Attorney Sujata Gibson in Talks to Join Chad LaVeglia on Garvey v NYC Appeal, Federal Garvey Civil Suit Headed for Dismissal

The New York lawsuit by 16 DSNY workers that invalidated NYC's municipal worker vax mandate will be back in court later this year, but their federal suit asking for $117 million is on track to end.

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UPDATE (4-18-23): A joint stipulation of dismissal without prejudice was filed in the federal Garvey lawsuit on April 17 by the plaintiffs’ and defendants’ attorneys. While the dismissal discussed at the April 6 hearing was with prejudice, there obviously must have been some discussion after that behind the scenes that led to the stipulation being changed to a dismissal without prejudice.

Judge Kiyo Matsumoto issued her order dismissing the case in accordance with the stipulation on April 18.

The dismissal without prejudice means the DSNY 16 retain the right to refile their claim in federal court in the future. At the moment, it seems unlikely that they will do that, but will instead devote their attention to the upcoming appeal in the New York State Garvey case.

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It’s been an eventful week for the 16 DSNY sanitation workers who brought the successful lawsuit against NYC’s COVID-19 vaccine mandate for municipal workers, George Garvey et al v. City of New York.

No, They Haven’t Gone Back to Work

Before I get into the details, let me underscore a central point that I believe is often misunderstood in this whole legal saga:

The 16 DSNY workers have not gotten their jobs back. They have not been reinstated or received back pay, as Judge Porzio’s October 24, 2022 decision in their case ordered. When the City filed its Notice of Appeal the same day, an automatic stay applied to those orders. The DSNY 16 remain in limbo, awaiting an appeal date.

So when are they going to have the appeal already? On April 6, the City requested a 60-day extension to file their appeal. The workers’ attorney, Chad LaVeglia, immediately pushed back with a letter of opposition, arguing:

“It would be patently unfair to permit the City to delay its own challenge while depriving Respondents of the relief awarded in the Supreme Court. The harm to Respondents outweighs Appellants unstated need for an enlargement of time.”

But the appelate court rejected this argument and gave the City’s lawyers until June 26 to file their appeal. They also have the option of requesting an additional 30-day extension then, and it seems likely that they will.

That means the DSNY 16 are likely looking at a late-2023 hearing date to find out if Judge Porzio’s reinstatement and back pay orders will stand.

What About Their Union?

Chad LaVeglia has publicly criticized the workers’ union, Teamsters Local 831, the Uniformed Sanitationmen’s Association, for failing to follow up on the Garvey victory and push for reinstatement.

After Mayor Eric Adams announced the end of the municipal worker mandate in February 2023, I asked LaVeglia whether the rescindment would strengthen his position on getting the City to follow the court decision and reinstate the DSNY 16 with back pay.

LaVeglia told me this:

“Adams didn't lift the mandate. It was declared to be invalid and unconstitutional. The City's intent to appeal did not change that. There was nothing to lift. The mandate died in October when the court struck it down. It's all theater. Sure, Adams was still enforcing it. But he was doing so in violation of the Constitution. That's what dictators do. 

Adam's decision to stop enforcing the mandate does strengthen our position. The City should reinstate the 16 workers in the Garvey case and provide backpay as ordered by the court. That would obviously be the right thing to do. But no one from the City has reached out to me. Even worse, my clients have reached out to their union (Local [831] Teamsters) for guidance, but have been turned away.  It seems like their union is actively ignoring them. Local [831] has done nothing to help them get reinstated or backpay since our victory. Which is telling.

After the victory, the union was in a position to use the win as leverage to help the 16 Petitioners and other City employees. We asked to meet with the union leadership. But they said no. Local [831] has been silent. Shouldn't they be celebrating such a momentous win for labor? It shouldn't matter who obtained the victory. Anything that achieves a pro labor result should be viewed as a victory for all labor. But Local [831] does not appear to view it that way. 

Even now, it seems like many unions are eager to just “move on.” Meanwhile, they fail to realize that they've watered down their bargaining power significantly by allowing the City to get away with terminating thousands of their members unlawfully. It's a real travesty.”

(I’ve reached out to Local 831 for comment and will update this article with their response if I receive one.)

DSNY 16 Legal Team Gathers Steam

It’s not all bad news this week for the DSNY 16. Civil rights attorney Sujata Gibson is currently finalizing details with Chad LaVeglia about joining him to fight the City’s appeal, with possible financial backing from Children’s Health Defense.

Gibson would bring a strong record in anti-mandate litigation, and is currently working on two other large cases, New Yorkers For Religious Liberty, Inc. v. The City of New York and DiCapua et al v. New York City et al.

The expanding legal team and possible support from CHD underscore the importance of the Garvey decision. It has been cited not only in major lawsuits against NYC’s mandate like Gibson’s DiCapua case and Chris Garry et al v. Eric Adams et al, led by attorney James Mermigis, but also in numerous lawsuits brought by individuals against the City. If Porzio’s decision is overturned on appeal, that could weaken all of the other cases relying on it as a precedent.

Federal Garvey Lawsuit on Track for Dismissal

The case decided by Judge Porzio isn’t the only lawsuit George Garvey and the other 15 DSNY workers brought. They also filed a federal lawsuit against Eric Adams and the City of New York asking for $117 million in damages, and April 6 brought new developments in that case too.

In a hearing that day held by telephone, U.S. District Court Judge for the Eastern District of New York Kiyo Matsumoto addressed the defendants’ argument that the case should be dismissed. City lawyers first presented this argument in a February 14 document submitted to the court that made two claims:

First it claimed that “Plaintiffs’ Claims are Barred by Res Judicata,” in other words that because the New York State Garvey case is still working its way through the state court system, the plaintiffs can’t bring a case that is essentially the same in federal court.

Second, it claimed that “Plaintiffs Fail to State a Selective Enforcement Claim.” That refers to the lawsuit’s argument that the mandate was enforced selectively, in violation of the U.S. Constitution’s 14th amendment equal protection clause.

At the hearing, Judge Matsumoto raised the res judicata first:

Matsumoto: “The defense wishes to dismiss because . . . it’s not appropriate to file two lawsuits and put them on parallel tracks in state and federal court and see which one, which lawsuit, yields the results that the parties seek.”

After some discussion of precedents, Matsumoto heard LaVeglia’s argument against res judicata.

LaVeglia: “According to Marcel Fashions Group, Inc. v. Lucky Brand Dungarees, from the Circuit in 2015, res judicata does not apply where there's a continuation of the same course of conduct. So here, even though the plaintiff did prevail in an Article 78 in the lower court [meaning the state Garvey decision], Eric Adams continued to enforce the vaccine mandate for months beyond that date.”

Judge Matsumoto rejected that argument:

Matsumoto: “It's not appropriate for plaintiffs to go to two different forums, state and federal, and proceed along parallel tracks. You first chose state court; you got a good result there; you're awaiting an appeal. But the federal court's not going to step into the middle of a state court adjudicated matter and wrest control or assert its jurisdiction. I don't think it would be appropriate when there is a currently pending appeal.”

However, Judge Matsumoto also asked the defense to address LaVeglia’s claim that the City continued in the same course of conduct after Porzio’s Garvey decision by maintaining the mandate. Attorney David Holmes responded for the defendants.

Holmes: “When the case was appealed, that resulted in a statutory stay in the reinstatement process, as portions of the order, which is why there would've been a continuation of the enforcement of such a mandate. So it would've been as a result of that appeals process, and therefore not be considered a continuing violation.”

Holmes makes a connection here that I don’t fully understand and hope to shed light on in future conversations with legal experts: He seems to be saying that the continuing enforcement of the mandate for all NYC municipal workers was due to the automatic stay on reinstatement and back pay just for the DSNY 16 that kicked in when the City filed its intent to appeal.

LaVeglia has maintained, as in the comments he made to me above, that the automatic stay should not have applied to Judge Porzio’s invalidation of the mandate for all municipal workers, when he declared it to be arbitrary and capricious and in violation of the New York State Constitution. This seems to be a legal gray area that has been interpreted differently by different parties.

In any case, the hearing discussion moved on from this topic, with LaVeglia emphasizing the strength of his argument on selective enforcement:

LaVeglia: “I do think that there's a strong case for the selective enforcement. I mean, we're talking about a virus that was present everywhere that people gathered, or people gathered in public. The Supreme Court in NFIB v. OSHA acknowledged that places of employment are not any different than any other public place, and they shouldn't be treated any differently. And by making or ordering just City employees to get vaccinated and only City employees, it's irrational and arbitrary, and then taking away their livelihood is evidence of bad faith.”

But Judge Matsumoto also rejected that argument:

Matsumoto: “Equal protection requires that the law is being applied unequally based on, and because of, race, religion, sex, national origin, et cetera. Do you want an opportunity to amend your pleading to make out facts regarding an appropriate equal protection action?”

This is reminiscent of Judge Latin’s decision in New York City Municipal Labor Committee, et al v. Eric Adams et al in January. Latin ruled against the MLC’s equal protection argument under the New York State Constitution for the same basic reason: If the petitioners/plaintiffs aren’t making their claim as part of a recognized class (defined by sex, race, or certain other criteria), it’s more difficult to make an equal protection argument.

LaVeglia declined to pursue the equal protection argument and agreed to the dismissal, pointing to the strength of the res judicata:

LaVeglia: “I humbly don't believe that there would be a good faith basis to go forward considering the strength of the res judicata, and the state proceedings are ongoing.”

Judge Matsumoto then turned to a discussion of the terms of dismissal, with LaVeglia requesting time to consult with his clients on whether they agree to a joint stipulation with the defendants to dismiss the case with prejudice. That would mean they cannot come back to federal court with the same claim in the future. The deadline for submitting the joint stipulation was set for April 14.

Assuming the 16 plaintiffs sign off on the stipulation, that means the federal Garvey case will come to a close and all of the parties involved will be turning their full attention to preparing for the New York State appeal.