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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER, on behalf of herself
)
and all others similarly situated,
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Case No. 5:22-cv-00009-TES
Plaintiff,
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v.
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LLOYD J. AUSTIN, III, in his
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official capacity as Secretary of Defense;
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FRANK KENDALL, III, in his
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official capacity as Secretary of the Air Force; and )
ROBERT I. MILLER, in his
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official capacity as Surgeon General of the
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Air Force,
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Defendants.
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REPLY IN FURTHER SUPPORT OF MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT, TO ADD THREE PLAINTIFF CLASS
REPRESENTATIVES, AND/OR FOR INTERVENTION
The Second Amended Complaint should be deemed filed. First, and most obviously, in
their entire 16-page Opposition, Defendants offer no argument whatsoever in opposition to the
Additional Representatives’ Motion for Intervention. That Motion is thus conceded, the
Additional Representatives are entitled to intervene, and the proposed pleading for which
intervention is sought, the Second Amended Complaint, should be deemed filed. Given the
unopposed Motion for Intervention, it is not necessary to consider the Motion for Leave to File
the Second Amended Complaint and to Add the Additional Representatives.
Yet even if it were somehow necessary (which it isn’t), Defendants’ “futility” arguments
are spurious and unsupported. Amendment is not futile. Strawser v. Strange, No. CIV.A. 14-
0424-CG-C, 2015 WL 1243257, at *1-2 (S.D. Ala. Mar. 18, 2015). Defendants gloss over the
liberal amendment standard and do not and cannot cite a single case where a plaintiff who
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obtained a preliminary injunction could not file an amended class action complaint adding
additional representatives. The cases they do cite are easily distinguishable. The Court should
grant the Motion [Doc. 63].
ARGUMENT
A.
Defendants offer no argument whatsoever in opposition to Additional
Representatives’ Motion for Intervention, and the Motion is thus conceded.
In their so-called “Opposition” to the “Motion for Leave to File Second Amended
Complaint, to Add Three Plaintiff Class Representatives, and/or for Intervention” (Opp., p. 1),
Defendants entirely ignore the arguments in support of the Motion for Intervention, which the
three Additional Representatives filed under Rule 24. Defendants do not even mention the
Motion to Intervene, other than once reciting the title of the motion document [Doc. 63] they
claim to oppose. Opp., p. 1.
Therefore the Motion for Intervention is unopposed, and it is undisputed and conceded
that the three Additional Representatives are entitled to intervene. See, e.g., O’Donnell v. Bd. of
Trustees, No. 5:15-CV-389-CAR, 2016 WL 3633348, at *2 (M.D. Ga. June 29, 2016)
(arguments are conceded or abandoned if not made in opposition to motion). The pleading that
sets out the claims for which intervention is sought pursuant to Rule 24(c), the Second Amended
Complaint [Doc. 63-2], should be deemed filed, for this reason alone.1
1 The motion states: “Pursuant to Federal Rules of Civil Procedure 15(a)(2) and 21, Plaintiff Air
Force Officer, joined by three proposed additional plaintiff class representatives (‘Additional
Representatives’), hereby moves for entry of an order permitting the filing of the attached
Second Amended Class Action Complaint and permitting the addition of the Additional
Representatives as reflected in the Second Amended Class Action Complaint. Alternatively,
pursuant to Federal Rule of Civil Procedure 24, Additional Representatives move to
intervene.” [Doc. 63 at 1] (emphasis added). Additional Representatives stated further,
“Pursuant to Rule 24(c), the Second Amended Class Action Complaint is the ‘pleading that sets
out the claim[s]… for which intervention is sought.’” [Doc. 63-1 at 4 n.3].
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B.
Leave to amend is “freely given,” and the Second Amended Complaint is not
futile, i.e., “subject to dismissal.”
Even if the Second Amended Complaint is not deemed filed by Rule 24 intervention
(which it should be), Air Force Officer has standing and therefore Rule 15 amendment is not
futile. Defendants concede courts should “freely give leave [to amend] when justice so
requires.” Opp., p. 4 (quoting Rule 15(a)(2)). But they quickly set that notion aside. By
challenging Air Force Officer’s “standing” merely because she already obtained a preliminary
injunction, Defendants attempt to bypass the liberal standard under Rule 152 and to prematurely
attack her adequacy to represent the putative class under Rule 23(a). Strawser, 2015 WL
1243257, at *1-2. Defendants can address that point in response to Plaintiffs’ Motion to Certify
Class. Id. at *2. (The point will be moot though, assuming the Court deems the Second
Amended Complaint filed, because that complaint adds the three Additional Representatives who
have not already obtained a preliminary injunction.)
Even assuming Air Force Officer somehow doesn’t have “standing” anymore to pursue a
preliminary injunction as to the military’s vaccine mandates under RFRA and the First
Amendment, she undisputedly has standing to pursue permanent injunctive relief and a
declaratory judgment. Defendants do not dispute that Air Force Officer at least has standing to
pursue “ultimate” relief. Indeed, Air Force Officer obtained a preliminary injunction, not
permanent, final relief. [Doc. 51; see also Doc. 67, Air Force Officer’s opposition to motion to
strike First Amended Complaint.]
Defendants overlook the applicable (and very high) futility standard: “An amendment is
futile when a claim as proposed would be subject to dismissal.” Strawser, 2015 WL 1243257, at
2 Defendants also ignore Rule 21 (“On motion or on its own, the court may at any time, on just
terms, add… a party.”) upon which Plaintiffs also expressly seek relief. [Doc. 63 at 1][Doc. 63-1
at 1-3, 5]. Defendants make no mention of this Rule let alone try to show why it is inapplicable.
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*1 (citing Hall v. United Ins. Co. of Am., 367 F .3d 1255, 1263 (11th Cir.2004), which
Defendants themselves cite in their Opposition, pp. 4, 9). Defendants do not and cannot show
how the Second Amended Complaint may be “subject to dismissal.” In a footnote they threaten
to file a Rule 12(b) motion “on personal jurisdiction grounds, venue, and misjoinder,” but offer
no basis for such a motion. Opp., p. 15 n.6. Defendants conspicuously cite no authority holding
that, where a plaintiff such as Air Force Officer obtains a preliminary injunction on a portion of
her claims, it is futile to add additional plaintiffs and class claims.3
Strawser v. Strange demonstrates that Air Force Officer does indeed have standing. In
that case, the original plaintiffs, homosexuals seeking marriage licenses, sought and obtained a
preliminary injunction for themselves individually. Strawser v. Strange, 44 F. Supp. 3d 1206,
1210 (S.D. Ala. 2015). They then sought leave to amend to add additional plaintiffs and class
claims. Strawser, 2015 WL 1243257, at *1. Defendants objected, asserting inter alia that the
original plaintiffs already obtained injunctive relief, those plaintiffs “cannot now convert this
lawsuit into a class action,” and amendment would be “futile” in that “Plaintiffs have not met the
requirements for class certification.” Id. at *1-2. The court rejected these arguments and granted
leave to amend. Id. The court found it had no discretion to deny leave; defendants failed to
provide authority “showing why this court cannot or should not allow Plaintiffs to amend their
3 Yet another relevant circumstance Defendants ignore: Air Force Officer has still-viable claims
for which she did not obtain a preliminary injunction. Specifically, Defendants do not and
cannot dispute that Air Force Officer has standing to pursue her Administrative Procedure Act
(APA) claim (entirety of Count III) as well her claims that the federal civilian employee vaccine
mandates violate RFRA and the First Amendment (part of Counts I and II). This Court expressly
did not grant any relief as to those claims. [Doc. 51 at 2 n.2, 14 n.7]. See also Feds for Med.
Freedom v. Biden, No. 22-40043, 2022 WL 1043909 (5th Cir. Apr. 7, 2022) (5th Circuit’s recent
ruling vacating the nationwide preliminary injunction against the federal civilian employee
vaccine mandates). Defendants tellingly do not address the APA and federal civilian employee
claims in their Opposition.
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complaint to add parties and assert class allegations;” defendants failed to show the proposed
amended complaint itself was “futile,” i.e., “subject to dismissal;” and the court would determine
in due course whether the requirements for class certification were met when it considered the
motion for class certification itself, not at the stage of determining whether to grant leave to file
the amended complaint. Id.
Likewise here, there is no reason to deny leave to amend; there is no authority showing
why this Court cannot or should not allow Plaintiffs to amend their complaint to add parties and
assert class allegations; Defendants fail to show the Second Amended Complaint is “futile,” i.e.,
“subject to dismissal,” for lack of standing or otherwise; and this Court should determine in due
course whether the requirements for class certification are met when it considers the Motion for
Class Certification itself [Doc. 57], not at the present stage of determining whether to grant leave
to file the Second Amended Complaint.4 There is no reason to deny leave here.
C. Defendants’ cases regarding addition of parties support Plaintiffs’ position, not
Defendants’.
Defendants strain and fail to find relevant cases favorable to them. The cases Defendants
cite are easily distinguishable and in fact support Plaintiffs’ position, not Defendants’. In Summit
Off. Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278, 1282 (5th Cir. 1981), upon which Defendants
heavily and primarily rely (Opp., p. 10-14), the original plaintiff critically “never” had standing,
and she also sought to add new causes of action and substitute, and not just add, new plaintiffs.
The court held “only 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
4 Moreover, the additional Strawser plaintiffs did not seek to intervene under Rule 24, contrary
to what the Additional Representatives are doing here. See Section A above.
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substituting new plaintiffs, a new class, and a new cause of action.” Summit Off. Park, 639
F.2d at 1282. (emphasis added). Summit Office was a “special” and “unique” case. Id.
In other words, Summit Office stands for the simple notion that a plaintiff, who “never”
had standing, cannot add new causes of action that offer him no relief while simultaneously
substituting new plaintiffs. Id. The case is inapplicable here because Defendants do not and
cannot contend that Air Force Officer “never” had standing. Indeed, Air Force Officer
undisputedly had standing to obtain a preliminary injunction and did obtain one. Also, she does
not seek to add any new causes of action; and she is not substituting plaintiffs, she is seeking to
add them.5
Numerous cases have likewise easily distinguished Summit Office. See, e.g., Delta Coal
Program v. Libman, 743 F.2d 852, 857 n.6 (11th Cir. 1984) (permitting amendment; “Appellants
make much of Summit Office Park…. Summit, however, has no bearing on this case. Its holding
by its terms extends ‘only’ to instances where a plaintiff who lacks standing to assert a claim
attempts to substitute ‘new plaintiffs, a new class, and a new cause of action,’ 639 F.2d at
1282…. Here, by contrast, the operative facts and the cause of action are not changed, but only
the formally named plaintiff”) (emphasis in Delta Coal); Mathews v. Kidder, Peabody & Co.,
947 F. Supp. 180, 188-89 (W.D. Pa. 1996), aff’d, 161 F.3d 156 (3d Cir. 1998) (permitting
amendment; expressly distinguishing Summit Office; plaintiff had standing to litigate at least
some of the claims even though he “is limited in recovery,” he did not seek to add new causes of
5 Also, Defendants do not contend and Air Force Officer certainly does not concede, as the
original plaintiff conceded in Summit Office, that she “no longer possesses standing under the
pronouncements of [an intervening Supreme Court] decision.” Summit Off. Park, 639 F.2d at
1281 n.6. To be clear, the Supreme Court’s recent limited ruling in Austin v. U.S. Navy SEALs 1-
26, ___ S. Ct. ___, 2022 WL 882559 (March 25, 2022) does not deny standing for any service
member to seek relief. [See Doc. 65-1 at 1 n.1].
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action, and he sought to add plaintiffs not substitute them); In re FEMA Trailer Formaldehyde
Prod. Liab. Litig., No. MDL 07-1873, 2008 WL 4899455, at *2 (E.D. La. Nov. 12, 2008)
(permitting amendment; “To be clear, Plaintiffs are not seeking to substitute an entire set of new
plaintiffs to create standing where none ever existed. This is not a situation where no
plaintiff ever had standing to assert a claim against the defendants, and thus, did not have
standing to amend the complaint to substitute for a plaintiff with standing. See Summit Office
Park….”) (emphasis added); Grand Lodge of Pennsylvania v. Peters, 560 F. Supp.2d 1270, 1273
(M.D. Fla. 2008) (permitting amendment; expressly distinguishing Summit Office and adding a
named plaintiff to pursue the same class claim presented by original plaintiff; “Under
circumstances in which the lead plaintiffs do not possess standing to sue on all of the claims, the
addition of named [plaintiffs] to assist the lead plaintiffs permits proper representation of the
class.”); Royal Am. Mgmt., Inc. v. WCA Waste Corp., 154 F. Supp.3d 1278, 1285 (N.D. Fla.
2016) (permitting amendment; “It well may be that Summit Office reflects little more than the
proposition that lawyers cannot use a failed lawsuit as a shell vehicle for a completely different
and totally unrelated dispute.”). Defendants mention none of these cases.
The other three cases Defendants rely on—Jaffree v. Wallace, 837 F.2d 1461 (11th Cir.
1988), Lawrence v. Household Bank (SB), N.A., 505 F. Supp.2d 1279 (M.D. Ala. 2007), and
Gordon v. U.S., No. 8:11-cv-2852-T-30TGW, 2012 WL 1988711 (M.D. Fla. June 4, 2012)—are
also easily distinguishable. In those cases, the original plaintiff(s) had already obtained full,
final relief on all claims when the court considered leave to amend. See Jaffree, 837 F.2d at
1646-47 (plaintiffs received full, final relief in another case); Lawrence, 505 F. Supp.2d at 1282
(plaintiff received full, final relief in another case); Gordon, 2012 WL 1988711, at *1-2
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(defendant tendered to plaintiffs and plaintiffs accepted full, final relief).6 Defendants do not and
contend that Air Force Officer has obtained full, final relief on all claims. They admit she has
obtained only “preliminary” relief and even that relief relates to only a portion of her claims.
Opp., e.g., pp. 3-4.
Again, Defendants ignore entirely the Motion for Intervention (Section A above), so the
Court need not consider “futility” under Rule 15. But even if it did, Defendants cite no cases
holding that, where a plaintiff obtains a preliminary injunction on a portion of her claims, it is
futile to add additional plaintiffs and class claims. Defendants’ cases, along with many other
cases, support Plaintiffs’ position rather than Defendants’.
D. Defendants should not be allowed to delay justice any longer.
Defendants suggest that the Second Amended Complaint represents improper “forum
shopping.” Opp., pp 14-15. They are mistaken. To date, Air Force Officer and her counsel have
filed only one lawsuit related to the mandates at issue—this one. Air Force Officer works at an
Air Force base in this District. One of the three Additional Representatives (Air Force NCO)
also works at that base. From the outset of this case, Air Force Officer has always and openly
sought relief not only on her own behalf but on behalf of all others similarly situated. [See, e.g.,
Doc. 1, pp. 1, 29; Doc. 2-1, pp. 7, 20; Doc. 40, p. 10]. In the interests of judicial efficiency and
pursuant to the liberal pleading standards under the federal Rules, Air Force Officer, joined by
6 The four other, out-of-Circuit cases Defendants list in a footnote (Opp., p. 14 n.4) are also
inapplicable, because, for example, the original plaintiffs had no viable claims whatsoever. See
LaSpina v. SEIU Penn. State Council, 985 F.3d 278 (3d Cir. 2021) (as to each claim, original
plaintiff never had standing or they obtained full relief); Thomas v. Metropolitan Life Ins. Co.,
631 F.3d 1153 (10th Cir. 2011) (original plaintiffs never had standing); Bertrand ex rel. Bertrand
v. Maram, 495 F.3d 452 (7th Cir. 2007) (original plaintiffs never had any viable claims); Lusardi
v. Xerox Corp., 975 F.2d 964 (3d Cir. 1992) (original plaintiffs obtained full relief).
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the Additional Representatives, seeks to add the Additional Representatives and class claims, and
the Additional Representatives seek to intervene.7
Basic tenets of judicial efficiency, intervention, standing, and civil procedure aside,
allowing the three new Plaintiffs to proceed serves to prevent, or at least curtail, the further delay
of justice. Consider the following scenario: A branch of the government subjects thousands of
citizens to the same unlawful process that violates their civil rights. Wanting to avoid a lawsuit
where the government’s process itself is held to account and citizens’ rights can be vindicated
fairly, efficiently, and all at once, the government seeks to isolate the citizens, to address each
citizen’s claim individually if at all. The government knows that not all citizens have the ability
or resources to file their own individual lawsuits. So, let’s say, the government seeks to
challenge joinder of parties or class-wide relief and to delay legal proceedings at all costs,
ignoring dispositive arguments that don’t support its position and inventing novel arguments of
its own. The government might lose some individual cases here and there where an impartial8
jurist is assigned. But not to worry. The government’s unlawful process grinds on, the vast
majority of the citizens remain subject to it, more and more citizens face irreparable harm every
day, even while the Inspector General investigates,9 and the government continues to avoid true
accountability. Sneaky as it might be, this is not allowed.
7 The remainder of this section responds in kind to Defendants’ argument on pages 14-15 of their
Opposition.
8 Plaintiffs strongly object to Defendants’ suggestion that the presiding jurist in this case is
partial or biased, i.e., “friendly” to Plaintiffs. Opp., p. 15 n.5.
9 See February 28, 2022 Memorandum from Inspector General of the Department of Defense,
https://media.defense.gov/2022/Mar/01/2002947117/-1/-1/1/D2022-D000AW-0081.000.PDF
(“The objective of this audit is to determine whether the Military Departments are processing
exemption requests for the Coronavirus Disease–2019 vaccination and taking disciplinary
actions for active duty Service members in accordance with Federal and DoD guidance. We may
revise the objective as the audit proceeds….”).
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Here, Defendants’ present Opposition, based on grounds that are exceedingly tenuous (if
that), reflects this precise strategy.10 Plaintiffs have the right—under Rules 15, 21, and 24 and
relevant caselaw—to proceed, and Defendants should not be permitted to delay justice any
longer.
CONCLUSION
Justice requires filing of the Second Amended Complaint. For all of the foregoing
reasons, the Court should (1) grant the Motion for Leave to File Second Amended Complaint, to
Add Three Plaintiff Class Representatives, and/or for Intervention [Doc. 63]; (2) enter an order
deeming the Second Amended Complaint [Doc. 63-2] filed; (3) lift the temporary stay [Doc. 62];
and (4) set an ambitious briefing schedule on the Motion for Class Certification [Doc. 64] and
Motion for Class-Wide Preliminary Injunction [Doc. 65].
10 Defendants previously employed this strategy of delay and divert with, e.g., their motion to
strike Air Force Officer’s First Amended Complaint [Doc. 60] and motion to stay [Doc. 61].
Defendants’ present Opposition rehashes many of the same baseless arguments they made in
support of their motion to strike. Plaintiffs therefore incorporate herein their opposition [Doc.
67] to that Motion. Plaintiffs note also that in Daker v. Bryson, No. 515CV00088-TES-CHW,
2019 WL 826474 (M.D. Ga. Feb. 21, 2019), aff’d, 848 F. App’x 884 (11th Cir. 2021), plaintiff
filed his first amended complaint more than two and a half years after he filed his original
complaint and before defendants ever filed an answer or motion to dismiss, and the court noted
that it deemed the first amended complaint filed “as a matter of course, as it was required to do.”
See Daker, 2019 WL 826474, at *5; Doc. 57 and 60 and the docket report in that case; Fed. R.
Civ. P. 15(a)(1)(B).
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Dated: April 12, 2022
Respectfully submitted,
/s/ Adam S. Hochschild
Stephen Crampton, pro hac vice
Michael R. Hirsh, GA #357220
THOMAS MORE SOCIETY – Senior Counsel
Hirsh Law Office, LLC
PO Box 4506
2295 Towne Lake Parkway
Tupelo, MS 38803
Suite 116-181
(662)255-9439
Woodstock, GA 30189
scrampton@thomasmoresociety.org
(678)653-9907
michael@hirsh.law
Adam S. Hochschild, pro hac vice
Hochschild Law Firm
THOMAS MORE SOCIETY – Special Counsel
PO Box 401
Plainfield, VT 05667
(314)503-0326
adam@hochschildlaw.com
Mary Catherine Hodes, pro hac vice
THOMAS MORE SOCIETY – Special Counsel
112 S. Hanley Rd., Second Floor
Clayton, MO 63105
(314)825-5725
mchodes@thomasmoresociety.org
Michael McHale, pro hac vice
THOMAS MORE SOCIETY – Counsel
10506 Burt Circle, Ste. 110
Omaha, NE 68114
(402)501-8586
mmchale@thomasmoresociety.org
Paul M. Jonna, pro hac vice
LiMandri & Jonna LLP
THOMAS MORE SOCIETY – Special Counsel
P.O. Box 9520
Rancho Santa Fe, CA 92067
(858)759-994
pjonna@limandri.com
Counsel for Plaintiffs
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