Omnibus Order
- Date
- 2022-02-15
Summary
An omnibus order filed April 27, 2022 as Document 83 in Air Force Officer v. Lloyd J. Austin, III, et al., Civil Action No. 5:22-cv-00009-TES, in the U.S. District Court for the Middle District of Georgia, Macon Division. It recounts the February 15, 2022 preliminary injunction barring adverse action against the plaintiff for refusing the COVID-19 vaccine, then grants her leave under Rule 15(a)(2) to file a Second Amended Class Action Complaint adding three representatives. It denies the Motion to Strike [Doc. 60] and the class motions [Doc. 57] and [Doc. 58] as moot, and denies the Motion to Stay pending appeal [Doc. 74], lifting the briefing stay [Doc. 62]. It grants the additional representatives leave to proceed anonymously [Doc. 66] and sets a May 12, 2022 deadline for a merged motion. The 12-page order is signed by Judge Tilman E. Self, III.
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Case 5:22-cv-00009-TES Document 83 Filed 04/27/22 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER,
Plaintiff,
v.
LLOYD J. AUSTIN, III, individually and in his
official capacity as Secretary of Defense; CIVIL ACTION NO.
5:22-cv-00009-TES
FRANK KENDALL, III, individually and his
official capacity as Secretary of the Air Force; and
ROBERT I. MILLER, individually and his
official capacity as Surgeon General of the Air Force,
Defendants.
OMNIBUS ORDER
On February 15, 2022, the Court granted Plaintiff, a United States Air Force
officer, a preliminary injunction preventing the United States Air Force from taking any
adverse action against her for refusing to receive the COVID-19 vaccine. [Doc. 51]. The
Court issued the injunction because it found that the Air Force’s blanket vaccine
mandate and legally lacking religious accommodation program likely violated her
rights under the First Amendment and the Religious Freedom Restoration Act. [Id.]. The
Court did not require the Air Force to grant Plaintiff any specific religious
accommodation; rather, it merely ruled—preliminarily, mind you—that the military
could not enforce its mandatory vaccination requirement against her. Based on that
Case 5:22-cv-00009-TES Document 83 Filed 04/27/22 Page 2 of 12
ruling, Plaintiff subsequently filed her First Amended Complaint to transform this
single-plaintiff lawsuit into a class action. [Doc. 56]. Defendants have moved to strike
this amended complaint because Plaintiff didn’t receive their written consent or the
Court’s leave. [Doc. 60]. Plaintiff responds by saying that she doesn’t need their written
consent or the Court’s leave because she has the right to amend as a matter of course.
[Doc. 67, pp. 2–3]. Not long after filing her First Amended Complaint, Plaintiff filed a
Motion for Leave to File Second Amended Complaint. [Doc. 63]. Naturally, at this
juncture, the Court has to decide which one is operative: Plaintiff’s original Complaint,
her First Amended Complaint, or her Second Amended Class Action Complaint.
A. Plaintiff’s Operative Complaint
Defendants have moved to strike Plaintiff’s First Amended Complaint, and their
motion is but one of ten pending motions. 1 Resolving the Rule 15-based issues
surrounding Plaintiff’s amendments to her Complaint clears the path for a much more
effective resolution of the remaining nine. With Rule 15 front and center in the parties’
arguments, what does it say? More importantly, what does it do?
Rule 15 provides two ways for parties in federal court to amend a pleading
before trial. One way is by amending as a matter of course under Rule 15(a)(1). A party
can amend a pleading “once as a matter of course” (or right) during either of two
1Technically, there are eight motions pending, but two of them—an original and supplemental motion—
seek two forms of relief: (1) to certify a class and (2) to appoint class counsel. See, e.g., [Doc. 57]; [Doc. 64].
2
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distinct and separate periods: (1) within 21 days of serving it or (2) within 21 days after
service of a responsive pleading or a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P.
15(a)(1)(A)–(B). Other than amendments “as a matter of course,” the second and only
other way to amend a pleading before trial comes from the “other amendments”
provision found in Rule 15(a)(2). That provision says, “[i]n all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2) (emphasis added).
The obvious starting point under a “matter of course” amendment is to
determine which one of the two “service” dates apply to kickstart the 21-day periods.
Plaintiff successfully served each Defendant on January 7, 2022. See, e.g., [Doc. 14]; [Doc.
17]; [Doc. 20]. When you exclude the day that triggered Rule 15(a)(1)’s first 21-day
period—the date of service—it started on January 8, 2022. See Fed. R. Civ. P. 6(a)(1)(A).
So, to amend her pleading “as a matter of course” within 21 days of serving it,
Plaintiff—applying Rule 6(a)(1)(C)—had until January 31, 2022, to do so. Thus,
according to Defendants, Plaintiff’s First Amended Complaint filed on February 28,
2022, fell outside the 21-day period in Rule 15(a)(1)(A). [Doc. 60-1, p. 4]. But what about
the 21-day period under Rule 15(a)(1)(B)? This 21-day period starts when a plaintiff’s
opponent serves a responsive pleading or motion under Rule 12(b), (e), or (f). In this
case, Defendants have yet to file any responsive pleading or one of the designated Rule
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12(b) motions, so they contend that Plaintiff’s First Amended Complaint filed on
February 28, 2022, isn’t properly filed under Rule 15(a)(1)(B) either. [Id.].
Continuing their line of reasoning, Defendants argue that since Rule 15(a)(1)
doesn’t apply, all Plaintiff is left with is the “other amendments” provision under Rule
15(a)(2). However, Defendants argue that because Plaintiff failed to obtain either their
written consent or “the court’s leave,” she didn’t comply with Rule 15(a)(2) so that her
First Amended Complaint should be stricken pursuant to Federal Rule of Civil
Procedure 12(f). [Doc. 60-1, pp. 1, 4].
The Court would likely be hard-pressed to find an interpretation of Rule 15 that
differs from Defendants’. Their interpretation presents a textualist reading of Rule 15,
but Plaintiff disagrees with it. She argues that binding Eleventh Circuit precedent
allows for some other amendment period “so long as no responsive pleading has been
filed.” [Doc. 67, p. 3 (citing Coventry First LLC v. McCarty, 605 F.3d 865, 869 (11th Cir.
2010) (per curiam))]. But such an amendment period simply isn’t in the plain text of
Rule 15. Relying on Coventry First, Plaintiff argues that under Rule 15, she “has the
absolute right to file a first amended complaint ‘as a matter of course’ before
[D]efendants respond to [her] original complaint.” [Doc. 67, p. 2]. In other words,
Plaintiff takes the position that she had the right to file the First Amended Complaint
“any time before” Defendants filed a responsive pleading or appropriate Rule 12(b)
motion. On top of that argument, Plaintiff tries to defeat Defendants’ attempt to strike
4
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her First Amended Complaint on the basis that their use of Rule 12(f) isn’t at all proper.
[Id. at pp. 3–4].
On the Rule-15 issue, Plaintiff cites to a couple of unreported Eleventh Circuit
cases that support her position, but Coventry First, a reported Eleventh Circuit case from
2010—just after the 2009 Amendment to Rule 15—seems to lend the most support that
her interpretation of Rule 15 may be right. See [id. at pp. 2–3]. In Coventry First, the
Eleventh Circuit held that Rule 15(a) “gives a plaintiff the right to amend a complaint
once as a matter of course, so long as no responsive pleading has been filed.” 605 F.3d at
865. Applying Coventry First, it would appear that because Plaintiff “ha[s] not
previously amended [her] [C]omplaint and [Defendants] ha[ve] not filed a responsive
pleading[,]” Rule 15(a) allows her to “amend [her] [C]omplaint as a matter of course.”
Id. But, because Plaintiff has ultimately sought leave to amend under Rule 15(a)(2), the
Court doesn’t have to decide whose interpretation of Rule 15 wins the day. 2
Plaintiff’s leave-seeking motion is styled as a “Motion for Leave to File Second
Amended Complaint”; thus, looking at just the title of her motion, she obviously wants
her Second Amended Class Action Complaint to be the operative complaint at the end
of the day. See [Doc. 63]. Whether she amends her First Amended Complaint or her
2 Be it in this case or another one that squarely presents the issue, the Eleventh Circuit can decide whether
its current interpretation of Rule 15—that a party can amend “once as a matter of course,”
notwithstanding the two distinct 21-day periods, “so long as no responsive pleading has been filed”—
will remain as binding precedent given the rule’s plain text. Coventry First, 605 F.3d at 869.
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original Complaint (if the Court struck her First Amended Complaint) really doesn’t
matter. What does matter is that she has properly asked the Court for permission to file
a new amended complaint, and the Court will consider that request.
Plaintiff’s original Complaint named just her as the sole plaintiff. See generally
[Doc. 1]. Her First Amended Complaint differed in that she clearly asked for the Court
to certify a class (that she would represent) “on behalf herself and all others similarly
situated.” [Doc. 56, p. 1]. Her Second Amended Class Action Complaint, however, asks
that three additional plaintiffs be allowed to join—“Air Force NCO,” “Air Force Special
Agent,” and “Air Force Engineer”—and she now asks that all four of them serve as
class representatives of the putative class consisting of “themselves and all others
similarly situated.” [Doc. 63-2, p. 1]. Again, regardless of whether the First Amended
Complaint ever controlled, Plaintiff undeniably wants the Second Amended Class
Action Complaint to be the pleading that controls in this case.
Under Rule 15(a)(2), “[t]he court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). With respect to “when justice so requires,”
Defendants urge the Court to deny Plaintiff leave to amend on the slightly misguided
notion that she “lacks standing to serve as a representative of the putative class” since
the Court “has already granted her the precise remedy she seeks.” [Doc. 60-1, p. 5].
Stated simply, Defendants argue that Plaintiff’s amendment would prove futile since
she “does not suffer the same injury” as those she seeks to add, after the fact, as other
6
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class representatives. [Id. at pp. 5, 8]. But that’s not really the case, is it? Contrary to
Defendants’ argument that “Plaintiff has already litigated this matter on behalf of
herself and has received the relief requested[,]” she really hasn’t and may not. [Id. at p.
7]. As the Court mentioned above, it only preliminarily ruled that the military could not
enforce its mandatory vaccination requirement against her. Thus, unlike permanent
injunctions, the existing preliminary injunction awarded in Plaintiff’s favor is, in no way,
a final award. Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1298 (11th Cir. 2022) (W. Pryor,
C.J., concurring). In any event, Defendants’ standing arguments are better suited for
briefing regarding class certification as opposed to inclusion in a motion to strike an
entire pleading.
This case is still in its very early stages. Cf. [Doc. 74, p. 2 (noting Defendants’
admission that “[t]his case is still in its infancy.”)]. And while there isn’t—nor do
Defendants argue that there is—any bad faith or dilatory motive on Plaintiff’s behalf in
seeking leave to amend now, it seems highly unlikely that undue prejudice would befall
Defendants if the Court granted Plaintiff the leave she now properly seeks. [Doc. 60-1, p.
5 (citing Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,
1241 (11th Cir. 2009))]. Based on that and the above-stated reasons, the Court GRANTS
Plaintiff leave so that she may file her “Second Amended Class Action Complaint.”
Only upon its re-filing (not as an exhibit attached to her motion) will it render her
Complaint [Doc. 1] and First Amended Complaint [Doc. 56] (to the extent the latter ever
7
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controlled) no longer operative. Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d
1210, 1215 (11th Cir. 2006) (“An amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment[,] and it is no longer a part of the
pleader’s averments against his adversary.”).3 In light of the Court’s freely given leave,
it need not consider Plaintiff’s discontent with Defendants’ use of Rule 12(f) as a means
to strike her First Amended Complaint, see [Doc. 67, pp. 3–4], and the Court DENIES
their Motion to Strike [Doc. 60] as moot.
B. Briefing Schedule
Even though Defendants filed a Motion to Stay District Court Proceedings
Pending Appeal [Doc. 74] of the Court’s grant of a preliminary injunction, the Court
exercises its discretion and DENIES their motion so that its preliminarily granted relief
can remain intact.
First and foremost, the Court has the inherent power to control its docket by
staying or not staying proceedings. Tomco Equip. Co. v. Se. Agri-Sys., Inc., 542 F. Supp. 2d
1303, 1307 (N.D. Ga. 2008) (citations omitted). In determining whether a stay should be
granted, courts consider “(1) whether a stay would unduly prejudice or present a
tactical disadvantage to the nonmovant; (2) whether a stay will simplify the issues in
3
Given that Plaintiff’s Second Amended Class Action Complaint will supersede her former pleading, her
Motion to Certify Class and Appoint Counsel [Doc. 57] and Motion for Class-Wide Preliminary
Injunction [Doc. 58] have to be DENIED as moot. As such, any declarations or arguments used to
support either of those motions should be included in Plaintiffs’ new motions for class certification and
appointment of class counsel, to the extent they elect to take this course of action.
8
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the case; and (3) whether discovery is complete and a trial date has been set.” Id.; 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”).
The delay presented by Defendants’ appeal of the Court’s grant of a preliminary
injunction could potentially span several years, see Austin v. U.S. Navy Seals 1–26, 142 S.
Ct. 1301, 1304 (2022) (Alito, J., dissenting), and the Court sees no reason why the class
representatives whom Plaintiff adds via her Second Amended Class Action Complaint
should not be able to obtain the preliminary relief she has been awarded—if they can
independently meet the requirements for such relief. In exercising the discretion
afforded to it, the Court will allow the case to proceed especially given the motion
before the Court seeking class certification for similarly situated individuals. If the
putative class is certified (or if other courts certify classes that are ultimately
consolidated into multi-district litigation proceedings), all of the plaintiffs will be on the
same footing, and their claims can ultimately be heard together. Plus, the Eleventh
Circuit could always choose to stay this case as well as the current preliminary
injunction while Defendants pursue their appeal.
Accordingly, the Court LIFTS its previously imposed STAY [Doc. 62] related to
briefing for the motions listed below, and it ORDERS the following briefing schedule:
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• Regarding Plaintiffs’ Supplemental Motion to Certify Class and Appoint
Class Counsel [Doc. 64], their Supplemental Motion for Class-Wide
Preliminary Injunction [Doc. 65], and the Court’s ruling on Plaintiff’s
original class-certification/appointment-of-class-counsel motion and class-
wide preliminary injunction motion, see n.3, supra, Plaintiffs may (if they
choose to do so) merge the arguments contained in Plaintiff’s original and
their supplemental class-certification, appointment-of-class-counsel, and
class-wide preliminary injunction motions into new, consolidated motions
by May 12, 2022. 4 In other words, Plaintiffs may merge the contents from
Plaintiff’s Motion to Certify Class and Appoint Counsel [Doc. 57] and her
Motion for Class-Wide Preliminary Injunction [Doc. 58] with their
Supplemental Motion to Certify Class and Appoint Class Counsel [Doc. 64]
and Supplemental Motion for Class-Wide Preliminary Injunction [Doc. 65],
so that the Court doesn’t have to cull multiple documents to ensure that it
has considered all of the pertinent arguments.
• Defendants shall have 21 days to respond to both motions.
• Plaintiffs shall have 14 days to reply to Defendants’ responses. 5
4Should Plaintiffs choose to amend their class-certification motion, appointment-of-class-counsel motion,
and class-wide preliminary injunction motion, the Court will (upon filing) terminate Plaintiffs’
Supplemental Motion to Certify Class and Appoint Class Counsel [Doc. 64] and their Supplemental
Motion for Class-Wide Preliminary Injunction [Doc. 65] as moot.
5 Should either party need additional pages, they must comply with Local Rule 7.4.
10
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C. Leave to Proceed Anonymously
As to this case’s original plaintiff, the Court previously granted her leave to
proceed anonymously. [Doc. 52]. The additional representatives named in the Second
Amended Class Action Complaint seek that same leave. [Doc. 66]. Given that
Defendants “take no position” on whether the additional representatives should be
allowed to proceed anonymously, the Court sees no reason to treat them any
differently. [Doc. 66-1, p. 1 n.1]. Thus, the Court GRANTS the Additional
Representatives’ Motion for Leave to Proceed Anonymously [Doc. 66].
D. Conclusion
Consistent with the above-stated rulings, the Court ORDERS as follows:
(1) Plaintiff’s leave [Doc. 63] to file her Second Amended Class Action
Complaint pursuant to Rule 15(a)(2) is GRANTED.
(2) Defendants’ Motion to Strike [Doc. 60] Plaintiff’s First Amended
Complaint is DENIED as moot.
(3) Defendants’ Motion to Stay District Court Proceedings Pending Appeal
[Doc. 74] is DENIED, and the briefing STAY previously imposed [Doc.
62] is LIFTED.
(4) Plaintiff’s Motion to Certify Class and Appoint Counsel [Doc. 57] and
Motion for Class-Wide Preliminary Injunction [Doc. 58] are DENIED as
moot.
(5) Plaintiffs may merge the arguments contained in their original and
supplemental class-certification motions, appointment-of-class-counsel
motions, and class-wide preliminary injunction motions into a new, single
motion, but they must do so by May 12, 2022. The Court’s regular briefing
schedule shall follow. See LR 7.2, 7.3 MDGa.
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(6) The Additional Representatives’ Motion for Leave to Proceed
Anonymously [Doc. 66] is GRANTED.
SO ORDERED, this 27th day of April, 2022.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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