Memorandum in Support of Plaintiff's Motion for Leave to Proceed Anonymously — Air Force Officer, No. 5:22-cv-00009 (Document 3-1)

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A memorandum in support of the plaintiff's motion for leave to proceed anonymously in Air Force Officer v. Lloyd J. Austin, III, et al., Case No. 5:22-cv-00009, in the U.S. District Court for the Middle District of Georgia, filed January 6, 2022 as Document 3-1. The defendants are the Secretary of Defense, the Secretary of the Air Force and the Surgeon General of the Air Force, sued individually and in their official capacities. The memorandum argues that the plaintiff has a substantial privacy right under Plaintiff B v. Francis, 631 F.3d 1310, because she challenges government activity and must disclose intimate information to seek a religious accommodation from the vaccine mandate. It also argues that the defendants have no countervailing interest in her identification. The four-page filing is signed by counsel for the plaintiff.

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       Case 5:22-cv-00009-TES           Document 3-1        Filed 01/06/22       Page 1 of 4




                           UNITED STATES DISTRICT COURT
                        FOR THE MIDDLE DISTRICT OF GEORGIA


AIR FORCE OFFICER,                                   )
                                                     )        Case No. 5:22-cv-00009
                       Plaintiff,                    )
v.                                                   )
                                                     )
LLOYD J. AUSTIN, III, individually and in his )
official capacity as Secretary of Defense;           )
FRANK KENDALL, III, individually and in his )
official capacity as Secretary of the Air Force; and )
ROBERT I. MILLER, individually and in his            )
official capacity as Surgeon General of the          )
Air Force,                                           )
                                                     )
                       Defendants.                   )


                       MEMORANDUM IN SUPPORT OF
         PLAINTIFF’S MOTION FOR LEAVE TO PROCEED ANONYMOUSLY

       The Court should grant Plaintiff Air Force Officer leave to proceed anonymously.

Federal Rule of Civil Procedure 10(a) generally requires the title of any Complaint to name all

parties, but the Eleventh Circuit recognizes exceptions to this rule when a plaintiff establishes

she has “a substantial privacy right which outweighs the ‘customary and constitutionally-

embedded presumption of openness in judicial proceedings.’” Plaintiff B v. Francis, 631 F.3d

1310, 1315-16 (11th Cir. 2011) (citations omitted); Roe v. Aware Woman Ctr. for Choice, Inc.,

253 F.3d 678, 685 (11th Cir. 2001) (citations omitted). To determine whether a plaintiff has such

a right, “the court ‘should carefully review all the circumstances of a given case and then decide

whether the customary practice of disclosing the plaintiff’s identity should yield to the plaintiff's

privacy concerns.’” Plaintiff B, 253 F.3d at 1316 (quoting Doe v. Frank, 951 F.2d 320, 323 (11th

Cir. 1992)).




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       Case 5:22-cv-00009-TES               Document 3-1    Filed 01/06/22      Page 2 of 4




       Plaintiff here meets two key factors in analyzing a plaintiff’s claim of a substantial

privacy right: (1) she is challenging governmental activity, and (2) in order to establish her right

to relief, she must disclose information of the utmost intimacy. Id. (applying standard from S.

Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th

Cir.1979)).

       Plaintiff is challenging the validity of government, not private, activity and must admit

that she has been engaging in and intends to continue to engage in generally prohibited conduct

(declining vaccination as a service member) in a context where that conduct is being demonized

by many media outlets and government officials including the President himself.1 See Southern

Methodist Univ., 599 F.2d at 713. Plaintiff is also reasonably concerned about her personal safety

and security for the same reason.

       The basis for Plaintiff’s claims involves disclosure of information of the utmost intimacy.

To establish her right to an accommodation from vaccine mandate on the basis of religious

exercise, Plaintiff must disclose her personal information, including vaccination status and

natural immunity, in a climate generally hostile to those who decline the vaccine for any reason.

She must also attest to the nature of her sincere religious belief, which courts have recognized is

“perhaps the quintessentially private matter.” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981)

(cited in Plaintiff B, 631 F.3d at 1316).

       Moreover, Defendants have no countervailing interest in the Plaintiff’s identification, as

she is merely one of thousands of aggrieved service members in the Air Force alone,2 not to




1
  In a speech on September 9, 2021, President Biden stated: “We’ve been patient, but our
patience is wearing thin, and the refusal has cost all of us….”
2
  https://www.af.mil/News/Article-Display/Article/2831845/daf-covid-19-statistics-jan-4-2022/.
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       Case 5:22-cv-00009-TES            Document 3-1        Filed 01/06/22      Page 3 of 4




mention the other branches of the military, who may have a valid claim against Defendants for

substantially burdening religious beliefs without sufficient justification to survive strict scrutiny.

       For all of these reasons, Plaintiff has a substantial privacy right that can only be preserved

by proceeding anonymously. The Court should grant her leave to proceed anonymously.




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       Case 5:22-cv-00009-TES        Document 3-1       Filed 01/06/22   Page 4 of 4




Dated: January 6, 2022

Respectfully submitted,

                                                          /s/ Michael R. Hirsh
Thomas Brejcha*                                           Michael R. Hirsh, GA #357220
THOMAS MORE SOCIETY – President & Chief Counsel           Hirsh Law Office, LLC
309 W. Washington St., Ste. 1250                          2295 Towne Lake Parkway
Chicago, IL 60606                                         Suite 116-181
(312)782-1680                                             Woodstock, GA 30189
tbrejcha@thomasmoresociety.org                            (678)653-9907
                                                          michael@hirsh.law
Stephen Crampton*
THOMAS MORE SOCIETY – Senior Counsel
PO Box 4506
Tupelo, MS 38803
(662)255-9439
scrampton@thomasmoresociety.org

Adam S. Hochschild*
Hochschild Law Firm
THOMAS MORE SOCIETY – Special Counsel
PO Box 401
Plainfield, VT 05667
(314)503-0326
adam@hochschildlaw.com

Mary Catherine Hodes*
THOMAS MORE SOCIETY – Special Counsel
112 S. Hanley Rd., Second Floor
Clayton, MO 63105
(314)825-5725
mchodes@thomasmoresociety.org

Michael McHale*
THOMAS MORE SOCIETY – Counsel
20374 Magnolia Rd.
Crescent, IA 51526
(712)545-9433
mmchale@thomasmoresociety.org

*application for pro hac vice admission forthcoming


                            Counsel for Plaintiff Air Force Officer



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