SUPERIOR Court Associate Judge Joseph N. Camacho on Monday denied the request of nine terminated firefighters to be reinstated.
In his 28-page order, Judge Camacho said (1) as civil service employees they have not exhausted their case with the Civil Service Commission; (2) a preliminary injunction is not a proper remedy for economic harm; and (3) (a) plaintiffs do not have a strong likelihood of success on the merits for any of their claims; (b) the level of the threat of irreparable harm to plaintiffs is primarily a question of financial harm for which an adequate remedy would be available on the merits; and (c) the public’s interest in protecting the health of the whole CNMI and preventing the spread of Covid-19 outweighs the privacy and other interests of the nine individual firefighters.
The nine terminated firefighters are asking the Superior Court to issue an order declaring their terminations invalid and unlawful, and to set their terminations aside.
They are alleging that their terminations violated the due process clause and the equal protection clause of the Commonwealth Constitution.
They are also alleging that their terminations violated the parallel clauses set forth in the Fourteenth Amendment to the United States Constitution, as applicable to the CNMI via the Covenant.
The plaintiffs are Paul Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Algernon A. Flores, Derek B. Gersonde, Shawn DLR Kaipat, Philip Kalen, and Adam J. Safer.
They named as defendants the Department of Fire and Emergency Medical Services and DFEMS Commissioner Dennis Mendiola in his official and personal capacity.
The firefighters were terminated for insubordination following their refusal to take the Covid-19 vaccine as required by the CNMI Governor’s Directive 2021-002.
Judge Camacho, in his order, noted that the plaintiffs received both notice and an opportunity to be heard.
“With respect to notice, Commissioner Mendiola sent a memorandum to DFEMS personnel, including the plaintiffs, on March 16, 2021, stating that failure to register for the Covid-19 vaccine by March 18, 2021 may be grounds for termination. Commissioner Mendiola also provided to the plaintiffs, on March 19, 2021, a Notice of Proposed Adverse Action-Termination, informing plaintiffs of their proposed termination, the reasons for their proposed termination, the date the termination was to take effect, the legal justification for the termination, and notifying plaintiffs of their right to respond.”
Judge Camacho said, with “respect to the opportunity to be heard, plaintiffs responded to the notice through their attorney, Mr. [Joseph] Horey, on April 27, 2021, and an informal administrative conference and pre-determination hearing was held with DFEMS on May 12, 2021. On May 14, 2021, plaintiffs submitted written arguments through their attorney as to accommodations they believed should be provided to them, and Commissioner Mendiola amended the notice to consider the plaintiffs’ written accommodation arguments. Further notice was provided when, on May 20, 2021, Commissioner Mendiola issued a post-determination outcome to the plaintiffs, and when, on May 21, 2021, Commissioner Mendiola issued an adverse action for insubordination.”
The judge noted that the plaintiffs appealed their termination to the Civil Service Commission on June 4, 2021, “and will receive further opportunity to be heard in that forum.”
Thus, he added, “there is no violation of procedural due process: plaintiffs received their constitutionally required notice and an opportunity to be heard.”
Furthermore, the judge said, “given that the United States Food and Drug Administration approved the use of the Pfizer-BioNTech Covid-19 vaccine on August 23, 2021, the plaintiffs’ arguments regarding the requirement under the [Emergency Use Authorizations] laws and 21 U.S.C. Section 360bbb–3(e)(1)(A)(ii)(III) that patients be given notice that they have the option to accept or refuse the vaccination — and that the Commonwealth did not act ‘in the normal manner prescribed by law’ in issuing Directive No. 2021-002 — are moot,” the judge added.
He said, “When the court uses the term ‘public interest,’ the court highlights that this goes beyond the physical consequences of a community transmission, which are horrific to imagine and which we have witnessed in other communities around the world since the pandemic began (loss of life, the suffering of those who fall ill and their caregivers, lost schooling and ability to work, sick individuals dying because they are unable to receive adequate care due to the limited number of beds available in the intensive care unit and/or the limited availability of ventilators and oxygen, etc.).”
The judge said, the “public interest in being able to trust DFEMS and the public’s willingness to call emergency services in a crisis must also be added to this balancing of interests.”
The judge added, “The passing of an injunction reinstating firefighters who have chosen not to receive the Covid-19 vaccine because it had not yet been approved by the FDA — an objection which is now moot, of course, as the FDA has issued its approval for several Covid-19 vaccines — risks undermining the public’s trust in DFEMS.”
The judge said, “It should not be forgotten that there are members of the community who have not been vaccinated and are therefore especially vulnerable to transmission, including children under the age of 12 and immunocompromised individuals.”
He said, even if the “plaintiffs are reinstated with accommodations that prevent them from [having] any direct interaction with the public, members of the public may not feel safe calling DFEMS in an emergency situation if a member of their household has not been vaccinated. It is an issue of life and death when the public cannot call the DFEMS to provide rescue and emergency assistance because the firefighters and medical personnel are unvaccinated. In this regard, the public interest outweighs the concerns of the plaintiffs.”
The fire department and its commissioner are represented by Assistant Attorneys General Keith Chambers II and Abbi Novotny.