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, Plаintiffs - Appellants, versus 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.
No. 17-11009
United States Court of Appeals, Eleventh Circuit
December 13, 2019
D.C. Docket No. 2:16-cv-00690-RDP
(December 13, 2019)
Before ED CARNES, Chief Judge, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, TJOFLAT, and MARCUS, Circuit Judges.*
NEWSOM, Circuit Judge, delivered the opinion of the Court, in which ED CARNES, Chief Judge, and WILLIAM PRYOR, BRANCH, GRANT, TJOFLAT, and MARCUS, Circuit Judges, joined.
WILLIAM PRYOR, Circuit Judge, filed a concurring opinion.
WILSON, Circuit Judge, filed a dissenting opinion, in which MARTIN, JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges, joined.
JORDAN, Circuit Judge, filed a dissenting opinion, in which WILSON, MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges, joined.
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.
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
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
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 Afriсan-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
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,
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
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 havе 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
II
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,
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 stаnding 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,
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
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
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 cоntends 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
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
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
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
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
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
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, “thе 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
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
* * *
Bottom line: Plaintiffs cannot demonstrate that the relief that they seek would—either directly or indirectly—“significantly increase . . . the likelihood” that their employers wоuld pay them the $10.10 wage prescribed by the Birmingham ordinance. To the contrary, we think it would be impermissibly
To summarize, we hold that plaintiffs lack Article III standing to bring their equal-protection claim against the Alabama Attorney General because they have failed to establish that their injuries (while real and cognizable) are fairly traceable to the Attorney General’s conduct or that those injuries would be redressed by a decision in their favor. Because we conclude that plaintiffs lack standing, we need not—may not—proceed to consider either 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.
AFFIRMED IN PART AND REMANDED TO THE PANEL.
I join the majority’s opinion in full. I write separately—and with some authority—to respond to the assertion in Judge Wilson’s dissent that “the Attorney General can act as a sword to enforce the Minimum Wage Act” and so may be the cause of Marnika Lewis’s and Antoin Adams’s injuries. Wilson Dissenting Op. at 48. Judge Wilson’s dissent rests on a fundamental misunderstanding about Alabama law. Although the Attorney General of Alabama has broad authority to bring civil actions “necessary to protect the rights and interests of the state,”
To be sure, Lewis and Adams have been injured by their employers’ refusal to pay the minimum wage mandated by Birmingham City Ordinance No. 15-124. But the majority opinion correctly explains that this economic injury is not fairly traceable to the Attorney General because Alabama’s Minimum Wage Act, which preempts the Ordinance, operates entirely of its own force to relieve Birmingham employers of their obligations under the Ordinance. Majority Op. at 19–23. As the majority opinion observes, the Act provides no mechanism for enforcement by the
The absence of an enfоrcement mechanism is unsurprising in preemption laws that do not “regulate conduct directly” but instead make clear that political subdivisions “may not regulate certain areas of conduct (or at least may not do so in particular ways).” Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 261 (2000). Because this kind of preemption law—“the sort typically associated with ‘field’ preemption,” id.—does not regulate primary conduct, it makes little sense to speak of “enforcing” such a law. The only actors that “enforce” these laws are courts, and they do so only when performing their judicial duty of choosing between applying a local ordinance and giving effect to a higher state law depriving the ordinance of authority. See id. at 261–62; see generally Philip Hamburger, Law and Judicial Duty (2008). When courts perform that duty, the Constitution of Alabama obliges them to resolve the conflict in favor of the higher state law.
Relying on section 36-15-12, Judge Wilson’s dissent insists that “the Attorney General does have the legal authority to enforce the Minimum Wage Act against the City of Birmingham.” Wilson Dissenting Op. at 54. It explains that “the Attorney General recently—and successfully—sued the City of Birmingham under its general enforcement authority in
Unlike the Minimum Wage Act, the Memorial Preservation Act is not a field-preemption law; instead, it regulates primary conduct. It forbids the removal or renaming of certain “architecturally significant . . . monument[s]” on public property without permission from the Committee on Alabama Monument Protection.
In short, there is no prospect that the Attorney General will enforce the Minimum Wage Act against the City of Birmingham. Where the Attorney General has neither “taken . . . action to enforce” nor “threatened to enforce” a state law against a plaintiff, we have held that any injury from the law is not fairly traceable to the Attorney General. Doe v. Pryor, 344 F.3d 1282, 1285 (11th Cir. 2003). To be sure, the Attorney General in Doe also conceded that the criminal law at issue, which forbade “deviate sexual intercourse,” was unconstitutional based on Lawrence v. Texas, 539 U.S. 558 (2003). Id. at 1283, 1285. That concession further eliminated any credible threat of enforcement by the Attorney General. Id. at 1285. Although the reason for the Attorney General’s nonenforcement of the Act is different from the reason for not enforcing the criminal law in Doe, the fact remains that there is no prospect of his enforcement of the Act. And that fact defeats the traceability requirement of standing.
When one understands the difference between state laws regulating primary conduct and state laws preempting fields of local regulation, the error of Judge Wilson’s dissent becomes clear. Because the Minimum Wage Act is a field-
The key controversy raised by this case is whether the Alabama Minimum Wage Act was passed with the purpose and effect of depriving Birmingham’s black citizens of equal economic opportunities—entitlement to a higher wage—on the basis of race. But the majority, on en banc review, sidesteps this issue. The majority deprives these plaintiffs of their day in federal court by chalking this up as simply a case of “wrong defendant.” What is wrong is that the majority stiffens the requirements for standing on a facial attack at the motion to dismiss phase, avoiding reaching the merits. Neither our Constitution nor the Supreme Court requires as onerous a standard as the majority applies at this stage in the proceedings.
Marnika Lewis and Antoin Adams have alleged enough facts in their pleadings to establish all three prongs of Article III standing. As minimum wage workers in Birmingham, they have indisputably shown economic injury. They have also shown that this injury is traceable to Alabama’s Attorney General and redressable by this Court.
I.
We review de novo a district court’s decision to grant a motion to dismiss for lack of standing. Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per curiam). Standing “must be
“We need not mince words when we say that the concept of ‘Art. III standing’ has not been defined with complete consistency in all of the various cases decided by [the Supreme Court] which have discussed it,” but there are several axiomatic concepts. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982). “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Every plaintiff must allege facts to establish all three elements that make up “the irreducible constitutional minimum of standing“: injury in fact, traceability, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). And each of the three elements is “an indispensable part of the plaintiff‘s case” that “must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561.
In moving to dismiss for lack of standing, a defendant may challenge the complaint facially or factually. Stalley, 524 F.3d at 1232. A facial attack requires the court to determine, based only on the pleadings, whether the plaintiff sufficiently alleged a basis of subject matter jurisdiction. See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335-36 (11th Cir. 2013); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam); Williamson v. Tucker, 645 F.2d 404, 412-14 (5th Cir. 1981), cert. denied, 454 U.S. 897 (1981).1 By contrast, a factual attack permits the court to consider extrinsic evidence. See Carmichael v. Kellogg, Brown & Root Srvs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009), cert. denied, 561 U.S. 1025 (2010).
When considering a facial attack on standing, the court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” See Warth, 422 U.S. at 501. As the plaintiff‘s burden at the pleading stage is “relatively modest,” Bennett v. Spear, 520 U.S. 154, 170-71 (1997), “it may be sufficient to provide general factual allegations of injury resulting from the defendant‘s conduct,” Worthy v. City of Phenix City, 930 F.3d 1206, 1214 (11th Cir. 2019) (internal quotation mark omitted). And “at this stage, when there are two equally plausible ways to read a complaint, we should adopt the reading that is most favorable to [the plaintiff].” Id.
I agree with the majority that the injury prong is met here. But because the majority applied too strict a standard when evaluating traceability and
A. Traceability
In addition to identifying a cognizable harm, a plaintiff must show that her injury is “fairly traceable to the challenged action of the defendant.” Lujan, 504 U.S. at 560 (alteration accepted) (ellipsis omitted). Here, the plaintiffs have sufficiently alleged their injuries are fairly traceable to the Alabama Attorney General by suggesting that he can act as both a sword and a shield to prevent the plaintiffs from receiving the higher wage required by City of Birmingham Ordinance No. 16-28 (the Ordinance). In holding otherwise, the majority improperly rebuts the plaintiffs’ factual allegations and refuses to draw reasonable inferences in their favor as required in a facial attack on standing. Further, the majority takes a position on the Attorney General‘s authority that is contrary to Alabama state law. I would hold that, given the effect his conduct has had on the City of Birmingham and its employers, the broad powers invested in him by the State of Alabama, and the fact that he injected himself into this controversy, the plaintiffs have sufficiently alleged standing. And because standing is jurisdictional, and federal courts have a “virtually unflagging obligation . . . to
1.
Traceability is essentially a “causal connection between the injury and the conduct complained of.” See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003) (quoting Nat‘l Parks Conservation Ass‘n v. Norton, 324 F.3d 1229, 1241 (11th Cir. 2003)). It is “concerned with something less than the concept of proximate cause,” so indirect injury is sufficient as long as it “is indeed fairly traceable to the defendant‘s acts or omissions.” Id. (internal quotation mark omitted) (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260-61 (1977)).
Although a plaintiff lacks standing if her injury is “the result of the independent action of some third party not before the court[,] . . . standing is not defeated merely because the alleged injury can be fairly traced to the actions of both parties and non-parties.” Loggerhead Turtle v. Cty. Council of Volusia Cty., 148 F.3d 1231, 1247 (11th Cir. 1998), cert. denied, 526 U.S. 1081 (1999); see also, e.g., Inv. Co. Inst. v. Camp, 401 U.S. 617, 619 (1971). Further, in a suit seeking to declare a state statute unconstitutional and enjoin its enforcement, the state official sued must “have some connection with enforcement of the provision at issue” to be
2.
Accepting the plaintiffs’ allegations as true and drawing all reasonable inferences in their favor, the plaintiffs have sufficiently alleged that their injuries are fairly traceable to the Attorney General, who can act as both a sword and a shield to prevent the plaintiffs from receiving the increased hourly wage required by the Ordinance.
First, the plaintiffs paint a picture of the Attorney General acting as a shield to prevent employers from having to comply with the Ordinance. After the Birmingham City Council passed the Ordinance on February 23, 2016, the Attorney General issued a press release the same day expressing his opinion that the Ordinance “could greatly disrupt the Birmingham economy,” and explaining that he was issuing the release “to prevent that disruption.”3 The Attorney General
The Attorney General also declared that help was on the way: “[T]he Alabama Legislature is currently addressing this issue and I expect it will be resolved shortly without adversely affecting the citizens of Birmingham.” See id. Moreover, a spokesperson for the Attorney General stated that “the Legislature has the authority to preempt local ordinances, even those that are already in effect.” See id. ¶ 14.
More importantly, given that the Attorney General injected himself into the minimum wage issue through his public statements, a reasonable inference can be drawn—and, in fact, must be drawn given that we are considering a facial attack on standing at the motion to dismiss stage—that he would likely intervene to defend the Minimum Wage Act‘s validity if its constitutionality was challenged in state court. See
And second, the plaintiffs indicate that the Attorney General can act as a sword to enforce the Minimum Wage Act. Alabama law gives the Attorney General broad authority “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.”
3.
The majority claims, however, that the plaintiffs’ injury is not fairly traceable to the Attorney General. First, the majority asserts that the Attorney
To start, while purportedly granting “an appropriately charitable reading” to the plaintiffs’ pleadings and briefs, the majority refuses to accept the plaintiffs’ allegations of fact as true or draw reasonable inferences in their favor as required at this stage. For example, the majority disputes the plaintiffs’ allegations regarding the Attorney General‘s press release. Rather than draw reasonable inferences in favor of the plaintiffs, the majority claims that the plaintiffs materially mischaracterized the Attorney General‘s press release and offers its own, contradictory interpretation of the press release. The majority also relies on an extra-complaint local news article to refute the context in which the Attorney General asserted that the Legislature could pass statutes to preempt local ordinances.
But these bones should not be picked at this stage. See Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1289 n.10 (11th Cir. 2010) (“This material, however, is neither part of the pleadings, nor subject to judicial notice, nor
Implicit in that assertion is the legal conclusion that the Attorney General does not have the authority to enforce the Minimum Wage Act against the City of Birmingham. In other words, the majority tacitly takes a position on the Attorney General‘s authority that is contrary to the plain text of
In his concurrence, Judge Pryor writes “with some authority” as a former Alabama Attorney General that “the Minimum Wage Act is not the kind of law the Attorney General can ‘enforce’ against a municipality or anyone else for that matter.” In so doing, he draws a line between field-preemption laws and primary-conduct laws, concluding that the Attorney General cannot enforce the former under
Simply put, the Attorney General does have the legal authority to enforce the Minimum Wage Act against the City of Birmingham, and it can be reasonably inferred from the plaintiffs’ complaint that the City of Birmingham has not enforced its Ordinance for fear of such enforcement. See Doc. 18 ¶ 16.
The cases the majority cites to support its analysis are not persuasive. The majority claims that under Doe v. Pryor, 344 F.3d 1282 (11th Cir. 2003), it is a “problem” that the Attorney General has not brought a suit or threatened to bring a suit to implement the Minimum Wage Act‘s provisions. But this overstates the standard for determining traceability. For the Attorney General to be an appropriate defendant for standing purposes, he need only “have some connection with enforcement of the provision at issue.” See Socialist Workers Party, 145 F.3d at 1248.
And as the majority notes, there was no credible threat of enforcement in Doe because the Attorney General had conceded the statute at issue was unconstitutional. That is not the case here. The Attorney General informed employers about the Minimum Wage Act before it was even passed, and he subsequently confirmed through a spokesperson that the Alabama Legislature could preempt local ordinances. Therefore, it is not merely a “vision of the
The majority also relies on Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952 (8th Cir. 2015), and Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), tо say that “[t]he fact that the [Minimum Wage Act] itself doesn‘t contemplate enforcement by the Attorney General counts heavily against plaintiffs’ traceability argument.” In both of those cases, however, the statutes at issue provided for enforcement through private civil actions for damages. In other words, the statutes specifically provided enforcement schemes, but left the Attorney General out of them. Those plaintiffs’ injuries were thus fairly traceable only to private civil litigants who could seek damages under the statute. And in both cases, there was no conduct on the part of the defendant state officials to
Here, there is no private cause of action under the Minimum Wage Act; there is no enforcement mechanism provided at all. But as discussed above,
The fact that the plaintiffs could have alternatively sued their employers is neither here nor there. I would hold that the plaintiffs have sufficiently established that their injuries are fairly traceable to the Attorney General‘s conduct.
B. Redressability
Finally, a plaintiff must show that her harm is redressable. Lujan, 504 U.S. at 561. Notwithstanding the majority‘s stiffened redressability standard, Supreme Court jurisprudence supports that the plaintiffs’ injury is redressable because the practical consequence of a court order stripping the Attorney General of his sword
1.
The majority fashions a two-prong test for redressability: first, that a decision in the plaintiff‘s favor would significantly increase the likelihood that the plaintiff‘s injury would be directly redressed, and seсond, that “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.” The majority‘s analysis thus evaluates whether granting relief against the Alabama Attorney General would make it significantly more likely that their injuries are “directly” or “indirectly” redressed. What the majority fails to acknowledge is that this second step is something new—actually, something borrowed from a couple of other circuits—that manufactures a heightened redressability standard neither required by nor supported by the Supreme Court‘s standing jurisprudence.
The redressability requirement “tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College, 454 U.S. at 472. Accordingly, the Supreme Court consistently focuses on whether there is a
To be sure, standing is more difficult to establish when the plaintiff herself is not the object of the government conduct she challenges, see Lujan, 504 U.S. at 562, and this comes as no surprise. In cases of direct injury, it is often obvious why redressability exists. But the Supreme Court has repeatedly found redressability where, as here, the object of the government‘s challenged conduct—i.e., a third party with discretion to act—is not before the court. See, e.g., Inv. Co. Inst., 401 U.S. at 619 (recognizing that investment companies had standing to challenge a regulation from the Comptroller of the Currency that permitted—but did not require—third-party banks “to establish and operate collective investment
For example, in Franklin v. Massachusetts, 505 U.S. 788 (1992),8 the State of Massachusetts and two of its registered voters brought an action against the President, the Secretary of Commerce, Census Bureau officials, and the Clerk of the House of Representatives to challenge the reapportionment of the House of Representatives following the 1990 census. Through the process articulated in the federal reapportionment statute, the Secretary of Commerce must take the census and then report the population of each state to the President. Id. at 792. After receiving the report, the President transmits to Congress a statement showing the number of persons in each State and the number of Representatives apportioned to each State. Id.
The plaintiffs alleged the Secretary erred in deciding to include overseas military personnel in the state population counts for their “home of record” for the
Ten years later, in Utah v. Evans, 536 U.S. 452 (2002), the State of Utah brought an action against the Secretary of Commerce and the Acting Director of the Census Bureau, alleging that they violated a federal statute and the Constitution by engaging in improper counting methods and seeking an injunction compelling the census officials to alter the census results. The State of North Carolina intervened, arguing that federal courts lacked jurisdiction to hear the case. Id. at 459. The Court found no significant differеnce between the plaintiff in Franklin and the plaintiff there, both of which brought their lawsuits after completion of the
North Carolina argued that court-ordered relief against the Secretary would not redress Utah’s injury because it could not reach the President—who held the responsibility for transmitting the number of Representatives apportioned for each state to Congress—and so the Secretary’s report itself could not inherently redress the plaintiffs’ injury. Id. at 461. But the Court found it “likely that Utah’s victory here would bring about the ultimate relief that Utah seeks” because, as in Franklin, it was “substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision.” Id. at 463–64. The Court noted that in its standing precedent, “the courts would have ordered a change in a legal status (that of the ‘report’), and the practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Id. at 464; see also, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998) (holding plaintiffs had standing to obtain a determination that an organization was a “political committee” because such a holding would make the FEC
Therefore, the proper question for this redressability analysis is whether a practical consequence of a federal court order declaring the Minimum Wage Act unconstitutional and enjoining the Attorney General from enforcing it would be a significant increase in the likelihood that the employers start paying the plaintiffs $10.10 per hour under the Ordinance.9 The answer is yes.
2.
A judgment declaring the Minimum Wage Act unconstitutional and enjoining the Attorney General from enforcing it would make it significantly more likely that the plaintiffs receive a higher wage. The plaintiffs allege that the City of Birmingham has not taken steps to enforce the Ordinance. Doc. 18 ¶ 16. And they allege that the Attorney General issued public statements indicating that the Alabama Legislature was addressing the “issue”—i.e. the Ordinance—and that the Legislature has the authority to preempt local ordinances. Doc. 18 at ¶¶ 13–14. Further, the Attorney General recently sued the City of Birmingham to enforce a state statute. See Compl. at 1–2, Alabama ex rel. Att’y Gen. Steve Marshall v. City of Birmingham, No. 01-CV-2017-903426.00 (Jefferson Cty. Cir. Ct. Aug. 16, 2017). Therefore, it is reasonable to infer that the Minimum Wage Act and the Attorney General’s conduct surrounding the Minimum Wage Act prevented the City of Birmingham from enforcing its Ordinance and shielded the employers from having to pay the Ordinance’s required wage.
Without the looming threat of a suit by the Attorney General to enforce the Minimum Wage Act, it is more than reasonable to infer that the City would begin
The majority avoids this conclusion by overstating the “considerable uncertainty” about how a “rational Birmingham-based employer would respond” to the plaintiffs’ potential forms of relief given the “risks,” “logistical challenge[s],” and “significant burdens” of paying the Ordinance’s required wage. The majority notes this is especially true given that “[i]t is (at best) unclear whether the City of Birmingham would proceed to enforce its minimum-wage ordinance even if plaintiffs were to prevail here” in light of its neutral position during the en banc phase.
This mischaracterizes the City of Birmingham’s position. During oral argument, the City explained that it was taking a neutral position in the case at this stage, and that there had been a change in administration since the inception of the case—six new city councilmembers and a new mayor. When asked if this change meant the City of Birmingham would not seek to enforce its Ordinance, the City clarified that it would depend on the outcome of this case. Counsel for the City of Birmingham believed the City “would probably enforce” the Ordinance if this court declared the Minimum Wage Act unconstitutional. Further, the City of Birmingham agreed that the existence of the Minimum Wage Act and the Attorney General’s position on the preemptive effect of the Minimum Wage Act were the reasons it had not enforced the Ordinance. When I clarified that the relevant
But even more importantly, it is inappropriate to consider the City’s “change in position” between panel briefing and en banc briefing before this court when determining, based on the pleadings, whether the plaintiffs have standing to pursue this case. To the extent the majority relies on any extra-complaint facts—including the City of Birmingham’s change in leadership and statistics about the relative burdens of paying a higher wage—those facts are irrelevant to a facial attack on standing.
On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion—the court must consider the allegations of the complaint to be true. But when the attack is factual, the trial court may proceed as it never could under 12(b)(6) . . . . Because at issue in a factual 12(b)(1) is the trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims.
Lawrence, 919 F.2d at 1529 (citations omitted) (quoting Williamson, 645 F.2d at 412–13).
Here, the Attorney General made a facial attack on standing, which limits the court’s consideration to the pleadings. Yet the majority repeatedly relies on extra-complaint facts. This, as explained above, is not the law. See, e.g., Houston, 733 F.3d at 1335–36; Lawrence, 919 F.2d at 1529; Williamson, 645 F.2d at 412–14. In fact, only one Eleventh Circuit decision suggests that a court can consider extra-complaint facts in a facial attack on standing: Flat Creek Transp., LLC v. Fed. Motor Carrier Safety Admin., 923 F.3d 1295, 1299 n.1 (11th Cir. 2019) (Newsom, J.). But that stray, newly minted decision defies years of binding circuit precedent. Worse yet, the cases on which it relied were discussing factual attacks, not facial attacks, when they explained that a court can weigh extra-complaint facts
Flat Creek Transportation and the majority here stand to eviscerate the difference between facial and factual attacks on standing. As a result, the district courts following these cases can now kick cases out of court on standing grounds, relying on facts outside the complaint on a defendant’s facial attack without giving the plaintiff the opportunity to develop a factual record supporting its standing.
Indeed, that is the effect in this case. The majority rests its redressability analysis in significant part on how it thinks two extra-complaint sets of facts affect the likelihood that the plaintiff will receive the Ordinance’s required wage: the City’s change in leadership and position, and the employers’ “powerful practical incentives” not to “roll over and cough up the $10.10.” But given that the Attorney General made a facial attack on standing, plaintiffs have not had—nor will they have—the opportunity to develop the factual record to rebut these disputed facts. Therefore, the majоrity’s analysis of these extra-complaint facts and the Flat Creek Transportation decision are simply wrong.
* * *
Flat Creek Transportation and this appeal portends an ominous future for Eleventh Circuit litigants who bring claims based on remedial legislation or seek to
Marnika Lewis and Antoin Adams have satisfied their relatively modest burden in pleading that they have suffered an injury fairly traceable to the Attorney General and likely to be redressed by relief that we can provide. They currently receive lower wages as a result of a state law that is enforceable and supported by the Alabama Attorney General. Having alleged enough facts at this stage to establish standing, Lewis and Adams are entitled to an opportunity to argue for relief. The majority instead applies an overly demanding standing analysis at this stage, effectively avoiding the challenge of addressing the merits of this case.
Because I would hold that the plaintiffs have met “the irreducible constitutional minimum of standing” to bring their case against the Attorney General, I would address the Eleventh Amendment and the merits of the plaintiffs’ claims. For the reasons discussed in the panel decision, I would hold that the Eleventh Amendment does not immunize the Attorney General from this suit and
I join Judge Wilson’s dissent, which demonstrates that plaintiffs Marnika Lewis and Antoin Adams have Article III standing with respect to their claim seeking an hourly minimum wage of $10.10 pursuant to the Birmingham ordinance. I write separately with some additional observations.
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The majority has phrased, and answered, too narrow a question on standing. As a result, it has reached an incorrect and incomplete answer. Cf. Alexander Bickel, The Least Dangerous Branch 103 (Bobbs-Merrill Co., Inc. 1962) (“No answer is what the wrong question begets[.]”).
The majority examines only whether Ms. Lewis and Mr. Adams have Article III standing based on their status as employees in Birmingham who earn less than the $10.10 minimum hourly wage prescribed by the City’s ordinance. After framing the injury of Ms. Lewis and Mr. Adаms as not receiving an hourly wage of $10.10, the majority concludes that this injury is not traceable to the Alabama Attorney General or redressable because a favorable decision would not necessarily guarantee them $10.10 per hour.
In their amended complaint, 14 plaintiffs—Ms. Lewis, Mr. Adams, other African-American registered voters in Birmingham, and several organizations—assert four equal protection claims (Counts II, VI, VIII, and IX). Counts II and VI allege that Alabama’s Minimum Wage Act violates the Equal Protection Clause of the
In our en banc briefing notice, we asked the parties to address “[w]hether the plaintiffs have standing under Article III of the Constitution,” and did not limit our
The plaintiffs, in sum, also claim that the Act denies them equal political participation and power based on their race. This harm, which is related to but broader than the abrogation of a $10.10 minimum hourly wage, constitutes a distinct concrete injury under Eleventh Circuit precedent. See Dillard v. Chilton Cty. Comm’n, 495 F.3d 1324, 1333 (11th Cir. 2007) (explaining that plaintiffs who have
The majority asks only whether Ms. Lewis and Mr. Adams can obtain an ultimate economic benefit—a $10.10 minimum hourly wage—by suing the Attorney General. But the analysis should also address whether the plaintiffs’ other alleged injury—being denied equal treatment by the Act—is traceable and redressable through this lawsuit against the Attorney General. As explained below, it is.1
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In evaluating standing to bring an equal protection claim, the Supreme Court has held in various contexts that it is the denial of equal treatment—not the ultimate inability to obtain the specific benefit sought—that constitutes the plaintiff’s injury.
In the Supreme Court’s words: “Our resolution of a statute’s constitutionality often does not finally resolve the controversy as between [the parties]. . . . We do not deny standing simply because the [plaintiff], although prevailing . . . on the
Two cases from our sister circuits further illustrate how the injury-in-fact requirement should be characterized and analyzed in equal protection cases like this one. I summarize them below.
In Citizens for Equal Protection v. Bruning, 455 F.3d 859, 863 (8th Cir. 2006), abrogated on other grounds by Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the plaintiffs sued the governor and attorney general of Nebraska claiming that a state constitutional amendment that prohibited same-sex marriage violated the Equal Protection Clause. The defendants argued that the plaintiffs lacked standing because marriage licenses were not available to same-sex couples in Nebraska even without
In Sullivan v. Benningfield, 920 F.3d 401, 404 (6th Cir. 2019), a state judge offered a 30-day sentencing credit to inmates in White County, Tennessee, who agreed to submit to sterilization. Inmates who refused to submit to sterilization, and as a result were denied the sentencing credit, challenged the judge’s orders under the Equal Protection Clause, arguing that they were subjected to differential treatment based on their procreative rights and their gender. See id. The defendants—the judge and the White County Sheriff—argued that the inmates did not establish an injury-in-fact because they could not show that they had the right to a sentencing credit. See id. at 408. The Sixth Circuit disagreed, explaining that the injury at issue was “‘the denial of equal treatment resulting from the imposition of the barrier, not
Here, the plaintiffs allege that the Act violates the Equal Protection Clause because it disproportionately impacts Birmingham’s black residents and voters and was enacted with a discriminatory purpose. Because these injuries cannot be laid at the feet of Birmingham employers—who do not act under color of state law—the majority is mistaken in concluding that in order to have Article III standing Ms. Lewis and Mr. Adams must demonstrate that a victory will generate them a $10.10 hourly wage.
* * * * * * *
Even on its own terms, the majority’s analysis is flawed. In holding that the purported injury is not redressable, the majority reasons that a judgment against the Attorney General would not require Birmingham employers to pay employees like Ms. Lewis and Mr. Adams $10.10 per hour pursuant to the City’s ordinance. The majority notes that the individual plaintiffs have not sued their employers, and reasons that the relief requested in this action would not bind those employers because they are not parties. This rationale, however, conflates the indispensable party analysis of Rule 19 with Article III standing.
Under
But even if a person who must be joined to accord complete relief under
As Judge Wilson sets forth in his dissent, to have standing “a plaintiff need not demonstrate anything more than a substantial likelihood of redressability.” Wilson, J., Dissent at 58 (quoting Wilding v. DNC Servs. Corp., 941 F.3d 1116,
If the majority’s logic were followed, each employee would have to sue his or her employer—because if only one employer were sued, the others would not be bound by the judgment as non-parties. As there is no
According to the majority, the question of the Act’s constitutionality would arise in a suit by employees against their employers in the following way. First, an employer sued under the City’s ordinance presumably would raise the Act as an affirmative defense to liability. Second, in response the employee would argue that the Act is unconstitutional. Third, the Attorney General would intervene to defend the Act’s validity. See
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“[C]ommon sense often makes good law,” Peak v. United States, 353 U.S. 43, 46 (1957), but in my view the majority has made standing doctrine even more difficult to understand or defend. If the plaintiffs here lack standing, it may be time to rethink the causation and redressability components of Article III standing. See, e.g., Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 Cornell L. Rev. 393, 480 (1996) (“Unlike injury, the ‘causation’ and ‘redressability’ requirements have little historical pedigree. The Court’s attempt to justify its refusal to redress certain injuries on classical separation-of-powers grounds is especially ironic in view of the Blackstonean maxim that the violation of every legal right must have a judicial remedy—a principle Federalists
Notes
Attorney General Statement on Enforceability of Birmingham Minimum Wage Ordinance (Feb. 23, 2016), https://www.alabamaag.gov/documents/news/780.pdf. We may consider the full text of the press release because it was incorporated into the amended complaint by reference. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). If we are permitted to speculate on future events, as the majority seems willing to do, I submit that the Attorney General of Alabama would not leave the defense of the Act to a Birmingham employer, no matter how well represented. Indeed, the Attorney General has recently sued the City of Birmingham for taking action in purported violation of state law. See Alabama v. City of Birmingham, -- So. 3d --, 2019 WL 6337424, at *2 (Ala. Nov. 27, 2019).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 comрly.
The Alabama Legislature is currently addressing this issue and I expect it will be resolved shortly without adversely affecting the citizens of Birmingham.
In other words, the news article provides a single journalist‘s characterization of the context for the spokesperson‘s statement. The article cannot serve as a definitive authority on the context for the spokesperson‘s statement, and there is nothing in the Amended Complaint to suggest it was the plaintiffs’ source for the statement. Therefore, it is not entitled to judicial notice or incorporation by reference, nor does it obviate our duty to accept the plaintiffs’ facts as true and construe the Amended Complaint in their favor at this stage. See Warth, 422 U.S. at 501; Mulhall, 618 F.3d at 1289 n.10.
Second, although Judge Jordan says that “everything changes” once plaintiffs’ injuries are reconceptualized to include a denial of “equal treatment under the law,” see Jordan Dissenting Op. at 72, he never explains how or why. For reasons we have explained in detail, because the Attorney General has no authority to enforce Act No. 2016-18, no injury that plaintiffs allege (however characterized) is properly traceable to him, and no injunction running against him can provide them the redress they seek. Notably, while Judge Jordan repeatedly asserts that plaintiffs’ equal-treatment injury results from “the Act,” he never connects that alleged harm to any conduct of the Attorney General, in particular. See, e.g., id. at 72, 73, 74, 75, 76, 77. So as it turns out, plaintiffs’ equal-treatment-based standing theory fails for pretty much exactly the same reasons that their wages-based theory fails.
Finally: Perhaps recognizing that a reconceptualization of plaintiffs’ injuries can’t bridge the traceability-and-redressability gap that dooms their standing to sue the Attorney General here—Judge Jordan suggests, by reference to a law review article, that “it may be time to rethink the causation and redressability components of Article III standing.” Jordan Dissenting Op. at 82. In so doing, he seems to be indicating a willingness to reduce—specifically, by two-thirds—what the Supreme Court has called the “irreducible constitutional minimum of standing.” E.g., Lujan, 504 U.S. at 560 (emphasis added). We think it sufficient to say that the sort of “rethink[ing]” that Judge Jordan envisions is above our pay grade.