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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12665 ________________________
D.C. Docket No. 4:19-cv-00570-MW-MAF
SUPPORT WORKING ANIMALS, INC., a Florida corporation, KACER KENNEL LLC, A Florida limited liability company, CAPABAL KENNEL INC., A Florida corporation, MICHAEL GERARD, a Florida individual, SHARON DIPPEL, a Florida sole proprietor, GLORIA THOMAS, a Florida sole proprietor, DON JARRETT GREYHOUND TRANSPORTATION, a Florida sole proprietor, JAN GEORGE KENNEL LLC, a Florida limited liability corporation, SEMINOLE ANIMAL SUPPLY INC, a Florida corporation, MELODY ALVES KENNEL, a Florida sole proprietor, RICHARD ALVES KENNEL, a Florida sole proprietor, KURT TRZECAIK, a Florida individual, JAIME TESTA, a Florida individual, ANTHONY CALVO, a Florida individual, USCA11 Case: 20-12665 Date Filed: 08/12/2021 Page: 2 of 16
MARSELLA RACING INC, a Florida corporation, GREG MORSE, a Florida individual, DONNA HAHN MALBOUEF, a Florida sole proprietor, RICHARD MARCOUX, a Florida individual,
Plaintiffs - Appellants,
versus
GOVERNOR OF FLORIDA, FLORIDA SECRETARY OF STATE, ATTORNEY GENERAL, STATE OF FLORIDA,
Defendants - Appellees.
________________________
Appeals from the United States District Court for the Northern District of Florida ________________________
(August 12, 2021)
Before NEWSOM, BRANCH and LAGOA, Circuit Judges.
NEWSOM, Circuit Judge:
Article III of the Constitution confines federal courts’ jurisdiction to “Cases”
and “Controversies.” As currently understood, that means that a plaintiff must
have “standing”—which, in turn, means that he must be able to demonstrate
(1) that he has suffered or will imminently suffer an injury in fact (2) that is “fairly
traceable” to the defendant’s challenged conduct and (3) that is “redressable” by a
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decision in his favor. Given the way the parties have presented it, this appeal
principally concerns the latter two standing requirements—traceability and
redressability.
The plaintiffs here are owners and operators of greyhound-racing businesses.
They sued the Florida Attorney General, seeking a declaration that a newly enacted
state law prohibiting gambling on greyhound racing is unlawful and an injunction
to prevent her from enforcing it. The district court dismissed the plaintiffs’
complaint without prejudice because, it held, they lacked standing to sue the
Attorney General, who has no statutory authority to enforce the anti-gambling law.
This is the plaintiffs’ appeal. They contend that they have standing to sue
the Attorney General because, among other reasons, she does have authority to
enforce the new law. Because we hold that the plaintiffs’ alleged injuries aren’t
traceable to any conduct of the Attorney General—either in enforcing or
threatening to enforce the law or otherwise—and that the plaintiffs’ injuries
wouldn’t be redressable by relief from this Court, we will affirm the district court’s
dismissal of the plaintiffs’ complaint.
I
In November 2018, Florida voters approved an amendment to the state
constitution outlawing gambling on greyhound racing. See Fla. Const. art. X, § 32.
At the time of its passage, the amendment neither prescribed penalties for a
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violation nor identified which Florida official or officials would be charged with
enforcing it. Instead, the amendment provided that “[b]y general law, the
legislature shall specify civil or criminal penalties for violations of this
section . . . .” Id.
The plaintiffs are owners of greyhound-racing businesses and a self-styled
“working animals” special-interest group who claim to have been injured by § 32.
They sued the Florida Governor, Secretary of State, and Attorney General in their
official capacities pursuant to 42 U.S.C. § 1983, seeking a declaration that § 32
violates their federal constitutional rights and an injunction prohibiting its
enforcement. The district court dismissed the plaintiffs’ initial complaint without
prejudice. The court held that the plaintiffs had standing to sue but that their
claims against the Governor and the Secretary were barred by the Eleventh
Amendment and that their claims against the Attorney General failed on the merits.
Because the district court had dismissed without prejudice, the plaintiffs
refiled their suit—this time against only the Attorney General. But between the
dismissal of the plaintiffs’ first complaint and the filing of their second, we decided
Jacobson v. Florida Secretary of State, 974 F.3d 1236 (11th Cir. 2020). There,
voters and supporters of Democratic party candidates sued to enjoin the Florida
Secretary of State from enforcing a law specifying the order in which candidates
appear on the ballot in Florida elections. Id. at 1242. We held that the plaintiffs
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lacked standing—in part, because the Secretary didn’t have any actual authority to
enforce the ballot law. Id. at 1253–58. Our decision prompted the district court
here to reconsider its earlier decision that the plaintiffs had standing to sue the
Attorney General. In dismissing the plaintiffs’ amended complaint, the district
held that they lacked standing because the Attorney General’s powers were “not
meaningfully distinguishable from the corresponding statutory delineations and
assignments of the Florida Secretary of State’s powers” in Jacobson. On appeal,
the plaintiffs argue that the Attorney General does have authority to enforce § 32
and that their injuries are traceable to her and redressable by their requested relief. 1
* * *
Before proceeding, we pause briefly to discuss two recent developments in
Florida law. Since this case came up on appeal, the Florida legislature has enacted
two statutes. The first, S.B. 4A, creates an independent gaming commission that,
“[e]ffective July 1, 2022,” shall “[e]xercise all of the regulatory and executive
powers of the state with respect to gambling.” S.B. 4A, 2021A Leg. at 12–13 (Fla.
2021). The second, S.B. 8A, charges the Florida Department of Business and
Professional Regulation—a state agency housed outside the Attorney General’s
office—with imposing civil penalties of up to $5,000 against anyone who violates
1 We review dismissals for lack of subject-matter jurisdiction de novo. See Pillow v. Bechtel Constr., Inc., 201 F.3d 1348, 1351 (11th Cir. 2000).
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§ 32. S.B. 8A, 2021A Leg. at 11 (Fla. 2021). S.B. 8A separately states that,
effective October 1, 2021, a person who unlawfully partakes in greyhound-racing
gambling commits a first-degree misdemeanor, and someone who commits a
second or subsequent violation commits a third-degree felony. Id. at 35–36.
II
Under current doctrine, a plaintiff has to make three showings in order to
demonstrate Article III standing. First, he must establish that he has suffered an
“injury in fact”— an invasion of a legally protected interest that is both
(1) “concrete and particularized” and (2) “actual or imminent, not conjectural or
hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quotation
marks omitted). Second, he must demonstrate that there is a “causal connection”
between this injury and the conduct of which he complains—i.e., the injury must
be “fairly traceable” to the defendant’s challenged actions and not the result of “the
independent action of some third party not before the court.” Id.; see Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547 (2016). Finally, he must show that it is “likely, as
opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Lujan, 504 U.S. at 560 (quotation marks omitted). The latter two
requirements—traceability and redressability—often travel together, see 13A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3531.5 (3d ed. 2021), and where, as here, a plaintiff has sued to enjoin a
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government official from enforcing a law, he must show, at the very least, that the
official has the authority to enforce the particular provision that he has challenged,
such that an injunction prohibiting enforcement would be effectual. See Jacobson,
974 F.3d at 1253; see also Lewis v. Governor of Alabama, 944 F.3d 1287, 1299
(11th Cir. 2019) (en banc) (“The fact that the Act itself doesn’t contemplate
enforcement by the Attorney General counts heavily against plaintiffs’ traceability
argument.”); Digit. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957–
58 (8th Cir. 2015) (“[W]hen a plaintiff brings a pre-enforcement challenge to the
constitutionality of a particular statutory provision, the causation element of
standing requires the named defendants to possess authority to enforce the
complained-of provision.” (quotation marks omitted)).
Putting the pieces together, then, in order to establish a justiciable Article III
case, the plaintiffs here must establish (1) that they were injured (2) by the actions
of the Florida Attorney General (3) because she can enforce § 32 against them and
has either done so or threatened to do so.2
2 There may well be another way to skin the justiciability cat here—through the “ripeness” doctrine, under which a plaintiff’s claim must not be “contingent [on] future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985) (quotation marks omitted). As the Supreme Court has recognized, however, “[t]he doctrines of standing and ripeness ‘originate’ from the same Article III limitation,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006)), and, accordingly, they often “merge[]” together, Socialist Workers Party v. Leahy, 145 F.3d 1240, 1245 (11th Cir. 1998). Because the parties have framed the question on appeal as one of standing, and because our recent decisions concerning similar challenges have focused on that issue, see, e.g., Lewis, 944 7 USCA11 Case: 20-12665 Date Filed: 08/12/2021 Page: 8 of 16
III
With those principles in mind, we turn to this case. The simplest and most
straightforward way to resolve this case is to proceed directly to the second and
third elements of the tripartite standing analysis—traceability and redressability.
No party has squarely engaged the question whether the plaintiffs have suffered an
injury in fact; to the contrary, both have framed the issue on appeal as whether the
Attorney General has enforcement authority under § 32 and, thus, whether the
plaintiffs’ injuries are traceable to her. See Br. of Appellants at 2 (presenting the
question “[w]hether the trial court erred in dismissing Florida’s Attorney General
for lack of subject matter jurisdiction citing that she lacked sufficient connection to
enforcement of the challenged law to make her a proper defendant”); Br. of
Appellee at 2 (arguing that § 32 “does not assign the Attorney General authority to
enforce it, nor has the Florida Legislature allocated enforcement authority to her”).
Accordingly, consistent with Supreme Court practice, we will simply assume that
the plaintiffs have suffered a cognizable injury in fact and will proceed to consider
traceability and redressability. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 105 (1998) (declining to consider the injury-in-fact issue because the
F.3d at 1296–1305; Jacobson, 974 F.3d at 1245–58, we do so as well. See also 13B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3532.5 (3d ed. 2021) (“Although the threat-of-enforcement cases long focused on ripeness, more recent decisions have come to switch between standing and ripeness.”).
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plaintiffs couldn’t meet the redressability requirement); see also Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584 (1999) (holding that courts may choose
among threshold jurisdictional bases for dismissal).
A
With respect to the former, we hold that the plaintiffs have failed to show
that any harm they have suffered, or are currently suffering, is traceable to the
Attorney General because they can’t demonstrate that she has any authority to
enforce § 32. At the time the plaintiffs filed their operative complaint, § 32 itself
specified neither criminal nor civil penalties—it left that decision up to the Florida
legislature. As already explained, since then the Florida legislature has enacted
two statutes prescribing enforcement authority, but neither measure alters our
analysis because their criminal-penalty provisions haven’t gone into effect and
because they expressly vest civil-enforcement authority outside the Attorney
General’s office.3 Moreover, and in any event, neither at the time the plaintiff filed
3 We also don’t think, at this point anyway, that the Attorney General has implicit authority to enforce § 32. Again, as of today, although there are civil penalties in place for gambling on greyhound racing, a state agency independent of the Attorney General is charged with imposing them. See S.B. 8A, 2021A Leg. at 11–12 (Fla. 2021). And the criminal penalties—which the Attorney General might have implicit authority to enforce under Florida law, see Dep’t of Legal Affs. v. Winshare Club of Can., 530 So. 2d 348, 348 (Fla. Dist. Ct. App. 1988) (noting in a gambling-enforcement action that “the Office of the Attorney General . . . is the proper authority to seek enforcement of the state laws”), approved, 542 So. 2d 974 (Fla. 1989); see also County of Volusia v. DeSantis, 302 So. 3d 1001, 1005 (Fla. Dist. Ct. App. 2020)—don’t go into effect until October 1, 2021. See S.B. 8A at 35. Moreover, it’s unclear whether the Attorney General will 9 USCA11 Case: 20-12665 Date Filed: 08/12/2021 Page: 10 of 16
suit nor since has the Attorney General either threatened to enforce § 32 against the
plaintiffs or otherwise given any indication that enforcement is likely.
Our recent en banc decision in Lewis is instructive. There, an Alabama state
statute had set the statewide minimum wage lower than that established by a local
Birmingham ordinance, thereby voiding the city measure. 944 F.3d at 1293–94. A
group of Birmingham employees who wanted to be paid the higher wage sued state
officials, including the Alabama Attorney General, seeking a declaration that the
state law was unconstitutional and an injunction against its enforcement. Id. at
1295. We held that the plaintiffs lacked standing to sue the Attorney General.
While we agreed that the plaintiffs had an economic injury, we held that their
injuries weren’t traceable to the Attorney General—in part because neither the
Alabama law nor any other provision of the Alabama Code gave him the power to
enforce the state minimum-wage provision. Id. at 1299–1300. In short, we said,
the plaintiffs’ “immediate gripe” was with their employers, who were following
the statewide minimum-wage law rather than the city ordinance, and not with the
Attorney General, who had neither enforced nor threatened to enforce the state
law. Id. at 1301–02.
have enforcement authority even after the criminal penalties become effective because S.B. 4A expressly vests “all . . . executive power[]” over gambling in a newly created but yet-to-be- designated state agency. S.B. 4A, 2021A Leg. at 12–13 (Fla. 2021).
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There’s a similar problem with the present plaintiffs’ case here—their
“immediate gripe” isn’t with the Florida Attorney General, who neither has the
authority to enforce § 32 nor has done anything else to cause the plaintiffs’ harm.
The plaintiffs’ real problem, as we understand their complaint, is with § 32 itself—
its existence—and the economic consequences that its passage has visited or will
visit on their businesses. None of that, though, appears to be due to any past,
present, or likely future conduct of the Attorney General.
The plaintiffs posit two theories why their alleged injuries are “fairly
traceable” to the Florida Attorney General. The first, which (by analogy to Lewis,
see 994 F.3d at 1296) we’ll call their “ex ante” theory, is that the Attorney General
played a role in § 32’s enactment because she sat on Florida’s Constitution
Revision Commission, which drafted and proposed § 32 for consideration by the
Florida electorate in the 2018 election. The second, which (again, per Lewis, see
id. at 1298) we’ll call their “ex post” theory, is that other provisions of Florida law
actually do give the Attorney General the power to enforce § 32. Neither argument
persuades us.
The plaintiffs’ ex ante theory—that the Attorney General contributed to their
injuries by participating on the CRC that proposed the amendment to the Florida
electorate—fails for two reasons. First, in Jacobson, we rejected the idea that an
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official’s role in crafting duly enacted legislation can satisfy the traceability
requirement. See Jacobson, 974 F.3d at 1257 (rejecting the argument that the
Secretary of State’s role in prescribing rules and issuing directives about ballot
orders had any bearing on whether the Secretary could enforce the provision
because “[i]f rulemaking authority were sufficient to establish traceability,
plaintiffs could presumably also challenge a law by suing the legislators who
enacted it instead of the officials who execute it”). Second, and just as
fundamentally, the plaintiffs’ injuries arose not from the Attorney General’s
actions on the CRC but rather from “the independent action of . . . third part[ies]
not before the court”—namely, the Florida voters who independently approved the
amendment at the ballot box. Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 42
(1976).
The plaintiffs’ ex post theory—which takes several forms—fares no better.
They argue that officials over whom the Attorney General has supervisory
authority have the power to enforce § 32—and, accordingly, so (by indirection)
does the Attorney General herself. The plaintiffs point, for instance, to Fla. Stat.
§ 16.56(1)(a), which allows the Statewide Prosecutor, whom the Attorney General
can appoint and remove, to prosecute “gambling” offenses if those offenses occur
in two or more judicial circuits, and they assert that § 32 violations presumably
“would” occur in multiple circuits. Br. of Appellants at 25–26. The plaintiffs also
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argue that the Attorney General has “general superintendence and direction” over
elected state attorneys, Fla. Stat. § 16.08, who can enforce § 32 and, separately,
that the Attorney General is “charged with the duty to serve as the head of the
Florida Department of Law Enforcement,” meaning that “should criminal penalties
be promulgated,” she would be in charge of enforcing § 32. 4 Br. of Appellants at
26.
The key words in the plaintiffs’ arguments are “would” and “should.”
Again, the core defect in their position is that they can’t show that they’ve been
threatened with prosecution for violating § 32 by either the Attorney General or
anyone under her control. As we said in Lewis, “that’s a problem.” 944 F.3d at
1298; see also Doe v. Pryor, 344 F.3d 1282, 1287 (11th Cir. 2003) (holding that a
group of plaintiffs didn’t have standing to sue the Attorney General, who had
disavowed the intention to enforce a particular state law, because they couldn’t
show “that either (1) [they were] threatened with prosecution; (2) prosecution is
likely; or (3) there is a credible threat of prosecution” (quotation marks omitted)).
We recognize that, in light of the Florida legislature’s recent passage of S.B. 4A
and S.B. 8A, the plaintiffs may well face civil and criminal penalties should they
4 Contrary to the plaintiffs’ assertions, the Attorney General is not the head of FDLE—by virtue of her membership in the Florida Cabinet, she is one of several heads of the FDLE. Fla. Stat. § 20.201 (“There is created a Department of Law Enforcement. The head of the department is the Governor and Cabinet.”).
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continue to operate gambling facilities for greyhound racing. But—and this is the
key point—as of this moment, they don’t face any penalties as a result of the
Attorney General’s actions in enforcing or threatening to enforce the law.
B
Briefly, for many of the same reasons, we fail to see how any injuries that
the plaintiffs have suffered would be redressed by a favorable judgment. In their
complaint, the plaintiffs requested (1) a declaration that § 32 is unconstitutional,
(2) a permanent injunction preventing the Attorney General from enforcing § 32,
and (3) costs and attorneys’ fees.
Standing’s redressability requirement mandates that it be “likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.”
Lujan, 504 U.S. at 561 (quotation marks omitted). A judgment against the
Attorney General prohibiting her from enforcing § 32 wouldn’t significantly
increase the likelihood of redressing the plaintiffs’ injuries because (1) the
Attorney General has no enforcement authority and (2) a judgment against the
Attorney General would bind only her, and not other parties not before this Court.
See Jacobson, 974 F.3d at 1254 (holding that “any persuasive effect” that a judicial
decision might have on non-party government officials “cannot suffice to establish
redressability”); cf. Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia,
J., concurring) (“Redressability requires that the court be able to afford relief
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through the exercise of its power, not through the persuasive or even awe-inspiring
effect of the opinion explaining the exercise of its power.”). Even if we were to
issue a decision in the plaintiffs’ favor, § 32 would remain on the books, the
plaintiffs’ businesses would remain illegal, and they would remain in the same
position they were in when they filed the operative complaint.
This conclusion is only strengthened by the recent passage of S.B. 4A and
S.B. 8A. We now know that prospective relief against the Attorney General
wouldn’t aid the plaintiffs because those bills charge other state agencies with
enforcing § 32. The Attorney General’s role in enforcing § 32 remains “highly
speculative” at best and non-existent at worst. Clapper v. Amnesty Int’l USA, 568
U.S. 398, 410 (2013). As we determined in Jacobson, a plaintiff’s injury isn’t
redressable by prospective relief where other state actors, who aren’t parties to the
litigation, would remain free and clear of any judgment and thus free to engage in
the conduct that the plaintiffs say injures them—here, enforcing § 32. 974 F.3d at
1255 (emphasizing that a federal court cannot “erase a duly enacted law from the
statute books” but rather has only the “more limited” power to “enjoin executive
officials from taking steps to enforce a statute,” and can “exercise that power only
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when the officials who enforce the challenged statute are properly made parties to
a suit” (quotation marks omitted)). 5
IV
To summarize: We hold that the plaintiffs lack Article III standing to bring
their claims against the Florida Attorney General because they have failed to allege
that their injuries are traceable to the Attorney General’s actions in enforcing or
threatening to enforce § 32 against them or that their injuries would be redressed
by a decision in their favor.
AFFIRMED.6
5 Because we dismiss this appeal for lack of standing, we needn’t consider whether the Attorney General is a proper defendant under Ex parte Young, 209 U.S. 123 (1908). See Lewis, 944 F.3d at 1306. 6 We note that the district court’s order that we have affirmed dismissed the plaintiffs’ claims (as was appropriate) without prejudice. The plaintiffs are thus free to refile against the proper parties at the appropriate time.