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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;
FRANK KENDALL, III, in his official
capacity as Secretary of the Air Force; and
ROBERT I. MILLER, in his official capacity
as Surgeon General of the Air Force,
Defendants.
Civil Action No. 5:22-cv-00009-TES
DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINITFF’S
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Defendants, by and through the United States Attorney for the Middle District of Georgia,
hereby file this Response in opposition to Plaintiff’s pending Motion for Leave to File Second
Amended Complaint, to Add Three Plaintiff Class Representatives, and/or for Intervention
(“Motion for Leave”) (ECF No. 63), which was filed on March 31, 2022.1 Defendants oppose
Plaintiff’s request because Plaintiff lacks standing to pursue class-wide preliminary injunctive
relief, and therefore her proposed Second Amended Complaint is futile.
1 On April 1, 2022, the Court noticed and held a telephone conference with the parties and ordered
Defendants to file any response to Plaintiff’s Motion for Leave within one week. During the
conference, undersigned counsel for Defendants notified the Court that the United States Solicitor
General was evaluating Defendants’ possible appeal of the Court’s February 15, 2022 Order
granting Plaintiff’s Motion for Preliminary Injunction, ECF No. 51. The deadline for Defendant’s
notice of appeal is April 18, 2022. Undersigned counsel is authorized to inform the Court that the
United States Solicitor General has now authorized appeal of the preliminary injunction to the
Eleventh Circuit. Therefore, Defendants expect to file their timely notice of appeal, likely next
week.
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I.
Background.
“COVID-19 is the deadliest disease in American history.” State of Fla. v. Dep't of Health
& Hum. Servs., 19 F.4th 1271, 1275 (11th Cir. 2021). The Air Force requires military personnel
to be vaccinated against COVID-19, as well as a host of other diseases, as the best available means
to further its compelling government interest in ensuring military readiness by preventing the
spread of COVID-19 among servicemembers.
Plaintiff—a Reservist officer in the United Sates Air Force proceeding anonymously—
applied for a religious exemption to the COVID-19 vaccination requirement, which the Air Force
denied based on its compelling interest. Plaintiff then elected for an early retirement date to avoid
vaccination. In her original Complaint (ECF No. 1), Plaintiff alleged that the Air Force’s denial
of her request for a religious exemption from receiving a COVID-19 vaccination violated the
Religious Freedom Restoration Act (“RFRA”) and the First Amendment. Plaintiff also alleged
the Air Force’s addition of the COVID-19 vaccination to the list of required vaccines violated the
Administrative Procedure Act (“APA”).
Plaintiff moved for a temporary restraining order (“TRO”) or preliminary injunction (ECF
No. 2), asking the Court to enjoin the Air Force’s denial of her request for religious accommodation
and require the Air Force to maintain her position past her scheduled retirement date. She also
sought a nationwide injunction which would affect every Air Force servicemember who has been
denied a request for religious exemption from the COVID-19 vaccination. The Court granted a
preliminary injunction as to Plaintiff individually but denied her request for a nationwide
injunction (ECF No. 51).
Dissatisfied with the Court’s denial of a nationwide injunction, Plaintiff filed an Amended
Class Action Complaint (“First Amended Complaint”) (ECF No. 56), which (1) alleges the Air
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Force wrongfully denied over 8,200 servicemembers’ requests for religious exemptions from the
COVID-19 vaccine requirement, (2) raises the same claims advanced in her original Complaint,
but on a class-wide basis, and (3) seeks class-wide preliminary injunctive relief which is identical
to the preliminary injunction she has already received. Defendants, however, filed a Motion to
Strike (ECF No. 60) Plaintiff’s First Amended Complaint, arguing that Plaintiff’s First Amended
Complaint was improperly filed in accordance with Federal Rule of Civil Procedure 15, and that
she lacked standing to pursue a preliminary injunction as a representative of the putative class
because she was not a member of the class seeking such prospective relief. Id.
II.
Procedural History.
On January 6, 2022, Plaintiff filed her original Complaint (ECF No. 1) raising claims under
the RFRA, the First Amendment, and the APA, and naming Secretary of Defense Lloyd J. Austin,
Secretary of the Air Force Frank Kendall, and Surgeon General of the Air Force Robert I. Miller
as Defendants. On the same day, she filed a Motion for TRO and Preliminary Injunction (ECF
No. 2) seeking both preliminary injunctive relief for herself, as well as a nationwide injunction.
On February 3, 2022, the Court held a hearing after the parties briefed the motion (ECF Nos. 38,
40). On February 15, 2022, the Court issued its Order (ECF No. 51) granting Plaintiff a
preliminary injunction but denying her a nationwide injunction.
On February 28, 2022, Plaintiff improperly filed her First Amended Class Action
Complaint (“First Amended Complaint”) (ECF No. 56) without first receiving either Defendants’
consent or the Court’s leave, as required by Federal Rule of Civil Procedure 15(a)(2). In her
proposed First Amended Complaint, Plaintiff included class allegations and a request for class-
wide preliminary injunctive relief. On the same day, Plaintiff filed her pending First Motion to
Certify Class (ECF No. 57) and First Motion for Class-Wide Preliminary Injunction (ECF No. 58).
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On March 10, 2022, Defendants filed their Motion to Strike (ECF No. 60), which also remains
pending. In addition to noting that Plaintiff improperly filed her First Amended Complaint,
Defendants also argued Plaintiff lacked standing to pursue class-wide preliminary injunctive relief
because she has already received preliminary injunctive relief herself.
On March 31, 2022, Plaintiff then filed her pending Motion for Leave (ECF No. 63),
seeking to file a Second Amended Complaint under Federal Rule of Civil Procedure 15(a)(2). She
also filed her Second Motion to Certify Class (ECF No. 64) and Supplemental Motion for Class-
Wide Preliminary Injunction (ECF No. 65) on the same day. In her proposed Second Amended
Complaint, Plaintiff seeks to add three new plaintiffs to serve as representatives for her putative
nationwide class action seeking preliminary injunctive relief for thousands of Air Force personnel.
III.
Rule 15(a)(2) Amendment Standard.
Rule 15(a)(2) provides that courts should “freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). To determine whether to grant leave to amend, the Court “may
consider several factors, such as ‘undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.’”
Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th
Cir. 2009) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)); Hall v. United Ins. Co. of Am.,
367 F.3d 1255, 1262-63 (11th Cir. 2004) (“[A] district court may properly deny leave to amend
the complaint under Rule 15(a) when such amendment would be futile.”). “[D]enial of leave to
amend is justified by futility when the complaint as amended is still subject to dismissal.” Burger
King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (citations omitted)).
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IV.
Argument.
Despite the Court’s denial of her initial request for a nationwide injunction (ECF No. 51),
Plaintiff continues to pursue nationwide preliminary injunctive relief through her proposed Second
Amended Complaint (ECF No. 63-2) and Supplemental Motion for Class-Wide Preliminary
Injunction (ECF No. 65). She sought the same through her First Amended Complaint (ECF No.
56) and original Motion for Class-Wide Preliminary Injunction (ECF No. 57). But as Defendants
have previously pointed out, Plaintiff has already been granted the exact preliminary injunctive
relief she continues to seek as a member and representative of the putative class (ECF No. 51).
Accordingly, she lacks standing to raise this claim for class-wide preliminary injunctive relief for
a class that has yet to be certified. Because Plaintiff lacks standing to pursue the class-wide claim
herself, she also lacks standing to amend her Complaint for the purpose of adding new
Plaintiffs/class representatives to pursue the claim on behalf of the putative class, as Plaintiff’s
lack of standing deprives the Court of subject matter jurisdiction over the putative class-wide claim
in the first instance.
A.
Class Standing Standards.
“No principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotations and citation
omitted). The case or controversy limitation under Article III of the Constitution “requires a
plaintiff to demonstrate ‘standing to sue.’” Fox v. Ritz-Carlton Hotel Co., L.L.C., 977 F.3d 1039,
1046 (11th Cir. 2020) (internal alterations omitted) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330,
338 (2016)).
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“In an era of frequent litigation, class actions, sweeping injunctions with prospective effect,
and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on
the formal rules of standing, not less so.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125,
146 (2011). “That a suit may be a class action . . . adds nothing to the question of standing[.]”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976). “[E]ven named plaintiffs who
represent a class ‘must allege and show that they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to which they belong and which they
purport to represent.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)).
“Article III requires two related, but distinct, inquiries to determine whether a class
representative has ‘standing to represent a class.’” Fox, 977 F.3d at 1046 (quoting Mills v.
Foremost Ins. Co., 511 F.3d 1300, 1307 (11th Cir. 2008)). “First, the class representative must
satisfy the individual standing prerequisites of the case or controversy requirement.” Id. (internal
quotations and citation omitted). “Second, the class representative must also be part of the class
and possess the same interest and suffer the same injury as the class members.” Id. (internal
quotations and citations omitted).
“The first inquiry . . . requires a plaintiff to have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Id. “The second inquiry focuses on the relation between the class
representative’s injuries and those he alleges on behalf of the class.” Id. “[I]t is well-settled that
prior to the certification of a class, and technically speaking before undertaking any formal
typicality or commonality review, the district court must determine that at least one named class
representative has Article III standing to raise each class subclaim.” Prado-Steiman ex rel. Prado
v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). “The plaintiff, as the party invoking federal
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jurisdiction, bears the burden of establishing these elements.” Spokeo, 578 U.S. at 338 (citation
omitted). “[A]t the pleading stage, the plaintiff must clearly allege facts demonstrating each
element.” Id. (internal quotations, alterations, and citation omitted).
B.
Plaintiff lacks standing because she has already received the preliminary
injunctive relief requested by the putative class.
Here, the putative class requests preliminary injunctive relief. 2d Am. Compl. 47-48
(Prayer for Relief), ECF No. 63-2; Mot. for Class-Wide Prelim. Injunc. 1-2, ECF No. 58; Suppl.
Mot. for Class-Wide Prelim. Injunc. 1-2, ECF No. 65. Plaintiff, however, lacks standing to serve
as a representative of the putative class as to the class’s request for preliminary injunctive relief
because Plaintiff has already litigated this matter on behalf of herself and has received the relief
requested.
As previously explained in Defendants’ Motion to Strike, Plaintiff seeks two forms of
ultimate relief on behalf of the putative class: (1) a declaratory judgment that the COVID-19
vaccination requirement violates the First Amendment, the RFRA, and the APA, and (2) a
permanent injunction preventing enforcement of the vaccination requirement. 2d Am. Compl. 47-
48, at ¶¶ 2-5. Additionally, as preliminary relief, Plaintiff seeks a preliminary injunction
preventing enforcement of the vaccination requirement during the pendency of the case. Id. at 47-
48, at ¶ 5. She sought the same three forms of relief on her own behalf in the original Complaint.
Compl. 29-30, at ¶¶ 1-4.
Even assuming Plaintiff may have standing to represent the class for the purpose of the
ultimate relief the class requests, Plaintiff lacks standing to pursue preliminary injunctive relief on
behalf of the class, which she is actively pursuing by way of her Motion for Class-Wide
Preliminary Injunction (ECF No. 58) and Supplement (ECF No. 65) thereto. This is because
“standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). Rather, “a
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plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (citations omitted)
(emphasis added); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[O]ur
standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press.
. . . We have insisted, for instance, that a plaintiff must demonstrate standing separately for each
form of relief sought.” (internal quotations and citations omitted)) (emphasis added); Prado-
Steiman, 221 F.3d at 1279 (“[I]t is well-settled that prior to the certification of a class, . . . the
district court must determine that at least one named class representative has Article III standing
to raise each class subclaim.”). Thus, the Court must analyze Plaintiff’s standing as to the class’s
request for preliminary injunctive relief separately from the class’s request for other forms of relief.
As to preliminary injunctive relief, Plaintiff lacks standing. For Plaintiff to serve as a class
representative, Plaintiff “must satisfy the individual standing prerequisites of the case or
controversy requirement” and “must also be part of the class and possess the same interest and
suffer the same injury as the class members.” Fox, 977 F.3d at 1046 (internal quotations and
citations omitted). This requirement poses a dilemma for Plaintiff since she has already received
the preliminary injunctive relief the class requests, and she therefore does not suffer the same
injury in fact, purportedly necessitating emergency relief. Plaintiff is simply not a member of the
putative class of individuals whom she now seeks to represent.
In other contexts, both the Supreme Court and the Eleventh Circuit have applied the
standing doctrine to hold that a class representative may lack standing to seek ultimate injunctive
relief for the class, even if the representative could still seek other forms of relief, like damages.
See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); J.W. by and through Williams v.
Birmingham Bd. Of Educ., 904 F.3d 1248, 1265-73 (11th Cir. 2018); see also Tucker v. Phyfer,
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819 F.2d 1030, 1034 (11th Cir. 1987) (“[A] plaintiff who has standing to bring a damages claim
does not automatically have standing to litigate a claim for injunctive relief arising out of the same
set of operative facts.”), abrogated on other grounds as recognized in United States v. White, 723
F. App’x 844 (11th Cir. 2018) (per curiam). Because preliminary injunctive relief is distinct from
ultimate injunctive relief—or other forms of relief—the same holds true when it comes to standing
to seek preliminary injunctive relief. See Lermer Germany GmbH v. Lermer Corp., 94 F.3d 1575,
1577 (Fed. Cir. 1996) (analyzing the differences between preliminary and ultimate injunctive relief
and concluding that “[t]he two instruments are distinct forms of equitable relief that have different
prerequisites and serve entirely different purposes”); see also Fin. Info. Techs., Inc. v. iControl
Sys., USA, LLC, No. 8:17-cv-190-T-23MAP, 2018 WL 3391379, at *10 (M.D. Fla. June 12, 2018)
(“Preliminary injunctions and permanent injunctions require different elements and provide
different forms of relief.”) (citation omitted).
For these reasons, Plaintiff lacks standing to serve as a class representative for the purpose
of class-wide preliminary injunctive relief. Accordingly, Plaintiff’s request for preliminary
injunctive relief in the proposed Second Amended Complaint is “subject to dismissal” for lack of
standing. Burger King Corp., 169 F.3d at 1320 (citations omitted). Therefore, the Court should
not grant Plaintiff leave to amend her deficient pleading because Plaintiff does not have standing
to pursue the class action she seeks to advance. Accordingly, even a properly docketed Amended
Complaint would be futile. Hall, 367 F.3d at 1262-63 (“[A] district court may properly deny leave
to amend the complaint under Rule 15(a) when such amendment would be futile.”).
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C.
Plaintiff lacks standing to amend her Complaint to add additional Plaintiffs to
serve as proposed class representatives for a prospective class-wide action for
preliminary injunctive relief.
Without standing to serve as a class representative on behalf of a putative class seeking
nationwide preliminary injunctive relief, discussed infra, the current named Plaintiff may not
amend her complaint to add other Plaintiffs in an effort to cure the jurisdictional defect. Binding
authority established by the former Fifth Circuit and the Eleventh Circuit forecloses Plaintiff’s
attempt to backdoor a class-action lawsuit. And persuasive authority from district courts within
the circuit helps illustrate why.
In Summit Office Park, Inc. v. U.S. Steel Corporation, 639 F.2d 1278 (5th Cir. Unit A
1981),2 the named plaintiff—an indirect purchaser of building supplies—filed a putative class
action alleging artificial inflation of the costs for the supplies. Summit Office Park, 639 F.2d at
1280. The putative class was composed of both indirect purchasers like the named plaintiff and
direct purchasers. Id. After the complaint was filed but before certification of the class, the
Supreme Court held that indirect purchasers—such as the named plaintiff—had no cause of action.
Id. (citing Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)). Recognizing it now lacked standing
to represent the class, the named plaintiff attempted to cure the jurisdictional shortcoming by filing
an amended class action complaint which named two new direct purchaser plaintiffs to represent
the class. Id. at 1281. The district court denied plaintiff’s motion, and the former Fifth Circuit
affirmed. Id.
At the outset, the Circuit Court recognized the “liberal use of the amendment process in
federal practice.” Id. at 1282. However, because of the intervening Supreme Court decision, the
2 In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
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Circuit Court found that the named plaintiff, “as an indirect purchaser of materials[,] had no
standing to assert a claim against defendants.” Summit Office Park, 639 F.2d at 1282. And “[n]o
amendment could give [the named plaintiff] a cause of action.” Id. The Circuit Court went on to
explain that, “where a plaintiff never had standing to assert a claim against the defendants, it does
not have standing to amend the complaint and control the litigation by substituting new plaintiffs,
a new class, and a new cause of action.” Id.; see also id. at 1282-83 (“Since [the named plaintiff]
had no standing to assert a claim, it was without power to amend the complaint[.]”). While the
Court recognized it was “clear” the two new direct purchaser plaintiffs named in the amended
complaint would have standing if they brought a putative class action claim at the outset, “[s]ince
there was no plaintiff before the court with a valid cause of action, there was no proper party
available to amend the complaint.” Id. at 1282.
The Eleventh Circuit further elaborated on its standing analysis in Jaffree v. Wallace, 837
F.2d 1461 (11th Cir. 1988). There, the named plaintiffs filed a complaint raising First Amendment
claims; however, the plaintiffs had already litigated their claim to judgment before another district
court. Jaffree, 837 F.2d at 1464. Recognizing a potential res judicata bar, the named plaintiffs
attempted to file an amended class action complaint which named new plaintiffs. Id. at 1465. The
district court dismissed the complaint, and the named plaintiffs appealed. Id. Relying heavily on
Summit Office Park, the Eleventh Circuit recognized that if the named plaintiffs’ claim was barred
(by res judicata) because they had already acquired the relief they were pursuing (on behalf of the
putative class), then “plaintiffs were estopped from amending their complaint: ‘No amendment
could give plaintiffs a cause of action.’” Id. at 1466 (quoting Summit Office Park, 639 F.2d at
1282) (internal alterations omitted). After finding the named plaintiffs lacked standing to pursue
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claims they had already litigated, the Eleventh Circuit disallowed plaintiffs’ attempt to amend in
order to add new plaintiffs who had not yet litigated the issue. Id. at 1466-69.
District courts in the Eleventh Circuit have consistently applied the circuit precedent. In
Lawrence v. Household Bank (SB), N.A., 505 F. Supp. 2d 1279 (M.D. Ala. 2007), the named
plaintiff filed a putative class action complaint in the Middle District of Alabama, claiming
violations of the Fair Credit Billing Act and the Truth in Lending Act. Lawrence, 505 F. Supp. 2d
at 1281. The named plaintiff, however, was also a member of a class raising similar claims in a
state court. Id. at 1281-82. Before certification of the class in the federal case, the class in the
state court case settled the claims, and the named plaintiff did not opt out of the settlement;
therefore, the named plaintiff received the relief she was seeking (in federal court). Id.
Recognizing that she did not have standing to pursue a prospective class action, the named plaintiff
sought to amend her complaint to add new plaintiffs who were not members of the state court
class, had not received relief, and who could therefore serve as class representatives—and
members—of the putative class. Id. at 1285.
The district court first found the named plaintiff lacked standing due to res judicata. Id. at
1282-83. The district court then recognized that “[c]ourts in this circuit have held that where the
sole plaintiff in a case loses standing to proceed on his or her cause of action, the plaintiff also
loses standing to amend the complaint to add plaintiff parties whose cause of action would
survive.” Id. at 1285 (citing Jaffree, 837 F.2d at 1466; Summit Office Park, 639 F.2d at 1282)).
Consequently, the district court explained that the named plaintiff’s lack of standing “leaves no
party in this case with standing to . . . amend the complaint to add a new plaintiff.” Lawrence, 505
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F. Supp. 2d at 1286.3 Accordingly, applying the rule established in Jaffree and Summit Office
Park, the district court denied the named plaintiff leave to amend.
Likewise, in Gordon v. United States, No. 8:11-cv-2852-T-30TGW, 2012 WL 1988711
(M.D. Fla. June 4, 2012), the named plaintiffs filed a complaint claiming the Internal Revenue
Service (“IRS”) failed to distribute federal income tax refunds owed to them. Gordon, 2012 WL
1988711, at *1. After the complaint was filed, the IRS paid the named plaintiffs their refunds,
providing them the relief they sought. Id. Ostensibly realizing they had a standing issue on a
future class action lawsuit, the named plaintiffs (1) filed an amended complaint which named a
new plaintiff who also sought a refund and raised class allegations, and (2) moved to certify a class
action. Id. The United States moved to dismiss for lack of standing. Id. The named plaintiffs
conceded they had received the relief sought by the putative class but, citing the liberal amendment
standard under Rule 15(a), argued they could add a new plaintiff to represent the putative class
and cure the standing defect. Id.
The district court acknowledged the liberal amendment standard under Rule 15 but
explained that, “when a plaintiff loses his standing to assert a claim, he does not retain standing to
control the litigation by substituting new plaintiffs.” Id. at *2 (citing Summit Office Park, 639 F.2d
at 1282; Lawrence, 505 F. Supp. 2d at 1285)). Noting that the named “plaintiffs filed their motion
3 The district court also distinguished two cases where courts had allowed substitution of new
plaintiffs in class action lawsuits. Id. (citing Birmingham Steel Corp. v. TVA, 353 F.3d 1331 (11th
Cir. 2003); Ford v. U.S. Steel Corp., 638 F.2d 753 (5th Cir. 1981)). In those cases, the district
courts had already certified a class, so “the question was whether to permit the plaintiff class to
locate substitute named plaintiffs so that the suit could continue as a class action.” Id. By contrast,
in Lawrence, the district court distinguished the circumstances on the basis that “there is no class,
and never was. Therefore, there is no interested party whom the court could allow to locate a
substitute named plaintiff.” Id.
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to certify the class after each one of them had received their refund,” the district court denied leave
to amend. Gordon, 2012 WL 1988711, at *2 n.1 (emphasis added).
The simple takeaway from these cases is that when a plaintiff individually lacks standing
to pursue a particular claim for relief, the plaintiff may not circumvent this jurisdictional
impediment by attempting to bring in new parties to establish standing through amendment where
no class action had previously been certified. And that makes perfect sense because, as the Circuit
Court explained in Summit Office Park, “[s]ince there was no plaintiff before the court with a valid
cause of action, there was no proper party available to amend the complaint.” Summit Office Park,
639 F.2d at 1282.4
Basic tenets of standing and civil procedure aside, this rule serves to significantly prevent,
or at least curtail, class-action forum shopping. Consider the following scenario: An advocacy
organization seeks to bring a largescale class action lawsuit on behalf of many thousands of
individuals across the country. On the hunt for a friendly forum, certain plaintiffs who are
members of this envisioned class might file individual causes of actions in different districts across
the country, seeking, let’s say, preliminary injunctive relief on their own behalf related to the likely
class claims. Some district courts may deny the individual plaintiffs the extraordinary—and
challenging—relief they seek. But not to worry. As long as one plaintiff is successful in
convincing a district court to grant her a preliminary injunction, that plaintiff could then amend
her complaint to name one or more plaintiffs who may serve as class representatives (assuming
they have not received such preliminary relief elsewhere and have sufficient connections to the
4 Other courts have reached the same conclusion. See, e.g., LaSpina v. SEIU Pa. State Council,
985 F.3d 278, 289-90 (3d Cir. 2021); Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1159
(10th Cir. 2011); Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 455-56 (7th Cir. 2007);
Lusardi v. Xerox Corp., 975 F.2d 964, 973-75, 983-84 (3d Cir. 1992).
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forum district), and then move for class certification for the purpose of seeking the same
preliminary injunctive relief on behalf of the nationwide class. Sneaky as it might be, this is not
allowed. The original plaintiff, according to the Eleventh Circuit, having received preliminary
injunctive relief, lacks standing to amend her complaint for the purpose of adding one or more
Plaintiffs to serve as class representatives in order to seek the very same preliminary injunctive
relief on behalf of the class.5
Here, Plaintiff attempts this precise strategy through her Second Amended Complaint. But
Plaintiff lacks standing to pursue a class action lawsuit for preliminary injunctive relief because
she has already received the precise preliminary injunctive relief she now requests on behalf of the
class. See Friends of the Earth, 528 U.S. at 185; Fox, 977 F.3d at 1046; Prado-Steiman, 221 F.3d
at 1279. That very same lack of standing prohibits Plaintiff from amending her complaint to add
new named plaintiffs6 so that they can pursue that same claim on behalf of a putative class in this
5 This is not to say that a class action lawsuit could not be separately filed in the same district court.
Of course, litigants could roll the dice and hope that the same friendly jurist is assigned to their
case. But that does not detract from the fact that the rule serves to disincentivize class action forum
shopping.
6 At this stage, Defendants understand that the only issue before the Court is whether Plaintiff
should be permitted to file and docket her Second Amended Class Action Complaint as an
operative pleading. In particular, Plaintiff seeks to “add” “three additional plaintiff class
representatives” who purportedly “received final denials of their religious accommodation
requests and have not yet obtained preliminary injunctive relief.” ECF No. 63-1 at 1. Her Second
Amended Class Action Complaint refers to these three proposed plaintiffs as “Air Force NCO, Air
Force Special Agent, and Air Force Engineer.” ECF No. 63-2 at 1, ¶¶ 23-25. Their names are not
disclosed in the Second Amended Class Action Complaint, but they were produced by counsel for
Plaintiff to counsel for Defendants on April 1, 2022, and Defendants have begun their investigation
into the individuals to learn more about their circumstances in order to evaluate the Court’s
personal jurisdiction over such individuals. Should the Court grant Plaintiff’s Motion for Leave,
Defendants expect to advance applicable Rule 12(b) defenses in opposition to that pleading,
including challenges on personal jurisdiction grounds, venue, and misjoinder.
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civil action. Accordingly, the Court should deny Plaintiff leave to file her Second Amended
Complaint because it is futile for want of standing.
V.
Conclusion.
For the reasons set forth above, the Court should deny Plaintiff’s Motion for Leave (ECF
No. 63).
As consequence thereto, the Court should dismiss as moot: (1) Plaintiff’s Motion to Certify
Class and Appoint Class Counsel, ECF No. 57; (2) Plaintiff’s Motion for Class-Wide Preliminary
Injunction, ECF No. 58; (3) Plaintiffs’ Supplemental Motion to Certify Class and Appoint Class
Counsel, ECF No. 64; (4) Plaintiffs’ Supplemental Motion for Class-Wide Preliminary Injunction,
ECF No. 65; and (5) Additional Representatives’ Motion for Leave to Proceed Anonymously, ECF
No. 66.
Respectfully submitted, this 8th day of April, 2022.
PETER D. LEARY
UNITED STATES ATTORNEY
By:
s/ Roger C. Grantham, Jr.
LANCE SIMON
ASSISTANT UNITED STATES ATTORNEY
Georgia Bar No. 447643
ROGER C. GRANTHAM, JR.
ASSISTANT UNITED STATES ATTORNEY
Georgia Bar No. 860338
United States Attorney’s Office
Middle District of Georgia
P. O. Box 1702
Macon, GA 31202
Phone: (478) 621-2663
Fax: (478) 621-2737
Email: Lance.Simon@usdoj.gov
Roger.Grantham@usdoj.gov
Case 5:22-cv-00009-TES Document 69 Filed 04/08/22 Page 16 of 16