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
...