On July 15, 2016, in Richardson v. Bledsoe, the US Court of Appeals for the Third Circuit held that a former inmate's classwide claims for injunctive relief were not moot even though the prison transferred him after he filed an amended class action complaint but before he moved for class certification ( (3d Cir. July 15, 2016)).

Plaintiff Sebastian Richardson sued numerous federal prison officials for allegedly violating his Fifth and Eighth Amendment rights. He alleged that the US Penitentiary at Lewisburg had a practice of placing inmates in the Special Management Unit Program (SMU program) in cells with hostile cellmates, increasing the likelihood of inmate-on-inmate violence. When Richardson, who was in the SMU program at Lewisburg, refused to accept a hostile cellmate, officials punished him by placing him in painful restraints.

Richardson sought individual monetary damages and classwide injunctive relief to prevent future constitutional violations for those in the SMU program. His amended complaint also sought class certification under Federal Rule of Civil Procedure (FRCP) 23(b)(2). A few weeks after Richardson filed the amended complaint, the government transferred him out of Lewisburg.

The district court denied class certification because Richardson's class definition was not ascertainable. However, it stayed the case pending the Third Circuit's decision in Shelton v. Bledsoe (775 F.3d 554 (3d Cir. 2015)). There, the Third Circuit held that ascertainability is not required for FRCP 23(b)(2) classes.

As a result, Richardson appealed the district court's denial of class certification. The defendants argued that Richardson's claims were moot because:

The Third Circuit found that Richardson's classwide claims for injunctive relief were not moot after reaffirming the "picking off" exception to mootness. The court first recognized this exception in Weiss v. Regal Collections, in which it held that when a plaintiff's individual claim for relief is acutely susceptible to mootness by the defendant's actions, the plaintiff may continue to represent the class even if the defendant moots the plaintiff's individual claims (385 F.3d 337 (3d Cir. 2004)).

The Third Circuit concluded that the picking off exception survived the US Supreme Court decision in Campbell-Ewald v. Gomez, even though it partially overruled Weiss (136 S. Ct. 663 (2016)). Campbell-Ewald overruled Weiss, the Third Circuit concluded, only on the question of whether an unaccepted offer of judgment moots a plaintiff's claim. It did not address the picking off exception. Additionally, the Supreme Court's language about plaintiffs having a fair opportunity to seek class certification arguably supported the picking off exception in the Third Circuit's view. The Third Circuit therefore held that the picking off exception to mootness remains good law.

However, plaintiffs seeking to invoke the exception cannot unreasonably delay the determination of class status. In determining whether a delay is reasonable, the Third Circuit considers whether the plaintiff:

Here, the court found that Richardson did not have a fair opportunity to seek class certification. He was transferred out of the SMU program only six weeks after filing his amended complaint, shorter than the 90 days allowed for a class certification motion by the local rules.

Additionally, even though Richardson never filed a motion for class certification, the court held that he did not unduly delay seeking certification because he clearly presented the class certification issue to the district court in his amended complaint and opposition to the motion to dismiss. Since Richardson presented the issue without undue delay, under Weiss his claims related back to the date of his amended class complaint, and he could continue to seek class certification.

The court also rejected the defendants' argument that the case was moot because the prison officials named in the suit are no longer employed at Lewisburg, because the alleged violation reflected an institutional practice which could continue under new officials. For these reasons, the Third Circuit vacated the district court's denial of class certification and remanded the case.