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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10121 ________________________
D.C. Docket No. 1:18-cv-01041-AT
THE GEORGIA ELECTRONIC LIFE SAFETY & SYSTEM ASSOCIATION, INC., SAFECOM SECURITY SOLUTIONS, INC., A-COM SECURITY COMPANY, LLLP,
Plaintiffs - Appellants,
versus
THE CITY OF SANDY SPRINGS, GEORGIA, RUSSELL K. PAUL, in his individual capacity, JOHN MCDONOUGH, in his individual capacity, JOHN PAULSON, in his individual capacity, CHRIS BURNETT, et. al., in his individual capacity,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(July 17, 2020) Case: 19-10121 Date Filed: 07/17/2020 Page: 2 of 24
Before ANDERSON and MARCUS, Circuit Judges, and ROTHSTEIN,* District Judge.
MARCUS, Circuit Judge:
Two alarm companies and a trade association to which they belong
challenge a city ordinance and resolution adopted by the city of Sandy Springs,
located in Fulton County, Georgia. The ordinance and resolution subject alarm
companies to a series of fines when a false alarm is sounded at one of the
properties which they service. The Plaintiffs claim that the city of Sandy Springs
and its Mayor Russell Paul and City Manager John McDonough denied them the
substantive and procedural due process protections found in the United States and
Georgia Constitutions. They also forward a claim under Georgia law asserting
personal liability against the Mayor, the City Manager, and individual members of
the City Council (John Paulson, Chris Burnett, Tibby DeJulio, Andy Bauman, Ken
Dishman, and Gabriel Sterling) for enforcing the ordinance. At the heart of their
claims is the allegation that the true purpose of the ordinance is simply to generate
revenue for the City, and that the ordinance has no reasonable relationship to any
legitimate governmental interest.
The district court dismissed the substantive due process claims, finding that
the ordinance and resolution were rationally related to a legitimate interest of the
* Honorable Barbara J. Rothstein, United States District Judge for the Western District of Washington, sitting by designation. 2 Case: 19-10121 Date Filed: 07/17/2020 Page: 3 of 24
City, and it declined to exercise supplemental jurisdiction over the state-law claim.
After thorough review and having taken oral argument, we affirm. The ordinance
at issue is an economic regulation that does not burden any suspect classification or
fundamental right, so rational basis review applies. The ordinance and resolution
at issue easily survive rational basis scrutiny. Imposing a fine on the alarm
companies is rationally related to the City’s strong interests in reducing the number
of false alarms that heavily burden its police and fire departments and waste public
resources.
The Plaintiffs also attack the ordinance as violating their procedural due
process rights, pointing to what they describe as insufficient procedural safeguards
in the ordinance’s appeal process. However, the Plaintiffs never lost an appeal
under the ordinance, because they never attempted one. Nor have they explained
how, absent an appeal, they were otherwise harmed by the allegedly deficient
procedures in place. Instead, the Plaintiffs presented a factual list of the
procedures at issue and summarily described them as flawed. Our case law is
clear: there is no cognizable injury for standing purposes when a party fails to
attempt an appeal and instead merely points to some procedural elements within a
regulation, without alleging how those features injured them or even might
potentially cause them some concrete harm. The Plaintiffs lack standing to pursue
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this claim. The district court properly dismissed it as being nonjusticiable.
Accordingly, we affirm the judgment of the district court in all respects.
I.
Plaintiffs Safecom Security Solutions, Inc. and A-Com Security Company,
LLLP (two individual alarm companies), together with Georgia Electronic Life
Safety & System Association (“GELSSA”), a non-profit trade association that
represents alarm companies (together, “Plaintiffs”), bring this appeal. The two
alarm companies are members of GELSSA and serve customers across Georgia,
including in Sandy Springs (the “City”). Around 80% of the premises in Sandy
Springs are protected by alarm systems, with between ten and eleven thousand
alarms installed in all. These alarms are installed in a variety of locations across
the City, including private residences, apartment buildings, commercial
establishments, churches, schools, and government buildings.
When an alarm is triggered at one of these properties, a signal is transmitted
to a “communications center” run by the alarm companies (or by a third party with
whom they contract). The communications centers resemble 911 dispatch rooms,
and they are staffed and monitored twenty-four hours a day, seven days a week.
Upon receipt of an alarm signal, an operator will reach out to the property owner in
order to verify whether the breach was caused by the owner or an authorized user,
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or if it was caused by an unauthorized intrusion. Pursuant to O.C.G.A. § 35-1-9,1
an operator must first call the site or alarm user directly; if no contact can be made,
the alarm company must then reach out to a secondary contact number to attempt
to verify the alarm. If the owner cannot be reached and the alarm cannot otherwise
be verified, the alarm company will then notify the relevant city emergency
services agency and request a dispatch to the premises. Alarm companies have no
way to tell if an alarm activation was the result of criminal activity or another
emergency, or if it resulted instead from user or technical error.
The Plaintiffs estimate that GELSSA members respond to around 775 alarm
activations in Sandy Springs each year. Of these, alarm companies verify and
disable the alarm in 90% of cases. For the remaining 10%, alarm companies
request a dispatch from the appropriate Sandy Springs emergency services
department. This case revolves around false alarms, where emergency services are
dispatched to a location but no emergency is apparent. The Plaintiffs claim that
1 The statute provides:
“Alarm verification” means a reasonable attempt by an alarm monitoring company to contact the alarm site or alarm user, by telephone or other electronic means, to determine whether a burglar alarm signal is valid prior to requesting law enforcement to be dispatched to the location and, where the initial attempted contact cannot be made, a second reasonable attempt to make such contact utilizing a different telephone number or electronic address or number.
O.C.G.A. § 35-1-9(a)(2). 5 Case: 19-10121 Date Filed: 07/17/2020 Page: 6 of 24
false alarms are largely attributable to “chronic abusers”: 20% of alarm users
trigger 80% of the false alarms.
In July 2017, the City of Sandy Springs passed Ordinance No. 2017-07-15
(the “Ordinance”) and Resolution No. 2017-07-99 (the “Resolution”). The
Ordinance “governs alarm systems intended to summon a public safety department
and requires registration, assessment of fees for excessive false alarms, [and]
provides procedures for repeat offenders.” Ordinance, § 18-34(b). The purpose of
the Ordinance “is to encourage alarm owners and alarm companies to properly use
and maintain the operational effectiveness of alarm systems in order to improve the
reliability of alarm systems and reduce or eliminate false alarms.” Id. § 18-34(a).
The Ordinance explains that false alarms burden the City’s emergency
services and waste resources. Id. In 2016 alone, there were 974 false fire alarms at
$650 per dispatch, wasting roughly $657,450. Resolution at 1. There were also
9,292 false police alarm calls that year, costing around 4,424 man-hours and
approximately $117,943. Id. In total, false police and fire emergency calls in 2016
cost the City around $775,939. Id. To combat this waste, the Ordinance
established an escalating series of fines for successive false alarm calls, which the
Resolution set at $25 for the first violation; $250 for violations two and three; and
$500 for violations four and beyond. Ordinance, § 18-41(a)(1), (b)(1); Resolution
at 1. In addition to a fine, the City’s public safety departments will not respond to
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an activated alarm at a property for one year after its fourth false alarm within a
two-year period. Ordinance, § 18-41(c).
False alarm fines under the Ordinance are imposed not on the property
owner, but instead on the alarm company responsible for installing and servicing
that alarm system. Id. § 18-41(a)(1), (b)(1) (permitting civil penalties for each
false alarm to “be assessed against an alarm company”). A false alarm is defined
as:
the activation of an alarm system to summon a public safety department that results in: (a) an inspection by a public safety department that indicates no fire, medical emergency, unauthorized entry, robbery, or other such crime was committed, occurred or attempted in or on the premises which would have activated a properly functioning alarm system; or (b) the cancellation of a request to summon a public safety department due to no emergency situation at the alarm site requiring response.
Id. § 18-35. To enforce this provision, Sandy Springs designated a private entity,
“Cry Wolf Services,” as alarm administrator under the Ordinance. Cry Wolf
Services is responsible for implementing, administering, controlling, and reviewing
false alarm reduction efforts and has unilateral discretion in determining whether
an alarm call qualifies as a false alarm under the Ordinance.
The Ordinance also includes an appeals provision. Under it, an alarm
company can appeal a penalty or an enforcement decision “by filing a written
notice of appeal with the police chief or the fire chief” within ten days of receiving
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the fine or enforcement decision. Id. § 18-44(a). The Ordinance requires the
police and fire chiefs to “each respectively designate a hearing officer” to “hear
appeals related to their agency.” Id. The hearing officer’s decision can then be
appealed directly to the police or fire chief. Id. The Ordinance provides that the
decisions of the chiefs and the hearing officers are subject to judicial review “in the
nature of writ of certiorari.” Id. The Ordinance directs the hearing officer to
review enforcement decisions using a preponderance of the evidence standard. Id.
§ 18-44(b). Failure to win the appeal subjects the appellant to costs. Id. § 18-
44(d).
The Plaintiffs raise several claims, alleging violations of the United States
and Georgia Constitutions under 42 U.S.C. § 1983. First, they say their substantive
due process rights have been violated because the Ordinance is arbitrary and
irrational. They also challenge the appeals procedure embodied in the Ordinance
as violating procedural due process. In addition, they raise a supplemental state-
law claim under O.C.G.A § 36-33-4 against Mayor Paul, City Manager
McDonough, and the City Council defendants in their individual capacities,
arguing that enforcing the alarm penalty scheme amounts to “engag[ing] in official
acts oppressively, maliciously, corruptly, and without authority of law.” The
district court granted a motion to dismiss the constitutional claims but declined to
exercise supplemental jurisdiction over the remaining state-law claim.
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This timely appeal followed.
II.
“We review a district court’s grant of a motion to dismiss with prejudice de
novo, accepting the factual allegations in the complaint as true and construing them
in the light most favorable to the plaintiff.” Boyd v. Warden, Holman Corr.
Facility, 856 F.3d 853, 863–64 (11th Cir. 2017) (alteration adopted and quotation
omitted). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at
679. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678.
A.
At the heart of this case is the claim that the Ordinance violates the
Plaintiffs’ substantive due process rights. They argue that their substantive due
process rights were violated under both the Fourteenth Amendment and the
Georgia Constitution. Georgia law appears to dictate that substantive due process
claims arising under the Georgia Constitution be reviewed just like those arising
under the United States Constitution, at least for those claims subject to rational
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basis scrutiny. See Ga. Dep’t of Human Res. v. Sweat, 580 S.E.2d 206, 210–11
(Ga. 2003) (applying an identical rational basis test to substantive due process
claims under both the United States and Georgia Constitutions). The parties do not
argue otherwise, so we discuss both claims together. The district court measured
the constitutionality of the Ordinance through the prism of rational basis review
and concluded that the Ordinance was a perfectly reasonable regulation that fell
well within the state’s police power. We agree.
When a law does not infringe on a fundamental right or discriminate on
account of a suspect classification, but instead is a general economic regulation, we
review it only for a rational basis. See, e.g., Gary v. City of Warner Robins, 311
F.3d 1334, 1337 (11th Cir. 2002). While much of our precedent has considered
challenges to these types of regulations arising under the Equal Protection Clause,
we have been explicit that the analysis for a claim arising under the Due Process
Clause is “virtually identical.” See Wood v. United States (In re Wood), 866 F.2d
1367, 1371 (11th Cir. 1989) (“The standard for evaluating substantive due process
challenges to social and economic legislation is virtually identical to the ‘rational
relationship’ test for evaluating equal protection claims.”); see also Fresenius Med.
Care Holdings, Inc. v. Tucker, 704 F.3d 935, 945 (11th Cir. 2013) (“When a
challenged law does not infringe upon a fundamental right, we review substantive
due process challenges under the rational basis standard.”); Leib v. Hillsborough
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Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1308 (11th Cir. 2009) (“Like equal
protection claims, substantive due process claims are subject to rational basis
review, so long as they do not infringe fundamental rights and are not
discriminatory.”); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 n.6
(11th Cir. 1995) (explaining that “the rational basis inquiry is the same for equal
protection and substantive due process challenges to zoning”).
The rational basis test is “highly deferential to government action,” and the
regulation can only be invalidated if it is “so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude that the legislature’s
actions were irrational.” Jones v. Governor of Fla., 950 F.3d 795, 809 (11th Cir.
2020) (per curiam) (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)). When we
undertake rational basis review, we ask “whether the government has the power or
authority to regulate the particular area in question,” and whether the proposed
regulation has a “legitimate governmental purpose.” Cash Inn of Dade, Inc. v.
Metropolitan Dade County, 938 F.2d 1239, 1241 (11th Cir. 1991). We then ask “if
there is any conceivable basis for the legislature to believe that the means they
have selected will tend to accomplish the desired end,” and if the method chosen to
accomplish the stated goal “bears a rational relation to the ultimate objective.” Id.
(emphasis added). While not “toothless,” Schweiker v. Wilson, 450 U.S. 221, 234
(1981) (quotation omitted), these requirements are “generally easily met. A
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searching inquiry into the validity of legislative judgments concerning economic
regulation is not required.” Cash Inn, 938 F.2d at 1241. Because the Ordinance
only regulates general economic matters, we review it only for a rational basis.
The Ordinance easily passes rational basis scrutiny because the means it has
adopted -- fining alarm companies for false alarms -- are rationally related to the
legitimate governmental interests in conserving public resources, eliminating
waste, and decreasing the burden on emergency services provided by the police
and fire departments. The district court cited to the substantial toll false alarms
place on police and fire emergency response units, both in terms of money and
time. And the district court properly concluded that “[l]ogically, such expenses of
time and money detract from the City’s ability to respond when truly needed”;
therefore, the City has pursued a legitimate purpose.
Nevertheless, the Plaintiffs claim that at least two features of the Ordinance
undermine the City’s legitimate interests. First, they say, the City has no
legitimate reason to impose a fine when a requested dispatch is near-instantly
cancelled, no dispatch is sent out, and thus no costs are incurred. Second, they say,
Sandy Springs does not have any legitimate interest in imposing liability for a false
alarm where emergency response services have already been suspended at a
particular address. We remain unpersuaded.
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For starters, we do not micromanage the means adopted by a municipality
when it regulates economic behavior for a legitimate governmental interest. Under
rational basis review, the state is “not required to convince the courts of the
correctness of their legislative judgments.” Kentner v. City of Sanibel, 750 F.3d
1274, 1281 (11th Cir. 2014) (quoting Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 464 (1981)). Any challenge to the Ordinance must “negate every
conceivable basis that might support it, even if that basis has no foundation in the
record.” Leib, 558 F.3d at 1306. And, our review under rational basis tolerates an
imprecise match between means and ends. “Broad (‘overinclusive’) categories are
valid even if greater precision, and more exceptions or subcategories, might be
better, for the task of deciding how much complexity (at what administrative
expense) is justified is legislative rather than judicial.” Idris v. City of Chicago,
552 F.3d 564, 567 (7th Cir. 2009).
Even if the Plaintiffs were right, that in these two scenarios the City might
suffer only minimal expense, or none at all, they ignore that the clear goal of the
Ordinance is to encourage alarm companies and alarm owners to properly use and
maintain the effectiveness of alarm systems in order to improve reliability and
reduce false alarms. And it is indisputable that the costs associated with
responding to hundreds of false alarms each year is substantial. Even if a false
alarm costs the City nothing in one situation, it costs the City plenty in another.
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And even if the City suspends a property owner’s access to emergency response
services, imposing a fine for a false alarm may well encourage the property owner
to be more careful when services are reinstated, and will encourage alarm
companies to more carefully train their customers.
The Plaintiffs also claim that the entire structure of the Ordinance, which
imposes fines on alarm companies and not property owners, is not rationally
related to any legitimate interest that the City of Sandy Springs may have. Simply
put, they say that the alarm companies cannot be made vicariously liable for the
misconduct of their customers without running afoul of substantive due process.
Again, we are unpersuaded.
As we see it, it is entirely rational for the City to penalize alarm companies
for the false alarms of their customers. For one thing, undoubtedly, alarm
companies can influence the behavior of their customers. They may devote more
time and resources to training their customers (the property owners) about the
proper use of alarm systems and the need for avoiding false alarms. Moreover,
they may sever their relationships with chronic abusers -- those customers who
repeatedly set off false alarms. They may draft their contracts with care and
particularly address the chronic abuser. And they can pass along any fees that have
been imposed on them onto their customers, which would directly motivate
property owners to avoid triggering false alarms. Any of these possibilities would
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satisfy the law’s requirement that the means adopted be reasonably related to the
ends of reducing false alarms and saving the public’s money. The City’s
Ordinance is rational -- it is designed to encourage alarm owners and alarm
companies to properly use and maintain their alarm systems. See Ordinance, § 18-
34(a). Finally, it seems to us perfectly rational for the City to conclude that it is
administratively simpler and far less costly to consolidate fines for false alarms and
focus liability on one party (the alarm company) as opposed to fining each property
owner individually. The long and short of it is that there are plenty of conceivable
justifications for imposing vicarious liability on the Plaintiff alarm companies.
They possess sufficient means to affect the behavior of their customers. This
scheme is rational.
This is not the first time and we are not the first circuit to address a problem
of this kind. Thus, by way of example, the Seventh Circuit considered a similar
problem in reviewing a local ordinance through the prism of rational basis scrutiny
in Idris v. City of Chicago. There, the plaintiffs challenged an ordinance which
fined the owner of a car for running a red light even if the owner was not driving at
the time of the violation. 552 F.3d at 565. The plaintiffs argued that imposing
such a fine violated substantive due process. Id. at 565–66. The Seventh Circuit
rejected the claim, holding that the law was rational because the car owner was
quite able to influence the behavior of the offending party -- the driver -- by
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insisting on reimbursement or by refusing to let the party use the owner’s car
again. Id. at 566. “Owners will take more care when lending their cars, and often
they can pass the expense on to the real wrongdoer.” Id. Rational basis scrutiny
requires nothing more.
In this case, however, the Plaintiffs argue that upholding the City’s vicarious
liability regime would allow it to fine anybody any time it wants to, using by way
of example the act of fining a homeowner for a neighbor’s music being played too
loudly. But that scenario is worlds apart from the reality of this Ordinance. As we
already observed, the alarm companies can reduce their liability by cutting off
services to rampant abusers, by shifting costs to those abusers, by redrafting their
contracts accordingly, or by training their customers to use their alarm systems
more carefully.
The district court properly found that the Ordinance and the Resolution pass
rational basis scrutiny. 2
2 During oral argument, the Plaintiffs also claimed that, at the motion to dismiss stage, we must construe the facts in their favor and find that they are unable to influence their customers. While we accept the Plaintiffs’ factual allegations as true at this stage, Boyd, 856 F.3d at 863–64, our task under rational basis review is to imagine any conceivable, rational basis for the government’s law, Cash Inn, 938 F.2d at 1241. The Plaintiffs pointed the Court to a statement in their complaint that “alarm companies are not in a position to be able to supervise, direct, or control their customers’ actions.” Even so, the Plaintiffs did not say, nor could they have said, that they could not affect or influence their customers’ behavior. In any event, while we are obliged to take the factual allegations in their favor, we need not take “mere conclusory statements” like this one as true. Iqbal, 556 U.S. at 678. The procedural posture of this case does not compel a result different from the one we reach.
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B.
The Plaintiffs also challenge some of the appellate procedures found within
the Ordinance, because they say some of those procedures violate their procedural
due process rights by failing to provide adequate safeguards against the wrongful
imposition of fines.3 Specifically, they claim the appeal process is “meaningless”
because there is no opportunity to be heard before a fine is imposed; the appeals
window is only ten days; there is no in-person hearing, and appeals are resolved on
paper; there is no meaningful process to collect evidence; there is no investigation
as to the source of the false alarm; and appeals can be summarily rejected, without
explanation or reasoning. The district court ruled that the Plaintiffs lacked
standing to assert these claims because they “failed to demonstrate the basic
standing requirement of causation between their own injury and the challenged
procedural deficiencies” in the Ordinance. The district court determined that
because the Plaintiffs never took an appeal from the imposition of any fines and
never utilized the procedures found in the Ordinance, they could not show
causation. We agree the Plaintiffs lack standing to bring these procedural due
process claims.
3 Just as with substantive due process, Georgia law suggests that a procedural due process claim arising under the Georgia Constitution is analyzed similarly to a Fourteenth Amendment procedural due process claim. See Schumacher v. City of Roswell, 809 S.E.2d 262, 265 (Ga. Ct. App. 2017). What’s more, the parties do not claim that the analysis should differ, so we discuss both Counts II and IV together. 17 Case: 19-10121 Date Filed: 07/17/2020 Page: 18 of 24
Our Court addressed a similar challenge in Granite State Outdoor
Advertising, Inc. v. City of Clearwater. There, the plaintiff attacked an ordinance
regulating the allowable size of advertisement billboards. 351 F.3d 1112, 1115
(11th Cir. 2003). The plaintiff claimed the appeals process following a permit
denial was constitutionally defective because it afforded the city unlimited time to
decide an appeal. Id. at 1117; see also Granite State Outdoor Advert., Inc. v. City
of Clearwater, 213 F. Supp. 2d 1312, 1323 (M.D. Fla. 2002) (explaining that the
plaintiff was challenging the regulation on the grounds that “it contains no time
limits for the appeals process”). We concluded that the plaintiff lacked standing
because at issue was “an appeals process that the plaintiff chose to forego without
showing any actual or potential harm caused by the challenged appeals process.”
Granite State, 351 F.3d at 1117 n.5.
In so doing, a panel of this Court focused on identifying the injury resulting
from an allegedly deficient appellate process. We explained that a plaintiff must
allege an injury arising from the claimed procedural defect; summarily asserting
that there was a procedural flaw without testing it was not enough. See id. at 1117
(“The specific constitutional defect, according to Granite State, is the fact that City
officials have an unlimited amount of time to decide whether to grant or deny a
permit application. Such an argument, by itself, does not create Article III
standing.” (emphasis added)). In Granite State, there was no standing because the
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plaintiff had “neither alleged nor shown how the City’s permitting and appeals
procedure” caused it any injury. Id. Even though the appeals process allowed an
indefinite timeline for review, that process was never invoked, and the permit itself
was denied without delay. See id. (observing that “the record shows that Granite
State’s permits were denied within a reasonable time: the same day they were
submitted”). Simply put, the plaintiff failed to establish an injury from an appeals
process it “chose to forego,” and it similarly failed to allege an actual or potential
injury inherent within the procedure without ever attempting an appeal. Id. at 1117
n.5.
To be clear, when a plaintiff lodges an appeal and that appeal is denied, the
denial itself may show that the plaintiff has been injured, or at least provide some
evidence of injury. If instead a plaintiff chooses to forego an appeal and also does
not allege how the defective process otherwise caused or could cause any injury
absent an appeal, then there is no injury for standing purposes. Id. By way of
contrast, had the Granite State plaintiff concretely alleged, for example, that an
indefinite review period resulted in uncertainty which increased its financing costs,
that might have been a cognizable injury for standing purposes, even without
having attempted an appeal. But as Granite State makes clear, a plaintiff has
“neither alleged nor shown” injury by merely arguing in the abstract that a
procedure is flawed. Id. at 1117.
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The Plaintiffs in this case lack standing because they never attempted to use
the appeals process embodied in the Ordinance, nor did they explain how any
allegedly deficient element in the Ordinance caused them any actual or potential
harm absent taking an appeal. Instead, they presented, and only at the highest
order of abstraction at that, a factual list of some of the procedural elements of the
Ordinance and summarily alleged that they were flawed; but they never explained
how or why any of these claimed flaws resulted in any cognizable injury.
Thus, for example, the Plaintiffs claimed that the ten-day window to file an
appeal was too short to allow for a meaningful opportunity to gather evidence.
However, a prescribed period in which to collect evidence is not, in the abstract, an
injury. In Lujan v. Defenders of Wildlife, the Supreme Court made clear that
standing requires (1) a “concrete and particularized” injury which is “actual or
imminent, not conjectural or hypothetical”; (2) “a causal connection between the
injury and the conduct complained of”; and (3) that the injury is “likely” to “be
redressed by a favorable decision.” 504 U.S. 555, 560–61 (1992) (quotations
omitted). We have no way to determine whether the Plaintiffs were in fact injured
by this allegedly brief timeframe; whatever injury might exist is not sufficiently
concrete, nor have the Plaintiffs established how any putative injury was caused by
some deficiency in any of the Ordinance’s appellate procedures. Inasmuch as the
Plaintiffs never attempted an appeal, we do not know and cannot discern what
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evidence they might have discovered but didn’t, given the time constraints. And
we cannot determine, even hypothetically, whether they would have been more
likely to emerge victorious from an appeal if they’d had the benefit of a longer
filing window.
Thus, by way of example, had they appealed and lost, the Plaintiffs might
have alleged that they were unable to collect as much evidence as they aimed to.
But by failing to even attempt an appeal, the Plaintiffs leave us only to speculate
about how they might have been harmed by a ten-day filing period. Cf. Women’s
Emergency Network v. Bush, 323 F.3d 937, 944–45 (11th Cir. 2003) (explaining
that a “speculative injury [is] insufficient to satisfy Lujan’s injury-in-fact
requirement”). Nor did the Plaintiffs allege that they suffered any actual or
potential harm even absent an appeal. Perhaps they could have alleged, for
example, that they were barred from pursuing an appeal because the costs of
collecting evidence so quickly would have been prohibitive. Instead, the Plaintiffs
just complain, and only in the most general way, that the filing period did not allow
a meaningful opportunity to collect evidence, without any explanation about how
the length of time may have been injurious to them.
The Plaintiffs also complain that appeals are resolved on the papers and
without a hearing. But again, the Plaintiffs utterly fail to explain how the
resolution of a false alarm fine only on the papers presented would cause them any
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actual or potential harm, nor could we easily imagine any injury of this kind. Cf.
Idris, 552 F.3d at 567 (rejecting plaintiffs’ claim that an ordinance violated
procedural due process by restricting defenses available at a hearing because
“[n]one of the plaintiffs has offered such a defense and had it rejected; federal
courts do not issue advisory opinions on situations that do not affect the litigants”).
Merely saying that the appeals process does not include a hearing, without alleging
something more, does not meet the requirement to plead a concrete and
particularized injury for standing purposes. The Plaintiffs’ arguments concerning
the other alleged flaws in the appeals process fail for similar reasons. Nor, finally,
have they sufficiently explained why they could not appeal from an unfavorable
ruling issued by the police or fire chief to a state circuit court in Georgia, a
provision expressly provided for in the Ordinance. Ordinance, § 18-44(a); see also
O.C.G.A. § 5-4-1(a) (“The writ of certiorari shall lie for the correction of errors
committed by any inferior judicatory or any person exercising judicial powers . . .
.”); State v. Int’l Keystone Knights of the Ku Klux Klan, Inc., 788 S.E.2d 455, 463
(Ga. 2016) (explaining that administrative determinations are adjudicative in
nature when they are “immediate in application, specific in application, and
commonly involve an assessment of facts about the parties and their activities,
businesses, and properties” (citations and quotation omitted)); Mack II v. City of
Atlanta, 489 S.E.2d 357, 361 (Ga. Ct. App. 1997) (finding a writ of certiorari
22 Case: 19-10121 Date Filed: 07/17/2020 Page: 23 of 24
available under O.C.G.A. § 5-4-1 where “the hearing officer acted judicially, rather
than administratively, in hearing argument and applying the law as the officer
interpreted it to the facts before it”).
Since the Plaintiffs have not appealed any fine to the police or fire chief, or
to the courts, and since they only listed some of the Ordinance’s appellate
procedures without offering any explanation of how or why the alleged defects
injured them (or would have harmed them had they attempted an appeal), the
Plaintiffs lack standing to bring their procedural due process claims, and the
district court properly dismissed them.4
We also affirm the dismissal of the Plaintiffs’ remaining claims. We agree
with the district court that Count VI, which pursued a stand-alone due process
claim under 42 U.S.C. § 1983, is wholly duplicative of the Plaintiffs’ constitutional
claims and fails for the same reasons those claims failed. And we affirm the
dismissal of Count V, because the district court did not abuse its discretion in
4 Our Court’s recent decision in Worthy v. City of Phenix City is not in tension with our conclusion. There, the plaintiffs attacked a law imposing a fine for running a red light, targeting “the constitutionality of the ordinance as a whole.” 930 F.3d 1206, 1214 (11th Cir. 2019). The alleged injury was clear -- the fine resulting from violating that ordinance -- and we found standing. Here, however, the Plaintiffs specifically targeted only some of the appellate procedures found within the Ordinance. Indeed, at oral argument, we asked the Plaintiffs to point us to where in their pleadings they attacked the procedures of the Ordinance more broadly. They were unable to do so. Because the Plaintiffs’ specific and repeated language throughout their pleadings and briefs attacks only some of the appeals process itself, and not the Ordinance as a whole, Worthy offers them no relief. And even were there any tension between Granite State and Worthy, Granite State controls our review as the older precedent. See Local Union 48 Sheet Metal Workers v. S.L. Pappas & Co., 106 F.3d 970, 975 (11th Cir. 1997). 23 Case: 19-10121 Date Filed: 07/17/2020 Page: 24 of 24
declining to exercise supplemental jurisdiction over the state-law claim, since the
federal claims have been dismissed. See 28 U.S.C. § 1367(c)(3); Milan Express,
Inc. v. Averitt Express, Inc., 208 F.3d 975, 981 n.3 (11th Cir. 2000).
AFFIRMED.