Garland v. NYFD

23-663
Garland v. NYFD

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 6th day of February, two thousand twenty-four.

PRESENT: Steven J. Menashi,
Sarah A. L. Merriam,
Circuit Judges,
Stephen A. Vaden,
Judge. 1
____________________________________________

JOHN GARLAND, VINCENT BOTTALICO,
TIMOTHY A. HEATON, JOSEPH BEVILACQUA,
JOSEPH CICERO, JOSEPH COLUMBIA,
ANDREW COSTELLO, JAMES DANIEL DALY,
III, VINCENT DEFONTE, KENNETH DEFOREST,
SALVATORE DEPAOLA, BRIAN F. DOYLE,

1Judge Stephen A. Vaden of the United States Court of International Trade, sitting by
designation.
NATHAN EVANS, CHRISTOPHER FILOCAMO,
KEVIN GARVEY, CHARLES GUARNEIRI,
DANIEL J. OSHEA, MARGOT LOTH, MICHAEL
LYNCH, DENNIS O’KEEFFE, BRIAN PATRICK
SMITH, KURT PFLUMM, CHRISTOPHER
RAIMONDI, PAUL SCHWEIT, JOSEPH T.
JOHNSON, DAVID BUTTON, PAUL PARR,
MARK SINCLAIR, DANIEL BAUDILLE, JOHN
DREHER, THOMAS OLSEN, GIUSEPPE ROBERT
PENORO, MATTHEW CONNOR, NICHOLAS
MULLGAN, RANDALL SANTANA, ANTHONY
PERRONE, SCOTT ETTINGER, ANTHONY
MASTROPIETRO, RASHAAD TAYLOR,
ANTHONY RUGGIERO, JOSEPH MURDOCCA,
KEITH KLEIN, PAUL VASQUENZ, MARK
HENESY, RYAN K. HALL, JUDE PIERRE,
MICHELLE SANTIAGO, ROBERT DITRANI,
BRIAN T. DENZLER, MICHAEL MCGOFF,
CHRISTOPHER INFANTE, GEORGE J.
MURPHY, THOMAS FEJES, JOHN COSTELLO,
BRANDON PHILLIPS, JOSEPH DEPAOLA,
BRENDAN MCGEOUGH, JASON CHARLES,
ANTHONY C. CARDAZONE, OWEN FAY,
MICHAEL FADDA, JOSEPH M. PALMIERI,
JARED DYCHKOWSKI, JOHN TWOMLEY,
MATT KOVAL, GLENN CLAPP, ROBERT YULI,
MATTHEW SINCLAIR, TIM RIVICCI, JOHN
ARMORE, MICHAEL SAMOLIS, FELICIA J.
TSANG, WILLIAM JOHN SAEZ, ROSARIO
CURTO, DAVID SUMMERFIELD, KEVIN
ERKMAN, BERNADETTE MEJIA, DANIEL
2
YOUNG, SEAN FITZGERALD, CRAIG LEAHY,
DANIEL STROH, STEPHEN INGUAGIATO,
STEPHEN BUTTAFUCCO, PHILLIP J. DARCEY,
AINSLEY ATWELL, and RODNEY COLON,

Plaintiffs-Appellants,

v. No. 23-663

NEW YORK CITY FIRE DEPARTMENT, DANIEL
A. NIGRO, JOHN DOE #1-10, JANE DOE #1-10,
CITY OF NEW YORK, HENRY GARRIDO,
DISTRICT COUNCIL 37, AFSCME AFLCIO,
LOCAL 2507, DISTRICT COUNCIL 37, AFSCME
AFLCIO, LOCAL 3621 and DISTRICT COUNCIL
37, AFSCME AFL-CIO,

Defendants-Appellees,

UNIFORMED FIRE OFFICERS ASSOCIATION,
LOCAL 854 INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS, AFFILIATED WITH THE
AFL-CIO and UNIFORMED FIREFIGHTERS
ASSOCIATION OF GREATER NEW YORK,

Defendants.
____________________________________________

For Plaintiffs-Appellants: AUSTIN GRAFF, The Scher Law Firm, LLP,
Garden City, New York.

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For Defendants-Appellees CHLOÉ K. MOON, Assistant Corporation
City of New York, New Counsel (Claude S. Patton, Assistant
York City Fire Department, Corporation Counsel, on the brief), for
and Daniel A. Nigro: Sylvia O. Hinds Radix, Corporation
Counsel of the City of New York, New
York, New York.

For Defendants-Appellees Peter D. DeChiara, Cohen, Weiss and
District Council 37 and Simon LLP, New York, New York.
Henry Garrido:

Appeal from a judgment of the United States District Court for the Eastern
District of New York (Matsumoto, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.

The plaintiffs in this case are current or former employees of the New York
City Fire Department (“NYFD”). In October 2021, the NYFD instituted mandatory
vaccination against COVID-19 for all employees. The plaintiffs failed to comply
with the vaccine mandate, were suspended without pay, and, in some cases, were
eventually fired. They brought a class action, asserting that the NYFD had violated
their rights under the Due Process Clause of the Fourteenth Amendment. The
district court dismissed their action for failure to state a claim. We assume the
parties’ familiarity with the facts, procedural history, and issues on appeal.

I

On October 20, 2021, the New York City Commissioner of Health ordered
all New York City employees to be vaccinated against COVID-19. Pursuant to the
commissioner’s order, all non-exempt employees were required to provide proof

4
of vaccination by October 29. John J. Hodgens, the Chief of Operations of the
NYFD, issued a memorandum to all NYFD employees on October 21,
implementing the commissioner’s order. The memorandum informed employees
that they could submit requests for religious or medical exemptions prior to
October 27. Employees who failed to submit proof of vaccination or to request an
accommodation by the applicable deadline would be placed on leave without pay
(“LWOP”) status on November 1. If an employee’s accommodation request was
denied, the employee could appeal to a city-wide panel, which was to complete its
review by November 25, 2021. Employees would not be placed on LWOP status
during the pendency of an appeal.

The city sought to bargain with the firefighters’ unions regarding the impact
of the vaccine mandate. One of the unions—District Council 37 (“DC37”), which
represents emergency medical services personnel—entered into an agreement
with the city which provided, inter alia, that members could not be placed on
LWOP status before December 1, 2021. The other two unions—the Uniformed Fire
Officers Association (“UFOA”) and the Uniformed Firefighters Association
(“UFA”)—did not come to an agreement with the city, and the UFA challenged
the vaccine mandate in New York state court and before the New York Public
Employment Relations Board.

The plaintiffs all failed to submit proof of vaccination or to request an
accommodation by the applicable deadline and were placed on LWOP status. The
plaintiffs commenced this action on November 24, 2021, seeking a preliminary
injunction and a declaratory judgment against the NYFD and the unions. Their
complaint asserted a cause of action for violation of their procedural due process
rights under the Fourteenth Amendment, along with related claims under 42
U.S.C. § 1983. On December 6, 2021, the district court denied the plaintiffs’ request
for a preliminary injunction, holding that they had not established a substantial
likelihood of success on the merits. See Garland v. New York City Fire Dep’t, 574
F. Supp. 3d 120, 127 (E.D.N.Y. 2021). The plaintiffs filed an amended complaint on
January 5, 2022, asserting “primarily the same causes of action as in the original

5
complaint” but adding “a request for the Court to issue a declaratory judgment
that the DC37 Agreement ‘was entered into without any contractual authority’ and
therefore the Plaintiffs’ suspension without pay violated their due process rights”
as well as “a § 1983 conspiracy claim based on the DC37 Agreement.” Garland v.
City of New York, 665 F. Supp. 3d 295, 301 (E.D.N.Y. 2023). On March 29, 2023, the
district court granted the defendants’ motions to dismiss the amended complaint,
relying largely on the reasoning in its order of December 6, 2021. The district court
denied the plaintiffs leave to amend the complaint a second time on the ground
that amendment would be futile. This appeal followed.

II

“We review a district court’s grant of a motion to dismiss de novo, accepting
as true all factual claims in the complaint and drawing all reasonable inferences in
the plaintiff’s favor.” Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147
(2d Cir. 2021) (quoting Henry v. County of Nassau, 6 F.4th 324, 328 (2d Cir. 2021)).
“Although we generally review denials of leave to amend for abuse of discretion,
in cases in which the denial is based on futility, we review de novo that legal
conclusion.” Shimon v. Equifax Info. Servs. LLC, 994 F.3d 88, 91 (2d Cir. 2021).

III

“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. Next, we must determine whether the plaintiff
received constitutionally adequate process in the course of the deprivation.”
O’Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005). 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.

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 A

Although the plaintiffs have not raised stand-alone state-law claims in this
case, their briefing has focused on the argument that the process by which NYFD
imposed the vaccine mandate violated New York state and municipal law. 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.” N.Y.C. Admin. Code § 15-
113. 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.” Garland, 574 F. Supp. 3d at 127 (citing cases). The district court
therefore held that the plaintiffs were not entitled to the process described in
section 15-113 before being placed on LWOP status or terminated pursuant to the
vaccine mandate.

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. As the plaintiffs observe, the
New York Court of Appeals has held that “the Taylor Law (Civil Service Law § 200
et seq.) generally requires bargaining between public employers and employees
regarding the terms and conditions of employment.” Schenectady Police Benev.
Ass’n v. New York State Pub. Emplt. Rels. Bd., 650 N.E.2d 373, 375 (N.Y. 1995).
Because the NYFD did not engage in collective bargaining with the UFOA and the
UFA before imposing the vaccine mandate, the plaintiffs contend, the vaccine
mandate was not a valid condition of employment with respect to the members of
those unions. For that reason, they argue, terminating unvaccinated UFOA and
UFA members without the process described in section 15-113 of the New York
City Administrative Code violated their statutory rights. In addition, the plaintiffs
assert that it was a violation of their right to due process under the Fourteenth
Amendment.

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 The plaintiffs advance a plausible argument that the process by which the
NYFD imposed and enforced the vaccine mandate violated state and municipal
law. As the New York Court of Appeals has observed, New York’s policy of
collective bargaining for public employees is “‘strong’ and ‘sweeping.’”
Schenectady Police, 650 N.E.2d at 375 (quoting Cohoes City Sch. Dist. v. Cohoes
Teachers Ass’n, 358 N.E.2d 878, 880 (N.Y. 1976)). Both this court and many New
York state courts have held that vaccination is a “condition of employment.” We
the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 294 (2d Cir. 2021); see also Garland, 665
F. Supp. 3d at 307 n.8 (noting that “nearly all … New York state courts to address
the issue have found that the Vaccine Mandate was a condition of employment”
and citing cases). That would bring the vaccine mandate within the scope of the
Taylor Law. Moreover, the New York City Office of Collective Bargaining has held
that the City and the NYFD were obligated to bargain with the firefighters’ unions
over at least some aspects of the vaccine mandate’s implementation. 1

However, as noted, the plaintiffs have not raised stand-alone state-law
claims in this action; rather, they have invoked alleged violations of state and
municipal law only to support their federal due-process claim. Even if the
plaintiffs established violations of state or municipal law, it is well established that

1 While it held that the city and the NYFD were obligated to bargain with the unions, the
Office of Collective Bargaining declined to order the reinstatement of firefighters who
had been terminated for failure to comply with the vaccine mandate partly because
“[o]ver eleven months [had] passed since the Vaccine Mandate was issued, and the
deadlines to be vaccinated as well as the need to address reasonable accommodation
requests have come and gone.” J. App’x 548. However, the Office of Collective Bargaining
also noted that the unions had not requested reinstatement for members who had been
terminated; rather, the unions sought relief that “was limited to a declaration that the
City violated its obligation to negotiate in good faith and an order that the City bargain
in good faith over implementation of policies related to the Vaccine Mandate.” Id. at 548
n.10. Therefore, it appears to remain undecided whether the plaintiffs would be entitled
to reinstatement if they successfully argued in a state court proceeding that the
implementation and enforcement of the vaccine mandate violated state and municipal
law.

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“a violation of state law does not per se result in a violation of the Due Process
Clause.” Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir. 2019). 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.” Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 541 (1985) (alteration omitted) (quoting Vitek v. Jones, 445 U.S. 480, 491
(1980)). We too have previously recognized that “the failure to comply with all or
any requirements of New York State Civil Service Law may not per se result in a
violation of the due process clause of the Fourteenth Amendment.” Tooly, 919 F.3d
at 173 (quoting Tooly v. State Univ. of N.Y., No. 7:13-CV-01575, 2017 WL 6629227,
at *5 (N.D.N.Y. Oct. 2, 2017)). 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.” Id. We therefore proceed to
analyze whether the process afforded to the plaintiffs satisfied the minimum
standards of that clause.

B

We have explained that “[t]he 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.’” Spinelli v. City of New York, 579 F.3d 160,
169 (2d Cir. 2009) (quoting Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976)). 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.” Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001). 2 We conclude that

2 We have noted that “[t]he Supreme Court distinguishes between deprivations of liberty
or property occurring as a result of established governmental procedures, and those
based on random, unauthorized acts by government officers.” Locurto, 264 F.3d at 172
(citing Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986)). When the government deprives a citizen of a protected

9
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.” Reply Br. 20. According to the plaintiffs, out of approximately
3,200 appeals from denials of accommodation requests, only about 100 were
successful. See id. If the accommodation process was indeed a sham—that is, if the
NYFD or the city-wide panel indiscriminately denied all or most meritorious

liberty or property interest “in the more structured environment of established state
procedures, rather than random acts, the availability of postdeprivation procedures will
not, ipso facto, satisfy due process.” Hellenic Am. Neighborhood Action Comm. v. City of New
York, 101 F.3d 877, 880 (2d Cir. 1996) (citing Hudson v. Palmer, 468 U.S. 517, 531 (1984)).
The plaintiffs advert to this distinction in their reply brief in arguing that the availability
of an Article 78 proceeding, coupled with the pre-deprivation process afforded them, did
not satisfy the constitutional minimum. See Reply Br. 21. In Locurto, however, we held
that the distinction between random acts and established procedures was “immaterial”
because in either case notice, a limited pre-deprivation opportunity to be heard, and a
full post-deprivation adversarial hearing in the form of an Article 78 proceeding afforded
all the process that was due. Locurto, 264 F.3d at 175. Here, the distinction has similarly
limited force.

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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.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (emphasis
added). 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. See Tongue v. Sanofi, 816 F.3d
199, 209 (2d Cir. 2016) (“The Court must … consider[] whether the ‘factual content’
‘allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.’”) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

This does not end the analysis. The plaintiffs argue that “for those
Appellants who did not have either a religious or medical reason for not taking
the vaccine, there was no due process at all.” Reply Br. 20. The firefighters without
a religious objection or medical contraindication to prevent them from taking the
vaccine were nonetheless entitled to an opportunity to argue that they could not
be terminated for refusing to take the vaccine because the implementation and
enforcement of the vaccine mandate violated New York law. But as their counsel
conceded at oral argument, the plaintiffs had the opportunity to raise this issue in
an Article 78 proceeding, and some NYFD employees have in fact done so
successfully. Given the availability of subsequent judicial review under Article 78,
the city did not violate the plaintiffs’ right to due process by not affording an
opportunity to make this argument prior to being terminated or placed on LWOP
status. “[A] pre-termination hearing does not purport to resolve the propriety of
the discharge, but serves mainly as a check against a mistake being made by
ensuring there are reasonable grounds to find the charges against an employee are
true and would support his termination.” Locurto, 264 F.3d at 173-74 (citing
Loudermill, 470 U.S. at 545-46). We conclude that those plaintiffs who did not have

11
a religious objection or medical contraindication were also afforded
constitutionally sufficient process.

For these reasons, the process afforded to the members of the putative class
satisfied the minimum standard set by the federal constitution. While the plaintiffs
may have a plausible argument that the process by which the vaccine mandate
was implemented and enforced violated state law—in particular, New York’s
Taylor Law—it is well-established that violations of state law do not, ipso facto,
amount to a violation of the federal Due Process Clause. Because the plaintiffs
were provided with notice and an opportunity to be heard—including an
opportunity to raise their state-law arguments in an Article 78 proceeding—we
conclude that there was no federal constitutional violation.

IV

Because the plaintiffs did not suffer a due process violation, their remaining
arguments cannot prevail. Without an underlying constitutional claim, their
§ 1983 conspiracy claim fails as a matter of law. See Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 119 (2d Cir. 1995). The plaintiffs’ class claims were also correctly
dismissed because a plaintiff in a putative class action “must state a claim in its
own right to survive a motion to dismiss.” Plumber & Steamfitters Loc. 773 Pension
Fund v. Danske Bank A/S, 11 F.4th 90, 101 (2d Cir. 2021). If the named plaintiffs fail
to state a claim that their constitutional rights were violated, they cannot maintain
an action to vindicate the rights of a class of similarly situated plaintiffs.

In addition, the district court appropriately denied the plaintiffs leave to
amend on the ground that amendment would be futile, observing that the
plaintiffs had already had multiple opportunities to state a cognizable claim. The
district court observed that

after extensive briefing, evidentiary submissions, and a show cause
hearing, the Court allowed Plaintiffs an opportunity to amend their
complaint. Despite the Court’s detailed analysis of Plaintiffs’ factual
allegations and claims in its December 2021 Order, Plaintiffs have

12
 again failed to allege facts supporting their claims. Under these
circumstances, and because further amendments would not cure the
deficiencies discussed in this opinion, any amendment would be
futile.
Garland, 2023 WL 2682406, at *12 (citations omitted). Even with the opportunity to
amend, moreover, the plaintiffs decided not to assert claims under state law.
Under these circumstances, it was appropriate for the district court to deny leave
to amend. See City of Pontiac Policemen’s and Firemen’s Ret. Sys. v. UBS AG, 752 F.3d
173, 188 (2d Cir. 2014) (affirming the denial of leave to amend when the
“[p]laintiffs have already had one opportunity to amend their complaint,” it was
“unlikely that the deficiencies raised with respect to the Amended Complaint were
unforeseen by the plaintiffs when they amended,” and the “plaintiffs have
identified no additional facts or legal theories—either on appeal or to the District
Court—they might assert if given leave to amend”).

* * *

We have considered the plaintiffs’ remaining arguments, which we
conclude are without merit. For the foregoing reasons, we affirm the judgment of
the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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