Firefighters' COVID-19 vaccine due process claim fails

This due process case brought by numerous New York City firefighters challenging a vaccine mandate demonstrates how complex due process cases really are, and how hard they are to win even when a municipality violates state law. 

The case is Garland v. New York City Fire Department, a summary order issued on February 6. Many COVID-19 vaccine cases have been litigated in the federal courts in New York, and they eventually reach the Court of Appeals, which has to apply traditional due process rules to this new problem. But that's what precedent is for, correct? To apply old rules to new problems. Plaintiffs claim the City suspended and even fired firefighters who did not comply with the mandate, but that the City did not follow the rules requiring it to negotiate employment conditions with the unions. New York collective bargaining rules require such negotiation.

The Court of Appeals agrees that plaintiffs advance a plausible claim that the City's process in imposing the vaccine mandate violated state and municipal law. But that does not mean plaintiffs have a due process claim. Due process requires the government to impose a fair process in the deprivation of a liberty or property right. Reams, and I mean reams, of case law have developed this principle to such a degree that only experienced constitutional lawyers can understand it. 

The violation of state law does not per se create a due process violation, the Court of Appeals (Menashi, Merriam and Vaden (from the Court of International Trade)) notes, and the plaintiffs can only win if they were denied notice and an opportunity to be heard prior to the deprivation and that a full adversarial hearing is provided for afterwards. These rules make it difficult to win a due process case, because such process is often in place. 

In this case, while the plaintiffs got constitutionally-adequate notice of the property deprivation (your job is property in the civil service context), the issue is whether plaintiffs got an adequate opportunity to be heard on their religious or medical exemptions because the City did make provisions for an internal appeal, and the plaintiffs could also file an Article 78 petition on state court post-deprivation. While Article 78 petitions are not as exciting as a full-blown federal lawsuit, such petitions can be won, and they actually proceed faster than most federal cases. While plaintiffs claim the internal appeals process is a sham because only 100 such appeals (out of 3,200) were successful, they have not pled a plausible claim that this process was a sham, such as whether the accommodation requests were frivolous or meritorious. That particularized pleading requirement is another hurdle to successful litigation in federal court, but that's a story for another day.