The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No Pseudonymity in Challenge to Federal Vaccination Mandate


From Judge John Badalamenti (M.D. Fla.) today in Doe v. Austin:

Plaintiffs in this case are thirty-nine individuals who are currently employed by federal executive agencies or federal contractors and have chosen to not receive a COVID-19 vaccination. Pursuant to Executive Orders 14042 and 14043 (the "Vaccination Mandates"), Plaintiffs are required to receive the COVID-19 vaccination. Because of their status as unvaccinated persons, Plaintiffs claim that they face termination as federal employees or removal from federal government contracts. Plaintiffs therefore request that the Court declare the Vaccination Mandates unlawful and issue a nationwide injunction enjoining enforcement of those Executive Orders.

Before the Court is Plaintiffs' Motion to Proceed Under Pseudonym ("Motion") in this action. Rather than reaching the merits of the Motion with the scant evidence provided by Plaintiffs––two affidavits filed along with a Reply Brief––the Court ordered that all 39 Plaintiffs to submit affidavits in support of the motion to proceed under pseudonym. The purpose of this order was to enable the Court to conduct the requisite legal analysis––based on record evidence––to rule on Plaintiffs' Motion….

In response to the Court's order, Plaintiffs' counsel advised that one plaintiff decided to not proceed forth with this lawsuit, and 22 of the remaining 38 plaintiffs no longer desired to proceed under pseudonyms. Defendants, the heads of the federal executive agencies that employ or contract with the Plaintiffs, have responded in opposition to Plaintiffs' Motion. Plaintiffs have replied, and Defendants have filed a sur-reply. After careful review of the evidentiary record, motions, and pleadings, the Court finds for the reasons below that Plaintiffs' Motion is DENIED. The case shall proceed forth with Plaintiffs' true names in this public forum….

[A] party may proceed under pseudonym by establishing "a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.'" Performing this balancing test requires the court to consider whether the party seeking anonymity "(1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of the utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." …

[As to the third question,] no criminal conduct is at issue here ….

As to the first question, the caselaw reflects that plaintiffs challenging a governmental activity seem to rarely be permitted to proceed under a pseudonym. As the Eleventh Circuit has explained, "no published opinion that we are aware of has ever permitted a plaintiff to proceed anonymously merely because the complaint challenged government activity." …

As is the situation here, where public employees sue the heads of the agencies for which they work, "raising an array of public law issues, the public interest in knowing the detail[s] of the litigation that could affect government policy all around the country is particularly great." Because Plaintiffs here are challenging the constitutional, statutory, and regulatory validity of government activity affecting all federal employees and all employees of government contractors, this first question in the SMU analysis does not weigh in favor of granting Plaintiffs' request to proceed under pseudonyms.

The second factor of the SMU analysis, which focuses on the disclosure of a plaintiff's intimate details, has historically yielded a confined application…. Matters impacting "personal information of the utmost intimacy" include, for example, abortion, the use of birth control, homosexuality, sexually-exploited minor children, and personal religious beliefs. Still, "the public's legitimate interest in knowing all of the facts involved, including the identities of the parties … creates a strong presumption in favor of parties' proceeding in their own names."

Here, the asserted intimate information which Plaintiffs allege that they will be required to divulge to the public is their "medical vaccine status[es]." Specifically, the record evidence demonstrates that the sixteen affiants seeking to proceed under pseudonym express misgivings about revealing "sensitive," "personal," or "private" "medical information," namely that the affiant is unvaccinated.

One's COVID-19 vaccination status, by itself, does not rise to the level of "personal information of the utmost intimacy" for which courts have historically granted anonymity. In factually analogous cases, courts have found that an individual's choice to decline to receive a COVID-19 vaccine is not, on its own, sufficiently sensitive to justify proceeding under pseudonym.

While some courts have held that an individual's decision to not receive the COVID-19 vaccine is a matter of intimate information, those courts' decisions have hinged on the sensitivity of the disclosure of that individual's religious beliefs, not his or her decision to not receive the COVID-19 vaccination. These cases are therefore distinguishable from the present matter.

While several of the affiants stated that they declined to receive the COVID- 19 vaccine at least in part because of their religious beliefs, such religious beliefs were presented as the foundation for the individual's medical choices, not as intimate information unto itself. In other words, these affiants did not represent that their religious beliefs are sensitive or intimate information. To the extent that their religious beliefs are implicated, they are merely presented as a rationale behind the affiants' decision to decline a COVID-19 vaccination…. [T]he gravamen of each affidavit is a fear of revealing "highly personal medical information, which could have effects on [the Plaintiff's] employment status." Such information is simply not sufficiently intimate to overcome the "strong presumption in favor of parties' proceeding in their own names."

Even if the affiants intended to convey that the intimate information they sought to protect was their religious beliefs, the Motion before this Court makes no mention of Plaintiffs' religious beliefs or whether Plaintiffs sought an exemption from the Vaccination Mandates based on those religious beliefs, as provided for in the Executive Orders they challenge.

Next, Plaintiffs argue that they wish to proceed under pseudonyms because they believe that the underlying subject matter of their claim "has become extremely politicized." Their affidavits profess opaque concerns that statements from the President and other federal government officials encouraging the public to get vaccinated will result in professional repercussions for openly unvaccinated individuals employed by the federal government.

One individual explained that he feared being regarded as a "Plague Rat," while another worried that he would be the recipient of "vilifying comments about people who have chosen not to take COVID-19 vaccines." Other affiants expressed concerns that they would be targeted with derogatory remarks from coworkers and supervisors if they were revealed as unvaccinated, or that they would be pressured by such individuals to get vaccinated, and one individual pointed to incidents of coarse commentary from a supervisor urging him to get vaccinated. Still others claim that they will be targeted on social media with harassment or mockery.

The Court does not take these concerns lightly and would admonish any federal employer or federal contractor from making such rude, inappropriate, and unprofessional comments. But ultimately, a desire to avoid uncomfortable workplace conversations is, at its core, a social consideration that is neither highly sensitive nor personal in nature under case precedent. In fact, many courts within the Eleventh Circuit have declined to grant anonymity to plaintiffs facing the prospect of exposure as an alcoholic, a sex offender, a transgender individual, and even an adult victim of rape….

Further, the record evidence here simply does not support the vilification that Plaintiffs allege they will face. Notably, 39 Plaintiffs proceeded forth with this lawsuit with a generalized concern of workplace retaliation for their choice to not receive the COVID-19 vaccination. And just four months after filing their Complaint, more than half of the original Plaintiffs decided that they no longer desired to proceed anonymously. This significant reduction in the number of Plaintiffs seeking to proceed under pseudonyms weighs against Plaintiffs' claim that there is stigma associated being unvaccinated as a federal employee or contractor. Ultimately, "[a]bsent such stigma, the claim for privacy based upon a medical issue must be waived when one chooses a public forum to settle a private dispute." …

The Court recognizes that roughly forty percent of the original Plaintiffs in this case maintain their concerns about disclosing their vaccination choices, and this order is not intended to diminish those concerns. But based on the record before this Court, the … balancing test tips in favor of the constitutionally embedded presumption of openness in this judicial proceeding….

For more, see The Law of Pseudonymous Litigation.