Support Working Animals, Inc. v. Governor of Fla.

• Decision Date: 12 August 2021
• Docket Number: No. 20-12665,20-12665
• Parties: 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, 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, v. GOVERNOR OF FLORIDA, Florida Secretary of State, Attorney General, State of Florida, Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

8 F.4th 1198

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, 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,

v.GOVERNOR OF FLORIDA, Florida Secretary of State, Attorney General, State of Florida, Defendants - Appellees.

No. 20-12665

United States Court of Appeals, Eleventh Circuit.

August 12, 2021

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 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 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 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 court 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 § 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 , 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (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, 112 S.Ct. 2130 (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 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 Ala. , 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

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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (declining to consider the injury-in-fact issue because the plaintiffs couldn't meet the redressability requirement); see also Ruhrgas AG v. Marathon Oil Co. , ...