Attorneys Make Oral Arguments in Broecker v. New York City Department of Education Federal Appeal
The federal lawsuit brought by 93 NYCDOE employees put on leave without pay and terminated under the vaccine mandate could be headed to the Supreme Court or back to a district court next.
Broecker et al v. New York City Department of Education et al. was back in court on Tuesday for oral arguments at the United States Court of Appeals for the Second Circuit in Manhattan.
The lawsuit was brought by 93 current and former New York City Department of Education employees who were put on leave without pay and, in many cases, terminated under the DOE's vaccine mandate. It was dismissed by U.S. District Court Judge for the Eastern District of New York Kiyo Matsumoto in April 2023, and Tuesday’s hearing was part of the process of appealing that decision.
At the hearing, plaintiffs-appellants’ attorney Austin Graff was peppered with questions about whether the case’s claims belong in federal court by a three-judge panel, while attorneys for the defendants-appellees—including the DOE, unions, and arbitrator Martin Scheinman—argued that the lawsuit raised issues that should have been addressed in a state court.
Graff called the due process measures provided by the DOE mandate implementation a “sham,” and accused the DOE of colluding to create an illegal process with the employees’ unions and Scheinman, who devised the mandate implementation procedures. The opposing attorneys responded that the mandate was a lawful condition of employment and its implementation offered more than adequate due process to employees.
Outside the courthouse after the hearing, Graff talked with me about the case and why its constitutional claims belong in federal court:
I also spoke with one of several plaintiff-appellants who were in the courtroom about the hearing and how the mandate affected her:
As Graff said in his comments outside the courthouse, this case is headed either up or down—back to a district court if the appeal prevails or possibly being appealed to the U.S. Supreme Court if it doesn’t.
For more about Broecker v. NYCDOE, check out my April article on the case and my in-depth conversation with Austin Graff:
Broecker v. New York City Department of Education Federal Suit Dismissed, but Plaintiffs Are Still Fighting to Appeal
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