The Scheinman Arbitration decision is unconstitutional, say New York City employees, and this matter has wide-spread effects on the employment of thousands of City educators who are seeking a religious or medical exemption from getting vaccinated against the COVID-19 virus and all variants. I have downloaded from the Southern District and the Second Circuit the papers submitted to the Courts in this case, but without the Declarations by the individual named Plaintiffs Matthew Keil, Sarah Buzaglo, John De Luca, Sasha Delgado, and Dennis Strk and the rest of the class Plaintiffs. Oral argument on both Kane and Keil cases was heard at the Court of Appeals, Second Circuit, on November 10, 2021 at 2pm.
What is interesting about the oral arguments which I listened to is that when one of the three Judges asked the lawyer for the City how many religious exemptions had been given, she did not know.
One of our clients applied for a religious exemption and the arbitrator told her, “If you do not hear from me, assume you have been approved”. How is this a proper determination? The person went back to her job teaching in the classroom.
In another school, all employees get their temperature taken when they enter. That’s it. No questions about whether or not they have had the vaccine.
On November 11, the Court of Appeals for the Second Circuit requested a proposed Order from the Appellants, which was provided, and the City filed their Proposed Order on November 12, 2021. On November 15, 2021 the Court of Appeals made a ruling, sending the cases to the Merits Panel for review on November 22, 2021. See all documents submitted to the Court, below.
What is a “Merits Panel”?
From Attorney Joseph Alexander Little IV:
Judges often convene on “motions” panels to resolve very straightforward issues. Motions panels also resolve some motions in pending appellate cases, including motions to dismiss. In general, if the motion to dismiss was straightforward and meritorious, the motions panel would grant it and the appeal would be over (one example might be granting a motion to dismiss because the appeal was filed past the filing deadline). If a motion is not so easily resolved, then the entire case (including the motion) is forwarded to the “merits” panel. In normal circumstances, the merits panel is the panel of 3 judges that considers the appeal itself, usually without oral argument.
Betsy Combier, Editor, Advocatz.com; email@example.com