Full opinion text
MEMORANDUM-DECISION AND ORDER McCURN, Chief Judge. I. Introduction This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiffs are challenging the constitutionality of two affirmative action programs administered by the State of New York with respect to certain highway construction projects. The plaintiff in the present motion for a preliminary injunction is Harrison and Burrowes Bridge Constructors, Inc. (“Harrison”) — a corporation engaged almost entirely in the business of constructing and renovating bridges on New York State highway projects. Harrison seeks a preliminary injunction barring the State Department of Transportation (“State DOT”) from enforcing these state and federal programs which act to pressure prime contractors to employ subcontractors that are owned and controlled by minorities and women. The plaintiff has raised both a facial and as applied equal protection challenge to the State DOT’s enforcement of the state and federal set-aside programs. The constitutionality of government-sponsored affirmative action programs has been hotly debated within the Supreme Court in four cases which have produced twenty-three separate opinions. See Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). On this issue the Court has spoken as a majority only in certain portions of Justice O’Connor’s opinion in the Croson decision. These divergent and lengthy opinions make the task of lower federal courts faced with constitutional challenges to affirmative action programs all the more difficult. This court held a hearing on May 9,1989, at which time the parties engaged in oral argument — neither party desiring to present witnesses. The court denied the plaintiff’s request for a temporary restraining order and held the preliminary injunction motion in abeyance pending the submission of further legal briefing and affidavits. Both parties to this motion have been permitted to make numerous post-hearing submissions. The State of New York is to be lauded for its efforts to increase the opportunities of minority and women-owned businesses to participate in state funded contracts. However, as will be discussed below, the state has not put forward the evidentiary showing which is now required to find the state’s affirmative action program constitutional. On the other hand, the court is not satisfied that the federal affirmative action program, as administered by the State DOT, is constitutionally suspect in a manner which would permit this court to issue a preliminary injunction barring the State DOT from administering the federal program. The following constitutes the court’s findings of facts and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. II. The Challenged Programs and Conduct The State DOT administers two programs which are aimed at increasing the level of participation of businesses which are owned and operated by women, minorities, and disadvantaged individuals on state and federally funded transportation construction contracts. Though styled as a § 1983 action, the plaintiff has challenged both programs — requiring this court to undertake a review of the federal legislation and regulations as they are administered by the State DOT. A. The Program Applicable to State Funded Projects (i) The Statute. The New York State Legislature has enacted a comprehensive program designed to increase the participation of minority and women-owned business enterprises (termed “MBE’s” and “WBE’s”) in contracts awarded by the State and its agencies; included within the scope of this program are state-funded construction contracts awarded by the Department of Transportation. See generally, Article 15-A of New York Executive Law, §§ 310-18; 1988 Session Laws, Ch. 261 § 63 (“Article 15-A”). The program, entitled “Participation by Minority Group Members and Women With Respect to State Contracts,” became effective on July 19, 1988. The provisions of Article 15-A supersede any prior enacted state law which was developed to increase the participation of women and minority-owned businesses in state contracts. N.Y.Exec.Law § 317. The state legislation does not apply to contracts on which a federal law concerning the participation of W/MBE’s is applicable. Id. at § 313(3). The centerpiece of Article 15-A is the establishment of the Governor’s Office of Minority and Women’s Business Development. N.Y.Exec.Law § 311. The director of this office, among other things, is required to “encourage and assist contracting [state] agencies in their efforts to increase participation by minority and women-owned business enterprises on state contracts and subcontracts so as to facilitate the award of a fair share of such contracts to them." Id. at § 311(3)(a) (emphasis added). One of the duties of the director is to develop a directory of “certified minority and women-owned business enterprises" which are available to be solicited for state contract and subcontract work by either state agencies or general contractors. See id. at §§ 311(3)(f), 310(1), 314. The director is required to issue rules and regulations which: [P]rovide measures and procedures to ensure that certified businesses shall be given the opportunity for meaningful participation in the performance of state contracts and to identify those state contracts for which certified businesses may best bid to actively and affirmatively promote and assist their participation in the performance of state contracts so as to facilitate the award of a fair share of state contracts to such businesses.... Id. at § 313(1). At no point does Article 15-A specify a quota or percentage set-aside of work on state contracts for M/WBE’s. Rather, the statute employs less precise phrases such as “participation requirements,” id at § 313(5), or “fair share,” id. at § 313(1), to designate those portions of a particular state contract which are targeted for W/MBE's. Article 15-A attempts to “encourage” contractors with state agencies to reach the designated W/MBE participation requirements by requiring contractors to submit a minority and women-owned business “utilization plan” prior to the award of a state contract. Id. at § 313(4)(a). The contracting agency must review the utilization plan, notify the contractor in writing of any deficiencies, and require that any deficiencies be remedied. Id. at § 313(4)(a). Failure on the part of a contractor to cure deficiencies may result in the revocation of the contract. However, the contractor has a right to notification of the specific grounds for the revocation, an administrative appeal, and an appeal to the New York State Supreme Court, Appellate Division. Id. at §§ 313(4)(c). The state statute also contains a provision whereby a contractor can apply for a complete or partial waiver of the W/MBE participation requirements on a state contract. The waiver may be granted if the contractor can show that it cannot, after making “good faith efforts,” comply with the W/MBE participation goal. Id. at § 313(5). When deciding whether to grant the requested waiver the contracting agency must consider such things as: the number and type of MBE’s and WBE’s available to work in the region of the state where the contract is to be performed; the dollar value and scope of the contract; the ability of W/MBE’s from outside the region to perform the work; the contractor’s solicitation of WBE’s and MBE’s individually and through appropriate media; whether a WBE or MBE has responded to a bid solicitation in a timely and competitive manner; and whether the contractor has attempted to reorganize the contract work so as to increase the likelihood of W/MBE participation. Id. at § 313(5) and (6). In the event that a waiver is denied for failure to comply with the participation requirements, both the contractor and contracting agency may file a complaint with the Director of the Governor’s Office of Minority and Women’s Business Development. Id. at § 313(7) and (8). Thereafter, the director is to attempt to resolve the problem and, if not resolved, refer the matter to arbitration for a report and recommendation. The statute permits the imposition of unspecified “sanctions, fines or penalties” against the contractor or a decision that no sanctions are appropriate. Id. at § 316. However, the assessment of any penalty against a contractor is subject to appeal pursuant to Article 78 of the New York Civil Practice Laws and Rules. Id. (ii) The Regulations. Pursuant to Article 15-A, the Director of the Governor’s Office of Minority and Women’s Business Development has filed “emergency” regulations with the New York Secretary of State. The present regulations, which apply to the DOT, are codified at N.Y.Comp.Codes R. & Regs. tit. 9 §§ 540-544 (1990). These regulations generally expand upon the language contained in Article 15-A. State agencies, such as the State DOT, which are covered by the regulations are required to submit to the Director of the Governor’s Office of Minority and Women’s Business Development an “agency goal plan” which sets the goal for the percentage of participation of MBE’s and WBE’s on contracts issued by the agency along with a justification for the goal. Id. at § 541.2(a). The director may accept, reject or modify the proposed agency goal plan. Id. at § 541.3. The contracting agencies must also establish a W/MBE participation goal for each individual contract. When setting the individual contract goals the agency is to take into account: (1) the scope of the work; (2) the number, type, and availability of WBE’s and MBE’s in the region of the state where the contract is to be performed; (3) the dollar value of the contract; (4) the percentage of minority group members and women in the population of the region where the contract will be performed; (5) the possible effects of past discrimination in reducing the participation of WBE’s and MBE’s in state contracts; and (6) the ability of other state agencies to meet their participation goals in a particular region of the state. Id. at § 543.2. Prime contractors selected as the low bidder must submit a “utilization plan” specifying the WBE’s and MBE’s which the contractor intends to employ as subcontractors, the amount of money to be paid to the W/MBE’s, and a description of the work that these subcontractors will perform. Id. at § 543.3. If the contractor is unable to meet the WBE/MBE participation requirements specified by the agency for the contract, the contractor must submit a request for a waiver. Id. at § 543.3(d). Should the contracting agency find the utilization plan insufficient it must provide the potential contractor with a notice of the deficiency within 20 calendar days from the date the plan was received; the contractor must respond within seven business days. Id. at § 543.4. Partial or total waivers from the W/MBE participation requirements may be granted by the contracting agency only upon the submission by the contractor of a written request which documents the “good faith efforts” made toward the achievement of the “goal requirements.” Id. at § 543.7(a). The regulations do not specify exactly what constitutes a good faith effort on the part of a potential contractor. Instead, a non-exhaustive list of factors to be considered is set out in section 543.8 of the regulations. These factors, among other things, include: (1) whether a completed utilization plan was submitted; (2) whether bid solicitations were placed in general circulation, trade, and minority- and women-orientated publications; (3) whether appropriate WBE’s and MBE’s listed in the directory of certified businesses received written bid solicitations; (4) the extent to which WBE’s and MBE’s were available and responded to the bid solicitations in a timely and competitive manner; (5) efforts undertaken by the contractor to restructure the work to increase the likelihood of participation by minority- and women-owned businesses; and (6) whether information was provided to potential WBE’s and MBE’s which was sufficient to permit them to submit an informed and timely bid. Id. When the contracting agency determines that the contractor has not documented good-faith efforts toward meeting the W/MBE participation goals the “contracting agency in its discretion may award the contract to the next lower responsible bidder, or to the next most technically qualified or otherwise acceptable proposer, notwithstanding that the disqualified bidder or proposer pursues any [available] remedies _” Id. at § 543.9(a). A disqualified contractor is entitled to an administrative hearing to review the agency’s decision. Id. at § 543.9(b). Should the hearing officer find that the agency’s decision was arbitrary or capricious then the officer must direct a refund of the bid deposit. Id. at § 543.9(d). However, the hearing officer has no authority to direct the state agency to actually award the contract to the wrongfully disqualified contractor. Id. at § 543.9(e). The hearing officer’s decision may be appealed to the New York State Supreme Court, Appellate Division. Id. at § 543.9(g). The contracting agency also has the option of imposing a variety of lesser sanctions against a contractor who fails to meet the goal requirements. Id. at § 543.10. The regulations also provide an opportunity for both the contractor and the contracting state agency to file complaints with the Director of the Governor’s Office of Minority and Women’s Business Development. Id. at § 543.12. It is not precisely clear what matters may be brought to the director’s attention, but it appears that a contractor may request relief from an agency determination to deny a waiver from W/MBE goal requirements or to impose sanctions. Id. at § 543.12(e). Should the director be unable to resolve the complaint the matter may be referred to an arbitrator. The arbitrator makes a report to the director who may accept, reject, or modify the report but only to the extent that no sanction is increased. Id. at § 543.12(f). There is no language in the regulations which permits the director to require the agency to award a contract to a wrongfully disqualified contractor or allows for any sanctions to be awarded against the contracting agency. The director’s decision may be appealed in accordance with Article 78 of the New York Civil Practice Law and Rules. Id. B. The Federal Program In 1983, Congress enacted a five-year transportation authorization act entitled the Surface Transportation Assistance Act of 1982, Pub.L. No. 97-424, 96 Stat. 2097 (“STAA”). Section 105(f) of STAA states: Except to the extent that the Secretary determines otherwise, not less than 10 ;per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(d) of the Small Business Act (15 U.S.C. section 637(d)) and relevant subcontracting regulations promulgated pursuant thereto. To implement the set-aside provisions of STAA, the United States Department of Transportation (“Federal DOT”) promulgated extensive regulations codified at 49 C.F.R. part 23, subpart D. New York Highway Law § 85 requires the State Commissioner of Transportation to comply with the Federal Aid Highway and Transportation Acts and regulations promulgated thereunder. The current transportation authorization act, entitled the Surface Transportation and Uniform Relocation Assistance Act of 1987 (“STURAA”), also contains a provision which targets a portion of the federal funds for “disadvantaged business enterprises” (“DBE’s”). Pub.L. No. 100-17, 101 Stat. 132. Section 106(c) of STURAA requires “not less than 10 percent of the amounts” appropriated under the Act to be “expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.” Section 106(c) continues to employ the definition of “socially and economically disadvantaged individuals” contained in the Small Business Act, with the exception that women are included as persons presumed to be disadvantaged individuals. Section 106(c) of STURAA is modeled upon the DBE set-aside program contained in section 105(f) of STAA. The provisions of STAA were, in turn, modeled after section 103(f)(2) of the Public Works Employment Act of 1977 (“PWEA”), 42 U.S.C. § 6705(f)(2). See Senate Report (Environment and Public Works Committee) No. 100-4, 100th Cong., 1st Sess. (1987), U.S. Code Cong. & Admin. News Vol. 2 (1987) (Legislative History) page 76. The minority set-aside provision of PWEA, along with regulations promulgated thereunder, survived a facial equal protection challenge in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). Disadvantaged businesses are small business concerns which are at least 51 percent owned by socially and economically disadvantaged individuals and whose management and daily business operations are controlled by. one or more such individuals. Women and designated minority group members (e.g. Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or Asian-Indian Americans) are rebuttably presumed to be socially and economically disadvantaged. See 15 U.S.C. § 637(d)(3)(C) (Definitional section of Small Business Act incorporated into STURAA); see also 49 C.F.R. § 23.62 (regulation promulgated by Department of Transportation which implements section 106(c) of STURAA). However, other individuals who are not listed as presumptively disadvantaged may also be designated as disadvantaged on a case-by-case basis. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities. Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged. See 49 C.F.R. § 23.62 (incorporating definitional language found in 15 U.S.C. § 637(a)(5), (6)). Recipients of federal highway funds under STURAA, such as the New York State Department of Transportation, are required to establish overall goals for the use of disadvantaged businesses on construction contracts funded with federal monies. 49 C.F.R. §§ 23.64(a), 23.45(g). Unless the recipient receives a waiver from the Secretary, it must expend at least 10% of these funds with small businesses which are owned and controlled by disadvantaged individuals. Id. at § 23.66(a). The recipients and the Federal Highway Administration may, however, set a higher goal. Id. at § 23.64(d); see H.Conf.Rep. No 100-17 100th Cong., 1st Sess. (Joint Explanatory Statement of the Committee of Conference) (1987), reprinted in U.S.Code Cong. & Admin. News Vol. 2 (1987) (Legislative History) page 132. The regulations also require recipients to set goals for the participation of disadvantaged businesses on each individual prime contract funded by STURAA. Id. at § 23.45(g)(2)(ii). These participation goals are to be “practical and related to the potential availability of [disadvantaged businesses] in desired areas of expertise.” Id. at § 23.45(g)(1). Individual contractors must satisfy the disadvantaged business participation requirements or show “good faith efforts” toward meeting the goals in order to be awarded the STURAA-funded contract. Id. at § 23.45(h). A recipient may be found to be in noncompliance with STU-RAA should it fail to obtain approval of its overall goal by the Department of Transportation or fail to meet an approved goal without providing appropriate justification. Id. at § 23.68(a), (b), (c), and (d). A recipient who fails to meet its overall goal, due to the failure of prime contractors to meet their individual goals, is not excused unless the contractor made good faith efforts to comply. 49 C.F.R. Part 23, Appendix A (discussion of section 23.68). Failure to comply with the regulations may result in the withholding of STURAA funds from the recipient in whole or in part. See 49 C.F.R. § 23.68(e)(1); 23 C.F.R. § 1.36. C. The New York DOT’s Contract Letting Process The New York State Department of Transportation administers the federal DBE program and the state W/MBE program in a similar fashion. According to the defendants, the State DOT abides by all applicable laws and regulations when administering these programs. See May 3, 1989, Affid. of Flowers par. 5; May 3, 1989, Affid. of Harp passim. Pursuant to 49 CFR § 23.64(d) (incorporating the requirements of § 23.45(g)) the New York DOT submitted, and the Federal Highway Administration approved, a disadvantaged business participation goal of 17% for fiscal year. 1989. May 3, 1989, Affid. of Harp, at par. 15; May 3, 1989, Affid. of Flowers, Exhibit A. According to the defendants, the current overall DBE goal was calculated after considering the availability of DBE’s, the level of DBE participation achieved in the previous year, and the type of work to be performed in the coming fiscal year. May 3, 1989, Affid. of Flowers par. 8 and Exhibit A. The DBE participation goals for individual contracts with subcontracting possibilities are generally set by reference to a DOT-developed table which designates goals depending on the dollar amount of the contract, the location within the state of the work to be performed, and the type of work to be performed. See Plaintiffs’ Supporting Exhibits, Exhibit G. Defendants contend that the table is based upon considerations of the availability of DBE’s and the recent success or failure of efforts to obtain DBE participation in a particular area of the state. May 3; 1989, Affid. of Flowers par. 9. An identical overall participation goal of 17% has been set by the State DOT for state-funded construction contracts. The same table is used to set individual contract goals on both state and federal projects. Defendants assert that D/W/MBE participation goals for both the state and federal programs are re-examined annually. May 3,1989, Affid. of Flowers par. 10; see 49 CFR § 23.45(g); N.Y. Exec.Law § 313; N.Y.Comp.Codes R. & Regs. tit. 9 § 541.3. The Contract Review Unit (“CRU”) of the State DOT is initially responsible for determining whether a low bidder on a contract is “responsible” and therefore entitled to be awarded the contract. The low bidder’s compliance with federal DBE and state W/MBE participation goals is one factor which the Contract Review Unit takes into account when deciding whether the low bidder is the lowest responsible bidder. See May 3, 1988, Affid. of Harp pars. 25-28. When the CRU finds that a low bidder has not complied with the participation requirements, it notifies the low bidder of the perceived deficiencies, provides some information on how the low bidder can be brought into compliance, and permits the low bidder to appear before it, with counsel, to discuss the relevant issues. This “discussion” effectively serves as an informal hearing. In the notice, the low bidder is also warned that failure to comply with the D/W/MBE requirements without making a showing of good faith will likely result in the contract being awarded to the next low bidder found to be responsible. See May 3, 1989, Affid. of Flowers, par. 21 and Exhibit E; Plaintiffs’ Supporting Affidavits, Exhibit F. On State contracts the DOT is also required to cause the forfeiture of the low bidder’s bid bond when a showing of good faith is not made. Highway Law § 38(2). Defendants assert that the flexibility of the program is demonstrated by the fact that of the $755 million in contracts let by the DOT from April 1, 1988, to March 31, 1989, nearly $255 million were on contracts where the contractor failed to achieve the D/W/MBE participation requirements, yet made a satisfactory showing of good faith efforts. D. Facts Specific to Plaintiff Harrison The plaintiff is a New York corporation which is engaged almost exclusively in the business of constructing and rehabilitating bridges as a prime contractor on projects let by the New York Department of Transportation. The plaintiff corporation is owned and operated by white males. It is not disputed that the plaintiff is ineligible to be certified as a minority- or women-owned business under New York’s W/MBE program or as a DBE under the federal set-aside program. Plaintiff has consistently bid on State DOT construction contracts and intends to do so in the future. At the time this motion was originally filed, plaintiff Harrison claimed that it had submitted the low bid on six DOT construction contracts since January 1, 1989. At that time, plaintiff had been awarded two of the contracts while the DOT had yet to make a final determination on the award of the four remaining contracts. April 18, 1989, Affid. of DiStefano pars. 3-4. Plaintiff maintained that awards had not been made on the four outstanding contracts because it had failed to comply with the applicable D/W/MBE participation goals. Plaintiff was the low bidder on the following projects: PROJECT LETTING DATE BID AMOUNT FUNDING SOURCE D252654 1-12-89 $ 524,680.24 State D252655 1-12-89 739,739.39 State D252678 2-23-89 434,434.43 State D252729 3-23-89 249,249.49 State D500812 3-30-89 1,173,117.31 Federal D252753 4-13-89 306,306.36 State See April 17, 1989, Affid. of DiStefano par. 3 and Exhibit M. Since this motion was originally filed the State DOT has made final determinations on all six contracts. The D/W/MBE goal and final disposition of each contract was: PROJECT DBE/MBE GOAL WBE GOAL Disposition D252654 8% 2% H & B Awarded D252655 8% 2% H & B Awarded D252678 6% 2% H & B Awarded D252729 6% 2% All Bids Rejected D500812 12% 2% Denied/ Other Awarded D252753 2% H & B Awarded See May 3, 1989, Affid. of Harp, pars. 36-38; July 6, 1989, Affid. of Harp; August 22, 1989, Affid. of Harp; December 12, 1989, Affid. of Harp, par 1. There are no state-funded contracts on which plaintiff was ultimately denied the award due to its failure to comply with the State W/MBE participation requirements. Plaintiff was awarded four of the state-funded contracts. A fifth project, D252729, was withdrawn by the State DOT — all bids being rejected. The plaintiff’s low bid on the federally funded contract, project D500812, was rejected by the Contract Review Unit on the basis that plaintiff neither met the federal DBE participation requirements nor demonstrated good faith efforts toward achieving those goals. See July 6, 1989, Affid. of Harp, par. 6 and Exhibit C. It is undisputed that the plaintiff Harrison received warning letters from the State DOT concerning the state-funded contracts D252654, D252655 and D252678. See April 17, 1989, Affid. of DiStefano, Exhibit N. These letters informed the plaintiff that it was the low bidder, that it had failed to fulfill the W/MBE requirements contained in the contract specifications, and provided information on how the plaintiff could either comply with the W/MBE requirements or make the requisite good faith efforts toward achieving those goals. Moreover, the letters provided the plaintiff with a date upon which the State DOT’s Contract Review Unit would meet to make a final determination as to whether the plaintiff had complied with the W/MBE goals. Plaintiff was notified that it could send a representative to the meeting and that it may be represented by counsel. The letter stated that failure to comply with the W/MBE requirements could result in the contract being awarded to the next “responsible” low bidder and the forfeiture of the bid bond or deposit. The State DOT sent copies of the warning letters to the plaintiffs bonding company. Id. at par. 8. There is nothing in the litigation papers which informs the court whether the Contract Review Unit actually held a hearing. In any event, all three contracts were ultimately awarded to the plaintiff. Plaintiff Harrison was also the low bidder on projects D252729 and D500812. The Contract Review Unit issued warning letters and summoned plaintiff to a meeting on May 18, 1989, for the purpose of determining whether the State DOT would reject the low bids for failure to comply with the D/W/MBE participation requirements. June 19, 1989, Affid. of Hayse par. 4. All bids were ultimately rejected on project D252729. December 12, 1988, Affid. of Harp, pars. 1-3. The plaintiffs low bid on D500812 was rejected for failure to meet the federal DBE requirements; the contract was awarded to the next low bidder. June 19, 1989, Affid. of Hayse par. 5 and Exhibit A. On June 16, 1989, the Contract Review Unit held a meeting to determine whether the plaintiff had complied with the W/MBE requirements on project D252753. Id. at par. 6. As noted above, the contract was ultimately awarded to the plaintiff. Plaintiff asserts that the time and expense of attempting to fulfill the D/W/MBE requirements, responding to warnings, filling out the required forms and attending Contract Review Unit meetings is substantial. Plaintiff claims to have lost money when it subcontracted out portions of contracts to D/W/MBE’s which it would normally perform itself. April 17, 1989, Affid. of DiStefano, par. 13. III. Legal Background Race-Conscious Affirmative Action Programs The Supreme Court decisions which bear most directly on the constitutionality of race-conscious affirmative action programs presently before this court are City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) and Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). A. Croson — State Programs In City of Richmond v. J.A. Croson Co. the Supreme Court struck down, on Fourteenth Amendment equal protection grounds, a program instituted by the City of Richmond, Virginia, which reserved thirty percent (30%) of all public contracting work for minority-owned business enterprises (“MBEs”). MBEs were defined as businesses which were 51% owned and controlled by “minority group members,” that is, U.S. citizens who are Black, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts. The minority set-aside ordinance described the program as “remedial” and was limited in duration to a period of five years. Prime contractors could obtain waivers of the 30% set-aside in narrow circumstances where the program director was satisfied that the set-aside requirements could not be achieved. The program did not provide for a direct right to appeal the denial of a waiver but there was a general right of protest available to contractors under Richmond’s procurement policies. Id. 109 S.Ct. at 712-13. The Croson court examined in detail the evidence upon which the Richmond City Council relied when enacting the minority set-aside program. While the population of Richmond was 50% black, only .67% of all prime contracts had been awarded to minority-owned contractors over the previous five-year period. Local contractor associations had virtually no minority business members. Moreover, testimony was placed on the record asserting that the construction industry excluded persons on account of race. Justice O’Connor determined, however, that the record contained “no direct evidence of race discrimination on the part of the city in letting contracts or any evidence that the city’s prime contractors had discriminated against minority-owned subcontractors.” Id. at 714. The plaintiff in Croson was a plumbing contractor who had submitted the sole bid for a contract to install plumbing fixtures in the city jail. The plaintiff tried to comply with the city ordinance by attempting to purchase the fixtures specified for the project from an MBE. Only one MBE submitted an estimate to the plaintiff. This estimate, however, was late — submitted after the date the bids were unsealed — and high — priced 7% over the actual market value for the fixtures. Id. at 715. The plaintiff’s request for a waiver from the set-aside requirements was denied without an opportunity to appeal. The city instead decided to rebid the project. At this point the plaintiff initiated a suit pursuant to 42 U.S.C. § 1983 alleging that the city ordinance was unconstitutional both on its face and as applied. Id. at 716. In part III-A of her decision in Croson, which was joined by three other members of the Court, Justice O’Connor held that “strict scrutiny” was the standard of judicial review to be applied to the Richmond plan because the plan “denies certain citizens the opportunity to compete for a fixed percentage of the public contracts based solely on race.” Id. at 721. Though a precise definition of the strict scrutiny standard is elusive, this standard, when applicable, generally requires the governmental action to be supported by a compelling interest with the means chosen narrowly tailored to achieve the government’s goal. See e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273-74, 106 S.Ct. 1842, 1846-47, 90 L.Ed.2d 260 (1986). (i) Compelling Interest — Factual Predicate Needed to Justify Race-Conscious Legislation. Part III — B of Justice O’Connor’s decision was joined by a majority of the Court. This portion of the decision discussed the “factual predicate” that a state or local government must provide in order to show the compelling governmental interest necessary to support the enactment of race-conscious legislation. The Court held that: While the States and their subdivisions may take remedial action when they possess evidence that their own spending practices are exacerbating a pattern of prior discrimination, they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief. Id. 109 S.Ct. at 727 (emphasis added). The Croson Court specifically rejected the argument that the state or locality must limit any race-based remedial efforts to eradicating the effects of its own prior discrimination — stating that this “stark” position cannot “withstand analysis.” Id. at 706. Rather, the Court held that a state or locality may enact race-conscious remedial legislation (1) to cure its own prior discrimination or (2) when it had been a “passive participant” in private discrimination due to its financing of a “system of racial exclusion practiced by elements of the construction industry.” Id. at 720, 727. It was further explained that a state or local government must provide a “ ‘strong basis in evidence for its conclusion that remedial action was necessary;’ ” this ‘strong basis’ must “approach a prima facie case of a constitutional or statutory violation” by persons involved in a particular industry. Id. at 724. The Court outlined in detail the type of information which was not sufficient to support the enactment of race-conscious legislation. First, “a generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy.” Id. at 723. Therefore, general statements made before the Richmond City Council, which asserted that there had been past discrimination in the construction industry, were of little effect. Moreover, the “mere recitation of a ‘benign’ or legitimate purpose for a racial classification, is entitled to little or no weight.” Id. Thus, the City Council’s designation of the minority set-aside program as “remedial” was considered to be of slight value in demonstrating a compelling interest for the program. The fact that minorities received only .67% of the prime contracts while minorities comprised 50% of the city’s population was not accepted by the Court as evidence of past discrimination. Although the Court noted that for “certain entry level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s workforce to the racial composition of the relevant population may be probative of a pattern of discrimination,” Id. at 725, the Court held that where “special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task.” Id. As is evident from the Croson decision, construction contractors and subcontractors are considered to be a part of a narrower statistical pool of persons with “special qualifications.” The Croson Court dismissed the city’s contention that low MBE membership in local contractor’s associations was evidence of discriminatory conduct in the construction industry. “The mere fact that black membership in these trade organizations is low, standing alone, cannot establish a pri-ma facie case of discrimination.” Id. at 726. However, the city could show a compelling interest sufficient to support race-conscious legislation “[i]f the statistical disparity between eligible MBEs and MBE membership [in trade associations] [was] great enough [to support] an inference of discriminatory exclusion.” Id. (Emphasis in original). The Croson Court also cited Richmond’s failure, to develop information concerning (1) the number of MBEs available to undertake public contracting work, (2) the percentage of city construction dollars which actually go to minority firms, and (3) the number of violations of Richmond’s anti-discrimination laws by construction contractors, as further support for its holding that the minority set-aside program was initiated on an insufficient factual predicate. Id. at 725-26, and n. 3. Moreover, Congressional findings of nation-wide discrimination in the construction industry was held to be of limited probative value in demonstrating the existence of discrimination locally, id. at 726, and that the existence of discrimination in one area may not be “extrapolated” from discrimination which is found to exist in another location. Id. at 727. Finally, the Croson Court took note of the fact that there was “absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in the Richmond construction industry.” Id. at 727-28 (emphasis in original). This “gross overinclusiveness” was found to “strongly impugn[ ] the city’s claim of remedial motivation.” Id. at 728. (ii) Narrow Tailoring of Program to Remedy Prior Discrimination. After holding that the City of Richmond failed to provide a factual predicate sufficient to show a compelling governmental interest, a majority of the Court, in part IV of the decision, made some “observations” concerning the need to narrowly tailor race-conscious legislation which is designed to remedy discrimination. Id. at 728. The court first emphasized the need to consider “race-neutral means” to increase minority business involvement in public contracting. The Court noted that in Fullilove the Congress had “carefully examined and rejected race-neutral alternatives before enacting the MBE set aside.” Secondly, the Court appeared to be highly suspicious of the “rigid" 30% MBE quota which had been adopted by the City of Richmond. More appropriate to narrow tailoring were programs which considered waivers on a case-by-case basis, took into account whether a particular MBE charged excessively high prices, and investigated to determine whether a particular MBE had actually suffered from the effects of past discrimination. Id. at 728-29. The Croson Court did not, however, completely foreclose the possibility of race-conscious remedial relief. The Court stated: If the city of Richmond had evidence before it that non-minority contractors were systematically excluding minority businesses from subcontracting opportunities it could take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise_ Under such circumstances, the city could act to dismantle the closed business system by taking appropriate measures against those who discriminate.... In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion. Id. at 729 (emphasis added). From the language of Croson it is clear that a state or locality which has enacted a race-conscious remedial program must bear a very heavy burden to survive an equal protection challenge. B. Fullilove — Federal Programs In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Court upheld a minority set-aside program which was contained in § 103(f)(2) of the Public Works Employment Act of 1977, Pub.L 95-28, 91 Stat. 116, 42 U.S.C. § 6705(f)(2). The suit was a facial challenge to the program pursuant to the equal protection component of the Due Process Clause of the Fifth Amendment. The Act, which allocated four billion dollars to states and localities for public works projects, contained a requirement that: “Except to the extent the Secretary determines otherwise, no grant shall be made under this Act ... unless the applicant gives satisfactory-assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises.” Fullilove, 448 U.S. at 454, 100 S.Ct at 2762 (quoting 91 Stat. 116, 42 U.S.C. § 6705(f)(2)). Minority business enterprises were defined as businesses operated and controlled by “citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.” Id. The principal opinion in Fullilove was written by Chief Justice Burger who, as an initial matter, held that Congress had the authority to enact the minority set-aside legislation pursuant to the commerce clause and section 5 of the Fourteenth Amendment. Id. at 475-76, 100 S.Ct. at 2773-74. Next, the Chief Justice addressed the issue of whether the race conscious legislation went beyond the constraints established by the Equal Protection Clause. While the Chief Justice determined that the program must be subject to “close examination,” id. at 472, 100 S.Ct. at 2271, he did not state whether strict scrutiny was the applicable standard of review. Rather, in upholding the program, the opinion emphasized (1) the “unique” remedial authority of Congress pursuant to § 5 of the Fourteenth Amendment, (2) the “abundant” evidence before Congress of past discrimination in the construction industry . which reduced minority participation in the federal construction programs, id. at 458-67, 100 S.Ct. at 2764-69, and (3) the process whereby a waiver could be sought from the set-aside’s requirements where minority businesses were not available to fill the 10% requirement or where the MBE exploited the program by charging an unreasonable price. Id. at 487-88, 100 S.Ct. at 2779-80. C. Croson’s Effect on Fullilove The Croson decision does not detract from Fullilove’s holding that properly enacted federal minority set-aside programs are a valid exercise of a “unique” federal authority — an authority which, in Justice’s O’Connor’s view, does not reside with the states. In part two of her decision in Cro- son, a portion which was joined only by two other members of the Court, Justice O’Connor drew a strong distinction between the authority of states and localities to enact race-conscious remedial legislation as compared to the authority of the Congress. Justice O’Connor emphasized that “ ‘§ 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.’ ” 109 S.Ct. at 719 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828) (emphasis added). This grant of authority to Congress to “identify and redress the effects of society-wide discrimination” does not extend to “States and their political subdivisions.” Id. 109 S.Ct. at 719. In the view of the Croson plurality, while Section 5 of the Fourteenth Amendment expanded Congressional powers: Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and the States must undertake any remedial efforts in accordance with that provision. To hold otherwise would be to cede control over the content of the Equal Protection Clause to the 50 state legislatures and their myriad political subdivisions. The mere recitation of a benign or compensatory purpose for the use of a racial classification would essentially entitle the States to exercise the full power of Congress under § 5 of the Fourteenth Amendment and insulate any racial classification from judicial scrutiny under § 1. We believe that such a result would be contrary to the intentions of the Framers of the Fourteenth Amendment, who desired to place clear limits on the States’ use of race as a criterion for legislative action, and to have the federal courts enforce those limitations. Id. Nothing in Croson detracts from the continued validity of Fullilove. This is evident from the Croson Court’s extensive reliance on Fullilove as well as the efforts taken in Croson to distinguish the standard of review applied to state, as opposed to federal, minority set-aside programs. Croson, 109 S.Ct. at 717-20, 726-30, 719 (“our treatment of an exercise of congressional power in Fullilove cannot be dispositive here”). Therefore, this court must conclude that Fullilove still sets the standard of judicial review of affirmative action programs which have received the approval of Congress. Gender Conscious Affirmative Action Programs The Croson and Fullilove decision dealt solely with classifications based on race or ethnicity. The state and federal programs challenged in the present suit contain gender-conscious classifications in addition to classifications based on race. The Croson Court commented only briefly on gender-conscious set-aside programs, stating that the Court has engaged in a “close examination of the legislative purpose ... when reviewing classifications based on either race or gender.” Croson, 109 S.Ct. at 721-22 (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975)). The Supreme Court has generally applied an intermediate level of scrutiny when reviewing an equal protection challenge to governmental programs which classify persons on the basis of gender. See generally, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Moreover, whether the “statutory policy discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review.” Mississippi University for Women v. Hogan, 458 U.S. 718, 723, 102 S.Ct. 3331, 3335-36, 73 L.Ed.2d 1090 (1982). The intermediate standard as it applies to gender-based classification places a burden on the party seeking to uphold the statute to demonstrate that “the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’ ” Id. at 724, 102 S.Ct. at 3336 (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980)). With respect to the general issue of affirmative action programs which attempt to compensate women for discrimination, the Court in Mississippi University stated: In limited circumstances, a gender based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.... However, we consistently have emphasized that “the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.” ... The same searching analysis must be made, regardless of whether the State’s objective is to eliminate family controversy, ... to achieve administrative efficiency, ... or to balance the burdens born by males and females .... It is readily apparent that a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.” 458 U.S. at 728, 102 S.Ct. at 3338 (citations omitted). In Associated General Contractors of California v. City & County of San Francisco, 813 F.2d 922 (9th Cir.1987), the Ninth Circuit upheld that portion of a city program which provided women-owned businesses with a preference in the award of municipal contracts, while at the same time striking down the portion of the program which provided minority-owned businesses with similar preferences. The court first noted that an “exceedingly persuasive justification” was required to support governmental classifications based on gender. Id. at 940 (citing Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 1199, 67 L.Ed.2d 428 (1981); Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979)). While the court found that assisting women to overcome the effects of discrimination was sufficient to support the use of gender-based classifications, it also noted that the mere recitation of a benign purpose is not enough to support such a classification. The court also emphasized that the gender-based, preference could not operate to “reinforce archaic and stereotyped notions of the roles and abilities of women,” Id. (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514 (1975)), and that the gender-based program must employ means which are “substantially related to [the] achievement” of the goal. Id. at 941 (citing Wengler v. Druggist Mut. Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980). The court held that the city satisfied the first prong of the test because it enacted the legislation to remedy disparate treatment of women in the business community and to assist women in overcoming disadvantage caused by the city’s own contracting practices. Id. at 941. The court was concerned, however, by the fact that the San Francisco ordinance applied to a large number of businesses and professions — expressing the opinion that the program may well be overinclusive. According to the court, there was no reason to believe that women were disadvantaged in all the areas in which the city contracted. Id. However, the court held that there was sufficient evidence of broad discrimination against women for the program to survive a facial challenge — waiting until another day to contemplate the constitutionality of a WBE preference within a particular industry. Id. at 942. In Main Line Paving v. Board of Educ., 725 F.Supp. 1349, 1362-64 (E.D.Pa.1989), the court, employing intermediate scrutiny, struck down a gender-based set aside program. The court held that the Board of Education’s goal of eliminating past discrimination against women in the field of construction contracting was an “important objective.” Id. at 1363. After reviewing the record, however, the court found “scant evidence that the [set-aside policy] is fairly and substantially related” to the important objective. Id. (“[T]he only mention of women [in the record] is the fact that there were very few contracts awarded to them. The [record] contains nothing to detail the cause of this disparity, or to say for certain that it was caused by gender discrimination, rather than other conditions in the economy.”). On this basis, the Main Line court held that the Board of Education had failed to demonstrate the “exceedingly persuasive justification” necessary to justify a gender-conscious classification. Id. at 1364. It is also important to note that the district court, interpreting the “philosophy” of Croson, held that the same intermediate scrutiny applied whether the legislative purpose behind the set-aside program was “benign or malignant.” Id. at 1363. IV. Analysis A. Standing The defendants contend that plaintiff, due to its status as a prime contractor, has no standing to dispute the state or federal D/W/MBE programs. Defendants maintain that the state and federal programs only differentiate between subcontractors employed by prime contractors. And, because the plaintiff is a prime contractor, defendants claim it has failed to allege that its own constitutional rights have been injured or threatened with injury. Defendants further assert that since all state-funded contracts on which the plaintiff was the low bidder have either been awarded to the plaintiff or completely withdrawn, plaintiffs claims with respect to tihe. state program are now moot. The plaintiff argues that the scope of the injury upon which it seeks relief is not limited to whether it was awarded a particular contract. Rather, plaintiff maintains that the requirement that it participate in the program, along with the enforcement efforts taken by the Department of Transportation, present a complete and justicia-ble constitutional injury. Plaintiff cites the “threatening” enforcement letters, the potential loss of bid deposits, the Contract Review Unit meetings in which plaintiff felt compelled to employ counsel, the subcontracting of work to D/W/MBE’s which plaintiff otherwise would have done itself, and the accompanying monetary expense, as examples of concrete injury stemming directly from the allegedly unconstitutional set-aside programs. It is also important to note that the plaintiff, whose entire business is the performance of state highway construction projects, seeks to enjoin future enforcement efforts. The doctrine of standing was recently summarized by the Second Circuit in In re U.S. Catholic Conference (USCC), where the court stated: [T]he Supreme Court [has] made clear that standing is not merely a prudential inquiry into whether a court should exercise jurisdiction, but is rooted in Article Ill's “case” or “controversy” requirement and reflects separation of powers principles.... Thus, when a plaintiff lacks standing to bring suit, a court has no subject matter jurisdiction over the case. Deceptively simple to state, standing entails a complex three pronged inquiry. First, plaintiffs must show that they have suffered an injury in fact that is both concrete in nature and particularized to them.... Second, the injury must be fairly traceable to defendant’s conduct.... Third, the injury must be redressable by removal of defendants’ conduct.... The second and third prongs — traceability and redressability— often dovetail; essentially both seek a causal nexus between the plaintiff’s injury and the defendant’s assertedly unlawful act. 885 F.2d 1020, 1023-24 (2nd Cir.1989), cert. denied — U.S. -, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990). For purposes of conducting a standing analysis at this stage of the litigation the court must assume that the challenged programs operate to violate the Equal Protection Clause and accept the material allegations of plaintiff’s complaint. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). • Under the three-pronged analysis summarized in In re U.S. Catholic Conference (USCC), it is clear that the plaintiff has made sufficient allegations to establish standing. The plaintiff asserts that it has (1) been required to participate in an unconstitutional program, (2) received letters from State DOT officials threatening sanctions for failure to comply with an unconstitutional program, and (3) incurred monetary losses due to the State DOT’s current enforcement of the D/W/MBE programs. If these allegations are true it is apparent that plaintiff has suffered both actual and threatened injury which constitutes an “injury in fact that is both concrete in nature and particularized to [it].” Catholic Conference, 885 F.2d at 1023-24. Therefore, the first prong of the three part test is satisfied. Secondly, the plaintiffs alleged injury is fairly traceable to the defendants — who are the state officials responsible for the administration and enforcement of the challenged programs. And, finally, it is clear that if the defendants stopped enforcing the dictates of the D/W/MBE program, the injury would, at least in part, be redressed. Thus, the second and third prongs of the Catholic Conference test are satisfied. This court finds that the plaintiff has standing to challenge both the state and federal D/W/MBE programs. B. Preliminary Injunction (i) Standard for Preliminary Relief. The standard in the Second Circuit for the issuance of a preliminary injunction is well settled. “The party seeking the injunction must show a risk of irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make a fair ground for litigation and a balance of hardships tipping in the movant’s favor.” Johnson v. Kay, 860 F.2d 529, 540 (2nd Cir.1988). To show a likelihood of success on the merits the movant “need only make a showing that the probability of his prevailing is better than fifty percent.” Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2nd Cir.1985). However, other factors have been considered by courts which may operate to increase the burden upon a party seeking preliminary relief. For example, where the grant of injunctive relief will change the status quo ante — that is, an injunction will change the positions of the parties as it existed prior to the grant — the “injunction is often deemed mandatory, rather than prohibitory, and a greater showing is required of the moving party.” Id. The same is generally true of situations where injunctive relief will provide the movant with essentially all the relief he seeks, see e.g., Johnson v. Kay, 860 F.2d at 540-41; Eng v. Smith, 849 F.2d 80, 82 (2nd Cir.1988), or where an injunction will adversely impact upon the public interest. Yakus v. United States, 321 U.S. 414, 440-41, 64 S.Ct. 660, 674-75, 88 L.Ed. 834 (1944); Union Carbide Agr. Products Co., Inc. v. Costle, 632 F.2d 1014, 1017-18 (2nd Cir.1980), cert denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981); Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2nd Cir.1989). It is clear that the D/W/MBE programs were enacted by the Congress and the New York State Legislature to serve the public interest. These programs will surely be adversely impacted should this court enjoin their operation. Thus, the plaintiffs burden on this motion for a preliminary injunction is to “show a substantial likelihood of success on the merits, i.e., that their cause is considerably more likely to succeed than fail (together, of course, with the requisite irreparable injury).” Abdul Wali v. Coughlin, 754 F.2d at 1026 (emphasis added); see also Johnson v. Kay, 860 F.2d at 540. (ii) Irreparable Injury. “Irreparable injury means injury for which a monetary award cannot be adequate compensation and that where money damages is adequate compensation a preliminary injunction will not issue.” Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2nd Cir.1979). “ ‘When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.’ ” Mitchell v. Cuomo, 748 F.2d 804, 806 (2nd Cir.1984) (Eighth Amendment) (quotin