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By Matthew Russell Lee, Patreon Maxwell Book

SDNY COURTHOUSE, May 18 – The Federal Reserve Bank of New York wants to fire longtime employees Lori Gardner-Alfred of The Bronx and Jeanette Diaz of Bayonne, New Jersey for not being vaccinated against COVID-19. And now it may be able to.

  The two women won a temporary restraining order in New York State court. But the FRBNY removed the case to Federal court and Friday argued to dissolve the TRO and fire the women, saying that their harm is not irreparable.      

       On March 4, U.S. District Court for the Southern District of New York Judge Lewis J. Liman held a proceeding. Inner City Press covered it.  

 FRBNY in-house lawyer Alex Leonard argued the TRO should be immediately lift. The women, representing themselves, asked for time to respond to the papers the Fed, their employer for decades, had just given them.

  Judge Liman to his credit did give them time, until Sunday to file their response to his chambers by email. Then, it should be docketed.

   Jeanette Diaz asked about the FRBNY's definition and denial of religious exemptions. Judge Liman said perhaps Mr. Leonard could answer. But he said no, that would be getting in to the merits and the Fed's focus was getting the TRO dissolved and presumably firing the employees.

  On March 7, Judge Liman heard from the parties again. Inner City Press live tweeted here:

now staffers the Federal Reserve Bank of NY wants to fire for being unvaccinated are before SDNY Judge Liman as they were Friday. FRBNY lawyer: Now plaintiffs over the weekend make a a Constitution argument. But the New York Fed is not a government agency.

[Inner City Press: Then how does NY Fed approve bank mergers? See, FRBNY Approves Berkshire Bank With NTI Rating, here

Judge Liman: Even if discrimination were being alleged, would an injunctions be issues? NY Fed staffer's new/1st lawyer: The very pressure put on these plaintiffs to abandoned their bona fide religious beliefs is irreparable harm, per se

Judge Liman: What do you say about the NY Fed not being a state agency? Lawyer: They removed to this court by saying that are an organ of the Federal government...  [And, the Fed Board had this "non government agency," owned by banks, approving bank mergers]

 Lawyer: On the merits we have this Federal Reserve agency, now trying to revoke the religious exemption based on their job titles. These jobs could be performed remotely. Or, in the office a few days a week.

Lawyer: The Fed has granted others an ongoing exemption. That burden is on the Fed to offer up some justification. Judge Liman: What about irreparable harm?

Lawyer: There's the Northern District of NY case...  Judge Liman: Citation? Lawyer: 17 F.4th 368, 370

 NY Fed's Leonard: He says we are forcing them to violate their religious beliefs. But it is a condition of employment. They got a temporary accommodation, but there's no longer a reasonable one. We understand that's difficult. See, the Hawaii Airlines case.

 NY Fed's Leonard: They did not claim in their state court submission any free exercise violation. NY Fed is not a government agency.  Judge Liman: Authority for that? A: Uh, uh, NY Fed's employment actions are not state action. Judge: Cases? A: Nothing on point.

NY Fed's Leonard: There is no irreparable harm.

Judge Liman: I'm going to take this under advisement. I will render a decision quite quickly. Expect to hear from me soon. Plaintiffs' lawyer: There's a case, Agricultural Bank of China, 2016 WL 27566661

 NY Fed's Leonard: US v. Wells Fargo case, while not on point, the Federal Reserve Bank for the purpose of emergency lending are government agencies, but by implication, not as employers. Plaintiffs' lawyer: 24 hours for an interlocutor appeal? NY Fed: We object. ]

NY Fed's Leonard: We are doing this in the middle of pandemic. We shouldn't be restrained any longer. Judge Liman: Do you want to dismiss the complaint under 12(b)(6)? NY Fed: There's no complaint, it's futile. Yes, dismiss. Judge Liman: I'm asking about process.

 NY Fed's Leonard: We'll submit more papers in 2 weeks.

Judge Liman: Reply by April 11. We are adjourned.

On March 11, this: "ORDER granting in part [7] Motion Emergency Motion to Dissolve Ex Parte Temporary Restraining Order and Dismiss . Accordingly, the TRO is dissolved as improperly issued under Rule 65. See Rabbi Jacob Joseph School v. Province of Mendoza, 342 F. Supp. 2d 124, 127 (E.D.N.Y. 2004) ("The temporary restraining order that was issued without notice to the attorney for the Defendant whose identity was known, without declaring in an affidavit or verified complaint that immediate and irreparable harm would result before the adverse party or his attorney could be heard in opposition, was plainly in violation of Fed.R.Civ.P. 65(b), and the temporary restraining order was vacated for the additional reason that it was improperly issued."); Dolan v. Portaro, 2015 WL 3444351, at *1 (N.D. Ohio May 28, 2015) ("Had Plaintiff Dolan initially filed this case in this Court, the TRO could not have been granted. When the motion for a TRO was first made in state court, Plaintiff's counsel did not provide the required certification as to what efforts were made to give notice and why notice should not be required. Nor did Plaintiff's counsel file such certification in this Court after removal. That deficiency alone justifies dissolving the TRO."). Moreover, "[o]n this motion to dissolve a temporary restraining order,... the party that obtained that order... bears the burden of justifying continued injunctive relief." Gardner v. Weisman, 2006 WL 2423376, at *1 (S.D.N.Y. Aug. 21, 2006) (internal quotation marks omitted) (quoting SC Cowen Sec. Corp. v. Messih, 2000 WL 663434, at *1 (S.D.N.Y. May 17, 2000)). The FRBNY argues that the evidence submitted by Plaintiffs does not satisfy that burden, because they have not shown irreparable harm, a likelihood of success, or a balance of hardships in their favor, as further set forth herein. Plaintiffs also have not demonstrated a likelihood of success on the merits of their claims; their operative pleadings are wholly conclusory, and their arguments regarding a likelihood of success on the merits again hinge entirely on the Free Exercise claims, Dkt. No. 14 at 5; once again, the operative pleadings assert no Free Exercise claims. As such, Plaintiffs have not carried their burden of justifying continued injunctive relief. For this additional reason, the TRO must be dissolved."

  On March 21 the New York Fed filed a motion to dismiss, leading that "the New York Fed - part of the nation's central bank and a federal instrumentality established pursuant to the Federal Reserve Act of 1913 is not a state agency whose decisions are subject to review under Article 78."

On June 21 Judge Liman held another proceeding. He said he did not anticipate granting a motion to dismiss, but also doubted in a preliminary injunction, given that the staffers have already been fired. (The Fed's lawyer slipped in that the Fed doubts that the lead plaintiff's beliefs are religious).

Judge Liman told counsel to discuss with their clients the option of an expedited hearing on a permanent injunctions. A case management plan is due July 8, with another conference set for July 18 at 2 pm. 

  Inner City Press covered the July 18 conference; there was a request for a trial in January but a decision to hold it in May. Then into the docket this: "ORDER deferring ruling on [27] Motion for Preliminary Injunction. Upon consent of the parties at Dkt. No. 41, the hearing on Plaintiffs' motion for a preliminary injunction will be consolidated with a trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). (HEREBY ORDERED by Judge Lewis J. Liman)."

As the weather grows colder, the plaintiffs' lawyer seek to leave them. Judge Liman ruled: "ORDER: On October 28, 2022, plaintiffs Jeanette Diaz and Lori Gardner ("Plaintiffs") emailed the Court asking if they could be represented by counsel at the conference scheduled for Thursday, November 3, 2022 at 2:00 p.m. The Court has not granted Plaintiffs' counsel's motion to withdraw. Accordingly, if Plaintiffs wish to communicate with the Court, they should do so through counsel and file the communication on the docket on ECF. SO ORDERED. (Signed by Judge Lewis J. Liman on 10/28/2022)."

On January 13, 2023, Judge Liman held another conference in the case, about discovery. But the Federal Reserve's lawyer dropped a bombshell, claiming that plaintiffs' counsel did not in fact have any agreement with the clients to actually produce discovery - and was communicating through a New York Fed staffer, William Christie. Even before the oral bombshell, the Fed's January 11 letter to Judge Liman roundly critiqued plaintiffs' counsel.

On February 23, the plaintiffs demanded discovery including arguing that "Plaintiffs should be permitted to depose Helen Mucciolo and Karen Lynch, whom Plaintiffs’ former counsel noticed for deposition on October 20, 2022, and whom the Parties had discussed scheduling for mutually agreeable dates as late as February 21, 2023. However, after agreeing to hold other depositions first to accommodate the New York Fed’s witness convenience, the New York Fed refused to offer Mucciolo and Lynch as previously agreed. On January 18, 2023, Defendants emailed me following a phone conversation, that the Parties would continue to confer on the scheduling of depositions of Defendants’ employees including at a minimum the previously noticed New York Fed witnesses. On February 13, 2023, Plaintiffs sent deposition notices to Defendants for six deponents, three of which were discussed in the January 18 email. On February 14, Defendants refused to offer the witnesses. Plaintiffs should be permitted to take the depositions of Helen Mucciolo and Karen Lynch as there is no prejudice to the New York Fed in Plaintiffs taking their depositions and it would not affect further deadlines to allow these depositions. Defendant Should Be Required to Produce Altheia Graham, Amy Chiaravallo, and Danielle Levitt for Deposition Plaintiffs should also be permitted to depose Altheia Graham, Amy Chiaravallo, and Danielle Levitt, who were disclosed in the New York Fed’s Rule 26(a) initial disclosures and whom Plaintiffs noticed for deposition on February 13, but the New York Fed did not agree to produce for deposition. Plaintiffs should be permitted to depose Altheia Graham, Amy Chiaravallo, and Danielle Levitt as there is no prejudice to the New York Fed in Plaintiffs taking their depositions and it would not affect further deadlines to allow these depositions."

In April 2023 the NY Fed moved for sanctions against the former staff it fired, seeking access to iPhone(s) and communications with "the 'Reverend Dr.' Valentine."

Inner City Press went to a May 9, 2023 oral argument on the Fed's motion for sanctions. It emerged that it is seeking money from staff it fired, for not producing emails from the spam folder(s) in discovery. Now the summary judgment briefing schedule as been pushed back, to June 15, July 3 and July 20.

On May 17, a schedule for the Fed to seek fees was added: " Defendant is entitled to adverse inference instructions that (1) Gardner Alfred has withheld documents regarding her vaccination exemption package; (2) Diaz has withheld the Electronic Notes and URL List; and (3) the documents withheld by Gardner-Alfred regarding the contents of her vaccination exemption package and her payment to the “Reverend Dr.” Valentine would show she purchased the same vaccination exemption package, in the same way and for the same amount, as the New York Fed’s independent investigator. With respect to the second instruction concerning the Electronic Notes and the URL List, the Court declines to instruct the jury that it should draw any particular inference based on the fact that Diaz has not produced this material. “Most typically, it seems that courts in this circuit have not gone so far as to direct that a jury should draw a certain inference from a party’s spoliation or withholding of evidence, instead opting to allow the jury to draw such inferences as it sees fit, from the facts presented.” Id.; see Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001) (“[A] party seeking an adverse inference may rely on circumstantial evidence to suggest the contents of destroyed evidence. It then becomes a matter for the jury to decide, based on the strength of the evidence presented, whether the documents likely had such content.”). Here, too, the jury can determine what inference to draw from the fact that Diaz has chosen to withhold these documents. CONCLUSION The motion for sanctions is GRANTED IN PART and DENIED IN PART. Defendant is directed to file a fee application consistent with this opinion by June 20, 2023. Plaintiffs may respond to that application by July 4, 2023 and Defendant may file a reply by July 11, 2023."

Inner City Press will continue to cover the case and the Fed.

We will have more on this. The case is Gardner-Alfred, et al. v. Federal Reserve Bank of NY, 22-cv-1585 (Liman)

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