A U.S. Supreme Court justice on Aug. 29 rejected a bid to block New York City’s COVID-19 vaccine mandate.
Justice Sonia Sotomayor, an Obama appointee, turned down a request from New York Police Department detective Anthony Marciano, who had asked her to reinstate a temporary restraining order against the city with regards to its mandate for city workers.
The order was issued by a New York judge in late 2021 but dissolved by a federal court, which later threw out Marciano’s complaint. An appeals court rejected a request for a stay pending appeal, leading to the request to Sotomayor.
In a brief, Marciano through a lawyer said that the mandate is violating his due process rights and causing him irreparable harm. He also said the mandate violates state and federal law.
“A majority of this Court would likely agree the Mayor of the City of New York has no executive authority that permits him to mandate an EUA Covid 19 vaccination, that is prohibited under existing NYS and federal laws from being imposed on any adult in NYC, employee or otherwise. Nonetheless, the challenged adult-vaccination-mandate requires all NYC municipal workers receive an EUA Covid 19 vaccination, with or without requisite informed consent, and\or with or without a Judicial Order of Quarantine PHL §2120 (3), required by state and federal law, or be fired,” the brief stated.
EUA stands for emergency use authorization. NYS is New York state while NYC is New York City.
Sotomayor did not explain her decision to turn down the emergency application for a writ of injunction.
A lawyer representing Marciano did not respond to a request for comment.
Sotomayor received the application because each justice is in charge of one or more circuit courts and she is in charge of the United States Court of Appeals 2nd Circuit, which includes New York.
Earlier DecisionsNew York Supreme Court Judge Frank Nervo entered the temporary block in late 2021, but soon dismissed the suit, finding that New York City health authorities have the power to impose vaccine mandates.
Marciano then sued over the mandate in federal court.
U.S. District Judge Jed Rakoff, a Clinton appointee, dismissed the federal suit, also concluding that NYC authorities have the authority to issue vaccine mandates, referencing the Court of Appeals of New York decision in Garcia v. New York City Department of Health & Mental Hygiene.
The appeals court in that case found that the city’s charter “empowers the Department with ‘jurisdiction to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city,’ including in matters relating to the “control of communicable and chronic disease and conditions hazardous to life and health.” It found that there was ”a very direct connection“ between flu vaccine requirements ”and the preservation of health and safety.”
“The same can be said about Board’s requirement that City employees and contractors be vaccinated against COVID-19,” Rakoff said.
He also said that claims Marciano’s due process rights were being violated were not correct, referring in part to the U.S. Supreme Court’s decision in Jacobson v. Massachusetts.
The Second Circuit later denied a request for a stay pending appeal, stating that Marciano had failed to meet the standards for a stay.
The case is still with the appeals court, which could ultimately decide in favor of the detective.