Jones v. Reeves

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

Case: 24-60371 Document: 73-1 Page: 2 Date Filed: 11/19/2024

______________________________

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 Plaintiff-

Commissioners 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.

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