Dismissal sought for firefighters’ suit

The defense in the ongoing lawsuit filed by nine former firefighters who were terminated for refusing to be vaccinated against COVID-19 have filed motions to dismiss the suit with the Superior Court.

Joseph Horey, who represents the nine former firefighters, said in a statement the defense in the case has filed three different motions to dismiss the lawsuit and the fate of the case now rests in the Superior Court’s hands.

“The government defendants have filed three different motions to dismiss, and all three have been heard by the court. Two were heard on June 14 and one on Aug. 21. So right now, we are just waiting for the court to issue a decision. If our case survives these motions to dismiss, we will keep on fighting for reinstatement,” he said.

Horey said he and his clients remain optimistic about the Superior Court’s pending decision as other courts have started to show a better understanding of similar issues, now that the COVID-19 pandemic panic has subsided.

“We are hopeful of a favorable decision. It seems that, after some initial pandemic panic, courts have come to a better understanding of these kinds of issues. For example, the New York Supreme Court recently found that a New York City vaccine mandate violated equal protection because it applied only to government workers, and not to the private sector. That is one of the same arguments that our firefighters made. So we think we have a solid case, and will prevail in the end,” he said.

The former firefighters were terminated for insubordination following their refusal to take the COVID-19 vaccine as required by the CNMI Governor’s Directive 2021-002 issued on Feb. 18, 2021.

The firefighter first sued the Department of Fire and Emergency Medical Services and then-DFEMS chief Dennis Mendiola, but they later asked the court to dismiss the case with prejudice so they could refile the case. The Civil Service Commission had also affirmed the fire department’s decision to terminate the nine.

The nine then refiled their lawsuit against DFEMS and sought the reversal of the CSC’s decision.

The nine former firefighters—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—refiled their lawsuit at the Superior Court in December 2022.

Changes made to the refiled lawsuit include naming acting DFEMS commissioner Jesse Mesa as a defendant in place of Mendiola and adding the CSC as a defendant.

In their refiled suit, the plaintiffs asked the Superior Court to reverse the CSC decision and asked the court to issue an order finding their termination “invalid and unlawful.” They also want an order to hold their terminations unlawful and to set that aside.

In addition, the former firefighters are seeking an injunction reinstating them to their pre-termination positions, with back pay, leave, and benefits from the date of their termination.

In addition, the lawsuit is asking for an undetermined monetary award and damage for emotional distress.

In September 2021, Superior Court Associate Judge Joseph N. Camacho granted the request of the parties in the case to dismiss without prejudice the lawsuit. The parties agreed to dismiss the case without prejudice, which meant it could be refiled.

The court found that the former firefighters tried to short-circuit the administrative process and did not engage fully with the administrative process and exhaust all administrative remedies available to them when they filed their lawsuit simultaneously with their appeal.

On Aug. 3, 2022, the CSC denied the former firefighters’ appeal and affirmed the fire department’s decision to terminate them.