SCOTUS Declines to Review Garland v. FDNY

The cert petition asking the nation's highest court to review Garland was denied this week, ending the legal action brought by 86 firefighters and EMS workers. They and their attorneys commented.

In a decision issued on October 7, the U.S. Supreme Court denied the petition for a writ of certiorari filed by 86 FDNY firefighters and emergency medical services (EMS) workers in Garland et al. v. New York City Fire Department et al. The cert petition, originally filed in July after a February appellate court decision in favor of FDNY, had asked the nation’s highest court to review the case.

The federal lawsuit was originally filed in November 2021, and argued that the implementation of New York City’s COVID-19 vaccine mandate for municipal workers had violated the plaintiffs’ due process rights.

Attorney Austin Graff argued the case for the plaintiffs in the district and appellate courts, and attorneys Warner Mendenhall and Scott Lloyd filed the petition for writ of certiorari on their behalf with the U.S. Supreme Court.

The Garland lawsuit was backed by the organization Bravest for Choice, which advocates for New York City firefighters and EMS workers who were adversely affected by the City’s vaccine mandates. Some of its members were among the Garland plaintiffs.

FDNY Lieutenant Matt Connor commented on behalf of Bravest for Choice on the SCOTUS denial:

On Monday, October 7th, Bravest for Choice was informed that our petition for certiorari in John Garland et al. vs. The Fire Department of the City of New York et al. was denied by the Supreme Court of the United States. We are obviously disappointed in the decision, as this marks the “end of the road” for this litigation.

In the wake of the decision, our challenge is to keep this outcome in perspective. “Garland” was an important prong of our offensive against the mandate and its perpetrators. Our initial goal after our march on the Brooklyn Bridge was to obtain a Temporary Restraining Order to grind the mandate to a halt before it went into effect.

Leave Without Pay, “LWOP,” was the economic sledgehammer intended to coerce the workforce into compliance with the mandate (as Dr. Jay Varma attested to in the recent Louder with Crowder exposé), and the injunctive relief we sought in Garland would have stopped the disastrous policy before it started.

It is worth remembering that in the week leading into the mandate, members of the Fire Department did not know if the job would move to terminate us as a next step, once we had been separated from service. It was only during the TRO hearing in Garland that the weaponized Corporation Counsel went on record to state that terminations were not imminent. This revelation helped galvanize our resistance in the early days of the fight. The oral arguments and dismissal in the Eastern District shed additional light on the warped, Covidian mindset of the judiciary we are up against. During arguments before the Second Circuit, the mandate was exposed as a sham, as our adversaries argued that the opportunity to upload proof of vaccination constituted due process.

The writ of certiorari to SCOTUS provided an opportunity for our judicial system to correct itself, but as my friend Brendan Fogarty says, “we are responsible for the effort, not the outcome.” With this mindset I can look back on Garland with pride. Some will blame Garland for setting bad precedent around the “condition of employment” issue, but if the Garvey decision is upheld by the Second Department of New York State, the negative precedent will be rendered moot—so we will be watching that case closely.

Regardless of outcomes, Garland will stand as a testament to our collective dissent. We successfully crowdfunded to litigate, stood up for our constitutional right to due process, and with the assistance of Warner Mendenhall and Scott Lloyd, we brought our grievance to the highest court in the land. That our voices fell on deaf ears is out of our control, but more will be revealed, and I am confident that Bravest for Choice will be “on the right side of history.”

Attorneys Warner Mendenhall and Scott Lloyd, who filed the cert petition on behalf of the Garland petitioners also sent me their comments:

Warner Mendenhall:

People need to realize that Bravest for Choice fought for their rights too. This unfortunate decision leaves in place the Iqbal plausibility standard that has caused unfair dismissal of this and other valid COVID-era lawsuits. The public is not aware of this barrier to court access that, along with unfair standing requirements, allows judges too much discretion to reject cases before the facts are developed and heard. Most state courts avoid this standard, preferring a “notice pleading” approach that allows plaintiffs to get discovery.

After the Iqbal decision in 2009, there was an effort in Congress to address the plausibility pleading standard. The Notice Pleading Restoration Act of 2009 was introduced in the Senate but did not pass. The Open Access to Courts Act of 2009 was introduced in the House but also did not advance.

Bravest for Choice argued to overturn or limit the Iqbal standard to protect constitutional rights and ensure fairer access to justice. Congress can change federal court procedures under Article III and the Rules Enabling Act and should do so to align federal courts with the fairer practices of most state courts. We were honored to have been chosen to assist in this case.

Scott Lloyd:

At the end of the day, none of this should have happened—we should not be having this discussion in a free country over a vaccine that never worked as advertised. So I am disappointed in the Court's decision not to take these issues up, especially since these firefighters—who have done so much for the City they love—did not have meaningful due process.

I am, however, heartened to know that there are people who will stand up for what they know is right even when they know they have a fight ahead of them. That makes me grateful and humbled to be a part of this case. The actions they took on behalf of our rights and liberties speaks louder than any of the adverse decisions we've received in the case. 

You can learn more about the Garland cert petition from this podcast conversation with Scott Lloyd:

New York Mandate Podcast, Ep. 54: Attorney Scott Lloyd on the Garland v. FDNY SCOTUS Petition

Previous coverage of Garland v. FDNY:

Federal Court Rules Against New York Firefighters and EMS Workers in Garland v. FDNY Appeal

In Oral Arguments for Garland v. FDNY Appeal, Judges Engage Federal Due Process Argument, Graff Produces a Smoking Gun