Attorneys for the federal government are making a last-minute effort to unmask a federal employee who wants to challenge the president’s vaccine mandate but does not want to reveal his identity.
Joseph DeMott, a lawyer with the Department of Justice, is asking U.S. District Court Judge Michael Liburdi to deny the request to let the case proceed with one of the plaintiffs identified only as “John Doe.” He said the individual has identified no threat of harassment, injury, ridicule or even personal embarrassment from being identified.
More to the point, DeMott said the public interest weighs strongly in favor of disclosure.
“A trial is a public event,” he told Liburdi.
“What transpires in the court room is public property,” DeMott continued. “A plaintiff’s use of fictitious names runs afoul of the public’s common law right of access to judicial proceedings.”
The spat comes just ahead of Attorney General Mark Brnovich going to federal court on Wednesday in his latest legal squabble with the Biden administration.
This case seeks to enjoin the president from enforcing an executive order requiring that all federal workers be vaccinated as well as a separate order imposing the same mandate on entities with federal contracts to also have all employees inoculated against Covid.
Brnovich contends these orders exceed the president’s authority and are improperly enacted regulations. He also is advancing an unusual legal theory that Biden can’t force U.S. citizens working for the federal government or contractors to be vaccinated if he’s not imposing a similar mandate on those crossing the U.S. border illegally.
But this dispute turns on another legal tactic being used by Brnovich. While he is suing on behalf of the state, the attorney general also has arranged to sue jointly with a private attorney who represents an unnamed federal worker, one who is not eligible for a religious exemption and one who says he believes his request for a medical exemption “will almost certainly be denied.”
“He will either be subject to dismissal from his employment, or will suffer serious violations of his constitutional rights to bodily integrity and to refuse medical treatment,” the lawsuit states.
DeMott told Liburdi that, at least for the moment, Doe’s claims of harm are “conjectural.”
“Doe is at no risk of being forced to receive medical treatment,” he said. And DeMott said if he did lose his job, that’s not sufficient grounds to hold up enforcement of the executive order as he could later seek financial compensation.
But all that presumes that the worker can sue without being identified.
“The government takes seriously any concern that a plaintiff would be subject to retaliatory physical or mental harm by participating in litigation,” DeMott told the judge. But DeMott sniffed at the claim that somehow he is at risk because of a “host of ominous and threatening comments” made by the president.
As proof, Doe is citing Biden’s comment on Sept. 9 that his “patience is wearing thin” with Americans who refuse to get vaccinated.
“Even if one could conceivably construe the president’s comments as a specific threat to plaintiff Doe (one cannot), this court should disregard the comment which communicates frustration or political commentary instead of a true intent to harm,” DeMott said. “One off-hand remark by the president of the United States, which is all that plaintiff Doe points to here, does not cause a reasonable fear of harm.”
The move by the government to require Doe to provide his identity drew a sharp response from Jack Wilenchik, the private attorney who jointly filed the suit with Brnovich.
“For the Biden administration and the Department of Justice to be trying to ‘unmask’ a federal employee who is simply trying to assert his legal rights is not a good look,” he told Capitol Media Services. “Nor does it do much to address the concern here which is the retaliation from the federal government.”
Brnovich press aide Katie Conner expressed similar concerns.
“Once again, the Biden administration is trying to intimidate Americans from exercising their constitutional rights,” she said in a prepared statement.
But DeMott told Liburdi there’s another reason the identity of the worker is relevant to the hearing.
He said that most federal employees are covered by the Civil Service Reform Act which would be the place for Doe to proceed with any claims he has, including being fired.
Other federal workers have their own personnel rules, with some who have no administrative appeal rights. But DeMott told Liburdi he can’t argue that Doe has to take his complaint elsewhere until his identity and where he works is revealed.
The new government filing puts Liburdi in the position of potentially having to decide whether Doe can be part of the lawsuit before he rules on the underlying claims by Brnovich about the legality of the president’s orders.
This case — and the issues — are separate from the emergency rule issued by the Occupational Safety and Health Administration requiring companies with 100 or more workers to have them vaccinated or be tested at least weekly.