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No Pseudonymity in Challenge to Denial of Religious Exemption from Military Vaccine Mandate

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From U.S. Army ROTC ECP Cadet Doe v. Biden, decided yesterday by Chief Judge Beryl Howell (D.D.C.) (contrary to decisions in M.D. Fla., N.D. Ill. and D. Colo., but consistently with this nonprecedential Seventh Circuit order):

Plaintiff, "a nineteen-year-old male ROTC Early Commissioning Program (ECP) candidate" who is "currently a drilling member of the Army National Guard," has moved to proceed under pseudonym in the instant action challenging defendants' vaccination policies and their interference with his "fundamental right to the free exercise of religion." For the reasons set forth below, plaintiff's motion is denied, subject to any further consideration by the United States District Judge to whom this case is randomly assigned….

Despite the presumption in favor of disclosure [of party names], … [c]ourts …, in special [and rare] circumstances, may permit a party to proceed anonymously. A party seeking to do so, however, "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." Once that showing has been made, "the court must then 'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure.'" …

At this early stage of the litigation, plaintiff has not persuasively met the burden of showing that the legitimate privacy interests he holds outweigh the public's presumptive interest in knowing the details of this litigation. Plaintiff has articulated no privacy interest sufficient to rebut the presumption in favor of open proceedings….

[1.] Plaintiff argues that pseudonymity is justified because his "sincere religious beliefs" and "medical decisions and past infections" are "personal intimate information justifying anonymity." Plaintiff asserts, in conclusory fashion, that "[d]ecisions regarding vaccinations, illness and treatment … are just like decisions regarding birth control," which other circuits have cited as grounds to allow a plaintiff to proceed under pseudonym.

This is not an obvious conclusion to reach, since birth control methods and choices engage far more personal physical and medical details than, as here, a shot in the arm with a vaccination or identifying as a Christian, which millions of people do in this country and around the world. Without more, what plaintiff deems "personal intimate information" is insufficient grounds "to grant the rare dispensation of anonymity," and indeed plaintiff cites no cases from the D.C. Circuit in support of his position. Even if some information regarding the details of plaintiff's medical history and treatment, beyond having had COVID, were sensitive and highly personal, this would at most warrant limited sealing of that information. The first James factor weighs against permitting plaintiff to proceed pseudonymously….

[2.] [T]he asserted risk of retaliatory harm [to plaintiff] is both speculative and minimal. Plaintiff asserts that "[i]n the present climate, he is likely to be labeled as an 'anti-vaxer'—which he is not," and "his reputation tarnished both inside and outside of the military," which could make him "likely to be targeted for retaliation in the course of his career." The risk of retaliation that plaintiff describes is entirely speculative, however, and the risk of harassment and criticism represents the quintessential "annoyance and criticism that may attend any litigation," and is far less severe than the degree of serious mental harm or physical danger necessary to override the strong public interest in transparent legal proceedings. See Qualls v. Rumsfeld (D.D.C. 2005) ("bringing litigation can subject a plaintiff to scrutiny and criticism and can affect the way plaintiff is viewed by coworkers and friends, but fears of embarrassment or vague, unsubstantiated fears of retaliatory actions by higher-ups do not permit a plaintiff to proceed under a pseudonym"); see also Doe v. Court of Common Pleas (W.D. Pa. Nov. 3, 2017) (denying request to proceed under pseudonym based on plaintiff's argument "that anonymity is necessary to protect her from unwanted media attention and a potentially negative public response to the allegations in the Complaint" as "not sufficient to outweigh the public's right to access court proceedings."). The second James factor thus weighs against granting plaintiff's motion….

[3.] [T]he fact that this suit is against the government, also weighs against granting plaintiff's motion, as the law is well-settled that "there is a heightened public interest when an individual or entity files a suit against the government." Here, plaintiff seeks an injunction "prohibiting the Defendants … from enforcing the vaccination policies challenged in this Complaint," and the public interest in knowing the detail of the litigation that could affect government policy broadly is particularly great.

[4.] [A]llowing plaintiff to proceed under pseudonym will not prejudice defendants in any way. Plaintiff's identity is presumably known to defendants through his ROTC enrollment, or could be disclosed to them through counsel. There is no reason to think that allowing plaintiff to proceed under pseudonym would compromise defendants' ability to defend this action or pose any "risk of unfairness to the opposing party." [Nonetheless, t]aking these factors together, plaintiff has presented no compelling justification for "the rare dispensation of pseudonymous status," and thus has failed to demonstrate a need for secrecy or identify consequences likely to befall plaintiff if he proceeds in his own name….

Note that pseudonymity tends to be more easily granted when people are making purely legal challenges, which don't turn much on the facts of the particular case (and thus on the identity of the party); but this doesn't seem to be such a case.

NEXT: Illinois Town "Issue[s] 62 Tickets to an Elderly Couple for Having Lawn Chairs in Their Front Yard"

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  1. This D.C. Federal Class judge probably wants the Democrat Subhuman Mob to ruin this guys life for not wanting to be a Big Pharma experiment.

    1. Or could it be that she thinks that pseudonymity is generally not available in most cases, including ones that are controversial or that involve medical conditions? And that this guy isn't entitled to be pseudonymous when most other litigants aren't?

      1. If this blog wanted reasoned (or literate) comments it would be substantially different.

      2. I would appreciate a citation from any religious text prohibiting vaccination.

        1. DB, the Supreme Court ruled that since they can't make decisions based on religious texts, that they have to default to the individual's interpretation.

          So even if someone says Islam, Catholic Church (etc.), prohibits vaccination (whether the religion does or not), then the SC has to accept that this is the person's sincere religious belief (and then proceed from there on the merits of the case).

          IANAL, so I forget which case this was but there was a discussion here in VC about 3 - 4 months ago.

          1. I can cite a verse in the Koran. It says, doctors and medical treatment are from Allah. Non-adherence to medical treatment is haram. Although the Amish reject technology from the 20th Century, they get state of the art care, when they have a serious illness. The Torah endorses medical care as well. Jehovah Witnesses reject blood or plasma exchanges. But because no plasma is involved in the vaccines, since a 1952 declaration, elders have endorsed vaccination. One wonders if the Jehovah Witness Williams family of tennis fame is vaccinated against Covid.

            So judicial deference to religion seems to be a mask for personal preference, not for religious preference.

            1. "So judicial deference to religion seems to be a mask for personal preference. . . ."

              Yupper!

              That's why Church or Satanists and Pastafarians preferences are just as valid (invalid?), as the Pope's preferences.

              1. When the Congregation Of Exalted Reason starts pushing its preferences with the assistance of recent "religious liberty" decisions, the clingers won't know what hit them.

  2. A few points regarding the covid vaccines.

    The US is currently on the backside of the 3rd major wave, ( which is typically the last major wave of most pandemics). This means the need for a vaccine is substantially less than the need that existed during 2021.

    The dominant strain since Nov 2021 is the omicron strain which is less than 30% effective after 3 or so months. This means that the mandate is about as effective as mandating a flu shot for last years strain.

    While the general consensus is that those who have taken the vaccine results in a lower severity of a covid illness. Solid data is emerging that for approximately 80% of the population having the vaccine makes only a small difference in the severity of a covid illness. The data does show that the vulnerable portion of the population having the vaccine does make a big difference. That being said, the the vast majority of the military have very low risk, as such, the benefit of the vaccine is very limited.

    1. Those facts might all be worth arguing to the Secretary of Defense. But once a decision is made by the military command, the job of the soldier is to obey. If you don't want to be subject to a high level of compulsion, based on your superiors' decision about what is best for the armed forces overall, then don't join the army.

      1. y81
        March.22.2022 at 9:40 pm
        Flag Comment Mute User
        Those facts might all be worth arguing to the Secretary of Defense. But once a decision is made by the military command, the job of the soldier is to obey. "

        While I concur with the legal analysis, I am only pointing out that a covid vaccine has a near zero benefit in either reduction in the risk of spread of covid and near zero benefit in the reduction in the severity of a covid illness for that demographic group . The vast majority of active military are young and healthy which has a very low risk of serious illness.

        1. Assume for the sake of argument that the vaccine is purely placebo, then perhaps that should be the contention by those who want an exemption.

    2. Joe Dallas makes up facts once again.

    3. Dude, you gotta stop taking that blog as gospel.

      1. Sacastro & Nieporant

        My statements are not controversial - at least not controversial to those have kept up to speed on the data. Most of my statements are based on the actual studies, many coming out of israel and qatar, which are much higher quality than the studies published by the CDC.
        The other primary source for my comments is analysis of the raw data.

        Granted my comments are often contrary from statements coming from the CDC. However, compare the per capita death rates by age group of the unvaxed during the peak of the Nov 2020 - Feb 2021 wave to the per capita death rates of the unvaxed during the peak of the nov 2021 - jan 2022 wave. Do the same comparison of the hospitalization rates for the "unvaxed" during those same two periods. It should be readily apparent that much of the "consensus" promoted by the CDC is based on erroneous data.

        For example The reported per capita death rates and hospitalization rates for the "unvaxed" in those two peak periods jumped 4x-5x in most every state which is totally implausible, especially with a milder strain during Nov 2021 - jan 2022 peak. A jump of 4x-5x has never happened in the history of any pandemic.

        - your comments do reflect that neither of you have made any effort to stay current on the emerging developments in the medical literature related to covid.

        1. My statements are not controversial - at least not controversial to those have kept up to speed on the data.

          You get this is just an appeal to your own authority, right? It proves nothing except for your own confidence.

          Saying 'check the numbers, the CDC is lying' requires a lot more than 'the data looks pitchy, dawg.'

          - your comments do reflect that neither of you have made any effort to stay current on the emerging developments in the medical literature related to covid.
          Your imperious tone doesn't make you more correct. You've outsourced any critical thinking to this dumb healthyskeptic blog and think it makes you better than anyone else.

  3. My understanding is that another wave is hitting China. (Reliable information re China is, obviously, hard to come by under the best of circumstances.) Not sure what--if true--this means for America, Europe, etc. in the coming months.

    1. (Reliable information re China is, obviously, hard to come by under the best of circumstances.)

      No kidding, and there's plenty of data from Asian countries that don't work so hard to keep reality under lock and key. South Korea has been going through an enormous wave over the past couple of months -- ~9 million cases (nearly 1 out of 5 across the whole population, and that's just what the tests caught!), but only about 6k deaths. Assuming a typical ~2-week lag on deaths, CFR likely will settle out below 0.15%. That's in the same neighborhood as other countries that are the most lit up right now (Vietnam, Japan, Germany, France, UK, Italy, Australia, Switzerland, etc.).

      Not sure what--if true--this means for America, Europe, etc. in the coming months.

      My money would be on little to nothing, since China claims to be going through an Omicron wave. So for this one they're lagging most of the rest of the world, not leading it.

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