THE lawyer of nine former firefighters believes that their terminations were unlawful when they occurred — more than three months prior to the Food and Drug Administration’s approval of the Pfizer-BioNTech Covid-19 vaccine, also known as Comirnaty.
In a supplemental brief filed in Superior Court, attorney Joseph Horey at the same time acknowledged that the FDA approval “potentially affects the remedies available to plaintiffs on their procedural due process claim.”
He said “it may limit the time period for which back pay is available as a remedy to plaintiffs, on that claim, to the period running from the date of their terminations (May 21, 2021) to the date that Comirnaty becomes available in the CNMI.”
He added that if “the court orders plaintiffs reinstated as Commonwealth employees (either as a provisional or a final remedy), and if the Commonwealth again requires them to be vaccinated against Covid-19, but this time with Comirnaty, it would not contradict any Emergency Use Authorization or EUA for the Commonwealth to do so, because Comirnaty is an approved vaccine….”
But Horey reiterated that the only effect of the approval of Comirnaty would be on the “remedies available to plaintiffs on their procedural due process claim, not on the merits of the claim itself.”
“Plaintiffs’ procedural due process claim arose at the time they were terminated, which was more than three months prior to the FDA’s approval of Comirnaty,” Horey added. “The terminations were unlawful when they occurred, and would therefore still give rise to damages for back pay from that time at least until the time that Comirnaty becomes available.”
He said his clients’ other claims — for breach of their constitutional rights to individual privacy, equal protection, and substantive due process — are unrelated to the FDA approval.
The plaintiffs are Paul Acebedo, Jose K. Angui, Allen T. Calvo, Cain C. Castro, Argenon A. Flores, Derek B. Gersonde, Shawn DLR Kaipat, Philip Kalen, and Adam J. Safer.
They were terminated for insubordination following their refusal to take the Covid-19 vaccine as required by CNMI Governor’s Directive 2021-002.
Their lawsuit named as defendants the Department of Fire and Emergency Medical Services and its commissioner, Dennis Mendiola, in his official and personal capacities.
The department and its commissioner are represented by Assistant Attorneys General Keith Chambers II and Abbi Novotny.
Associate Judge Joseph N. Camacho has taken under advisement the terminated firefighters’ request to be reinstated in their previous positions while a decision on their lawsuit is pending.
