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Lewis v. Governor of Alabama

United States Court of Appeals, Eleventh Circuit

December 13, 2019

MARNIKA LEWIS, ANTOIN ADAMS, ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, GREATER BIRMINGHAM MINISTRIES, MARIKA COLEMAN, JOHN ROGERS, PRISCILLA DUNN, JUANDALYNN GIVAN, LOUISE ALEXANDER, WILLIAM MUHAMMAD, RODGER SMITHERMAN, OLIVER ROBINSON, ALABAMA LEGISLATIVE BLACK CAUCUS, MARY MOORE, Plaintiffs - Appellants,
v.
GOVERNOR OF ALABAMA, in her Official Capacity as Governor of the State of Alabama, ATTORNEY GENERAL, STATE OF ALABAMA, in his Official Capacity as Attorney General of the State of Alabama, STATE OF ALABAMA, THE, BIRMINGHAM, CITY OF, THE, MAYOR OF BIRMINGHAM, in his official Capacity as Mayor of Birmingham, Defendants - Appellees.

          Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:16-cv-00690-RDP

          Before ED CARNES, Chief Judge, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, TJOFLAT, and MARCUS, Circuit Judges. [*]

          NEWSOM, Circuit Judge

         This case arises out of a political tug-of-war between the State of Alabama and the City of Birmingham over economic policy-in particular, over minimum-wage rates. We'll delve into the details soon enough, but here's the short story: In 2015, the Birmingham City Council petitioned the Alabama Legislature to raise the minimum wage, statewide, above the $7.25 federal baseline. When the Legislature declined-and following some back-and-forth with state officials-the City took matters into its own hands, eventually adopting a local ordinance that immediately increased the minimum wage within Birmingham's city limits by 39%, to $10.10. The Legislature responded by enacting a statute that aimed to standardize wage policy throughout the state by prohibiting and "void[ing]" any local law that required employers, among other things, to pay wages higher than state or federal law mandates. That statute-Act No. 2016-18-had the effect of nullifying Birmingham's minimum-wage ordinance.

         Two African-American minimum-wage employees who work in Birmingham at a rate lower than the $10.10 prescribed by the City's ordinance brought suit, alleging that Act No. 2016-18 violated (as relevant here) the Equal Protection Clause of the Fourteenth Amendment. Rather, though, than suing their employers-who, pursuant to the Act, were refusing to pay the $10.10-the employees opted to sue (again, as relevant here) the Alabama Attorney General.

         That choice presents us with an important threshold question: Do the employees have Article III standing to sue the Attorney General? We hold that they do not- in particular, because they cannot demonstrate either (1) that their alleged injuries are fairly traceable to his conduct or (2) that those injuries would be redressed by the declaratory and injunctive relief they have requested. Because we conclude that the employees lack standing to sue, we need not (and indeed cannot) consider the merits of their equal-protection claim.

         I

         A

         The seed of this appeal was planted in April 2015, when the Birmingham City Council adopted a resolution formally urging the Alabama Legislature to raise the minimum wage, statewide, above the $7.25 federal rate. The Legislature declined to do so, and in response, in August 2015, the City Council enacted an ordinance, No. 15-124, that gradually increased the minimum wage for Birmingham-based workers-the rate would go up to $8.50 roughly one year after the ordinance's enactment, and then to $10.10 a year after that.

         About six months later, in early February 2016-before the initial increase prescribed by Ordinance No. 15-124 had gone into effect-a member of the Alabama House of Representatives introduced a bill, HB 174, to standardize labor policy throughout the state and, in particular, to establish a uniform statewide minimum wage. To that end, HB 174-which would become Act No. 2016-18, the law challenged here-did two things. First, it expressly prohibited local "mandate[s]" obligating employers to give their employees "any employment benefit, including . . . wage[s], . . . that is not required by state or federal law" and declared all such mandates "void." Ala. Act No. 2016-18 § 2(b)-(c). Second, and more generally, it "preempt[ed] the entire field of regulation in [Alabama] touching in any way upon . . . wages . . . provided by an employer to an employee . . . to the complete exclusion of any policy, ordinance, rule, or other mandate promulgated or enforced by any county, municipality, or other political subdivision of this state." Id. § 6(b). So while HB 174 didn't itself specify a minimum wage, it would, if adopted, effectively transform the federal minimum into both a floor and a ceiling-thereby nullifying Birmingham's ordinance. The Alabama House of Representatives passed HB 174 on February 16, 2016, one week after it was introduced.

         With HB 174 winding its way through the state legislative process, the Birmingham City Council moved to accelerate the implementation of its own minimum-wage law. On February 23, 2016, it adopted a second ordinance-No. 16-28, at issue here-which immediately raised the minimum wage for Birmingham-based workers to $10.10. The new ordinance not only imposed a $100-per-day-per-employee penalty on any employer who failed to comply but also gave aggrieved employees an express private right of action against their employers. In particular, the ordinance stated that-

Any Employee who is paid less than the minimum wage established under this Ordinance may bring a civil cause of action against his/her Employer for the full amount of wages due from the Employer in any court of competent jurisdiction and, upon prevailing, shall be awarded any appropriate legal or equitable relief, including: unpaid wages and an additional two times that amount as liquidated damages; reinstatement; actual damages; civil penalties; and reasonable attorneys' fees and costs.

Birmingham, Ala., Ordinance No. 16-28 (Feb. 23, 2016).

         Because Ordinance No. 16-28 raised the minimum wage immediately, rather than gradually over the two-year period contemplated under its predecessor, Birmingham-based businesses faced an overnight 39% spike in minimum-wage costs. Perhaps not surprisingly, many of them panicked. In an effort to calm their fears, the Alabama Attorney General issued the following press release on the afternoon of February 23, shortly after Ordinance No. 16-28 was promulgated:

My office has been contacted by local businesses and officials concerned about the impact of the City of Birmingham's ordinance establishing a city-wide minimum wage of $10.10 per hour, which purports to be effective on February 24. The ordinance could impose fines and penalties on local businesses who do not comply. Because this ordinance does not provide a reasonable time for employers to prepare to comply with the new minimum wage, it could greatly disrupt the Birmingham economy.
I am issuing this statement to prevent that disruption and to assure Birmingham businesses that, despite the terms of the ordinance, they will have a reasonable time to prepare to comply. Under Alabama law, the ordinance cannot take effect immediately.
The City of Birmingham cannot impose an unreasonable restriction on the conduct of business by mandating an immediate increase in the minimum wage without providing a reasonable period of time to comply.
The Alabama Legislature is currently addressing this issue and I expect it will be resolved shortly without adversely affecting the citizens of Birmingham.

         The very next day-February 24-Birmingham's mayor signed Ordinance No. 16-28 into law, thereby immediately raising Birmingham's minimum wage to $10.10 per hour. The ordinance's effect, though, was short-lived. On February 25, the Alabama Senate passed HB 174, and the Alabama Governor signed it into law as Act No. 2016-18 the same day, thereby voiding Birmingham's ordinance and effectively reinstating a $7.25 minimum wage statewide.

         B

         Plaintiffs Marnika Lewis and Antoin Adams are African-American employees who work within the city limits of Birmingham for a wage lower than the $10.10 per hour prescribed by Ordinance No. 16-28. Although the ordinance gives aggrieved employees an express private right of action to sue employers who fail to pay the mandated hourly rate, Lewis and Adams didn't sue their employers. Had they done so, their constitutional challenge to the state law likely still would have arisen, albeit in a different manner and procedural posture. Lewis and Adams would have complained that their employers had violated Ordinance No. 16-28 by failing to pay them $10.10; their employers presumably would have defended on the ground that Act No. 2016-18 voided the Birmingham ordinance; and Lewis and Adams, in turn, would have challenged the Act's constitutionality.

         Lewis and Adams opted to go a different route-which, in turn, teed up the standing-related issues that underlie our decision. Rather than sue their employers, Lewis and Adams-joined by the Alabama NAACP, Greater Birmingham Ministries, the Alabama Legislative Black Caucus, and African-American members of the Alabama House of Representatives and Senate-filed a civil-rights action in federal court against the State of Alabama, the Alabama Attorney General, the City of Birmingham, and the Mayor of Birmingham. Among other claims, Lewis and Adams alleged that Act No. 2016-18 was enacted with the intent to discriminate against them on account of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.[1]

         In support of their equal-protection claim, Lewis and Adams (whom we'll just call "plaintiffs") cited various statistics indicating that the Act may disproportionately impact African-Americans-for instance, they said, Birmingham's population is 73% African-American and, among hourly-wage earners in Birmingham, 37% of African-American workers earn $10.10 or less, while only 27% of white hourly-wage earners fall below that threshold. Plaintiffs also emphasized the racial demographics of the state and local electorates: Whereas Birmingham's mayor and city council are "elected by a majority-black local electorate," they explained, the Alabama Legislature is "elected by a statewide majority-white electorate." With respect to Act No. 2016-18 itself, plaintiffs stressed the "unusual speed" with which it was introduced, passed, and signed-the entire process taking a total of 16 days-as well as what they called the "highly racially polarized" votes in the Alabama Legislature that led to its approval.[2] Most dramatically, plaintiffs asserted-by reference to a long and detailed narrative chronicling the state's sorry civil-rights history-that Act No. 2016-18 "perpetuates Alabama's de jure policy of white supremacy, in particular its suppression of local black majorities through imposition of white control by state government."

         To redress the economic injuries that they claimed to have suffered, plaintiffs sought three forms of relief: (1) "[a] judgment declaring that Act 2016-18 violates" the Equal Protection Clause; (2) an injunction "[d]irecting [the Alabama Attorney General] to give notice to Alabama legislators and to members of the public" that the Act is unconstitutional; and (3) an injunction "ordering . . . [the] City of Birmingham and/or . . . Mayor Bell to enforce" the City's minimum-wage ordinance.

         The district court dismissed the complaint. It concluded (1) that plaintiffs lacked Article III standing to sue any of the defendants, (2) that the Attorney General was an improper defendant under Ex parte Young, 209 U.S. 123 (1908), and (3) that, in any event, plaintiffs had failed to allege a plausible equal-protection claim because there was an "obvious alternative explanation"-i.e., other than intentional discrimination-for the Legislature's conduct.

         Importantly for present purposes-because it serves to narrow and frame the issues before us-a panel of this Court affirmed the district court's dismissal in all claims save one: With respect to the equal-protection claim against the Alabama Attorney General, the panel reversed. In particular, the panel held, as an initial matter, that plaintiffs had standing to sue the Attorney General because his "broad authority to interpret and enforce" Act No. 2016-18 "illustrate[d] his Article III connection" to plaintiffs' injuries, and because an order declaring the Act unconstitutional and enjoining the Attorney General from enforcing it "would go a long way toward redressing the plaintiffs' injuries." Separately, the panel concluded that the Attorney General had a sufficient connection to the enforcement of the Act to render him a proper defendant under Ex parte Young. And finally, as to the merits, the panel held that plaintiffs had adequately alleged discriminatory intent to state a plausible equal-protection claim. Lewis v. Governor of Ala., 896 F.3d 1282, 1290-97 (11th Cir. 2018), opinion vacated and reh'g en banc granted, 914 F.3d 1291 (11th Cir. 2019).

         A majority of the active judges of this Circuit voted to rehear the case en banc. The questions now before the full Court are (1) whether plaintiffs have Article III standing to sue the Alabama Attorney General, (2) whether the Attorney General is a proper defendant under Ex parte Young, and (3) whether plaintiffs' complaint states a plausible claim of racial discrimination under the Equal Protection Clause.[3] We now hold that plaintiffs lack standing to sue the Attorney General-in particular, that they cannot establish the standing doctrine's "traceability" or "redressability" requirements. Because we conclude that plaintiffs have no standing-and thus that the federal courts have no jurisdiction over plaintiffs' lawsuit-we will not proceed to consider the ensuing questions whether the Attorney General is a proper defendant under Ex parte Young or whether plaintiffs have stated a plausible equal-protection claim on the merits.

         II

         Article III of the United States Constitution limits the "judicial Power"-and thus the jurisdiction of the federal courts-to "Cases" and "Controversies." U.S. Const. art. III, § 2. The "standing" doctrine is "an essential and unchanging part of the case-or-controversy requirement." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). In order to establish her standing to sue, a plaintiff must satisfy three (by now familiar) criteria. First, the plaintiff must demonstrate that she has suffered an "injury in fact"-an invasion of a legally protected interest that is both (a) "concrete and particularized" and (b) "actual or imminent, not conjectural or hypothetical." Id. (internal quotation marks and citations omitted). Second, the plaintiff must show a "causal connection" between her injury and the challenged action of the defendant-i.e., the injury must be "fairly . . . trace[able]" to the defendant's conduct, as opposed to the action of an absent third party. Id. (citation omitted). Finally, the plaintiff must show that it is likely, not merely speculative, that a favorable judgment will redress her injury. Id. at 561 (citation omitted).

         Because standing to sue implicates jurisdiction, a court must satisfy itself that the plaintiff has standing before proceeding to consider the merits of her claim, no matter how weighty or interesting. We therefore turn, at the outset, to examine whether plaintiffs here satisfy each of the standing doctrine's three components- in the lingo, "injury-in-fact," "traceability," and "redressability."[4]

         A

         We can make quick work of the injury-in-fact requirement. As relevant here, plaintiffs allege that they suffered an injury that is actual, concrete, and particularized-namely, the economic loss resulting from not being paid the $10.10 minimum wage prescribed by the preempted Birmingham ordinance. We agree. Economic harm, we have held, is a "well-established injur[y]-in-fact under federal standing jurisprudence," Adinolfe v. United Tech. Corp., 768 F.3d 1161, 1172 (11th Cir. 2014), and the difference between $7.25 and $10.10 per hour is real. Enough said.

         B

         So, on to traceability. Plaintiffs assert that their "injuries are a result of Act 2016-18" and, as particularly relevant here, "the Attorney General's conduct with respect to the Act." Br. of Appellants at 19. But what, exactly, do they say the Attorney General did wrong-how, exactly, do they trace their injuries to his "conduct"? On an appropriately charitable reading of their pleadings and briefs, plaintiffs seem to be offering two theories, which we'll call the "ex ante" and the "ex post." First-ex ante-plaintiffs complain that the Attorney General "refused to perform his statutory duty to inform the Legislature and the Governor of Act 2016-18's unconstitutionality." Id. at 15. Second-ex post-they assert (albeit more vaguely) that as a result of the Attorney General's conduct in connection with the enforcement of the Act-either because he is actually enforcing it, has threatened to enforce it, or at the very least hasn't "indicat[ed] his intent not to enforce" it-the City of Birmingham is failing to implement Ordinance No. 16-28. Id. at 21; see also id. at 19-20. We'll consider these theories in turn.

         1

         Plaintiffs first assert that their injuries were caused by the Attorney General's failure to discharge what they call his "statutory duty" to notify the Legislature and the Governor-before the fact-that the then-contemplated Act No. 2016-18 was unconstitutional. "Quite the contrary," plaintiffs contend, prior to the Act's passage "the Attorney General issued a press release suggesting to Birmingham employers that they likely would not have to comply with the City's minimum-wage law because he anticipated and supported the State Legislature's preemption of the Ordinance." Br. of Appellants at 20; see also id. at 8.

         Two problems. As an initial matter, plaintiffs' position rests on a material mischaracterization of the Attorney General's press release. The release didn't say (or even imply) that Birmingham employers "would not have to comply" with the City's minimum-wage ordinance. Just the opposite, in fact. The release, quoted in full above, stated-in no uncertain terms, and twice for emphasis-that employers would "have a reasonable time to prepare to comply." As any fair reading of the press release reveals, the Attorney General's aim was simply to calm the fears of panicked business owners, who were faced not only with the prospect of having to comply with a patchwork of different minimum-wage requirements across the state but also with an overnight 39% jump in minimum-wage costs in Alabama's largest city-all backed by a threat of fines and penalties for noncompliance. Against that backdrop, the Attorney General's message-that employers would have a reasonable time "to comply" with Birmingham's ordinance, and not, as plaintiffs misstate, that they wouldn't have to comply-was both commonsensical and benign.[5]

         Moreover, and in any event, plaintiffs' ex ante traceability theory fails because the Alabama Attorney General had no affirmative legal "duty," as plaintiffs describe it, to "inform the Legislature and Governor that Act 2016-18 [was] unlawful." Br. of Appellants at 20. In an effort to support their duty-to-inform argument, plaintiffs point to four provisions of the Alabama Code-none of which actually imposes the obligation they describe. Alabama Code § 36-15-1(1)(a), for instance, requires the Attorney General to give his opinion on questions of law connected with interests of the state, but only when "required by" a list of state officials, and even then only "when it is made, by law, his or her duty so to do." Plaintiffs have made no effort to demonstrate that either prerequisite was satisfied here. Similarly, § 36-15-1(1)(b) requires the Attorney General to provide his opinion on legal questions concerning the duties of certain specified county and city officers "when requested so to do in writing." Again, plaintiffs don't contend here that any of the listed officials ever made a written request. Plaintiffs next point to § 36-15-1(7)-which states that "[a]t such time as [he] deems appropriate, the Attorney General may" examine statutes enacted by the Alabama Legislature for "clarity and constitutional validity." But while § 36-15-1(7) authorizes the Attorney General to review existing statutes, it doesn't require him to do so-or to do anything, for that matter. Finally, § 36-15-1(8) uses similar terms to give the Attorney General discretion to provide an opinion-to certain specified state officials-about Alabama laws that "have been held invalid by courts of last resort . . . ." Not only is § 36-15-1(8) purely discretionary, it also applies only to laws that have already been invalidated in court-a precondition not met here.[6]

         So plaintiffs' ex ante theory of Article III traceability fails on two accounts-both because the Alabama Attorney General has no legal duty to inform anyone of anything under these circumstances and because the particular conduct that plaintiffs contend violated this nonexistent duty simply didn't occur as they have described it.

         2

         What, then, of plaintiffs' ex post theory-that the Attorney General's "conduct" in connection with the enforcement of the Act is preventing Birmingham from implementing Ordinance No. 16-28? We must reject it, as well.

         For starters, no one contends that the Attorney General is actually, affirmatively "enforcing" Act No. 2016-18-at least in the usual sense, say, of bringing suit to implement its provisions. Nor has he ever done so-or even threatened to do so, for that matter. Under our precedent, that's a problem. In Doe v. Pryor, for instance, we considered a plaintiff's constitutional challenge to Alabama Code § 13A-6-65(a)(3), which forbade so-called "deviate sexual intercourse," defined to include consensual oral and anal sex. 344 F.3d 1282, 1283 (11th Cir. 2003). We held that because "[t]he only defendant in th[e] case [was] the Alabama Attorney General" and because "[t]he Attorney General ha[d] taken no action to enforce section 13A-6-65(a)(3) against" the plaintiff, her injuries were "not 'fairly traceable' to the only defendant before the Court." Id. at 1285.

         It's true, as plaintiffs here say, that Doe isn't quite on point because there, in the wake of the United States Supreme Court's intervening decision in Lawrence v. Texas, 539 U.S. 558 (2003), the Attorney General had expressly "concede[d] that section 13A-6-65(a)(3) [was] unconstitutional," thereby eliminating any credible threat of enforcement. Doe, 344 F.3d at 1285. By contrast, plaintiffs contend that here there is a "specter of enforcement by the Attorney General" that satisfies the traceability requirement-it is enough, they seem to contend, that the Attorney General has the authority to enforce Act No. 2016-18. Reply Br. of Appellants at 8. But the "specter" that plaintiffs describe is truly a specter-in the traditional, "vision of the imagination" sense. See Webster's Second New International Dictionary 2416 (1944).[7]

         To begin with, the Act itself-at least the portion at issue here-doesn't require (or even contemplate) "enforcement" by anyone, let alone the Attorney General.[8] Section 2, which prohibits and voids local laws purporting to require the payment of wages higher than those prescribed by state or federal law, governs the relationship between private parties-namely, an employer and its employees. It provides for no enforcement mechanism whatsoever, and it certainly envisions no role for the Attorney General. Contrast-at least with respect to enforcement generally-Section 3 of the same Act, which governs labor agreements. That section includes a provision that expressly authorizes an employee or employer to seek injunctive relief in the Montgomery County Circuit Court. Ala. Act No. 2016-18 § 3(b)(5). Section 2 conspicuously contains no such provision. It doesn't anticipate affirmative enforcement at all; rather, its prohibitions will seemingly arise only-as one might have expected here-in the context of a private suit between an employee and her employer, with the latter deploying Section 2 as an affirmative defense to a claim that it isn't paying the wages prescribed by a preempted local law like Birmingham's ordinance. The fact that the Act itself doesn't contemplate enforcement by the Attorney General counts heavily against plaintiffs' traceability argument. See, e.g., Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015) ("[T]he causation element of standing requires the named defendants to possess authority to enforce the complained-of provision." (citations omitted)); Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en banc) (holding that Lujan's traceability requirement is "entirely consistent with the long-standing rule that a plaintiff may not sue a state official who is without any power to enforce the complained-of statute").[9]

         In the absence of any indication that Act No. 2016-18 itself contemplates enforcement by the Attorney General, plaintiffs resort to a host of provisions of the Alabama Code that generally describe the Attorney General's litigating and opinion-giving authority. We have already examined several such provisions- those that empower the Attorney General to examine or give his opinion on legal matters in circumstances not applicable here-and found them wanting. See supra at 16-17 and n.6. In connection with what we have called their ex post traceability theory, plaintiffs seem to rely most prominently on Alabama Code § 36-15-12, which generally authorizes the Attorney General "to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state." But plaintiffs' reliance on § 36-15-12 proves entirely too much-and thus nothing at all. If that statute's general authorization were sufficient to confer standing to sue the Attorney General for any violation of any Alabama law that regulates the relationships between private parties- including, as is the case here, a statute that doesn't envision enforcement by anyone, let alone the state-then the Attorney General could be made a proper party defendant under innumerable provisions of the Alabama Code. Indeed, plaintiffs' counsel conceded as much at oral argument, acknowledging that plaintiffs' enforcement-based traceability theory, grounded in § 36-15-12, would "apply to most provisions of Alabama law"-all, he admitted, except for those that expressly vest exclusive enforcement authority in either private parties or another government official. Oral Argument at 3:00.[10]

         There is, in point of fact, only one way the Attorney General can find himself in the middle of a suit in which Act No. 2016-18 is implicated: As we have explained, Birmingham's minimum-wage ordinance gives an employee a private right of action for damages against an employer who fails to pay the prescribed $10.10 rate. See Ordinance No. 16-28 § 3. An employer sued under the ordinance could-and presumably would-raise compliance with the Act as an affirmative defense to liability. When, in response, our hypothetical employee argued-just as plaintiffs here have argued-that the Act is unconstitutional, the Attorney General could, in his discretion, intervene to defend the Act's validity. See Ala. Code § 6-6-227; Ala. R. App. P. 44. None of that happened here, of course-and even if it had, it goes without saying (and the lead dissent does not deny, see Wilson Dissenting Op. at 47) that the act of joining another party's lawsuit to defend a statute's constitutionality would be a far cry from instituting a prosecution under-or otherwise affirmatively enforcing-that statute's proscriptions. See Dig. Recognition, 803 F.3d at 957-58.

         For all of these reasons, we conclude that plaintiffs' ex post, enforcement-related traceability theory does not withstand scrutiny.

         Plaintiffs could have sued their employers, who refused to pay the ordinance-prescribed $10.10 wage-and thereby (and perhaps most obviously) caused their injury. For reasons unexplained, they didn't. Plaintiffs instead opted to sue the Alabama Attorney General. But their attempts to connect the Attorney General to their injuries fall short. Because the Attorney General didn't do (or fail to do) anything that contributed to plaintiffs' harm, plaintiffs cannot meet Article III's traceability requirement.

         C

         Finally-and for good measure-redressability. We begin with two settled principles. First, in assessing this third component of the standing doctrine, we ask whether a decision in a plaintiff's favor would "significant[ly] increase . . . the likelihood" that she "would obtain relief that directly redresses the injury" that she claims to have suffered. Harrell v. Fla. Bar, 608 F.3d 1241, 1260 n.7 (11th Cir. 2010) (citation omitted). Second, "it must be the effect of the court's judgment on the defendant"-not an absent third party-"that redresses the plaintiff's injury, whether directly or indirectly." Dig. Recognition, 803 F.3d at 958 (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005)). Plaintiffs complain, of course, that their employers aren't paying them the $10.10 required by Birmingham's minimum-wage ordinance, and they contend that their alleged injuries would be redressed by "[t]he relief requested in this case-declaratory relief confirming the unlawfulness of Act 2016-18, as well as injunctive relief directing the Attorney General to give notice to Alabama legislators and the public of the same." Br. of Appellants at 26. With those remedies in place, they say, "the Birmingham Ordinance could then go into effect."[11] Id. at 16.

         The question for us, therefore, is whether plaintiffs' requested relief-in particular, against the Attorney General-would significantly increase the likelihood that their employers would pay them $10.10 per hour pursuant to the ordinance. We can easily dispatch with the suggestion that plaintiffs' requested relief would "directly" redress their injuries. Nova, 416 F.3d at 1159. As we have explained, Act No. 2016-18 gives the Attorney General no enforcement role whatsoever. Plaintiffs' immediate gripe is with their employers, who aren't paying the ordinance-prescribed wages. And as already noted, Birmingham's ordinance gives plaintiffs a private right of action against those employers. But as also noted, plaintiffs haven't sued their employers, and (to state the obvious) the relief that plaintiffs request in this action wouldn't constrain those employers, who are "not parties to the suit" and who wouldn't be "obliged"-at least in any binding sense- "to honor an incidental legal determination the suit produced." Lujan, 504 U.S. at 569 (plurality opinion) (footnote omitted); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 66 (1997) (stating that nonparties are not bound by a court's judgment). Nor, for that matter, would a federal-court judgment declaring Act No. 2016-18 invalid be binding on Alabama courts-which, presumably, would be tasked with deciding the vast majority of cases brought by employees against their employers under the Birmingham ordinance. See Doe, 344 F.3d at 1286 ("The only federal court whose decisions bind state courts is the United States Supreme Court."); see also ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) ("[S]tate courts . . . possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law."). All of which is simply to say that we just can't see a reasonable case-even under the relatively squishy significantly-increase-the-likelihood standard-that a judgment against the Attorney General here would "directly" redress plaintiffs' alleged injuries.

         What, though, about "indirect[]"-one might say downstream-redress? Dig. Recognition, 803 F.3d at 958 (quoting Nova, 416 F.3d at 1159). Plaintiffs' core contention seems to be that a federal-court order declaring Act No. 2016-18 unconstitutional-supplemented by an injunction ordering the Attorney General to notify the Legislature and the public that the Act is invalid-would significantly increase the likelihood (1) that the City of Birmingham would enforce its minimum-wage ordinance and (2) that pursuant to the ordinance, Birmingham employers would start paying their employees $10.10 per hour.[12]

         We see two problems. First, the baseline assumption underlying plaintiffs' redressability theory-that if they were granted their requested relief "the Birmingham Ordinance could then go into effect"-appears more tenuous now than it once did. It is (at best) unclear whether the City of Birmingham would proceed to enforce its minimum-wage ordinance even if plaintiffs were to prevail here. At oral argument, it was pointed out to the City's lawyer that whereas the City's panel-stage brief had expressly urged "revers[al]" of the district court's decision dismissing plaintiffs' action, its en banc brief had "take[n] a neutral position." He explained that the shift resulted from the election of "a new administration"-a new mayor and six (of nine) new city councilpersons. Oral Argument at 22:35. More specifically, when queried in various ways by various members of the Court whether the City would enforce its ordinance if Act No. 2016-18 were invalidated, the City's lawyer couldn't (and to his credit didn't) commit. See, e.g., id. at 27:10 ("guess[ing]" that the City would enforce the ordinance); id. at 23:03 (expressing ambivalence about enforcement). Finally, when asked point-blank whether "a declaration by a federal court that [Act No. 2016-18] is unconstitutional would"-in the words of the operative legal standard-"significantly increase th[e] likelihood" that Birmingham employers would pay their employees the $10.10 wage required under the ordinance, the City's attorney responded, "I can't say one way or the other." Id. at 27:25.[13]

         Second, and in any event, even if plaintiffs were correct that their requested relief would lead Birmingham to implement Ordinance No. 16-28, we think it somewhat unlikely-and certainly not "significantly" more likely, as the law requires-that it would result in plaintiffs' employers paying them more, at least immediately. As we've already explained, the employers-as non-parties to this litigation-wouldn't be bound by a judgment invalidating Act No. 2016-18. So they would be under no legal obligation to roll over and cough up the $10.10. And they would have powerful practical incentives not to. For starters, Alabama comprises 67 counties and more than 450 separately incorporated municipalities, [14]and dealing with a hodgepodge of different minimum-wage requirements throughout the state would present employers with (to put it mildly) a logistical challenge. Moreover, a mandatory, across-the-board 39% hike in minimum-wage costs in Alabama's largest city is real money; such a dramatic increase could conceivably cause Birmingham-based employers to take any of a number of steps, from raising consumer prices to laying off employees to shuttering operations entirely-steps that they presumably wouldn't take unless they had to.[15] Relatedly, and potentially magnifying these risks, City employers would find themselves at a distinct disadvantage vis-à-vis competitors in the more than 30 municipalities that surround Birmingham, [16] none of whom would be subject to the wage increase. In short, there are good reasons to believe that Birmingham-based businesses would feel compelled to resist the imposition of the ordinance-mandated rate.[17]

         Of course, if their employers persisted in refusing to pay the prescribed $10.10 per hour, plaintiffs could file suit under Ordinance No. 16-28's private right of action. Even then, though, the employers would presumably defend on the ground that Act No. 2016-18 voids the ordinance and absolves them of their obligation to pay the higher rate-and when plaintiffs assailed the Act as unconstitutional (as they have here), their employers would defend it anew. Put simply, we're just not convinced that Birmingham employers would go quietly into the night.[18]

         The considerable uncertainty about how a rational Birmingham-based employer would respond to plaintiffs' requested declaration (that Act No. 2016-18 is invalid) and injunction (ordering the Attorney General to tell people about it) tees up precisely the problem that the Supreme Court confronted when addressing both causation and redressability in Lujan. There, the Court considered a challenge brought by environmental-organization plaintiffs to a regulation narrowly construing a federal statute that required government agencies to consult with the Secretary of the Interior to ensure (among other things) that their construction projects wouldn't unduly jeopardize endangered or threatened species. In particular, the plaintiffs sought (1) a declaration that the regulation-which required agency consultation only for domestic projects-was invalid and (2) an injunction requiring the Secretary to promulgate a new rule that would apply more broadly to foreign projects, as well. Lujan, 504 U.S. at 557-59.

         In explaining the traceability and redressability aspects of the case, the Supreme Court observed that where, as is perhaps typically the case, "the plaintiff is himself an object of the [regulatory] action (or forgone action) at issue," there is "ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Id. at 561-62. But when, as the Court said was true in the case before it, "a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else"-there, the funding agencies-"much more is needed" to establish standing. Id. at 562. The reason is because "[i]n that circumstance," both the traceability and redressability inquiries "hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well." Id. In other words, when "[t]he existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of . . . discretion the courts cannot presume either to control or to predict," plaintiffs must demonstrate that "those choices have been or will be made in such a manner as to produce causation and permit redressability of injury." Id. (internal quotation marks and citations omitted). In such circumstances, standing "is ordinarily substantially more difficult to establish." Id. (internal quotation marks and citations omitted).

         In the same way that the plaintiffs in Lujan couldn't definitively demonstrate that the individual funding agencies would consult with the Secretary on foreign projects even if a new, broader rule were promulgated-because, as the plurality explained, whether the agencies "were bound by the Secretary's regulation [was] very much an open question," id. at 568-plaintiffs here can't demonstrate, at least sufficiently to meet the significantly-increase-the-likelihood standard, that Birmingham-based employers would immediately start paying $10.10 per hour in the wake of an order invalidating Act No. 2016-18 and enjoining the Attorney General to notify others of its demise. Cf. Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring in part and concurring in the judgment) ("If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.").[19]

         Bottom line: Plaintiffs cannot demonstrate that the relief that they seek would-either directly or indirectly-"significantly increase . . . the likelihood" that their employers would pay them the $10.10 wage prescribed by the Birmingham ordinance. To the contrary, we think it would be impermissibly "speculative" to conclude that their ...


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