Amicus Curiae Brief — Mike Fitzhugh, Sheriff, Rutherford County, Tennessee, et al., Petitioners v. Bradley Patton

No. 25-50

Supreme Court of the United States

──────────────────────────

MIKE FITZHUGH, ET AL.,

Petitioners,

v.

BRADLEY PATTON,

Respondent.

──────────────────────────

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

──────────────────────────

BRIEF OF ALABAMA AND 20 OTHER STATES

AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

──────────────────────────

STEVE MARSHALL

Attorney General

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

EDMUND G. LACOUR JR.

Solicitor General

Counsel of Record

ROBERT M. OVERING

Deputy Solicitor General

DYLAN MAULDIN

Ass’t Solicitor General

Counsel for Amicus Alabama

(additional counsel listed in addendum)

AUGUST 11, 2025

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 3

I. Standing and mootness doctrines protect

the separation of powers and federalism. ........ 3

II. The importance of Article III’s constraints

is heightened in the class-action context. ........ 6

III.The court below placed the class action on

a collision course with Article III. .................... 8

CONCLUSION .......................................................... 16

ii

TABLE OF AUTHORITIES

Cases

31 Foster Child. v. Bush,

329 F.3d 1255 (11th Cir. 2003) .............................. 7

Allen v. Wright,

468 U. S. 737 (1984) ............................................... 6

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013) .................................................. 4

Arizona Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) ................................................ 8

Biden v. Nebraska,

600 U.S. 477 (2023) ................................................ 6

Braggs v. Dunn,

257 F. Supp. 3d 1171 (M.D. Ala. 2017) ................. 7

Brown v. Plata,

563 U.S. 493 (2011) ................................................ 7

California v. Texas,

593 U.S. 659 (2021) ................................................ 3

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) .............................................. 14

Cnty. of Riverside v. McLaughlin,

500 U.S. 44 (1991) .................................................. 9

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ................................................ 3

Damasco v. Clearwire Corp.,

662 F.3d 891 (7th Cir. 2011) .................... 10, 11, 15

Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper,

445 U.S. 326 (1980)............................................... 14

iii

Dunn v. Dunn,

148 F. Supp. 3d 1329 (N.D. Ala. 2015) .................. 7

FBI v. Fikre,

601 U.S. 234 (2024) ................................................ 4

FDA v. All. for Hippocratic Med., (AHM),

602 U.S. 367 (2024) ................................ 3, 5, 11, 14

Flecha v. Medicredit, Inc.,

946 F.3d 762 (5th Cir. 2020) .............................. 6, 8

Friends of the Earth v. Laidlaw Env’t Servs.,

528 U.S. 167 (2000) ................................................ 4

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ................................................ 6

Genesis HealthCare Corp. v. Symczyk,

569 U.S. 66 (2013) ............................... 4, 8, 9, 11-14

Gerstein v. Pugh,

420 U.S. 103 (1975) .............................. 9, 10, 15, 16

Horne v. Flores,

557 U.S. 433 (2009) ................................................ 7

Lab. Corp. of Am. Holdings v. Davis,

605 U.S. 327 (2025) ................................................ 7

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) ................................................ 3

Liner v. Jafco, Inc.,

375 U.S. 301 (1964) ................................................ 4

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................................ 4

Marbury v. Madison,

5 U.S. 137 (1803) ............................................... 1, 3

iv

Massachusetts v. Mellon,

262 U.S. 447 (1923) ................................................ 5

Matsushita Elec. Indus. Co. v. Epstein,

516 U.S. 367 (1996) ................................................ 6

Missouri v. Jenkins,

515 U.S. 70 (1995) .................................................. 5

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ................................................ 5

Murphy v. National Collegiate Athletic Association,

584 U.S. 453 (2018) ................................................ 5

Murthy v. Missouri,

603 U.S. 43 (2024) ........................................ 3, 4, 16

North Carolina v. Covington,

581 U.S. 486 (2017) ................................................ 5

Pasadena City Bd. of Ed. v. Spangler,

427 U.S. 424 (1976) .............................................. 13

Raines v. Byrd,

521 U.S. 811 (1997) ................................................ 5

Redd v. Guerrero,

84 F.4th 874 (9th Cir. 2023) .................................. 7

Richardson v. Ramirez,

418 U.S. 24 (1974)................................................. 14

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) .................................................. 8

Smith v. Bayer Corp.,

564 U.S. 299 (2011) ................................................ 8

Sosna v. Iowa,

419 U.S. 393 (1975) ................................ 8, 9, 11, 13

v

Spencer v. Kemna,

523 U.S. 1 (1998) .............................................. 4, 14

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ................................................ 6

Standard Fire Ins. Co. v. Knowles,

568 U.S. 588 (2013) ................................................ 6

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................................ 7

Trump v. CASA,

145 S. Ct. 2540 (2025) .............................. 1, 2, 7, 15

Trump v. Hawaii,

585 U.S. 667 (2018) .............................................. 11

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) .......................... 4, 9, 10, 12, 13

United States v. Sanchez-Gomez,

584 U.S. 381 (2018) ............................. 4, 6, 8-10, 13

Wal-Mart Stores v. Dukes,

564 U.S. 338 (2011) .................................... 6, 11, 16

Younger v. Harris,

401 U.S. 37 (1971) .................................................. 6

Statutes

Fair Labor Standards Act (FLSA) ..................... 12, 13

Rules

Federal Rule of Civil Procedure 11 ........................... 11

Federal Rule of Civil Procedure 23 ............. 6, 8, 11, 13

vi

Other Authorities

Johnathan Lott,

Moot Suit Riot: An Alternative View of

Plaintiff Pick-Off in Class Actions,

2013 U. CHI. LEGAL F. 531 (2013) ....9, 10-11, 14-15

The Federalist No. 39 .................................................. 5

The Federalist No. 83 .................................................. 3

Tyler B. Lindley,

The Constitutional Model of Mootness,

48 BYU L. REV. 2151 (2023) .................................. 4

1

INTEREST OF AMICI CURIAE1

The States of Alabama, Alaska, Florida, Georgia,

Indiana, Iowa, Kansas, Kentucky, Louisiana,

Mississippi, Nebraska, North Dakota, Ohio,

Oklahoma, Pennsylvania, South Carolina, South

Dakota, Texas, Utah, Virginia, and West Virginia,

respectfully submit this brief as amici curiae in

support of the petitioners. “The class action is a

powerful tool.” Trump v. CASA, Inc., 145 S. Ct. 2540,

2566 (2025) (Alito, J., concurring). As frequent targets

of this powerful tool, States have an interest in the

judiciary’s scrupulous adherence to Article III when

entertaining class actions.

SUMMARY OF ARGUMENT

Article III demands that a case or controversy exist

at all stages of litigation. A plaintiff must have a

personal stake at the outset of a case, and that

personal stake must persist until final judgment. The

existence of a Case or Controversy is not just a

guardrail for the federal courts; it is the constitutive

feature of judicial power. U.S. Const. art. III, § 2; see

Marbury v. Madison, 5 U.S. 137, 170 (1803).

Although the class action is an exception to the

normal rule that courts resolve only the rights and

duties of named parties, class actions are consistent

with Article III. A certified class is treated as a legal

entity with rights and claims like any other; the court

hearing a class action does not adjudicate abstract

questions on behalf of concerned bystanders. Still,

because the judgment can bind every member of the

class, the class action is unusual for a court of limited

Amici complied with Rule 37 by providing timely notice to

counsel of record of their intent to file this brief.

1

2

jurisdiction because it can alter the legal rights of

hundreds, thousands, or millions of people at once.

If anything, this extraordinary power is reason to

apply the case-or-controversy requirement more

carefully, not to craft ad-hoc or pragmatic exceptions

for class-action cases.

Federalism concerns likewise militate against

trying to find Article III workarounds in the classaction context. Some of the most complex, expensive,

and intrusive suits faced by States are class actions

asking federal courts to restructure and supervise

state agencies at the behest of private parties. Courts

should be sure of their jurisdiction at every moment

that such invasive relief is contemplated, especially

when many high impact cases today proceed at “a

rapid-fire pace,” and courts must decide instantly the

“years-long interim” status of some government

action. CASA, 145 S. Ct. at 2567-68 (Kavanaugh, J.,

concurring).

While this Court has carved out narrow exceptions

to mootness doctrine for class-action litigation, it has

never gone so far as the Sixth Circuit here. The

decision below allows litigation to continue without

any live case or controversy based solely on the chance

that a plaintiff with no live claim might file a motion

to certify a class. Without a single person properly

invoking jurisdiction, the rule invites courts to

speculate that the private rights of others might be

violated and might be redressed by a class action.

That’s no ground for the exercise of judicial power,

especially against sovereign States in cases that

threaten to impose broad and intrusive remedies.

Amici States urge the Court to grant the petition

for writ of certiorari and reverse.

3

ARGUMENT

I. Standing and mootness doctrines protect the

separation of powers and federalism.

A. The judicial power “to say what the law is,”

Marbury, 5 U.S. at 177, does not include the power to

say “what the law would be upon a hypothetical state

of facts,” California v. Texas, 593 U.S. 659, 672 (2021).

Without a “proper case or controversy, the courts have

no business deciding” a legal question, let alone

“expounding the law in the course of doing so.” Murthy

v. Missouri, 603 U.S. 43, 57 (2024). Because “the

province of the court is, solely, to decide on the rights

of individuals,” Marbury, 5 U.S. at 170, the judicial

power is “confine[d]” to “real and substantial

controversies admitting of specific relief through a

degree of conclusive character,” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990) (cleaned up).

Simply put, “federal courts do not issue advisory

opinions about the law.” FDA v. All. for Hippocratic

Med., 602 U.S. 367, 378 (2024) (AHM). That

proposition flows from the constitutional text itself,

see U.S. Const. art. III, § 2, for Article III’s “precise

limits” on jurisdiction “would be nugatory if it did not

exclude all ideas of more extensive authority.” The

Federalist No. 83 (Hamilton).

Both the presence of standing and the absence of

mootness are required for a case or controversy. First,

standing is the “core component” of Article III’s

restriction on federal jurisdiction. DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 342 (2006). “The purpose

of the standing doctrine is to ensure that courts do not

render advisory opinions rather than resolve genuine

controversies between adverse parties.” Lujan v.

4

Defenders of Wildlife, 504 U.S. 555, 598 n.4 (1992)

(Blackmun, J., dissenting). Standing requires the

party bringing suit to establish injury in fact,

traceability, and redressability. Id. at 560-61

(majority opinion). Without these elements, there is no

case or controversy for a court to hear. See Murthy, 603

U.S. at 57.

While standing gets a case into the courthouse,

mootness can eject it. Mootness has been called “the

doctrine of standing set in a time frame.” U.S. Parole

Comm’n v. Geraghty, 445 U.S. 388, 397 (1980).

Although it has “some added wrinkles that standing

lacks,” Friends of the Earth v. Laidlaw Env’t Servs.,

528 U.S. 167, 213 (2000) (Scalia, J., dissenting),

mootness is no less required by Article III.2

Mootness doctrine demands the controversy be

“extant at all stages of review, not merely at the time

the complaint is filed.” Genesis HealthCare Corp. v.

Symczyk, 569 U.S. 66, 71 (2013). If a case becomes

moot, it is “no longer a ‘Case’ or ‘Controversy’ for the

purpose of Article III” and must be dismissed. Already,

568 U.S. at 91. Federal courts “may no more

pronounce on past actions that do not have any

‘continuing effect’ in the world than they may shirk

decision on those that do.” FBI v. Fikre, 601 U.S. 234,

241 (2024) (quoting Spencer, 523 U.S. at 18).

2 See Tyler B. Lindley, The Constitutional Model of Mootness, 48

BYU L. REV. 2151, 2153 (2023) (citing, inter alia, United States

v. Sanchez-Gomez, 584 U.S. 381, 385-86 (2018); Already, LLC v.

Nike, Inc., 568 U.S. 85, 91 (2013); Spencer v. Kemna, 523 U.S. 1,

18 (1998); Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964)). “The

Court has dismissed moot cases as beyond its power to decide

since at least the late nineteenth century.” Id. at 2156.

5

B. The case-or-controversy requirement is “more

fundamental to the judiciary’s proper role” than any

other. Raines v. Byrd, 521 U.S. 811, 818 (1997). In “our

system of separated powers,” AHM, 602 U.S. at 378,

“interpreting and applying” the law is the judiciary’s

“duty,” but only “in cases properly brought before the

courts.” Massachusetts v. Mellon, 262 U.S. 447, 488

(1923).

“Respecting

the

case-or-controversy

requirement is therefore necessary to prevent the

Federal Judiciary from intruding upon the powers

given to the other branches.” Moody v. NetChoice,

LLC, 603 U.S. 707, 754 (2024) (Thomas, J.,

concurring) (cleaned up).

Beyond the danger of encroachment on other

branches, there is a special “need to act with proper

judicial restraint when intruding on state

sovereignty.” North Carolina v. Covington, 581 U.S.

486, 488 (2017). “The Constitution limited but did not

abolish the sovereign powers of the States, which

retained a ‘residuary and inviolable sovereignty.’”

Murphy v. National Collegiate Athletic Association,

584 U.S. 453, 470 (2018) (quoting The Federalist No.

39 (Madison)). In our system of “dual sovereignty,”

“both the Federal Government and the States wield

sovereign powers.” Id. (cleaned up). But the desire to

pursue a “deserving end” can tempt the judiciary to

“forget[] its constitutionally mandated role” at the

expense of State sovereignty. Missouri v. Jenkins, 515

U.S. 70, 138 (1995) (Thomas, J., concurring). “The true

‘essence’ of federalism is that the States as States have

legitimate interests which the National Government

is bound to respect even though its laws are supreme.”

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

6

528, 581 (1985) (O’Connor, J., dissenting) (quoting

Younger v. Harris, 401 U.S. 37, 44 (1971)).

Thus, the limitations of Article III “may sound

technical, but they enforce ‘fundamental limits on

federal judicial power.’” Biden v. Nebraska, 600 U.S.

477, 523 (2023) (Kagan, J., dissenting) (quoting Allen

v. Wright, 468 U.S. 737, 750 (1984)). “They keep courts

acting like courts.” Id.

II. The importance of Article III’s constraints is

heightened in the class-action context.

Class actions can still comply with Article III even

though they deviate from the “usual rule that

litigation is conducted by and on behalf of the

individual named parties only.” Wal-Mart Stores v.

Dukes, 564 U.S. 338, 348 (2011). But “to justify [the]

departure,” the named plaintiffs must have standing

for their individual claims and prove that they can

adequately represent the class and its claims. See id.

at 348-49; see also Spokeo, Inc. v. Robins, 578 U.S. 330,

338 n.6 (2016). The class itself “acquire[s] a legal

status separate from ... the named plaintiff” only

through the certification process of Rule 23. SanchezGomez, 584 U.S. at 387-88.

Once a class is certified, “the number of plaintiffs”

can jump from “one to one million.” Flecha v.

Medicredit, Inc., 946 F.3d 762, 770 (5th Cir. 2020)

(Oldham, J., concurring). Thereafter, the court’s

rulings control the rights of all members, whether they

win or lose. See Matsushita Elec. Indus. Co. v. Epstein,

516 U.S. 367, 379 (1996); Cf. Standard Fire Ins. Co. v.

Knowles, 568 U.S. 588, 593 (2013) (“[A] proposed class

action cannot legally bind members of the proposed

class before the class is certified.”).

7

Article III is never negotiable, but adjudicating the

rights of a class undoubtedly raises the stakes. Almost

by definition, the constitutional harm that can flow

from a court exceeding its judicial role is greater in a

class action. Federal courts are not supposed to

conduct “general legal oversight,” TransUnion LLC v.

Ramirez, 594 U.S. 413, 423 (2021), or “resolve a

question of legal interpretation for the entire realm,”

CASA, 145 S. Ct. at 2555, but the power to issue relief

to a class of indefinite size is perhaps as close as it

gets, see id. at 2255-56.

Given the wide reach of the court’s judgment in a

class action, use of this “powerful tool” demands

caution. Id. at 2566 (Alito, J., concurring). The device

is regularly used to bring “extremely complex” cases

against States, Braggs v. Dunn, 257 F. Supp. 3d 1171,

1180 (M.D. Ala. 2017), that might call for broad

institutional reform affecting thousands of people for

years or decades to come, see, e.g., Dunn v. Dunn, 148

F. Supp. 3d 1329, 1332 (N.D. Ala. 2015). For a plaintiff

who wants to overhaul state systems like prison

healthcare, Brown v. Plata, 563 U.S. 493 (2011); foster

care, 31 Foster Child. v. Bush, 329 F.3d 1255 (11th Cir.

2003); indigent defense, Redd v. Guerrero, 84 F.4th

874 (9th Cir. 2023); or English language instruction,

Horne v. Flores, 557 U.S. 433 (2009), the class action

is a popular vehicle. Defending against a class action

is so burdensome and risky that in litigation with

private defendants, class certification itself may

“coerce … costly settlements” that spur “widespread

and significant” harms far beyond the defendant. Lab.

Corp. of Am. Holdings v. Davis, 605 U.S. 327, 333

(2025) (Kavanaugh, J., dissenting).

8

Rule 23 contains one set of procedural restrictions

that keep this enormous judicial power in check. See,

e.g., Smith v. Bayer Corp., 564 U.S. 299, 315-16 (2011).

But Article III is another, more fundamental check,

which cannot be overridden no matter how Rule 23

should be interpreted. Such costly and sweeping

litigation should not be entertained lightly, and it

certainly should not result from an advisory opinion or

hypothetical controversy. “In an era of frequent

litigation, class actions,” and other broad relief,

“courts must be more careful to insist on the formal

rules of standing, not less so.” Arizona Christian Sch.

Tuition Org. v. Winn, 563 U.S. 125, 146 (2011).

III. The court below placed the class action on a

collision course with Article III.

“Article III is just as important in class actions as

it is in individual ones.” Flecha, 946 F.3d at 771

(Oldham, J., concurring); see also Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976).

Because of the “important consequences” for

“unnamed members” and the “separate” “legal status”

of a class, Sosna v. Iowa, 419 U.S. 393, 399, n.8 (1975),

the rules of standing doctrine may apply differently to

class actions. But before certification, the plaintiff does

not represent anyone. “Normally” then, if no named

plaintiff has a stake in the outcome by the time of

certification, the case is moot. See Sanchez-Gomez, 584

U.S. at 386 (citing Sosna, 419 U.S. at 402 n.11).

The Court has recognized narrow exceptions to the

general rule. First, in cases where a motion for class

certification is erroneously denied, “a corrected ruling

on appeal ‘relates back’ to the time of the erroneous

denial of the certification motion.” Genesis

9

HealthCare, 596 U.S. at 74-75 (citing Geraghty, 445

U.S. at 404 n.11). This exception, however, applies

only “to cases in which the named plaintiff’s claim

remains live at the time the district court denies class

certification.” Id. at 75 (emphasis added).

A second “limited exception” is when “the pace of

litigation” and “inherently transitory nature of the

claims” make it “difficult” to have a named plaintiff

with a live claim at the time of certification. SanchezGomez, 584 U.S. at 388 (citing Sosna, 419 U.S. at 402

n.11; Gerstein v. Pugh, 420 U.S. 103, 110-11 & n.11

(1975)). If a named plaintiff’s inherently transitory

claim becomes moot, “certification could potentially

‘relate back’ to the filing of the complaint.” Genesis

HealthCare, 569 U.S. at 76 (quoting Gerstein, 420 U.S.

at 110 n.11; Cnty. of Riverside v. McLaughlin, 500 U.S.

44, 52 (1991)). For this exception, the court must be

“certain that there would always be some [potential

plaintiff] subject to the challenged practice.” SanchezGomez, 584 U.S. at 386.

The Court has “never” crafted another exception

for “when the named plaintiff’s case becomes moot

before the motion to certify the class has been filed.”

Johnathan Lott, Moot Suit Riot: An Alternative View

of Plaintiff Pick-Off in Class Actions, 2013 U. CHI.

LEGAL F. 531, 531 (2013) (emphasis added). By its own

terms, the Geraghty exception was limited to cases

where the plaintiff’s claim is live at the time class

certification is denied. Genesis HealthCare, 596 U.S.

75 (citing Geraghty, 445 U.S. at 404 n.11). And the

Gerstein exception has been applied in cases where the

plaintiff had at least filed a motion to certify. See 420

U.S. at 107; McLaughlin, 500 U.S. at 48; cf. SanchezGomez, 584 U.S. at 388 (Gerstein’s rule is “tied” to its

10

“setting”). Thus, the two exceptions teach no more

than the rule that mootness arising while a motion for

certification is pending does not cause an automatic

dismissal. Lott, supra, at 540-41. But there is no

uniform rule for dealing with mootness before any

such motion is filed.

The decision below pushes the exceptions further

than the Court’s reasoning permits. On the Sixth

Circuit’s theory, the mere filing of a complaint “can

serve as the prerequisite for arguing the ‘inherently

transitory’ exception for class-action claims.”

Pet.App.23a. Filing a complaint entitled Patton an

“opportunity to litigate claims on behalf” of unknown

others whom he “seeks to represent.” Id. And what is

his personal stake in the outcome? His own “claim that

he is entitled to represent a class.” Id. (quoting

Geraghty, 445 U.S. at 402). What class? The one that

does not exist, may never exist, and to which Patton

does not belong. In other words, all he needed to keep

this case in federal court, despite the extinction of his

claims (i.e., the only claims) was an alleged intent to

litigate on behalf of others—perhaps as little as the

word class on the face of the complaint.

This theory should be rejected for several reasons.

First, it marks a “significant departure from our

traditional understanding of mootness.” Lott, supra,

at 554. By letting a case proceed with no known

personal interest and “no motion for class certification

even pending,” a federal court “defies the limits on

federal jurisdiction expressed in Article III.” Damasco

v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),

overruled on other grounds, 796 F.3d 783 (7th Cir.

2015). The tension with Article III is palpable: Courts

must hear and States must defend claims brought by

11

someone with nothing to gain and nothing to lose.

Plaintiffs known to be improper can still “continue

litigation” without having “solidified any extrapersonal stake by filing the motion for certification.”

Lott, supra, at 554. At that point, the class itself has

no “legal status separate from the interest asserted”

by the plaintiff. Sosna, 419 U.S. at 399. As far as the

court knows, no member of the class has a live claim

either. To proceed without even a plaintiff’s attempt to

certify is to assume the satisfaction of a “bedrock

constitutional requirement,” AHM, 602 U.S. at 378,

that adheres at “all stages,” Genesis HealthCare, 569

U.S. at 71. But Article III courts cannot so lightly cast

aside what Article III gives them “an obligation to

assure.” Trump v. Hawaii, 585 U.S. 667, 697 (2018).

“That the complaint identifies the suit as a class

action is not enough by itself to keep the case in federal

court.” Damasco, 662 F.3d at 896. The distinction

between a complaint and a motion to certify matters.

“Rule 23 does not set forth a mere pleading standard.”

Wal-Mart Stores, Inc. 564 U.S. at 350. It requires that

a party “affirmatively demonstrate his compliance

with the Rule—that is, he must be prepared to prove

that there are in fact sufficiently numerous parties,

common questions of law or fact, etc.” Id. This

“rigorous analysis” requires a court “to probe behind

the pleadings.” Id. at 351. Accordingly, motions for

class certification are held to a higher standard than

a complaint; they are often more detailed, backed by

evidence, and require additional representations to

the court, which must also satisfy Federal Rule of Civil

Procedure 11. Why should the continued exercise of

judicial power over what seems to be a moot lawsuit

rest on anything less?

12

Because there is “no binding caselaw,” the Sixth

Circuit answers. Pet.App.20a. True, the Court has not

yet disavowed the Sixth Circuit’s rule directly, but it

still contradicts the text of Article III and the

principles animating the Court’s mootness decisions.

Among those cases, Genesis HealthCare Corporation

v. Symczyk involved a “collective action” brought

under the Fair Labor Standards Act (FLSA) on behalf

of the plaintiff and “other employees similarly

situated.” 569 U.S. at 69. The plaintiff had not yet

moved for “conditional certification” under the FLSA

when her claim became moot, so the district court

dismissed the case for lack of subject-matter

jurisdiction. Id. at 70, 75. Applying what it took to be

the logic of the class-action exceptions, the Third

Circuit reversed, allowing litigation to continue. Id. at

70-71; see 656 F.3d 189, 196 (3d Cir. 2011) (wielding

“equitable” power “to conceive of the named plaintiff

as a part of an indivisible class … even before the class

certification question has been decided”) (citing

Geraghty, 445 U.S. at 399).

But this Court reversed. The Geraghty exception

was “inapposite,” the Court held, because it was

“explicitly limited ... to cases in which the named

plaintiff’s claim remains live at the time the district

court denies class certification.” 569 U.S. at 75. The

fact that the plaintiff’s claim became moot prior to a

motion for certification “foreclose[ed] any recourse to

Geraghty.” Id. There was “simply no certification

decision to which respondent’s claim could have

related back.” Id. The same is true here, but the Sixth

Circuit here largely ignored Genesis HealthCare,

which arose in the context of FLSA but spoke “[m]ore

fundamentally” to the nature of a class’s “independent

13

legal status.” Id. Once there is a class, dismissing the

suit as moot can “frustrate the objectives of class

actions,” but “conditional certification” under FLSA

(like merely filing a complaint) is “not tantamount to

class certification.” Id. at 78.

The Court again declined to expand the exceptions

to mootness in United States v. Sanchez-Gomez, where

four criminal defendants challenged both the use of

restraints “in their respective cases” and “the restraint

policy as a whole.” 584 U.S. at 384. Because their

underlying criminal cases ended before the Ninth

Circuit could rule, the case should have been

dismissed as moot. But instead, the lower court

deemed it a “‘functional class action’ with ‘class-like

claims’ seeking ‘class-like relief.’” Id. at 385. It then

applied the line of civil class-action mootness

exceptions to keep the case alive. Id. Reversing, this

Court emphasized that not only was the case not a

Rule 23 class action; it did “not involve any formal

mechanism for aggregating claims.” Id. at 389. A

“functional class action” cannot spring from “the mere

presence of allegations.” Id. at 390 (cleaned up).

Like the Ninth Circuit’s decision to invent

“functional class” status for a non-class, the Sixth

Circuit’s rule also uproots the class-action mootness

exceptions from their mooring in Rule 23. Certification

is the moment of legal significance; it is not a

“meaningless ‘verbal recital.’” Pasadena City Bd. of

Ed. v. Spangler, 427 U.S. 424, 430 (1976); cf. Genesis

HealthCare, 569 U.S. at 75 (“[E]ssential to our

decisions in Sosna and Geraghty was the fact that a

putative class acquires an independent legal status

once it is certified under Rule 23.”). Every time the

Court has applied a class-based exception to mootness,

14

certification had been granted, denied, or at least

sought by a party. See Lott, supra, at 541.

The Sixth Circuit adopts its constitutionally

problematic and incongruent rule largely for “good,

practical reasons.” Pet.App.25a. However important,

those reasons touch upon “exercise rather than the

existence of judicial power.” City of Mesquite v.

Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). But

mootness determines the existence of judicial power,

as it “deprives” a court of the “power to act … even if

[it] were disposed to do so.” Spencer, 523 U.S. at 18.

Thus, “purely practical considerations have never

been … controlling by themselves on the issue of

mootness.” Richardson v. Ramirez, 418 U.S. 24, 36

(1974); cf. AHM, 602 U.S. at 396 (explaining that the

Court “has long rejected” an “‘if not us, who?’ argument

as a basis for standing”).

In the face of “a strict constitutional prohibition,”

the Sixth Circuit’s rule “amounts to an ad-hoc

workaround” to deal with one problem, “the pick-off

problem.” Lott, supra, at 557. In Genesis HealthCare,

the Third Circuit worried that “calculated attempts by

some defendants to ‘pick off’ named plaintiffs with

strategic Rule 68 offers before certification” could

undermine the utility of class actions. 569 U.S. at 70.

The Court diminished the “pick off” problem as a

concern stated “in dicta” in a single previous case. Id.

at 78 (discussing Deposit Guar. Nat. Bank, Jackson,

Miss. v. Roper, 445 U.S. 326 (1980)). And even then, it

was important that the plaintiffs’ claims not be mooted

by Rule 68 only because they “possessed an ongoing,

personal economic stake in the substantive

controversy—namely, to shift a portion of attorney’s

fees and expenses to successful class litigants.” Id. In

15

other words, their claims were not moot, and the Court

had no need to fashion a general prudential exception

to mootness for dealing with “pick off” problems.

Neither has the Seventh Circuit, despite rejecting the

Sixth Circuit’s approach over a decade ago. See

Damasco, 662 F.3d at 896 (“A simple solution … is

available, and it does not require us to forge a new rule

that runs afoul of Article III: Class-action plaintiffs can

move to certify the class at the same time that they file

their complaint.”); see also Pet.App.25a (citing four

courts, none in the Seventh Circuit, complaining about

premature motions).

The Sixth Circuit had no good “reason to wade into

uncertain constitutional waters” here. Lott, supra, at

554, 557. The court freed itself from the strictures of

Article III on the hypothesis that, otherwise, plaintiffs

might feel compelled to file “placeholder motions for

class certification.” Pet.App.25a. At this point, the court

delved into pure policymaking—motivated by the

“judicial resources” it would take to deal with

“premature and meritless placeholder motions” in

other cases. Id.

But Article III does not turn on matters of judicial

economy. And the notion that poor motions would

crowd court dockets only undermines the Sixth

Circuit’s logic. If a class certification motion filed before

the plaintiff’s claim became moot would be “meritless,”

then there’s no basis to continue exercising jurisdiction.

Gerstein could proceed, for example, because the Court

was “certain” that there were “other persons similarly

situated.” 420 U.S. at 110 n.11. Perhaps that was a

“workaround,” CASA, 145 S. Ct. at 2556, to avoid the

procedures for substitution or intervention; in any

16

event, it reflects confidence that the Gerstein class’s

claims would survive the loss of the named plaintiffs.

But the court below suggested that an attempt to

certify would be “meritless” in many or most cases. If

that’s true, then “the courts have no business” letting

the case proceed once the plaintiff loses standing.

Murthy, 603 U.S. at 57. If it’s not true, i.e., motions

brought before mootness arises would have merit, then

there’s no unfairness in requiring plaintiffs to bring

their motions sooner. Given the Sixth Circuit’s

“certain[ty]” that “hundreds” “are suffering the [same]

injury” that Patton had alleged, it seems that his

motion to certify would have been well received, not

“premature and meritless.” Pet.App.20a, 25a.

The best way to decide whether mootness of the

named plaintiff’s claims affects the class is to have

before the court a certified class with actual claims; the

next best way is to have a “rigorous” motion that tries

to “affirmatively demonstrate” the existence of the class

and its claims. Wal-Mart Stores, Inc. 564 U.S. at 350.

But in no circumstance should a court exercise Article

III power without a plaintiff, without a class, and

without anyone so much as asking the court to resolve

a live case or controversy.

CONCLUSION

The Court should grant the petition for a writ of

certiorari and reverse.

17

Respectfully submitted,

Steve Marshall

Alabama Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing

Deputy Solicitor General

Dylan Mauldin

Assistant Solicitor General

STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

AUGUST 11, 2025

(additional counsel listed below)

18

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