The Volokh Conspiracy
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No Pseudonymity in Challenge to Denial of Religious Exemption from Military Vaccine Mandate
From Chief Judge Beryl Howell (D.D.C.) in Officer in the U.S. Space Force v. Austin, decided yesterday (contrary to decisions in M.D. Fla., N.D. Ill. and D. Colo., but consistently with Chief Judge Howell's decision in another case, and with this nonprecedential Seventh Circuit order):
Plaintiff is "an officer in the United States Space Force" who currently "leads a team consisting of over 200 members in 24/7 operations at a $250+ million satellite ground station." As "a devout Catholic," plaintiff alleges that she "cannot comply with Defendants' vaccine mandate without violating her sincerely held religious beliefs" ….
Plaintiff argues that pseudonymity is justified because her "request for a religious exemption from the vaccine mandate necessarily involves revealing her deeply held religious beliefs, un-vaccinated status and personal health, all matters of utmost intimacy." She further explains that her "request for a religious accommodation required her to make written revelations" regarding "her religious beliefs (a matter she would not normally publicly discuss)."
While plaintiff's claims necessitate that she explain the source of her opposition to defendants' vaccine mandate—thereby acknowledging publicly her Catholic faith—there is no reason to believe that the litigation would require her to elaborate on those "deeply held religious beliefs," and indeed, plaintiffs regularly brings suits in their own names to protect their religious beliefs under RFRA. See, e.g., Wilson v. James (D.D.C. 2015) (RFRA challenge by member of Utah Air National Guard to disciplinary action taken against him); Boardley v. U.S. Dep't of Interior (D.C. Cir. 2010) (RFRA challenge to constitutionality of National Park Service regulations as applied to plaintiff). Without more, what plaintiff deems "personal intimate information" about her religious beliefs is insufficient grounds "to grant the rare dispensation of anonymity." …
Doe v. Stegall, the Fifth Circuit decision she cites, is distinguishable, as the plaintiffs there were schoolchildren, a factor the court found "especially persuasive," and the record contained "documentary exhibits" bolstering plaintiffs' "assertions that they might be subjected to retaliatory harassment or violence if their identities were publicly revealed." Even if some information regarding the details of plaintiff's "personal health" were sensitive and highly personal, this would at most warrant limited sealing of that information….
[P]laintiff [also] asserts, without further elaboration, that "disclosing her identity for purposes of this litigation would compromise America's national security, the operational security of her unit, her own personal safety and the safety of other members of her unit." … [And] while plaintiff claims that retaliation against her "because of her unvaccinated status is … already occurring," the only example she cites is a denial of the opportunity to attend "Squadron Officer School, a required professional military education course for Air Force and Space Force Captains," and this denial apparently was the result of a policy of the "National Reconnaissance Office … restrict[ing] all travel, including mission essential travel, for unvaccinated individuals." Thus, the loss of this opportunity appears to be the product of a broadly-applied policy, rather than an individualized, punitive decision targeting plaintiff in retaliation for her religious objections to the vaccine. As alleged, an Air Force or Space Force captain who was unvaccinated for a non-religious reason, such as a medical condition, would be similarly "ineligible for temporary duty or other training opportunities she would ordinarily attend." …
[P]laintiff's generalized concerns about being stigmatized, ostracized, and facing "even greater harm to her military career should her lawsuit … be made public," are entirely speculative, and the risk of harassment and criticism represents the quintessential "annoyance and criticism that may attend any litigation," and are 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"); Stegall ("The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity.")….
For more on the general question, see my The Law of Pseudonymous Litigation.
