American Alliance for Equal Rights v. Ivey

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

AMERICAN ALLIANCE FOR )

EQUAL RIGHTS, )

)

Plaintiff, ) Case No. 2:24-cv-104-RAH

) [WO]

v. )

)

KAY IVEY, in her official capacity as )

Governor of the State of Alabama, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff American Alliance for Equal Rights (AAER), on behalf of Member

A—a white Alabama resident who recently applied for the unfilled public at-large

member seat on the Alabama Real Estate Appraisers Board (Board)—seeks an

emergency temporary restraining order and preliminary injunction requiring the

Governor of the State of Alabama to withdraw her recent appointments to the Board

while the AAER pursues its legal challenge to the race-conscious provisions of the

applicable board-appointment laws. Defendant Kay Ivey, the Governor of Alabama,

resists. The Court held a hearing on March 18, 2024. The Motion is fully briefed

and will be denied.

II. BACKGROUND

In 1990, the Alabama Legislature created the Board. Currently, “no less than

two of the nine board members shall be of a minority race” and the “overall

membership of the board shall be inclusive and reflect the racial, gender, geographic,

urban/rural, and economic diversity of the state.” Ala. Code § 34-27A-4; Ala.

Admin. Code § 780-X-1-.02. The Governor appoints members to the Board for no

more than two staggered three-year terms and the Alabama Senate confirms them.

Id. Board members serve until their successors are appointed and confirmed, until

the Governor removes them for certain enumerated reasons, or until incapacity or

death. Id. Of the nine members, seven members must be real property appraisers,

one member must be a representative of an appraisal management company, and one

member, who fills the at-large position, must be an Alabama resident who is not a

real property appraiser. Id.

The Alabama Legislature began its 2024 session on February 6, 2024, and it

is expected to adjourn no later than May 20, 2024. During the 2024 session, as it

routinely does during any session, the Senate undertakes consideration of

gubernatorial appointments that are subject to Senate confirmation. Confirmation

proceedings in the Alabama Senate generally are not contentious, and most

appointees are quickly confirmed when the Senate calendar permits it.

On February 13, 2024, the AAER filed its Complaint, seeking declaratory and

injunctive relief on the basis that the challenged provisions of § 34-27A-4 and § 780-

X-1-.02 violate the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution. Before she was served on February 23, 2024, the

Governor appointed five individuals to the Board on February 21, 2024, including

two of racial minority status. She made an additional four appointments on February

28, 2024 (after service of the lawsuit), including her appointee to the at-large seat on

the Board: Tim Mills, a person of racial minority status. On February 29, 2024, all

nine appointments were forwarded to the Alabama Senate for confirmation. It is

expected that the nine appointments will be confirmed by the Senate as early as

March 21, 2024.

The at-large seat has been unfilled for years. Mr. Mills submitted his

application package for the at-large seat to the Governor in January 2021. The

Governor originally appointed him to the at-large seat on June 1, 2023, but he and

several other pending appointees at the time were not confirmed during the 2023

legislative session because the Senate adjourned sine die on June 6, 2023. Mr. Mills

and several of the other 2023 appointees were then re-appointed approximately three

weeks into the 2024 legislative session, and all nine appointments and re-

appointments were forwarded to the Senate on February 29, 2024.

Member A is a member of AAER, a nonprofit membership organization

dedicated to challenging distinctions made on the basis of race and ethnicity in state

and federal courts. Member A is a white female resident of Prattville, Alabama who

allegedly meets all the statutory requirements for appointment to the at-large seat on

the Board, wishes to serve in that position, and applied for the at-large position

sometime in February 2024.1 (Doc. 1 at 5.) She wishes to remain anonymous in

this lawsuit, employing “Member A” as a pseudonym. AAER uses Member A as its

linchpin for associational standing, although little information is provided about

Member A or her qualifications for a position on the Board other than that she is

white, a resident of Alabama, a member of AAER, and wants to be considered for

the position.

On March 11, 2024, the AAER moved for a temporary restraining order and

preliminary injunction seeking to (1) require the Governor to withdraw all nine

appointments to the Board and (2) enjoin the Governor from enforcing the race-

based provisions of Alabama Code § 34-27A-4 and Alabama Administrative Code

§ 780-X-1-.02. The AAER seeks to maintain the status quo of the Board’s

membership as it existed at the filing of this action throughout the pendency of this

1 According to AAER’s counsel, Member A applied for the position just a few days before this

lawsuit was filed in February and notified the AAER of her application within days. This lawsuit

followed shortly thereafter.

litigation; that is, with no new appointments or re-appointments to the Board until

the lawsuit has concluded.

III. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C.

§ 1331. Personal jurisdiction and venue are uncontested, and there are sufficient

allegations to support both. See 28 U.S.C. § 1391.

IV. STANDARD OF REVIEW

The factors to be considered in analyzing a request for a temporary restraining

order and a preliminary injunction are substantively the same. Compare Ingram v.

Ault, 50 F.3d 898, 900 (11th Cir. 1995), with Baldwin v. Express Oil Change, LLC,

87 F.4th 1292, 1301 (11th Cir. 2023) (quoting Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20 (2008)). In light of the AAER’s request for either or both forms of

preliminary relief, its Motion will be considered under the preliminary injunction

standard because a temporary restraining order is meant to give the Court and the

parties time to prepare the motion for preliminary injunction. Fed. R. Civ. P. 65.

A preliminary injunction “is an extraordinary remedy never awarded as of

right,” Winter, 555 U.S. at 24, so for one to issue the movant must show “(1) it has

a substantial likelihood of success on the merits; (2) irreparable injury will be

suffered unless the injunction issues; (3) the threatened injury to the movant

outweighs whatever damage the proposed injunction may cause the opposing party;

and (4) if issued, the injunction would not be adverse to the public interest.” Swain

v. Junior, 961 F.3d 1276, 1284–85 (11th Cir. 2020) (quoting Jones v. Governor of

Fla., 950 F.3d 795, 806 (11th Cir. 2020)).2 Because a preliminary injunction is a

2 The third and fourth factors generally “merge” where “the Government is the opposing party” to

the preliminary injunction request. Swain v. Junior, 961 F.3d 1276, 1293 (11th Cir. 2020) (citation

omitted). But in Nken v. Holder, the Supreme Court said that such a merger occurs in the context

of a movant’s application for stay but not necessarily a preliminary injunction. 556 U.S. 418, 435

“drastic remedy,” it should not be granted unless “the movant clearly establishes the

burden of persuasion as to the four requisites.” ACLU of Fla., Inc. v. Miami-Dade

Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (citation omitted). The decision

to grant or deny a preliminary injunction is within the sound discretion of the district

court. Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). “The chief function

of a preliminary injunction is to preserve the status quo until the merits of the

controversy can be fully and fairly adjudicated.” Suntrust Bank v. Houghton Mifflin

Co., 268 F.3d 1257, 1265 (11th Cir. 2001) (citation omitted).

When ruling on a preliminary injunction, “all of the well-pleaded allegations

[in a movant's] complaint and uncontroverted affidavits filed in support of the

motion for a preliminary injunction are taken as true.” Elrod v. Burns, 427 U.S. 347,

350 n.1 (1976). The Court may also consider supplemental evidence, even hearsay

evidence, submitted by the parties. See Levi Strauss & Co. v. Sunrise Intern.

Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995).

V. ANALYSIS

The Governor opposes the AAER’s request, invoking lack of standing, lack

of irreparable harm through the AAER’s delay, and the general equities flowing

from the extraordinary relief being sought. Despite the Governor’s protests, the

AAER has sufficiently shown that Article III standing exists. But the AAER has not

shown its entitlement to a preliminary injunction.

A. Standing

The AAER, a voluntary association, has standing to sue on behalf of its

members when: “(a) its members would otherwise have standing to sue in their own

right; (b) the interests it seeks to protect are germane to the organization’s purpose;

and (c) neither the claim asserted nor the relief requested requires the participation

(2009). Since there is a question on that issue, the Court will analyze the factors separately if it

needs to reach them.

of individual members in the lawsuit.” Hunt v. Washington State Apple Adv.

Comm'n, 432 U.S. 333, 343 (1977). The Governor challenges only the first factor;

that is, whether Member A has standing to sue in her own right.

To meet the first factor, Member A must herself meet Article III standing.

She must show that she “(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 (2016)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).

The Governor again only challenges the first factor. The allegations and

record easily support the conclusion that the other two factors can be met: the act of

appointing members to the Board, including the public at-large position, is fairly

traceable to the Governor who holds appointment power, and a favorable ruling in

Member A’s favor on the declaratory relief would potentially redress the injury of

which she complains by halting enforcement of any race-based appointment

requirements, particularly the at-large seat.

The AAER’s standing then turns on whether Member A has “suffered an

injury in fact.” Id. The Governor contends she has not. The Court disagrees.

“To establish injury in fact, a plaintiff must show that he or she suffered ‘an

invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Id. at 339 (quoting

Lujan, 504 U.S., at 560 (internal quotation marks omitted)). To be “particularized,”

an injury in fact “must affect the plaintiff in a personal and individual way.” Id.

(citation omitted). A “concrete” injury is one that “must actually exist,” meaning it

is “‘real,’ and not ‘abstract.’” Id. at 340 (citation omitted). In addition to showing

past injury, “a plaintiff seeking injunctive relief ‘must show a sufficient likelihood

that he will be affected by the allegedly unlawful conduct in the future.’” Houston

v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013) (quoting Wooden

v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)).

“Because injunctions regulate future conduct, a party has standing to seek injunctive

relief only if the party shows ‘a real and immediate—as opposed to a merely

conjectural or hypothetical—threat of future injury.’” Id. at 1329 (citations

omitted). Accord O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974) (“Past exposure

to illegal conduct does not in itself show a present case or controversy regarding

injunctive relief, however, if unaccompanied by any continuing, present adverse

effects.”).

The Governor argues the AAER, through Member A, has not suffered an

injury in fact, nor has it shown a “real and immediate threat of future injury or

continuing, present adverse effects.” (Doc. 20 at 11.) Under the Governor’s theory,

the fact that she appointed two members of a racial minority status to the Board

approximately a week before appointing Mr. Mills to the at-large seat conclusively

means that the race-conscious requirements of the pertinent statute and regulation

were not implicated when she considered Mr. Mills for appointment. Furthermore,

the Governor avers that there is no “real” threat of future injury because there is “no

reason to believe that Mr. Mills [will not] get confirmed,” and there is no

“immediate” threat of future injury because such a threat “could only exist if [the

Governor] makes another appointment to [the] position. But assuming the

[Alabama] Senate confirms Mr. Mills, that threat could not occur until at least March

26, 2026[.]” (Doc. 20 at 11.)

The AAER argues that Member A did suffer an injury in fact because the

challenged provisions required the Governor to consider race when she appointed

Mr. Mills to the at-large seat, and there is a “real and immediate” threat of future

injury or “continuing, present adverse effects” because the harm of which the AAER

complains is likely to recur the next time the Governor makes an appointment to the

Board.

At the time this lawsuit was filed, the Governor had not yet selected the three

appointees of racial minority status to the Board, nor had she made appointments or

re-appointments to any of the nine seats. But applications for appointments to the

Board had been received and were under review, including that of Mr. Mills and

Member A. According to the AAER, Member A was injured because she was denied

“equal treatment resulting from the imposition of the [race-conscious appointment]

barrier, not the ultimate inability to obtain the [appointment to the at-large seat on

the Board].” Ne. Fla. Chapter of the Assoc’d Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 666 (1993). That is enough to show standing when this

lawsuit was filed.

Perhaps more appropriate for a mootness argument, the Governor also argues

no harm from a racial quota because the Governor had already tapped two appointees

of racial minority status before she filled the at-large seat with Mr. Mills. The

Governor’s actions in tiering the nominations in the manner that she did does not

divest the Court of subject-matter jurisdiction, the AAER of associational standing,

or conclusively disprove harm. Indeed, this action presents the “exceptional

situation[]” when the “narrow” exception to mootness, the “capable of repetition,

yet evading review” doctrine, applies. Health Freedom Def. Fund v. President of

U.S., 71 F.4th 888, 892–93 (11th Cir. 2023).

The “capable of repetition, yet evading review” doctrine applies “only where

‘(1) the challenged action is in its duration too short to be fully litigated prior to

cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action again.’” Id. (quoting Arcia v.

Fla. Sec'y of State, 772 F.3d 1335, 1343 (11th Cir. 2014) (citing Davis v. FEC, 554

U.S. 724, 735 (2008))).

The AAER had standing at the time this lawsuit was filed, and just two weeks

later, the Governor made her nine appointments to the Board. Such a short period is

sufficient to satisfy the first prong of the analysis. Bourgeois v. Peters, 387 F.3d

1303, 1308–09 (11th Cir. 2004). And in the absence of a judicial declaration that

the contested provisions are unconstitutional or a change in the applicable law, the

second prong is met because there is a reasonable expectation, not just a “mere

possibility[,]” that the AAER’s members, including Member A, would be subject to

the same injury any time a seat is or will become open and/or when the Governor

receives applications for a seat; that is, denial of “equal treatment resulting from the

imposition of the [race-conscious appointment] barrier,” Ne. Fla. Chapter of the

Assoc’d Gen. Contractors of Am., 508 U.S. at 666. See Bourgeois, 387 F.3d at 1309;

Arcia, 772 F.3d at 1343.3 Although these seats are for three-year terms, vacancies

can arise at any time upon resignation, removal, incapacity, or death, and often with

little or no notice to the public and without a pronounced window for receiving

applications. Lists of applicants are often generated well in advance of a position

opening. Thus, the Court does not find the Governor’s arguments compelling. The

AAER had standing to pursue its equal protection claim at the initiation of the

lawsuit, it has standing now, and it will have standing if Mr. Mills is confirmed.

B. The AAER’s Request for a Preliminary Injunction

The AAER has standing, but it is not entitled to a preliminary injunction

because it has not shown irreparable harm will result absent the injunction.

Harm “is ‘irreparable’ only if it cannot be undone through monetary

remedies.” Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am., 896 F.2d at 1285.

3 Both in briefing and during the hearing, the AAER claimed that the Governor’s actions in making

the appointments in the manner that she did was “gamesmanship.” (Doc. 11 at 2; Doc. 28 at 2, 5.)

But the Court observes that there may be some gamesmanship on the AAER’s part as well. That

aside, the AAER has standing to pursue the equal protection claim here.

An irreparable harm is one that is “actual and imminent, not remote or

speculative.” Odebrecht Const., Inc. v. Sec'y, Fla. Dep't of Transp., 715 F.3d 1268,

1288 (11th Cir. 2013).

The AAER claims the harm here is the deprivation of Member A’s “[]ability

to compete on an equal footing” during the Governor’s appointment process for the

at-large seat on the Board, on account of the statutorily mandated racial preference,

in violation of the Equal Protection Clause. (Doc. 11 at 8 (quoting Ne. Fla. Chapter

of Ass'n of Gen. Contractors of Am., 508 U.S. at 666).) In response, the Governor

argues first that the AAER has not suffered an injury-in-fact and, second, that even

if it did, the AAER’s delay in seeking the preliminary injunction forfeits its requested

emergency relief. (Doc. 20 at 15 (citing Wreal v. Amazon.com, Inc., 840 F.3d 1244,

1248 (11th Cir. 2016)).)

True, Mr. Mills’s appointment and looming confirmation to the Board may

deprive Member A of her ability to compete on an equal footing free of racial

preference for the currently unfilled at-large seat. That harm cannot be undone

through monetary remedies at this stage of the proceeding if the Alabama Senate

confirms Mr. Mills in the coming days. But the AAER has not submitted evidence

that the Governor even considered applicants’ race (including that of Mr. Mills)

when she appointed Mr. Mills and the two other appointees of racial minority status

to seats on the Board. The AAER and Member A simply assume that the Governor

did based on the mere existence of the statute and regulation, an alleged presumption

that the Governor was obligated to follow the law as written, and the minority status

of Mr. Mills and the other two minority applicants. The AAER provides no legal

authority in support of its argument, and the argument finds no home in any binding

precedent located by this Court. Courts have recognized that governors are “under

a general duty to enforce state laws[,]” but there has been no showing that courts

presume as a matter of law that they do so, especially when the parties, as here, seem

to be in agreement that racial quotas of this nature are per se unconstitutional.

Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1342 (11th Cir. 1999) (quoting

Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979)).

The record reveals that Mr. Mills was first appointed in June 2023 but not

confirmed during the 2023 session and that he was simply re-appointed by the

Governor when the 2024 legislative session began. No evidence has been provided

showing that Mr. Mills’s appointment in 2023 was based on race, let alone because

of any racial quotas required under Alabama law. It may well be that Mr. Mills was

the only applicant for the at-large position in 2023 and it was the Governor’s intent

to simply carry his appointment forward into the next legislative session with little

or no consideration given to someone who applied for the at-large position last

minute, like Member A. There are also considerations of qualifications that extend

beyond those required by statute. The AAER has presented no evidence of Member

A’s qualifications for the position beyond the statutory minimum requirements of

being an Alabama resident and non-real estate appraiser. The Governor, on the other

hand, has submitted Mr. Mill’s application package, which includes a cover letter,

his curriculum vitae, and his detailed answers to a host of questions that the Governor

posed to all of the applicants for seats on the Board.

The AAER concedes that it only seeks preliminary relief so that the Court

may retain jurisdiction, apparently with the fear that standing will be lost or vanish

if Mr. Mills and the other minority-status applicants are confirmed. (Doc. 28 at 20

n.7.) The AAER should not be concerned because, as previously explained, it does

have standing and will continue to have it even if all nine appointees are confirmed.

The mere possibility of irreparable harm here, the last-minute nature of

Member A’s foray into the application process, and the general equities presented

here, particularly when the AAER has not submitted evidence that the Governor

appointed Mr. Mills because of race and not because he was simply the best qualified

candidate, or a better candidate than Member A, or a candidate who was previously

appointed, or a candidate who submitted a timely and/or complete application, is

insufficient to warrant the “extraordinary remedy” that is being sought here.4

Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a possibility

of irreparable harm is inconsistent with our characterization of injunctive relief as

an extraordinary remedy that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.”); Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.

2000) (en banc) (“[T]he absence of a substantial likelihood of irreparable injury

would, standing alone, make preliminary injunctive relief improper.”). And make

no mistake, judicial intervention into an executive branch appointment (let alone

nine appointments) involving a legislative branch confirmation would be an

extraordinary and drastic event. The AAER has not shown that such action is

necessary or needed. The AAER’s Motion will be denied.5

VI. CONCLUSION

It is therefore ORDERED that the AAER’s Motion for a Temporary

Restraining Order/Preliminary Injunction (doc. 11) is DENIED, and the

Defendant’s Motion to Strike (doc. 19) is DENIED as moot.

4 When counsel was questioned about Member A’s qualifications to serve on the Board compared

to those of Mr. Mills, AAER’s counsel was unable to provide any detail about Member A’s

qualifications other than her residency status and willingness to serve. Mr. Mills, for example,

holds a college degree, a masters degree, has worked in the real estate industry for years, is a

member of various real estate-associated organizations, and has extensive examples of volunteer

service. Member A has submitted nothing about her application or qualifications.

5 During briefing on the Motion, the Governor conceded that the racial quota language of the

challenged provisions, that “no less than two of the nine board members shall be of a minority

race[,]” is unconstitutional. (Doc. 20 at 1; Doc. 28 at 1 n.1.) The parties disagree on the

constitutionality of the second sentence of the challenged provisions, that “the overall membership

of the board shall be inclusive and reflect the racial, gender, geographic, urban/rural, and economic

diversity of the state.” (Doc. 20 at 13; Doc. 28 at 1 n.1.)

DONE on this the 19th day of March 2024.

R. Et Lon JR.

UNITED STATES DISTRICT JUDGE

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