In Oral Arguments for Garland v. FDNY Appeal, Judges Engage Federal Due Process Argument, Graff Produces a Smoking Gun
In Oral Arguments for Garland v. FDNY Appeal, Judges Engage Federal Due Process Argument, Graff Produces a Smoking Gun
Judges at the Second Circuit U.S. Court of Appeals explored federal due process claims at a Jan. 9 hearing, calling the legitimacy of NYC's municipal worker mandate and union agreements into question.
Attorneys made oral arguments at a hearing last week in the Garland v. New York City Fire Department federal appeal. A three-judge panel at the Second Circuit Court of Appeals in Manhattan heard arguments in the case, which had been dismissed in March 2023 by New York Eastern District Court Judge Kiyo Matsumoto.
The lawsuit led by attorney Austin Graff was filed on behalf of 86 current and former FDNY employees against FDNY and department officials, the City of New York, and the employees’ unions and union officials. It argued that the employees’ federal due process and property rights were violated when they were put on leave without pay for failing to comply with the COVID-19 vaccine mandate for municipal workers.
I thought last Tuesday’s hearing was remarkable.
You can listen to the whole thing for yourself here.
In many other hearings for lawsuits against New York City’s mandates, I’ve seen attorneys face volleys of sharp questioning from judges who sometimes seemed openly hostile toward the idea that the mandates should be challenged in any way.
This time, the tone was different. Attorney Austin Graff had barely begun to lay out his argument that the due process provided by the City mandate implementation was a sham when Judge Steven Menashi broke in and cut straight to the lawsuit’s broadest claim, that firefighters should have had the ability to challenge the legitimacy of the mandate implementation itself as a condition of employment:
Judge Menashi: When you say due process, are you talking about the reasonable accommodation opportunities?
Graff: That was what the city called their due process.
Judge Menashi: They said they were affording due process by giving the opportunity of reasonable accommodation for religious or medical reasons . . . And you're saying that that's a sham, that the firefighters didn't actually have a reasonable opportunity to be heard because they weren't really being considered on those.
Can I ask you, why does due process require just religious and medical exemptions? I mean, isn't your broader claim that the condition is being applied unlawfully in general, even to people who don't have a religious objection or a medical objection? [emphasis mine]
Judges Menashi and Vaden, two Trump appointees, spent the rest of Graff’s opening time asking him questions that seemed similarly designed to engage his most fundamental arguments rather than to shoot them down.
The judges seemed very interested in whether due process was denied not only to people who sought religious and medical exemptions—according to Graff, only 100 of the approximately 3,200 municipal workers who appealed to NYC’s Citywide Panel to request a religious exemption were successful—but to any workers who came under the mandate.
Teasing Apart State and Federal Claims
The judges did also bring up the question of federal jurisdiction over due process questions that ended up being a decisive factor in the recent Broecker v. New York City Department of Education appeal decision.
In that very similar case involving DOE employees, also argued by Graff, the judges denied federal claims but left the door open for the plaintiff-appellants to take their claims to state court.
In the Garland case, Graff argues that the City never established the vaccination requirements as a legitimate condition of employment, because it did not bargain and reach an agreement with the workers’ unions to do that, in accordance with state law. (Two of the three FDNY unions never came to an agreement at all, while one applied an unratified agreement.)
He argues that putting workers on leave without pay—or suspending them without pay, as Graff describes it—was in fact a disciplinary action that workers were denied the right to challenge.
Graff describes the lack of opportunity to challenge the suspensions, outside of the “sham” accommodation process, as a key part of why the mandate implementation failed to meet federal due process requirements.
We’ll see if the judges agree.
In any case, attorney Austin Graff walked out of the courtroom with a smile on his face. He gave me his take on the hearing outside the courthouse:
A few of the plaintiff-appellants were also at the courthouse. Matt Connor, who is also a representative of the organization Bravest for Choice, talked with me about the case as well:
The City’s Smoking Gun
At the January 9 hearing, one of the judges asked the City’s attorney, Chloe Moon, what she thought would be needed to demonstrate that the City’s accommodation process under the mandate was a sham. Would it be that no one got an exemption, he asked, or would it be “a smoking gun email from somebody saying, “‘I'm never gonna give anybody an exemption.’”?
Graff adressed that question in his rebuttal time, pointing to a document that had been included in the exhibits for the Broecker case: the Declaration of Impasse that the United Federation of Teachers submitted to New York State’s Public Employment Relations Board during September 2021.
Today, Graff added that smoking gun to the Garland appeal documents in a letter to the court.
The Declaration of Impasse describes the intransigence of negotiators for New York City as the UFT attempted to bargain over how to implement the mandate that the health commissioner had issued for Department of Education employees:
“On August 30th, the UFT expected to continue a working dialogue on the implementation of a vaccination policy, but the conversation quickly hit major obstacles when the City stated unequivocally that there would be no accommodations and no exceptions to the vaccination mandate.”
The arbitration process that followed did in fact create a process for requesting accommodations—the process Graff calls a sham.
DC37, one of the unions named as defendants in the Garland case, put that same process in place for FDNY and other City employees it represented, in agreements with the City that it appears were never ratified by union membership as required by DC37’s own constitution (see Article XIV, section 1 on “agreements which are city-wide in nature”).
If you’d like to see them for yourself, here are DC37’s agreements with the City for implementing the DOE mandate . . .
. . . and the NYC municipal worker mandate.
I’ll be writing more about the question of whether the City, New York State, and other employers violated state labor laws and contracts by unilaterally imposing a new condition of employment—and whether unions failed in their legal duty to represent their members.
In the meantime, Garland isn’t the only case with a “smoking gun” document being added this week. That’s happening in another major federal lawsuit as well.
Stand by for details . . .
Thank you very much for reporting.
Very interesting, because I always wondered what exemption an atheist would've applied for. Medical? I worked with a guy who applied for a medical exemption and they told him to: "go to the hospital to get the vaccine, so if something happens you'll already be at the hospital 😀" so what would an atheist do if he objected to the vaccine? They went so far out of their way to "protect" religious rights, they totally forgot about atheists!