Case: 24-60371 Document: 73-1 Page: 1 Date Filed: 11/19/2024
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
November 19, 2024
No. 24-60371 Lyle W. Cayce
____________ Clerk
Rickey D. Jones, all in their official capacities as Commissioners on the
Board of Commissioners of the Jackson Municipal Airport Authority and in their
individual capacities as citizens of the City of Jackson on behalf of themselves and
all others similarly situated; Rica Lewis-Payton, all in their official
capacities as Commissioners on the Board of Commissioners of the Jackson
Municipal Airport Authority and in their individual capacities as citizens of the
City of Jackson on behalf of themselves and all others similarly situated,
Plaintiffs—Appellees,
Lucius Wright,
Intervenor—Appellee,
versus
Governor Tate Reeves, Et al.,
Defendants,
Josh Harkins; Dean Kirby; Phillip Moran; Chris
Caughman; Nickey Browning; John A. Polk; Mark Baker;
Alex Monsour,
Respondents—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-246
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______________________________
Before Jones, Willett, and Engelhardt, Circuit Judges.
Edith H. Jones, Circuit Judge:
For the fourth time, Mississippi state legislators appeal a district court
order compelling discovery in an eight-year-old dispute over control of the
Jackson-Medgar Evers International Airport. For numerous reasons that
have percolated throughout this litigation, we conclude that the current
Plaintiffs, members of the Jackson Municipal Airport Authority, lack Article
III standing to sue. Groundhog Day has come to an end. Accordingly, we
VACATE the order of the district court and REMAND with instructions
to dismiss.
I. Background
Pursuant to state law, the City of Jackson created the Jackson
Municipal Airport Authority (“JMAA”) in 1960 to manage and operate the
capital city’s airport. The JMAA is led by five commissioners, all selected
by the Jackson city government. The commissioners receive a per diem for
services provided to the JMAA and reimbursement for reasonable travel
expenses related to the business of the airport.
In 2016, the Mississippi legislature passed, and the governor signed
into law, S.B. 2162. S.B. 2162 abolished the JMAA and created the Jackson
Metropolitan Area Airport Authority (“Authority”). The Authority would
be governed by nine commissioners, but only two would be selected by the
Jackson city government.
Before S.B. 2162 took effect, all five JMAA commissioners (in their
official and individual capacities), plus Jackson’s Mayor and City Council
(“Plaintiffs”) intervened in a suit filed by a local resident to enjoin
enforcement of the law. They alleged that S.B. 2162 violates the Equal
Protection Clause of the Fourteenth Amendment and the Due Process
Clause of the Mississippi Constitution. Plaintiffs contended that S.B. 2162
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amounted to “an illegal dilution of voting and other rights of the citizens of
Jackson, Mississippi,” causing them a representational injury. Stallworth v.
Bryant, 936 F.3d 224, 227 (5th Cir. 2019).
They further alleged that S.B. 2162 altered the airport’s management
structure for race-based reasons. Id. at 227–28. All five JMAA
commissioners were black, while the racial composition of Jackson at that
time was approximately 79% black and 18% Caucasian.
Id. at 227. Under S.B.
2162, five commissioners would be selected by the Mississippi executive
branch, and two more would be selected by county officials in adjacent
counties that are majority Caucasian. 1 According to Plaintiffs, this
“demonstrates the City and its citizens and taxpayers have been invidiously
excluded because of race, in whole or in part, from any control of its Airport
by [S.B.] 2162.”
Id. at 228.
During discovery, Plaintiffs served subpoenas on several Mississippi
legislators (“Defendants”), who refused to comply based on relevancy and
legislative privilege. The magistrate judge granted discovery in part, and held
that any applicable privilege was waived for otherwise privileged information
that had been “shared with third parties.” Id. at 229. The district court
upheld the order, but stayed it pending appeal.
Id.
On the first appeal, this court held that Plaintiffs lacked standing. Id.
at 230–32. In alleging that S.B. 2162 “deprives . . . [them] of effective and
meaningful participation in the affairs of [the airport],” they “failed to
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1
The entire commission would consist of the Adjutant General of the Mississippi
National Guard (or designee); the Executive Director of the Mississippi Development
Authority (or designee); one commissioner appointed by the Mayor of the City of Jackson,
the City Council, the Board of Supervisors of Madison County, the Board of Supervisors
of Rankin County, respectively; two commissioners appointed by the Governor; and one
commissioner appointed by the Lieutenant Governor.
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demonstrate injury to a legally protected interest.” Id. That is, they showed
no individual, concrete interest in a right “to elect officials with the exclusive
authority to select municipal airport commissioners.”
Id. at 231. Perhaps in
anticipation of defeat, Plaintiffs presented an alternative theory at oral
argument. If S.B. 2162 was implemented, they insisted, they would lose their
positions as volunteer commissioners, who are “treated as public employees
under some aspects of Mississippi law and that other courts of appeals have
generally found standing where a government volunteer’s position is
threatened by government action.”
Id. at 231. Because the newly alleged
injuries were untimely raised, this court remanded with instructions to
dismiss without prejudice for lack of standing.
Id. at 232.
On remand, Plaintiffs amended their complaint in an attempt to cure
the standing defect and to add two newly appointed commissioners as
Plaintiffs. Jackson Mun. Airport Auth. v. Harkins, 67 F.4th 678, 682–83 (5th
Cir. 2023). They again served subpoenas on the legislators, “the Legislators
again objected on the basis of legislative privilege; the district court again
ordered the Legislators to comply with the subpoena; and the Legislators
again declined and appealed.” Id. at 683.
In the course of that second appeal, the panel held that Plaintiffs had
standing based on the amended complaint because the alleged injury was
“concrete” in that the commissioners would be “deprived of their benefits
if they lose their position,” including a “per diem” and “travel
reimbursement.” Id. at 684–85. The panel then reversed the district court’s
privilege ruling as overbroad on the issue of requiring production of any
communications with third parties. Id. at 687. Shortly thereafter, this court
granted a petition for rehearing en banc, which vacated the panel opinion. See
Fifth Cir. Local Rule 41.3.
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After a third round of briefing followed by oral argument, the en banc
court dismissed the appeal as moot because none of the PlaintiffCommissioners continued to hold their positions at the JMAA. Jackson
Mun. Airport Auth. v. Harkins, 98 F.4th 144, 146–47 (5th Cir. 2024) (en
banc).
Following the en banc dismissal, Plaintiffs again amended their
complaint to add two sitting commissioners as Plaintiffs whose terms will not
expire for several years. That cured the mootness problem. The district
court then reinstated its prior discovery order, which the legislators again
resisted, leading to this fourth appellate round.
II. Standard of Review
This court reviews questions of subject-matter jurisdiction de novo.
Houston Refining, L.P. v. United Steel, Paper and Forestry, Rubber, Mfg., 765
F.3d 396, 400 (5th Cir. 2014). We also review de novo a district court’s
determination of controlling law. Stallworth, 936 F.3d at 229 (citing In Re
Avantel, S.A.,
343 F.3d 311, 318 (5th Cir. 2003)).
III. Discussion
Yet again, the issues presented on appeal are Plaintiffs’ Article III
standing and the scope of legislative privilege. 2 Because Plaintiffs lack
standing to sue, it is unnecessary to delve into privilege.
Under Article III, § 2, of the Constitution, federal courts have
jurisdiction only over cases or controversies. Raines v. Byrd, 521 U.S. 811,
818,
117 S. Ct. 2312, 2317 (1997) (quoting Valley Forge Christian Coll. v. Ams.
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2
In case there were doubt, this court has exercised appellate jurisdiction in each of
the previous appeals. See Stallworth, 936 F.3d at 226; Jackson Mun. Airport Auth., 98 F.4th
at 144. We continue to have appellate jurisdiction.
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United for Separation of Church & State, Inc., 454 U.S. 464, 471,
102 S. Ct.
752, 758 (1982)). “No principle is more fundamental to the judiciary’s
proper role in our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.” Simon v. E. Ky.
Welfare Rts. Org.,
426 U.S. 26, 37,
96 S. Ct. 1917, 1924 (1976).
Critical to the case-or-controversy requirement is that “[plaintiffs],
based on their complaint, must establish that they have standing to sue.”
Raines, 521 U.S. at 818,
117 S. Ct. at 2317 (citing Lujan v. Defs. of Wildlife,
504
U.S. 555, 561,
112 S. Ct. 2130, 2136–37 (1992)). To meet the requirements of
Article III standing, “the plaintiff must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins,
578 U.S. 330, 338,
136 S. Ct. 1540, 1547 (2016).
Further, the injury alleged by plaintiffs must be “personal.” Raines,
521 U.S. at 818,
117 S. Ct. at 2317 (quoting Allen v. Wright,
468 U.S. 737, 751,
104 S. Ct. 3315, 3324 (1984)). Plaintiffs must establish that they have a
“‘personal stake’ in the alleged dispute, and that the alleged injury suffered
is particularized as to [them].”
Id. at 819. In contrast, actions that allegedly
damage “all [m]embers of [an entity] equally” cause “a type of institutional
injury.”
Id. at 821. Such plaintiffs lack a sufficient “personal stake” in the
dispute, and do not allege a “sufficiently concrete injury to . . . establish[]
Article III standing.”
Id. at 830.
The injury that these Commissioner-Plaintiffs allege as a result of
S.B. 2162 is an institutional one. Because S.B. 2162 supplants the JMAA
with the Authority in its entirety, any alleged injury caused by the statute
necessarily affects the JMAA as an entity. Plaintiffs have not alleged any
particularized personal injury arising from this governmental restructuring.
Plaintiffs are not “singled out for specially unfavorable treatment” when the
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JMAA (and the commissioners’ positions) is replaced with a new regional
airport authority. Id. at 821; see also Yaw v. Delaware River Basin Comm’n,
49
F.4th 302, 307 (3d Cir. 2022) (holding that individual legislators lacked
standing to challenge a ban on fracking because the “injuries they allege affect
the state legislature as a whole”); Kerr v. Hickenlooper,
824 F.3d 1207, 1215
(10th Cir. 2016) (defining an “institutional injury” as one that “impacts all
members . . . in equal measure”). As Judge Duncan explained, “the
Commissioners’ asserted injuries are institutional to the core. They are
seeking to stop the abolition of the JMAA, pure and simple. That’s an
institutional injury. See Raines,
521 U.S. at 821 (explaining that an
‘institutional injury’ is one ‘which necessarily damages all
Members . . . equally) (emphasis added).’” 3 Jackson Mun. Airport Auth. v.
Harkins, No. 21-60312,
2023 WL 5522213, at *11 (5th Cir. Aug. 25, 2023)
(unpublished) (Duncan, J., concurring in part and dissenting in part).
Plaintiffs also fail to show that they are in effect employees who can
claim injury from the loss of the per diem payments and travel
reimbursements that accompany the position of JMAA Commissioner.
Under Mississippi law, commissioners receive “per diem
compensation . . . for each day or fraction of a day engaged in attendance of
meetings of the authority or engaged in other official duties of the authority,”
up to a yearly cap, and reimbursement for “actual travelling expenses
incurred.” Miss. Code Ann. § 61-3-13(1). Plaintiffs attempt to equate
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3
Even if some kind of personal, non-institutional injury was inflicted on the
Plaintiffs by the state legislature’s transferring airport governance to the new Authority, it
would still be too speculative for standing. Under S.B. 2162, Jackson’s mayor and city
council will appoint two commissioners to the Authority. MISS. CODE ANN. § 61-3-6(2)(c)
and (d). These Plaintiffs have as good a shot at being appointed to the two new positions
as fellow JMAA commissioners. They may not suffer injury at all, or in any event, the
possibility is even further speculative. See, e.g., Lujan, 504 U.S. at 583,
112 S. Ct. at 2148
(Stevens, J., concurring).
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this remuneration with a salary, the loss of which would give rise to Article
III standing. See, e.g., Powell v. McCormack, 395 U.S. 486, 496–500, 550,
89
S. Ct. 1944 (1969); Myers v. United States,
272 U.S. 52,
47 S. Ct. 21 (1926).
But the Plaintiffs receive no other monetary benefits of employment status,
like insurance or retirement compensation, and these minimal payments are
not a formal salary. They do not transform purely political appointments to
volunteer positions into an employer-employee relationship. 4 The Plaintiffs
have no protected property interest in their appointments, nor in the perks
that might accompany those appointments. This is why they suffer no
personal injury when the office to which they were appointed is terminated
or sunset by the legislature. See Houchens v. Beshear,
850 F. App’x 340, 344
(6th Cir. 2021) (citing Sutton v. Cleveland Bd. of Educ.,
958 F.2d 1339 (6th
Cir. 1992) (holding that a political appointee cannot bring a substantive due
process claim for improper discharge)); see also Haddock v. Tarrant Cnty.,
852
F. App’x 826, 830 (5th Cir. 2021) (noting that appointed judges may even be
removed for political reasons). 5
There is also a fundamental disconnect between the Plaintiffs’ theory
of employment-related injury, i.e. loss of per diem and travel reimbursement,
and the remedy they seek, which is an injunction preventing abolition of the
JMAA. As the Supreme Court recently re-emphasized, plaintiffs must
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4
That state law grants the JMAA commissioners immunity for official duties, bars
them from lobbying, and subjects them to state ethics rules also does not transform them
into “employees” of the state or JMAA. See, respectively, MISS. CODE ANN. § 11-46-1(f)
(immunity “whether with or without compensation”); Sec. 5-8-3(p) (“lobbying barred
“whether compensated or not”); Sec. 25-4-3(i) (ethics rules applicable if per diems paid or
expenses reimbursed).
5
Other circuits recognize that an unpaid volunteer may have a protectible legal
interest, but most require that state law creates that interest. See Barton v. Clancy, 632 F.3d
9, 25 (1st Cir. 2011) (collecting cases). Plainly, Mississippi law creates no such protection,
because the JMAA was legislatively superseded when the Authority was created.
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establish standing for each claim they make and each form of relief they seek.
Murthy v. Missouri, 144 S. Ct. 1972, 1988 (2024) (quoting TransUnion LLC
v. Ramirez,
594 U.S. 413, 431,
141 S. Ct. 2190 (2021)). Even if Plaintiffs had
standing to recover lost “compensation,” they lack standing to seek an
injunction against S.B. 2162. None of the salary-related cases cited in Judge
Ho’s concurrence to this court’s en banc dismissal, Jackson Mun. Airport
Auth., 98 F.4th at 149 (Ho, J., concurring), resulted in an injunction to
preserve their positions.
Moreover, this court’s previous cases concerning personal injury with
respect to per diem payments and travel expenses are readily distinguishable.
In United States v. Georgia Power Co., a company engaged in disparate
treatment of black employees compared to similarly situated white
employees. 474 F.2d 906, 922 (5th Cir. 1973); see also Langley v. Jackson State
Univ.,
14 F.3d 1070, 1072 (5th Cir. 1994) (overruled on other grounds)
(involving the alleged denial of travel expenses based on race). S.B. 2162 does
no such thing. Rather than singling out particular JMAA commissioners for
adverse treatment, or disadvantaging JMAA Commissioners vis a vis other
airport commissioners, S.B. 2162 eliminates the JMAA altogether and
replaces it with a new regional entity.
The elimination of JMAA and its replacement by the Authority is the
crux of this case. JMAA Commissioners’ per diem and travel expenses
compensate and reimburse them only for their official duties as appointees.
If the seat to which these duties are owed disappears, so too does the need
for any associated reimbursement or compensation. With the elimination of
the JMAA, there are no official duties requiring a per diem; and in the
absence of JMAA -related travel expenses, there is nothing to reimburse. See
Miss. Code Ann. § 61-3-13(1). As in Raines, “the injury claimed . . . here
is not claimed in any private capacity but solely because they are
[commissioners].” Raines,
521 U.S. at 821,
117 S. Ct. at 2318. “The claimed
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injury thus runs (in a sense) with the [commissioners’] seat, a seat which the
[commissioner] holds (it may quite arguably be said) as trustee for his
constituents, not as a prerogative of personal power.” Id.
Taking a final cue from Judge Duncan’s dissent to the second panel
opinion, the district judge was “refreshingly frank about what’s really at
stake in this case. In an order approving the amended complaint, the judge
writes:
The fundamental question at the heart of this dispute is, who
gets to control the airport and its surrounding assets? Is it the
local government, which in this case owns and operates the
Jackson airport, or the state government, which generally
speaking has authority over the composition of airport boards
in Mississippi?
Exactly. This suit is nothing more than a political dispute between state and
local governments over control of an airport and the land around it. One side
has dragged that fight into federal court by tricking it out in equal protection
colors. That won’t fly.” Jackson Mun. Airport Authority, 2023 WL 5522213,
at *12 (Duncan, J., concurring in part and dissenting in part).
These Plaintiffs lack standing to sue under any plausible theory.
For the foregoing reasons, the order of the district court is
VACATED, and the case is REMANDED with instructions to
DISMISS.
10
