Lewis v. Governor of Ala.

• Decision Date: 25 July 2018
• Docket Number: No. 17-11009,17-11009
• Citation: 896 F.3d 1282
• Parties: Marnika LEWIS, Antoin Adams, National Association for the Advancement of Colored People, Greater Birmingham Ministries, Marika Coleman, John Rogers, Priscilla Dunn, Juandalynn Givan, Louise Alexander, William Muhammad, Rodger Smitherman, Oliver Robinson, Alabama Legislative Black Caucus, Mary Moore, Plaintiffs-Appellants, v. GOVERNOR OF ALABAMA, in his 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, William A. Bell, Sr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

896 F.3d 1282

Marnika LEWIS, Antoin Adams, National Association for the Advancement of Colored People, Greater Birmingham Ministries, Marika Coleman, John Rogers, Priscilla Dunn, Juandalynn Givan, Louise Alexander, William Muhammad, Rodger Smitherman, Oliver Robinson, Alabama Legislative Black Caucus, Mary Moore, Plaintiffs-Appellants,

v.GOVERNOR OF ALABAMA, in his 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, William A. Bell, Sr., Defendants-Appellees.

No. 17-11009

United States Court of Appeals, Eleventh Circuit.

July 25, 2018

Barbara Jane Chisholm, Eric P. Brown, Altshuler Berzon, LLP, San Francisco, CA, Richard Paul Rouco, Glen M. Connor, George Nicholas Davies, Quinn Connor Weaver Davies & Rouco, LLP, Edward Still, Edward Still Law Firm, LLC, Birmingham, AL, Mary Joyce Carlson, Law Office of Mary Joyce Carlson, Washington, DC, Robert H. Stroup, Levy Ratner, PC, Joe R. Whatley, Jr., Whatley Kallas, LLP, New York, NY, for Plaintiffs-Appellants Marnika Lewis, Antoin Adams, National Association for the Advancement of Colored People, Greater Birmingham Ministries.

James Uriah Blacksher, Attorney at Law, U. W. Clemon, U.W. Clemon, LLC, Richard Paul Rouco, Quinn Connor Weaver Davies & Rouco, LLP, Edward Still, Edward Still Law Firm, LLC, Birmingham, AL, for Plaintiffs-Appellants Marika Coleman, John Rogers, Priscilla Dunn, Juandalynn Givan, Louise Alexander, William Muhammad, Rodger Smitherman, Oliver Robinson, Alabama Legislative Black Caucus, Mary Moore.

Andrew Lynn Brasher, James W. Davis, Steven Marshall, Alabama Attorney General's Office, William Glenn Parker, Jr., David B. Byrne, Jr., Office of the Governor, Montgomery, AL, for Defendant-Appellee Governor of Alabama, in his Official Capacity as Governor of the State of Alabama.

Andrew Lynn Brasher, James W. Davis, Steven Marshall, Alabama Attorney General's Office, Montgomery, AL, for Defendant-Appellee Attorney General, State of Alabama, in his Official Capacity as Attorney General of the State of Alabama.

Andrew Lynn Brasher, Steven Marshall, Alabama Attorney General's Office, William Glenn Parker, Jr., Office of the Governor, Montgomery, AL, for Defendant-Appellee State of Alabama.

Fredric L. Fullerton, II, City of Birmingham Law Department, Kayla Lawrence, City of Birmingham Law Department, Birmingham, AL, for Defendant-Appellee Birmingham, City of, William A. Bell, Sr.

Samuel Jacob Brooke, Southern Poverty Law Center, Montgomery, AL, Miya Chen, Benjamin Beach, The Partnership for Working Families, Oakland, CA, for Amicus Curiae The Partnership for Working Families.

Jon M. Greenbaum, Dariely Rodriguez, Ezra D. Rosenberg, Thomas Samuel Silverstein, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Michael N. Litrownik, Bromberg Law Office, PC, New York, NY, for Amicus Curiae Lawyers' Committee for Civil Rights Under Law.

Pamela S. Karlan, Stanford Law School, Stanford, CA, Joyce White Vance, University of Alabama School of Law, Birmingham, AL, for Amicus Curiae Susan Ashmore, Wayne Flynt, Hasan Jeffries, J. Morgan Kousser, Peyton McCrary, Patricia Sullivan.

Samuel Jacob Brooke, Southern Poverty Law Center, Montgomery, AL, for Amicus Curiae Southern Poverty Law Center.

Amy Farr Robertson, Civil Rights Education and Enforcement Center, Denver, CO, for Amicus Curiae Kasim Reed, Andrew Gillum, Karen Freeman-Wilson, Oliver G. Gilbert, III, Local Progress.

Deuel Ross, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Amicus Curiae NAACP Legal Defense, Educational Fund, Inc., Campaign Legal Center.

Albert Loring Vreeland, II, Lehr Middlebrooks & Vreeland, PC, Birmingham, AL, for Amicus Curiae Alabama Retail Association, Business Council of Alabama, Alabama Restaurant & Hospitality Association, Alabama Grocers Association, Alabama Policy Institute, National Restaurant Association, Asian American Hotel Owners Association, National Federation of Independent Business.

Before WILSON and JORDAN, Circuit Judges, and CONWAY,^* District Judge.

WILSON, Circuit Judge:

For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.

I.

The events giving rise to this proceeding began in April 2015, when the Birmingham City Council passed a resolution calling upon the state legislature to raise the minimum wage to $10 per hour across Alabama. At that time, no Alabama municipality had a minimum wage above the federal floor of $7.25. See 29 U.S.C. § 206(a)(1)(C). After the state refused the city’s request, the city council adopted its own minimum wage law that August. The unanimous ordinance, which was scheduled to take effect in July 2016, raised the minimum wage to $8.50 per hour, and to $10.10 in 2017. The ordinance declared the need "to take legislative steps to help lift working families out of poverty, decrease income inequality, and boost [Birmingham’s] economy." Birmingham, the largest city in Alabama, has more total residents living in poverty (30% of its citizens) than anywhere else in the state.¹ The city is also home to the largest black population in Alabama (72%), which is reflected in the racial composition of its city council.

About a week after the ordinance’s approval, a white state representative from the neighboring community of Mountain Brook (where only 1.5% of residents are black and just 3% of residents live below the poverty line) introduced a bill in the Alabama House of Representatives designed to quash Birmingham’s ordinance and establish a uniform minimum wage throughout the state. The bill stalled, but at the start of the 2016 session, a variation of the bill (now called HB 174) was introduced by the same representative, this time with the support of fifty-two additional sponsors, all of whom were white.

Things progressed quickly. Within a week of its introduction on February 9, 2016, HB 174 sailed through the House Committee on State Government and won the approval of a majority of the House, 71-31. No black member of the House voted in favor of the bill. Thirty-six hours later, the bill cleared the Alabama Senate Committee on Governmental Affairs and was on its way to the Senate floor.

Meanwhile, the Birmingham City Council moved to accelerate the implementation of its own minimum wage law. On February 23, it adopted Ordinance No. 16-28, raising the minimum wage for Birmingham workers to $10.10 per hour, adjusted annually, effective immediately. Mayor Bell signed it into law the following day. Notice of the new minimum wage was slated for publication in the Sunday edition of the Birmingham News .

But on February 25, just a day after Birmingham raised its minimum wage, the Alabama Senate approved the Minimum Wage Act, 23-12, rendering Ordinance No. 16-28 null and void. The Act lacked support from any black senators. Governor Bentley signed it into law less than two hours later.

The Minimum Wage Act, codified at Alabama Code §§ 25-7-40 et seq., "establish[es] within the Legislature complete control over regulation and policy pertaining to collective bargaining ... or the wages, leave, or other employment benefits provided by an employer to an employee ... in order to ensure that such regulation and policy is applied uniformly throughout the state." Id. § 25-7-45(a). To that end, the Act "occupies and preempts the entire field of regulation" in these areas "to the complete exclusion of any policy, ordinance, rule, or other mandate promulgated or enforced by any ... political subdivision of th[e] state." Id. § 25-7-45(b).

A few months after the Alabama Legislature passed the Minimum Wage Act, Lewis and Adams—who live in Birmingham and make less than $10.10 per hour—along with several public interest groups, sued the Governor and the Attorney General of Alabama, claiming racial discrimination under multiple theories. The plaintiffs amended their complaint to include claims under the Thirteenth, Fourteenth, and Fifteenth Amendments and § 2 of the Voting Rights Act. They also added the State of Alabama, the City of Birmingham, and Birmingham Mayor William Bell as defendants, while dropping the governor from the suit. The defendants moved to dismiss for lack of standing and failure to state a claim.

The district court agreed with the defendants and dismissed the complaint. It concluded that the plaintiffs lacked Article III standing to sue any of the defendants; that the attorney general was an improper defendant under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ; that § 2 of the Voting Rights Act did not abrogate Eleventh Amendment state sovereign immunity; and that, in any event, the plaintiffs had failed to assert any plausible claims. The plaintiffs now appeal the dismissal of their Fourteenth and Fifteenth Amendment claims against the attorney general and the City of Birmingham,² and their Voting Rights Act claim against the State of Alabama.

II.

We review both subject matter jurisdiction and Eleventh Amendment sovereign...