PHOENIX — A federal judge has squelched a bid by a federal worker to sue President Biden over the vaccine mandate without his name becoming public.
In a six-page ruling, U.S. District Court Judge Michael Liburdi rejected claims by Attorney General Mark Brnovich and Jack Wilenchik, the employee’s own lawyer. The claim is that disclosing the man’s name would subject him to retaliation for refusing to be vaccinated as the president has ordered.
The judge said the worker was at no greater risk than any other federal employee who is balking at the mandate.
Liburdi specifically rejected the claims by Brnovich and Wilenchik that the employee had reason to fear because the president and others in his administration “have made a host of ominous threatening comments related to their vaccine mandate.”
The judge acknowledged that at one point the president did say that his “patience is wearing thin” with Americans who choose not to get vaccinated. But Liburdi sniffed at the contention that statement could in any way be construed as a threat.
“The statement does not contain a threat — direct or veiled,” the judge wrote. “Even assuming the statement was a threat, it can reasonably be construed as ‘frustration’ or ‘political commentary’ as opposed to ‘a true intent to harm.’”
Liburdi said if Brnovich and Wilenchik do not refile the complaint by Monday with the worker’s true name, he will be dropped as a plaintiff from the lawsuit.
Despite the ruling, Brnovich remains adamant the president is still guilty of exerting pressure, if not on this specific employee, then everyone else covered by the order.
“It’s shameful that the Biden administration is intimidating Americans to push unconstitutional vaccine mandates,” said press aide Katie Conner in a prepared statement.
And Wilenchik said there is reason for his client to fear some retribution.
“One of the reasons we wanted to keep his name confidential is the Biden administration has shown an unnerving pattern of going after people and wants to know who they are,” he said, saying there are efforts to find out who was involved in leaking details from a laptop that had been stolen last year from Ashley Biden, the president’s daughter. “So it’s a real concern.”
But Wilenchik said Thursday that, given the court ruling, his client is willing to go public. He identified him as Al Reble, a federal marshal who works for the U.S. Department of Justice.
The lawsuit, filed in September, argues the president has no authority to impose vaccine requirements on federal workers. He also is challenging a separate presidential order mandating that entities with federal contracts also have employees inoculated against COVID-19.
Brnovich contends questions of health and safety are left for the states.
“His administration is undermining federalism and undermining the 50 laboratories of democracy,” he said. “It’s a power grab that has never been attempted by any administration in the history of our republic.”
But while Brnovich sued on behalf of the state, he also arranged to sue jointly with Wilenchik on behalf of the unnamed worker, one who is not eligible for a religious exemption and says he believes his request for a medical exemption “will almost certainly be denied.”
Brnovich lost the first round last month when Liburdi refused to issue an immediate nationwide injunction blocking Biden’s order.
The judge specifically rejected the state’s argument that it is illegal for the president to impose such a mandate when he is not requiring the same of people entering the country illegally. Liburdi said there is no legal comparison.
And the judge suggested he was not convinced by claims that Biden’s directives actually force anyone to do anything. Instead, Liburdi phrased it as a condition of employment for federal workers who are free to either get vaccinated or seek work elsewhere. But the case remains alive after the judge gave Brnovich more time to refine his legal arguments.
In the interim, Brnovich has added the Phoenix Law Enforcement Association and United Phoenix Firefighters Association as plaintiffs in the lawsuit. That came after the city announced it would require its employees, in most cases, to be vaccinated because it could be considered a federal contractor.
Last week a federal judge in Georgia last week granted a nationwide preliminary injunction against enforcement of Biden's executive orders, at least as they apply to federal contractors. But Liburdi is continuing the case here because that order is on appeal.
Howard Fischer
@azcapmedia |
Mr. Fischer, a longtime award-winning Arizona journalist, is founder and operator of Capitol Media Services.
Twitter: @azcapmedia
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