Defense: 9 firefighters can now be compelled to receive the vaccine

The defense lawyer in the lawsuit filed by nine firefighters who were terminated for refusing the COVID-19 vaccine now argue that, with the U.S. Food and Drug Administration’s recent approval of the Pfizer vaccine, the firefighters can now be compelled to be vaccinated and that renders moot their lawsuit, which is based on an alleged violation of their constitutional right.

According to assistant attorney general Keith Chambers II, the FDA approval of the Pfizer-BioNTech COVID-19 vaccine, now commercially known as “Comirnaty,” impacts the firefighters’ constitutional procedural due process arguments because the alleged legal impediment that prevented the governor from mandating the Pfizer-BioNTech Covid-19 vaccine is now gone.

“Pursuant to plaintiffs’ arguments, plaintiffs can now be compelled to receive the Pfizer-BioNTech Covid-19 vaccine without having their procedural due process rights under the Commonwealth and the United States Constitutions being violated. ‘Comirnaty’ administration is not subject to Emergency Use Authorization or EUA rules. Therefore, [the US Constitution] no longer requires adult patients receiving the Pfizer-BioNTech CVOID-19 vaccine to be told that they have the ‘option to accept or refuse’ vaccination,” he said.

Chambers said the FDA’s approval of the Comirnaty shows that the vaccine is sufficiently safe for people in the plaintiffs’ age range.

“Though plaintiffs may have their own personal beliefs regarding Comirnaty, the court is charged with weighing the reasonableness of plaintiffs’ beliefs. The court should now find in the wake of the Comirnaty’s approval that any fears plaintiffs had about the safety of the vaccine are unreasonable,” Chambers said.

With the FDA approval, Chambers argues that the firefighters must effectively concede that, one, they can no longer rely on their procedural due process arguments to support their preliminary injunction, and two, rely on their procedural due process arguments to support their request for injunctive and declaratory relief on the merits.

“The vaccine under the EUA and the FDA-approved Comirnaty has the same formulation and can be used interchangeably to provide the COVID-19 vaccination series without presenting any safety or effectiveness concerns. This means that the vaccine that was administered under the EUA is the exact same one that was given FDA approval and renamed Comirnaty. Therefore, the change in FDA approval does have an impact because it moots plaintiffs’ due process claims that are rooted in their arguments that the EUA required an option to accept or reject the vaccine,” he said.

Chambers represents the Department of Fire and Emergency Medical Services and its commissioner, Dennis Mendiola who were sued by nine former firefighters.

The plaintiffs were terminated for insubordination for their refusal to take the COVID-19 vaccine.

In their lawsuit, the plaintiffs said the defendants violated their procedural due process rights under the CNMI and U.S. Constitutions by mandating vaccination for COVID-19 as a condition for employment.

The plaintiffs also want the court to issue an injunctive relief, reinstating them as firefighters, with back pay and cost of the suit.

The plaintiffs, represented by attorney Joseph Horey, 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.