No Pseudonymity for Challenge to Maine Healthcare Worker Vaccine Mandate

From Does 1-6 v. Mills, decided yesterday by Judge Jon Levy (D. Me.):

The Plaintiffs are eight Maine healthcare workers and one individual healthcare provider who challenge an August 2021 change to Maine law that requires employees of designated Maine healthcare facilities to be vaccinated against the COVID-19 coronavirus. The Media Intervenors now seek an order unsealing the Plaintiffs' identities, arguing that the Plaintiffs should not continue to be permitted to proceed pseudonymously because the Plaintiffs' alleged fear of harm no longer outweighs the public's interest in open legal proceedings….

At the outset of this litigation, the Plaintiffs moved to proceed pseudonymously, contending that their reasonable fear of harm if their identities were revealed outweighed the public's interest in open litigation. I granted the Plaintiffs' motion in part after taking judicial notice of the substantial public controversy that surrounded COVID-19 vaccination mandates at the time, but I reserved the authority to revisit the issue if the case proceeded beyond the preliminary-injunction stage. {The motion was granted in part to permit the Plaintiffs to proceed pseudonymously as to the public but denied as to Plaintiffs' request to conceal their identities from the State Defendants' counsel of record, the individual State Defendants, and State employees with knowledge of the facts alleged in the complaint and who were determined by State Defendants' counsel to be reasonably necessary to respond to the Plaintiffs' motion for preliminary injunction.} I subsequently denied the Plaintiffs' request for preliminary injunction …, [and the denial] was affirmed by the U.S. Court of Appeals for the First Circuit….

The Federal Rules of Civil Procedure require that all parties be named in the caption of a complaint and do not provide a mechanism for pseudonymous litigation. Fed. R. Civ. P. 10(a) ("The title of the complaint must name all the parties."). "This rule serves more than administrative convenience." "It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." Id. (quoting Frank, 951 F.2d at 322). Additionally, "[t]here is a strong common law presumption favoring public access to judicial proceedings and records," and in general, a case must proceed in the actual names of the parties. In the context of public access to judicial records and documents, the First Circuit has repeatedly explained that such access "allows the citizenry to 'monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'"  In addition to the common law presumption of public access, courts have generally acknowledged the existence of a qualified First Amendment right of access to certain proceedings and documents in criminal cases, and likely in civil cases as well.

However, Federal courts permit plaintiffs in civil suits to proceed pseudonymously in "exceptional cases." An exceptional case may exist where the party seeking pseudonymity "'has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings.'" ….

The Plaintiffs assert that they have substantial privacy interests in their religious beliefs opposing the COVID-19 vaccine and their resulting medical decisions to refuse the vaccine. These interests, they assert, are inextricably intertwined with one another and support shielding their identities from public disclosure. I consider this argument primarily under the second Megless factor, which requires an assessment of the reasons the Plaintiffs fear the public disclosure of their identities and the substantiality of those reasons.

As alleged in the complaint, the Plaintiffs' reason for refusing the COVID-19 vaccination is rooted in their religious-based objection to abortion and their assertion  that fetal stem cells were used in the development of COVID-19 vaccines. I take judicial notice of the fact that the Plaintiffs' religious-based opposition to abortion is a belief held by many Americans and is associated with a longstanding public debate concerning the use of fetal cells for medical and scientific purposes. Accordingly, and contrary to the Plaintiffs' position, I treat the religious beliefs underlying the Plaintiffs' opposition to mandatory COVID-19 vaccinations as not so highly controversial or unique as to subject the Plaintiffs to a reasonable fear of severe harm if their identities are revealed.

The same is true with respect to the Plaintiffs' unvaccinated status. A person's decision to receive or refuse a vaccine is not on par with the intimate medical or psychiatric matters that have traditionally been protected by pseudonymous proceedings. As one court recently characterized it "vaccination status simply is not at that level." Vaccinations and the need to provide proof of vaccination status have become commonplace in modern times. Thus, a person's unvaccinated status—whether in relation to COVID-19 or some other infectious disease for which a vaccine is publicly mandated—is not in and of itself an inherently private, highly sensitive medical condition that calls for pseudonymity. {To the extent that there are sensitive medical records or information that may be relevant to this litigation, those privacy interests can be addressed through a protective order.} …

The Plaintiffs also contend that the heightened public passions concerning mandatory COVID-19 vaccinations place them at a heightened risk of severe social stigma and worse if their identities are publicly revealed…. The primary evidentiary support the Plaintiffs' have offered in support of maintaining their anonymity is the declaration of their attorney, Daniel J. Schmid …. It includes the following quotes from anonymous on-line comments made in response to a Bangor Daily News article published on August 25, 2021, regarding this lawsuit:

Anyway, Church Lady, what's this Constitution thingy people are referring to all the time.

Anyway Church Lady, what's this lawsuit about again?

Well one would have to wonder if the above is really true since both these deplorable 'Christian' sociopathic groups see no harm in placing innocents at risk of serious long term health problems or death.

These people turn my stomach! Somebody's fake religion has nothing to do with our health. Such a lawsuit shouldn't even be considered by the court. In fact, maybe as citizen, Americans ought to be suing the fools who put this lawsuit together.

The Liberty Counsel is the Christian American Taliban.

This dangerous and deadly public health matter presents an opportunity to further control those who look to [religion] for spiritual nourishment.

When your choice endangers everyone around you, you are a public threat, and should be incarcerated, just as you would be if you were firing a gun at random in a crowd.

Some of these comments express hostility toward the Plaintiffs' opposition to being vaccinated against COVID-19, but they do not contain any direct or indirect threats of harm against the Plaintiffs or others. Hostile and arguably intemperate comments of this sort are often part of the public discourse litigants encounter when they turn to a public forum, such as a court, seeking redress of their federal constitutional and statutory rights. The comments cited in Attorney Schmid's declaration do not demonstrate that the social ostracization Plaintiffs could face if their identities are made known to the public is so substantial as to constitute a reasonable fear of severe harm.

Further, the information contained in the Schmid Declaration does not allow for a meaningful evaluation of specific adverse consequences or threats that can reasonably be expected from the public disclosure of the Plaintiffs' identities. The individual Plaintiffs themselves have not submitted declarations which allow for an assessment of the harm or harms they fear if their identities are revealed. In addition, although the Schmid Declaration asserts that, as of August 2021, an unspecified number of the Plaintiffs would remove themselves from this action if their identities were disclosed to their employers and to the public, the record reflects that none of the Plaintiffs withdrew from this case following the court-authorized disclosure of their identities to their employers in December 2021….

[T]he Plaintiffs contend that because the issues presented by their complaint are purely legal and not factual in nature, the public's interest in their identities is nominal. This argument ignores that the complaint includes as-applied challenges to Maine's COVID-19 vaccine mandate. For example, the complaint asserts that "[t]he Governor's COVID-19 Vaccine Mandate, on its face and as applied, places Plaintiffs in an irresolvable conflict between compliance with the mandate and their sincerely held religious beliefs." By challenging the actions of the private hospital employers, the Plaintiffs have, as another court has recently recognized in a case involving similar claims, "put factual questions about [their own] actions at issue in this lawsuit." The complaint asserts employment discrimination claims against the Plaintiffs' private hospital employers under Title VII. The Title VII claims made against the private healthcare provider Defendants will necessarily require consideration of facts associated with each Plaintiff's employment circumstances, specific accommodation request, and credibility.

The seventh and eighth Megless factors together assess the level and strength of the public's interest in knowing the Plaintiffs' identities. The level of public interest in the subject matter of this case is high because the Plaintiffs seek to invalidate a mandatory vaccination requirement for healthcare workers adopted in response to a nationwide pandemic. The statewide effectiveness of the public health response to the pandemic is an important matter and, consequently, is of great public interest. In addition, the Plaintiffs' employment discrimination, as-applied claims against the private healthcare provider Defendants—operators of several of Maine's largest healthcare systems—suggests that there is a strong public interest in the identities, occupations and accommodation requests of potentially hundreds or even thousands of Maine healthcare workers who would be exempt from the mandatory vaccination requirement if the Plaintiffs prevail in this action….

The court noted that other courts have disagreed on this question:

Compare Navy Seal 1 v. Austin, CASE NO. 8:21-cv-2429, 2022 WL 520829, at *1-2 (M.D. Fla. Feb. 18, 2022) (granting the plaintiffs' request to proceed using pseudonyms in a challenge to a government COVID-19 vaccine mandate), Does 1 through 11 v. Bd. of Regents of the Univ. of Colo., Civil Action No. 21-cv-02637, 2022 WL 43897, at *5 (D. Colo. Jan. 5, 2022) (granting the plaintiffs' request to proceed pseudonymously prior to ruling on the motion for preliminary injunction and "until further order of the court"), and Does 1-2 v. Hochul, 21-CV-5067, 2022 WL 836990, at *10 (E.D.N.Y. Mar. 18, 2022) (allowing the plaintiffs to proceed pseudonymously in their challenge to New York's COVID-19 vaccine mandate for healthcare workers, but noting that, "although the balance of factors tips in favor of Plaintiffs at this phase of the case, this balance could change as the case progresses"), with Oklahoma v. Biden, Case No. CIV-21-1136-F, 2022 WL 356736, at *2-4 (W.D. Okla. Feb. 2, 2022) (denying the plaintiffs' request to proceed pseudonymously in a challenge to a government COVID-19 vaccine mandate because the vaccination decision is not "highly sensitive" even when that choice is faith based, and concluding that criticism and ostracism are not equivalent to a real danger of physical harm), and Doe v. City Univ. of N.Y., No. 21 Civ. 9544, 2021 WL 5644642, at *6 (S.D.N.Y. Dec. 1, 2021) (denying the plaintiff's request to proceed pseudonymously in challenging his college's COVID-19 vaccination policy because he did not "me[e]t his burden of demonstrating that his 'interest in anonymity' outweighs the prejudice to defendants and 'the customary and constitutionally-embedded presumption of openness in judicial proceedings").