Wednesday, December 15, 2021

UPDATE: AZ AG Brnovich Suit Against Biden Vaccine "Mandate" Continues To Unravel; Filing THIRD Amended Complaint In Three Months (READ Stipulations)

Update, 12/17, 8pm: UPDATE: AZ AG Brnovich Suit Against Biden Vaccine "Mandate" Continues To Unravel; Filing THIRD Amended Complaint In Three Months 

There's a price to be paid for rushing to be the first in the nation to file a lawsuit against the Biden Administration's COVID-19 vaccine "mandate", as Arizona Attorney General Mark Brnovich told the court tonight that they will file a Third Amended Complaint on Monday. The case was filed only three months ago (before the intended policy had been formally introduced).

It took the Attorney General's Office three separate Friday night Stipulations with the other parties to try to untangle the separate strands and get them into a presentable shape:

  • (1) The AG had to acknowledge that it needed to file a 3rd Amended Complaint and that it would do so by noon on Monday. It will keep all of the same claims for relief, but will make it clear that the so-called "Immigration Counts" - the initial claims that the "mandates" violate the Constitution because they treat citizens differently than people crossing the border - are only made by the State against the federal government. (Each of the first two amendments brought in new plaintiffs and new claims.)
  • (2)The AG's Office had to completely step away from the allegations brought by Phoenix's police union against the "contractor mandate" and how it might apply to officers - that will now only be PLEA versus the Administration. 
  • (3) The 3rd Stipulation asks Judge Mike Liburdi to consolidate the injunction request with the trial on the merits (for the non-immigration claims).

Tonight's stipulations come at the same time that the Sixth Circuit reversed an injunction on one portion of the anti-COVID "mandates". Brnovich had hoped to be the trailblazer in fighting the federal fight on the virus, and is still seeking a way to get this case to a place where Judge Liburdi might rule in his favor.

(Presumably, the 3rd Amended Complaint will include the name of the federal employee who had wished to remain anonymous; the Court rejected that request earlier this week. See below.)


Original article, 12/15, 3pmNEW: Judge REJECTS Motion To Allow Federal Employee To Join Brnovich's Vaccine "Mandate" Suit As "John Doe"

U.S. District Court Judge Mike Liburdi today REJECTED a motion to allow a federal employee to anonymously join Arizona's lawsuit against the so-called "vaccine mandate" as a "John Doe". The October Motion was part of the first morphing of Attorney General Mark Brnovich's first-in-the-nation lawsuit against part of President Biden's plan to slow the spread of COVID-19.

Brnovich amended his Complaint to include the (proposed) John Doe, and teamed up with outside counsel Jack Wilenchik to claim that the employee feared retaliation if his medical exemption to not get vaccinated was not accepted by the U.S. (Brnovich has since morphed his Complaint again to include further claims, but he has failed to get traction in court as other AGs around the country have secured injunctions.)

Judge Liburdi flatly rejected the request to proceed pseudonymously (i.e. as a "John Doe") because there was not sufficient evidence that the employee was at risk. 

"As to Plaintiff’s vulnerability, Plaintiff does not allege any facts showing that he is particularly vulnerable; instead, Plaintiff concludes that “[h]is absolute vulnerability to retaliation weighs in favor of granting pseudonymity.” Because Plaintiff has failed to allege any facts showing that he is vulnerable to retaliation, this factor also weighs in favor of non-pseudonymity."

Liburdi weighed the other factors and concluded "(b)alancing the factors, Plaintiff has not demonstrated a reasonable threat of severe harm great enough to overcome the presumption in favor of access to judicial records."

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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