Amacher v. State of Tennessee, The

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JENNA R. AMACHER, )

)

Plaintiff, )

) NO. 3:21-cv-00638

v. ) JUDGE RICHARDSON

)

STATE OF TENNESSEE, et al., )

)

Defendants. )

)

)

MEMORANDUM OPINION

Pending before the Court is Defendants’ Motion to Dismiss (Doc. No. 14, “Motion”),

supported by an accompanying Memorandum of Law (Doc. No. 15). Plaintiff filed a response

(Doc. No. 17, “Response”), and Defendants did not file a reply. For the reasons stated herein,

Defendant’s Motion will be GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff, Jenna Amacher, is an Alderman for the City of Tullahoma in Coffee County,

Tennessee. (Doc. No. 1 at 1). She is affiliated with the Coffee County Republican Party. (Id. at 2).

She brings this action challenging the enforcement of Tenn. Code. Ann. § 2-13-208 (“the Act”).

The Act requires that municipal elections in Tennessee be non-partisan unless otherwise expressly

allowed by the municipal charter. Tenn. Code Ann. § 2-13-208(a).1 Plaintiff wishes to engage in a

1 The Court discussed the relevant statutes in more depth in its previous opinion denying Plaintiff’s request

for a preliminary injunction. See Amacher v. State of Tennessee, et al., No. 3:21-CV-00638, 2021 WL

5015803, at *1 (M.D. Tenn. Oct. 28, 2021).

partisan primary, as well as have her party affiliation included on the ballot in the upcoming

election where she intends to seek re-election as a Tullahoma Alderman. (Doc. No. 1 at 2).

Plaintiff filed this present action on August 17, 2021, seeking a permanent injunction

restraining Defendants—the State of Tennessee, Tennessee Secretary of State Tre Hargett, and the

Tennessee Election Commission—from enforcing the Act, a judgment declaring the Act to be

unconstitutional under the First Amendment, and a judgment awarding Plaintiff attorney’s fees.

On September 9, 2021, Plaintiff filed a Motion for Preliminary Injunction, seeking to preliminary

enjoin Defendants from enforcing the Act. (Doc. No. 12 at 1). The Court rejected the request for a

preliminary injunction, based in large part on the unlikelihood of Plaintiff ultimately establishing

Article III standing as required to successfully prosecute this case. See Amacher v. State of

Tennessee, et al., No. 3:21-CV-00638, 2021 WL 5015803, at *10 (M.D. Tenn. Oct. 28, 2021).

Defendants’ Motion first argues that the case should be dismissed under Fed. R. Civ. P.

12(b)(1) because (according to Defendants) the Court lacks subject-matter jurisdiction because

(again according to Defendants) they enjoy “sovereign immunity,” which Defendants use

synonymously with Eleventh Amendment immunity. (Doc. No. 15 at 3). The Motion additionally

argues for dismissal under Fed. R. Civ. P. 12(b)(6) for two reasons: (1) Plaintiff lacks Article III

standing, and (2) Plaintiff has failed to state a claim that the statute in question violates her rights

under the First or Fourteenth Amendment. (Id. at 6-9).

STANDARD

The Court first notes that an argument related to a lack of Article III standing is properly

brought via a Fed. R. Civ. P. 12(b)(1) motion for lack of subject-matter jurisdiction, rather than

via 12(b)(6). See Fishon v. Mars Petcare US, Inc., 501 F. Supp. 3d. 555, 562 (M.D. Tenn. 2020)

(citing Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008)). Defendants are not the

first to incorrectly invoke Rule 12(b)(6) when challenging Article III standing, however. And in

any event, the Court must consider any colorable challenge to subject-matter jurisdiction—which

is what a challenge to standing is, as discussed below—when it is called to the Court’s attention.

Beauchamp v. Sampson, No. 10-12901, 2011 WL 4498804, at *1 (E.D. Mich. Sept. 27, 2011)

(noting that although a particular so-called “objection” of the defendants was procedurally

improper, “the Court is nevertheless obligated to address [the defendants'] ‘objection’ because it

challenges the Court's subject matter jurisdiction.”). The fact that Defendants have cited the wrong

paragraph of Rule 12(b) does not change that fact or allow the Court to ignore the challenge to

standing. Indeed, even absent a defendant’s challenge to subject-matter jurisdiction, district courts

are obligated to consider sua sponte whether they have subject-matter jurisdiction. Spencer v.

Stork, 513 F. App'x 557, 558 (6th Cir. 2013) (citing Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.

1999)).

The Court additionally notes that there is a difference between the immunity conferred by

the Eleventh Amendment and common-law sovereign immunity. See WCI, Inc. v. Ohio Dep’t of

Public Safety, 18 F. 4th 509, 513 (6th Cir. 2021) (“The parties and the district court conflate the

common-law doctrine of sovereign immunity with the immunity conferred by the Eleventh

Amendment. And they are not the first: courts have often treated Eleventh Amendment immunity

and sovereign immunity as interchangeable concepts. But as a matter of original meaning, the two

are conceptually distinct.”). In this sense, “sovereign immunity” is not a synonym for Eleventh

Amendment immunity as Defendants suggest. As the Sixth Circuit recently explained,

The Eleventh Amendment removes from federal jurisdiction “any suit in law or

equity, commenced or prosecuted against one of the United States by Citizens of

another State[.]” U.S. Const. amend. XI. The plain text of the amendment includes

a diversity requirement and sounds in subject-matter jurisdiction. William Baude

& Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. PA. L. REV.

609, 612 (2021) . . . State sovereign immunity, on the other hand, refers to a state's

right “not to be amenable to the suit of an individual without its consent.” The

Federalist No. 81, at 486 (Alexander Hamilton) (Clinton Rossiter ed., 1961)

(emphasis omitted). Sovereign immunity “neither derives from, nor is limited by,

the terms of the Eleventh Amendment,” Franchise Tax Bd. v. Hyatt, ––– U.S. –––

–, 139 S. Ct. 1485, 1496, 203 L.Ed.2d 768 (2019) (quoting Alden, 527 U.S. at 713,

119 S. Ct. 2240), and its origins predate the Constitution, id. at 1493 (citing

McIlvaine v. Coxe's Lessee, 8 U.S. (4 Cranch) 209, 212, 2 L. Ed. 598 (1808)). It

sounds in personal jurisdiction and may be waived by a state's conduct. Caleb

Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L.

REV. 1559, 1565–66 (2002). And unlike the Eleventh Amendment, it erects a

jurisdictional bar in both state and federal courts and does not require diversity

among the litigants.

Id. at 513-14. Here, though Defendants (like many before them) have conflated the two

immunities,2 they are distinct, and it is easy to see that one of them is inapplicable here.

Specifically, the Eleventh Amendment cannot be applicable here, because there is no diversity of

citizenship between Plaintiff and Defendants. Accordingly, Defendants’ immunity argument is

rooted in state sovereign immunity (not the Eleventh Amendment), which as noted above, “sounds

in personal jurisdiction.” Id. at 514.

Additionally, it is important here to note that federal courts must decide jurisdictional

issues before considering merits issues. See In re: 2016 Primary Election, 836 F.3d 584, 587 (6th

Cir. 2016). A challenge to a plaintiff’s standing under Article III of the Constitution is a challenge

to subject-matter jurisdiction; Article III “[s]tanding is a jurisdictional requirement,” and “[i]f no

plaintiff has standing, then the court lacks subject-matter jurisdiction.” Tennessee General

Assembly v. U.S. Dep't of State, 931 F.3d 499, 507 (6th Cir. 2019). But Plaintiff also faces a

challenge to personal jurisdiction, because (as noted above) Defendants have raised the defense of

2 Part of the reason the Court says Defendants have conflated the two immunities is the fact that Defendants

refer by name to both of them, albeit under the mistaken impression that the two immunities are one and

the same. By referring to sovereign immunity by name, and not just to Eleventh Amendment immunity,

Defendants fairly have raised the defense of sovereign (as opposed to Eleventh Amendment) immunity in

particular, and so the Court proceeds with considering that defense.

sovereign immunity, a defense that is in the nature of a challenge to personal jurisdiction. Presented

with pending challenges to both its subject-matter jurisdiction and its personal jurisdiction, the

Court may resolve them in either order, but challenges to a court’s subject-matter jurisdiction that

“involve no arduous inquiry” should be dealt with first to maintain efficiency in the federal court

system. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999). Because the Court has

determined that Defendants’ challenge to subject-matter jurisdiction (based on a purported lack of

Article III standing) does not involve a difficult inquiry, the Court will first address this challenge.

As discussed, Rule 12(b)(1) “provides for the dismissal of an action for lack of subject

matter jurisdiction” Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014), which is “always a

threshold determination.” Am. Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir.

2007). Motions to dismiss for lack of subject-matter jurisdiction come in two forms: facial and

factual attacks. Gentek Bldg. Products, Inc. v. Sherman-Williams Co., 491 F.3d 320, 330 (6th Cir.

2007). A facial attack questions merely the sufficiency of the pleading, while a factual attack

instead raises a factual controversy concerning whether subject-matter jurisdiction exists. Id.

When reviewing a facial attack, a district court takes the allegations in the complaint as

true. Id. If those allegations establish federally-cognizable claims, jurisdiction exists. Id. If there is

a factual attack on the subject-matter jurisdiction of the court, no presumptive truthfulness applies

to the complaint’s allegations; instead, the court must weigh the conflicting evidence to arrive at

the factual predicate that subject-matter jurisdiction does or does not exist. Id.

Like any kind of challenge to subject-matter jurisdiction, a challenge specifically to the

plaintiff’s standing can be in the form of either a facial attack or a factual attack. See Kale v.

Procollect, Inc., No. 2:20-CV-2776-SHM-TMP, 2021 WL 2784556, at *2 (W.D. Tenn. July 2,

2021) (“Challenges to standing can be facial or factual.”); In re Saffold, 373 B.R. 39, 43 (Bankr.

N.D. Ohio 2007) (“A challenge to standing may be either a facial attack on a pleading or a factual

attack.”).

“A facial attack on standing challenges the legal sufficiency of the complaint, whereas a

factual challenge against standing questions whether the complaint's factual assertions reflect

reality.” Shumway v. Neil Hosp., Inc., No. 121CV01059STAJAY, 2021 WL 5181754, at *1 (W.D.

Tenn. Nov. 8, 2021) (citing Ohio Nat. Life Ins. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).

A review of Defendants’ standing arguments (Doc. No. 15 at 6-8), although improperly presented

under Rule 12(b)(6), reveals that they are bringing a facial rather than a factual challenge.

DISCUSSION

Defendants argue that Plaintiff’s Complaint fails to allege an “injury-in-fact” to Plaintiff

herself. (Doc. No. 15 at 7). Instead, Defendants say, Plaintiff has mainly alleged injuries suffered

by the Coffee County Republican Party. (Id.). Plaintiff’s Response is difficult to follow3 and in

places shows a deep misunderstanding of the law. But from what the Court can glean, Plaintiff

argues that she is asserting violations of her “individual constitutional rights, not that of her

designated political party” and that the Supreme Court case, Kusper v. Pontikes, 414 U.S. 51

(1973), provides her standing because it pronounces that freedom of association “means that an

individual voter has the right to associate with a political party of her choice.” (Doc. No. 17 at 1,

9 (emphasis in original)).

To satisfy Article III's standing requirements, a plaintiff must show: (1) he or she has

suffered an “injury-in-fact” that is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the

3 It appears to the Court that in some places throughout the Response, Plaintiff copied and pasted arguments

from her motion for preliminary injunction (Doc. No. 12) without regard to organization or relevance.

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision. Doe v. Byrd, No. 1:18-cv-00084, 2020 WL 1285428, at *2 (M.D. Tenn.

Mar. 18, 2020). The Supreme Court has emphasized that the condition that an injury-in-fact be

“concrete and particularized” encompasses two distinct requirements. Spokeo, Inc.v. Robins, 578

U.S. 330, 340 (2016) (“We have made it clear time and time again that an injury in fact must be

both concrete and particularized.”). To be “concrete,” an injury must be “de facto”—meaning it

actually exists—and to be “particularized,” the injury “must affect the plaintiff in a personal and

individual way.” Id.

At the pleading stage, the plaintiff must clearly allege facts demonstrating each element of

standing. Id. at 338 (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)). Moreover, as this Court

has previously noted, a plaintiff asserting injunctive or declaratory relief—like Plaintiff here—

“face[s] a higher burden; they must show actual or present harm or a significant possibility of

future harm.” Memphis A. Phillip Randolph Inst. v. Hargett, 485 F. Supp. 3d 959, 977 (M.D. Tenn.

2020) (citing Shelby Cty. Advocates for Valid Elections v. Hargett, No. 2:18-cv-02706-TLP-dkv,

2019 WL 4394754, at *5 (W.D. Tenn. Sept. 13, 2019)) vacated and remanded sub nom., 2 F.4th

548 (6th Cir. 2021).

Plaintiff’s Complaint (and her attached Affidavit) include the following statements that

appear to the Court to be alleging an injury to herself, individually:

• “[Plaintiff] seeks the right to affiliate with her political organization on the voter

ballot.” (Doc. No. 1 at 2).

• “Plaintiff asserts the statutory effect of delegating the right of political

association to the individual municipalities is also unconstitutional. Under the

application of 42 U.S.C. 1983, the unconstitutional statute violates the

Plaintiff’s equal protection of the law.” (Id.).

• “[Plaintiff’s] constitutional rights to freedom of associations and free speech are

precluded by T.C.A. 2-13-208 which denied [her] the opportunity to run as a

recognized Republican.” (Doc. No. 1-1 at 3).

Thus, it appears Plaintiff’s stated injury is her inability to be designated as a Republican on the

voter ballot. As the Court noted in its opinion on Plaintiff’s preliminary injunction request, a denial

of party affiliation on a ballot would not be a violation of Plaintiff’s right to free speech, as she is

neither writing nor publishing said ballot. Amacher, No. 3:21-CV-00638, at *5. Moreover, there

is no constitutional right to have one’s party affiliation denoted on a ballot. See Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 363 (1997) (“Ballots serve primarily to elect candidates, not

as forums for political expression.”); Rosen v. Brown, 970 F.2d 169, 175 (6th Cir. 1992) (finding

that states do not have to provide ballots with political designations of candidates); Ohio Council

8 American Federation of State v. Brunner, 24 F. Supp. 3d 680, 691 (S.D. Ohio 2014) (“To

summarize, Ohio's general election ballot is not a forum for judicial candidates' speech.”); Haffey

v. Taft, 803 F. Supp. 121, 125 (S.D. Ohio 1992) (noting that a ballot is not a “vehicle for

communicating messages” so a candidate does not suffer an injury if denied the right to have their

party identified on the ballot). Thus, the identified statements above have not adequately alleged

an injury-in-fact (present or future) to Plaintiff herself as required for Plaintiff to have Article III

standing.

Plaintiff’s Complaint also contains statements that appear to be alleging additional injuries

sustained by her political party, including:

• “The prohibition directly hampers the ability of a party to spread its message

and hamstrings voters seeking to inform themselves” (Doc. No. 1 at 4).

• “Barring political parties from endorsing and opposing candidates not only

burdens their freedom of speech, but also infringes upon their freedom of

association.” (Id. at 5).

• “Depriving a political party of the powder to endorse [candidates] suffocates

[freedom of association].” (Id. at 6).

These allegations do not identify injuries (actual or future) directly to Plaintiff, but rather identify

injuries allegedly suffered by the Coffee County Republican Party. Plaintiff’s Response states she

“has standing to assert her associational rights,” thus suggesting that she has standing to bring

claims on behalf of the Coffee County Republican Party. (Doc. No. 17 at 9).

Initially, the Court notes that “associational standing” is different from “third-party

standing.” See Ass'n of Am. Physicians & Surgeons v. United States Food & Drug Admin., 13 F.4th

531, 539, 547 (6th Cir. 2021) (drawing distinctions between the two concepts). Associational

standing confers standing on an association to sue for injuries as to which its individual members

have standing. See, e.g., Ne. Ohio Coal. for Homeless & Serv. Emps. Int'l Union, 467 F.3d 999,

1010 (6th Cir. 2006). It does not confer standing on individual members of an association to sue

for injuries to the association, so it cannot and does not apply to confer standing on Plaintiff.

In theory, Plaintiff could have third-party standing, which “permits a plaintiff to assert the

constitutional or statutory rights of parties not before the court if the plaintiff has a close

relationship to those parties and if they are hindered in protecting their own rights.” Ass'n of Am.

Physicians & Surgeons, 13 F.4th at 547. But to do this, Plaintiff must show “(1) [she] has suffered

an injury in fact; (2) [she] has a close relationship to the third party; and (3) there is some hindrance

to the third party's ability to protect his or her own interests.” Crawford v. United States Dep’t of

Treasury, 868 F.3d 438, 455 (6th Cir. 2017) (quoting Mount Elliott Cemetery Ass'n v. City of Troy,

171 F.3d 398, 404 (6th Cir. 1999)).

Here, as the Court noted above, Plaintiff has not alleged injury to herself, nor has she

alleged any facts plausibly suggesting that the Coffee County Republican Party is unable to protect

its own interests. Consequently, Plaintiff does not have third-party standing. Another way to look

at it is to note that third-party standing essentially allows a plaintiff who has her own standing to

also have standing to sue on behalf of third parties. Individual plaintiffs have third-party standing

to raise claims on behalf of others if, in addition to the individuals' own standing, they can show a

close relationship with the third parties whose rights they assert and some hindrance to the third

parties pursuing their own rights. Turner v. U.S. Agency for Global Media, 502 F. Supp. 3d 333,

361 (D.D.C. 2020), appeal dismissed, 2021 WL 2201669 (D.C. Cir. 2021). But here, as noted,

Plaintiff lacks her own standing due to the lack of an injury-in-fact to herself, so she lacks third-

party standing to sue on behalf of the Coffee County Republican Party.

To summarize, Plaintiff’s Complaint fails to allege a “concrete and particularized injury”

to herself, which prevents Plaintiff from establishing Article III standing. Spokeo, Inc., 578 U.S.

at 340. Without Article III standing established, the Court does not have subject-matter jurisdiction

over Plaintiff’s claims. See Exec. Transp. Sys. LLC v. Louisville Reg'l Airport Auth., 678 F. Supp.

2d 498, 505 (W.D. Ky. 2010) (“Standing is a critical component of the subject-matter jurisdiction

of the federal courts; without it there is no ‘Case’ or ‘Controversy’ upon which the federal judicial

power can act.”). Accordingly, the case will be dismissed.

As the Court has determined it lacks subject-matter jurisdiction over the case, it will not

consider any of the other arguments for dismissal outlined in the Motion. See Steel Co. v. Citizens

for a Better Env't, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot proceed at all in

any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and dismissing the cause.”).

CONCLUSION

For the reasons indicated herein, Defendants’ Motion will be GRANTED in part and

DENIED in part. The Motion will be granted as to the argument that Plaintiff lacks standing, and

Plaintiff’s claims will be DISMISSED without prejudice for lack of subject-matter jurisdiction,

pursuant to Fed. R. Civ. P. 12(b)(1). The Motion will be denied as moot with respect to all other

arguments.

An appropriate order will be entered.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE