the chief legal officer of the government involved, and (ii) to provide the board and such chief legal officer with such facilities, assistance and data as will enable the board and such chief legal officer to carry out their duties under this section.(c) In the event that it appears that a violation of subdivision one of this section may have occurred, the chief legal officer of the government involved, or the board on its own motion, shall forthwith institute proceedings before the board to determine whether such employee organization has violated the provisions of subdivision one of this section. (d) Proceedings against an employee organization under this section shall be commenced by service upon it of a written notice, together with a copy of the charges. A copy of such notice and charges shall also be served, for their information, upon the appropriate government officials who recognize such employee organization and grant to it the rights accompanying such recognition. The employee organization shall have eight days within which to serve its written answer to such charges. The board's hearing shall be held promptly thereafter and at such hearing, the parties shall be permitted to be represented by counsel and to summon witnesses in their behalf. Compliance with the technical rules of evidence shall not be required. (e) In determining whether an employee organization has violated subdivision one of this section, the board shall consider (i) whether the employee organization called the strike or tried prevent it, and (ii) whether the employee organization made or was making good faith efforts

to terminate the strike. (f) If the board determines that an employee organization has violated the provisions of subdivision one of this section, the board shall order forfeiture of the rights granted pursuant to the provisions of paragraph (b) of subdivision one, and subdivision three of section two hundred eight of this chapter, for such specified period of time as the board shall determine, or, in the discretion of the board, for an indefinite period of time subject to restoration upon application, with notice to all interested parties, supported by proof of good faith compliance with the requirements of subdivision one of this section since the date of such violation, such proof to include, for example, the successful negotiation, without a violation of subdivision one of this section, of a contract covering the employees in the unit affected by such violation; provided, however, that where a fine imposed on an employee organization pursuant to subdivision two of section seven hundred fifty-one of the judiciary law remains wholly or partly unpaid, after the exhaustion of the cash and securities of the employee organization, the board shall direct that, notwithstanding such forfeiture, such membership dues deduction shall be continued to the extent necessary to pay such fine and such public employer shall transmit such moneys to the court. In fixing the duration of the forfeiture, the board shall consider all the relevant facts and circumstances, including but not limited to: (i) the extent of any willful defiance of subdivision one of this section (ii) the impact of the strike on the public health, safety, and welfare of the community and (iii) the financial resources of the employee organization; and the board may consider (i) the refusal of the employee organization or the appropriate public

employer or the representative thereof, to submit to the mediation and fact-finding procedures provided in section two hundred nine and (ii) whether, if so alleged by the employee organization, the appropriate public employer or its representatives engaged in such acts of extreme provocation as to detract from the responsibility of the employee organization for the strike. In determining the financial resources of the employee organization, the board shall consider both the income and the assets of such employee organization. In the event membership dues are collected by the public employer as provided in paragraph (b) of subdivision one of section two hundred eight of this chapter, the books and records of such public employer shall be prima facie evidence of the amount so collected. (g) An employee organization whose rights granted pursuant to the provisions of paragraph (b) of subdivision one, and subdivision three of section two hundred eight of this article have been order [sic] forfeited pursuant to this section may be granted such rights after the termination of such forfeiture only after complying with the provisions of clause (b) of subdivision three of section two hundred seven of this article. (h) No compensation shall be paid by a public employer to a public employee with respect to any day or part thereof when such employee is engaged in a strike against such employer. The chief fiscal officer of the government involved shall withhold such compensation upon receipt of the notice provided by paragraph (e) of subdivision two of section two hundred ten; notwithstanding the failure to have received such notice, no public employee or officer having knowledge that such employee has so engaged in such a strike shall deliver or caused [sic] to be

delivered to such employee any cash, check or payment which, in whole or in part, represents such compensation. 4. Within sixty days of the termination of a strike, the chief executive officer of the government involved shall prepare and make public a report in writing, which shall contain the following information: (a) the circumstances surrounding the commencement of the strike, (b) the efforts used to terminate the strike, (c) the names of those public employees whom the public officer or body had reason to believe were responsible for causing, instigating or encouraging the strike and (d) related to the varying degrees of individual responsibility, the sanctions imposed or proceedings pending against each such individual public employee. 211 Application for Injunctive Relief: Notwithstanding the provisions of section eight hundred seven of the labor law, where it appears that public employees or an employee organization threaten or are about to do, or are doing, an act in violation of section two hundred ten of this article, the chief executive officer of the government involved shall (a) forthwith notify the chief legal officer of the government involved, and (b) provide such chief legal officer with such facilities, assistance and data as will enable the chief legal officer to carry out his duties under this section, and, notwithstanding the failure or refusal of the chief executive officer to act as aforesaid, the chief legal officer of the government involved shall forthwith apply to the supreme court for an injunction against such violation. If an order of the court enjoining or restraining such violation does not receive compliance, such chief legal officer shall forthwith apply to the supreme court to punish such

violation under section seven hundred fifty of the judiciary law.