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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER,
Plaintiff,
v.
LLOYD J. AUSTIN, III, in his official
capacity as Secretary of Defense, et al.,
Defendants.
Case No. 5:22-cv-00009-TES
MOTION TO STAY DISTRICT COURT
PROCEEDINGS PENDING APPEAL
Defendants respectfully request that this Court stay further proceedings in this
matter pending final resolution of Defendants’ appeal from the Court’s Opinion and
Order granting Plaintiffs’ motion for a preliminary injunction. See ECF No. 51 (“Opinion
and Order”). On February 15, 2022, the Court granted Plaintiff’s motion for a preliminary
injunction on Plaintiff’s claims under the Religious Freedom Restoration Act (“RFRA”)
and the First Amendment. Id. The Court issued an order enjoining Defendants “from
enforcing the Department of Defense Military Mandate, the Air Force Military Mandate,
and the Air Force Military Order against Plaintiff.” Id. at 31. Defendants noticed their
appeal of the Court’s Opinion and Order on April 12, 2022. See ECF No. 71.
In determining whether to grant a stay, courts consider “(1) whether a stay would
unduly prejudice or present a tactical disadvantage to the nonmovant; (2) whether a stay
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will simplify the issues in the case; and (3) whether discovery is complete and a trial date
has been set.” Tomco Equip. Co. v. Southeastern Agri-Systems, Inc., 542 F. Supp. 2d 1303,
1307 (N.D. Ga. 2008) (citation omitted); see also Landis v. N. Am. Co., 299 U.S. 248, 254
(1936) (explaining that a district court’s “power to stay proceedings is incidental to the
power inherent in every court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants”).
Defendants respectfully suggest that a stay of proceedings pending the final
resolution of Defendants’ appeal will promote judicial economy and preserve the
resources of the parties and this Court. Defendants’ appeal implicates important legal
issues that the parties and the Court will likely have to address in future proceedings,
including the reviewability of core military decisions, Plaintiff’s likelihood of success on
her RFRA and First Amendment claims, and Plaintiff’s ability to establish irreparable
injury. An appellate decision on those issues (and others) will thus likely provide the
Court and the parties significant aid in the ultimate resolution of this case, including in
the resolution of the pending issues related to class and additional parties. See Miccosukee
Tribe of Indians v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th Cir. 2009) (explaining
that a stay may be warranted where “a federal appellate decision . . . is likely to have a
substantial or controlling effect on the claims and issues”).
Moreover, a stay is appropriate at this time. This case is still in its infancy, as
“discovery is [not] complete and a trial date has [not] been set.” Tomco Equip. Co., 542 F.
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Supp. 2d at 1307 (citation omitted). In addition to the appeal in the instant case, the issues
surrounding Plaintiff’s claims and the preliminary injunction are currently being litigated
in the Eleventh Circuit, see Navy Seal I v. Sec’y of the United States Dep’t of Defense, No. 22-
10645 (11th Cir.), and have been subject to litigation before the Supreme Court, see Austin
v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (Mem.) (2022); Dunn v. Austin, No. 21A599 (U.S.).
By awaiting the forthcoming guidance from the appellate courts at this stage, the parties
and the Court will be able to narrow the issues for discovery and final resolution.
The proposed stay is of a limited and definite duration that will not cause undue
delay in the resolution of this case. This limited stay will not prejudice the sole Plaintiff
in this case1 because Defendants are currently enjoined “from enforcing the Department
of Defense Military Mandate, the Air Force Military Mandate, and the Air Force Military
Order against Plaintiff.” Opinion and Order at 31. Nor will a stay prejudice the proposed
new plaintiffs. Those individuals are not yet parties to this case, and so the Court need
not consider prejudice to them. In any event, a stay will not prejudice them because
nothing prevents those individuals from filing a separate lawsuit. Moreover, even if they
were parties, the proposed new plaintiffs would not be prejudiced by a stay because (1)
they have not exhausted their administrative remedies, and (2) they would similarly
1 The current operative complaint is the First Amendment Complaint, ECF No. 56.
Accordingly, Plaintiff Air Force Officer is the sole Plaintiff. Should the Court grant
Plaintiff’s pending motion for leave to amend the complaint and entertain briefing on
class issues, Defendants reserve the right to revisit their request for a stay of the case.
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benefit from an appellate decision—and possibly even a Supreme Court decision—on the
important issues in this case.
Staying the case would also be consistent with how other courts, like the Middle
District of Florida, have handled similar matters. In Navy Seal 1 v. Biden, for example,
Judge Merryday has had a motion for class certification pending since November 12,
2021. See Navy Seal 1 v. Biden, 8:21-cv-2429 (M.D. Fla.), ECF No. 35. Defendants appealed
Judge Merryday’s order granting a preliminary injunction to the named plaintiffs on
February 25, 2022, and that appeal remains pending. See id., ECF No. 115. To date, Judge
Merryday has granted preliminary relief only for named plaintiffs—not for any other
member of the putative class or any potential intervenors. Indeed, there has been just
one person who has sought to intervene as a member of the putative class, Thomas Macik,
and Mr. Macik’s requests to intervene and for emergency relief in the form of a TRO have
been pending since February 14, 2022. Id., ECF Nos. 93 and 94. One other motion recently
sought emergency relief on behalf of one Plaintiff and 22 unnamed service members, ECF
No. 141, but Judge Merryday has not acted on that request either.
Accordingly, Defendants respectfully request that the Court stay further district
court proceedings in this matter until the parties have exhausted appellate proceedings.
Dated: April 14, 2022
PETER D. LEARY
United States Attorney
Middle District of Georgia
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
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/s/ Lance Simon
LANCE SIMON
Assistant United States Attorney
Georgia Bar NO. 44764
ROGER C. GRANTHAM, JR.
Assistant United States Attorney
Georgia Bar NO. 860338
300 Mulberry St., Suite 400
P.O. Box 1702
Macon, GA 31202
Tel: (478) 621-2663
Email: lance.simon@usdoj.gov
roger.grantham@usdoj.gov
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
/s/ Cassandra Snyder
ANDREW E. CARMICHAEL
Senior Trial Counsel
ZACHARY A. AVALLONE
CASSANDRA M. SNYDER
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 451-7729
Email: cassandra.m.snyder@usdoj.gov
Counsel for Defendants
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