PHOENIX — The U.S. Justice Department is making a last-minute effort to unmask a federal employee who wants to challenge President Biden’s vaccine mandate but does not want to reveal his identity.
Joseph DeMott, a Justice Department lawyer, is asking a federal judge in Phoenix not 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 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 U.S. District Court Judge Michael Liburdi. “What transpires in the court room is public property. A plaintiff’s use of fictitious names runs afoul of the public’s common law right of access to judicial proceedings.”
The dispute comes just ahead of Arizona Attorney General Mark Brnovich going to federal court on Wednesday, Nov. 10, in his latest legal squabble with the Biden administration.
This case seeks to enjoin Biden from enforcing an executive order requiring that all federal workers be vaccinated, as well as a separate order mandating that entities with federal contracts also have all employees inoculated against COVID-19.
Brnovich contends these orders exceed the president’s authority and are improperly enacted regulations.
But, while Brnovich is suing on behalf of the state, he also has arranged to sue jointly with a private attorney who represents the unnamed federal worker, one who is not eligible for a religious exemption and 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.
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, DeMott said.
But that presumes 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 he gave no credence to the claim that somehow the employee is at risk because of a “host of ominous and threatening comments” by the president.
Doe is citing Biden’s comment on Sept. 9 that his “patience is wearing thin” with Americans who refuse to be 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 wrote in court papers. “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 federal government’s move 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.
DeMott, however, told Liburdi there’s another reason the worker’s identity is relevant to the hearing.
He said 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 if he is fired.
Other federal workers have their own personnel rules, with some who have no administrative appeal rights. But DeMott said he can’t argue that Doe has to take his complaint elsewhere until his identity and where he works are 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. Brnovich and a host of other attorneys general filed multiple suits in different courts on that one, with the 5th Circuit Court of Appeals issuing a stay of the rule Friday.
