Second Circuit Upholds FDNY Vaccine Mandate From Due Process Claims

The US Second Circuit Court of Appeals has upheld the suspension without pay, and in some cases the dismissal, of some 86 FDNY firefighters who refused to comply with the city’s vaccine mandate in 2021. The firefighters alleged that the city’s failure to bargain over the vaccine mandate, coupled with the failure to comply with the city’s normal disciplinary requirements, constituted a violation of their Fourteenth Amendment due process rights.

The suit was originally filed in November of 2021 with fifty named plaintiffs, who sought injunctive relief. Here is earlier coverage of the filing. Along the way additional plaintiffs joined the suit. The district court rejected their request for a temporary restraining order against the enforcement of the vaccine mandate, and ultimately dismissed the suit for failure to state a claim upon which relief may be granted.

The firefighters appealed the trial court’s ruling to the Second Circuit. Here is the court’s reasoning (citations and quotation marks removed to facilitate reading):

  • To determine whether a plaintiff was deprived of property without due process of law in violation of the Fourteenth Amendment, we must first identify the property interest involved.
  • The district court held, and the defendants do not dispute, that the plaintiffs have a constitutionally protected property interest in their pay and continued employment with the NYFD.
  • Therefore, we need only decide whether the plaintiffs received constitutionally adequate process.
  • The New York City Administrative Code provides that firefighters shall be removable only after written charges shall have been preferred against them, and after the charges shall have been publicly examined into, upon such reasonable notice of not less than forty-eight hours to the person charged.
  • New York courts generally hold, however, that procedures such as these need not be followed when a public employee is terminated for failure to satisfy a qualification of employment unrelated to job performance, misconduct, or competency.
  • The plaintiffs, however, argue that vaccination was not a valid qualification of employment because the NYFD did not bargain with the UFOA and the UFA before imposing the vaccine mandate.
  • Both this court and many New York state courts have held that vaccination is a condition of employment.
  • Even if the plaintiffs established violations of state or municipal law, it is well established that a violation of state law does not per se result in a violation of the Due Process Clause.
  • The Supreme Court has explained that the minimum procedural requirements of due process are a matter of federal law and are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.
  • Rather, a court must assess whether the defendant’s conduct violated the procedural guarantees of the federal Due Process Clause, as laid out by the Supreme Court.
  • We have explained that the touchstone of due process … is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.
  • In the case of a public employee who may be terminated only for cause, procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards.
  • We conclude that the process afforded to the plaintiffs satisfied this minimum constitutional standard.
  • The October 21 memorandum to all NYFD employees provided the plaintiffs with constitutionally adequate notice.
  • Indeed, the plaintiffs do not argue on appeal that they did not receive sufficient notice.
  • The decisive question for this appeal is thus whether the plaintiffs were afforded an adequate opportunity to be heard.
  • With respect to plaintiffs who sought a religious or medical exemption, we conclude that the city provided an adequate opportunity to be heard by allowing NYFD employees to make an exemption request and pursue an appeal to a city-wide panel if the request was denied.
  • These plaintiffs also had access to additional post-deprivation process in the form of an Article 78 proceeding and the grievance procedures under their collective-bargaining agreements.
  • The plaintiffs assert in their reply brief that the accommodation process was a sham because in reality, there was little chance that any Appellant would have received an actual accommodation.
  • According to the plaintiffs, out of approximately 3,200 appeals from denials of accommodation requests, only about 100 were successful.
  • If the accommodation process was indeed a sham-that is, if the NYFD or the city-wide panel indiscriminately denied all or most meritorious accommodation requests-that might indeed violate the requirements of the Due Process Clause, pursuant to which the opportunity to be heard must be granted … in a meaningful manner.
  • But the plaintiffs have not alleged sufficient facts to allow the plausible inference that the accommodation process was a sham.
  • Neither the plaintiffs’ amended complaint nor their briefing indicates whether the accommodation requests that were denied were frivolous or meritorious.
  • For that reason, the plaintiffs have failed to state a claim that the putative class members who requested accommodations were denied due process.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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