Ever wonder what happened with the minimum wage fight that has been going on between Alabama and Birmingham? Well, here is the latest — the full panel on the Eleventh Circuit has now spoken: the district court rightly dismissed the lawsuit against Alabama’s governor and attorney general alleging discrimination in the state’s minimum wage law. But this may not be the final chapter for Alabama’s minimum wage law.

Background and Previous (Vacated) Ruling

The underlying facts relate to the Birmingham City Council raising the minimum wage to $10.10 per hour for employees in the city and the Alabama Legislature and governor enacting a Minimum Wage Act that prohibited all such local laws that would raise the minimum wage beyond the federal minimum of $7.25 per hour. As set out in our post from earlier this year, a three-judge panel had reversed the dismissal as to one of the claims under the 14th Amendment, but that ruling was vacated to allow the entire Eleventh Circuit panel to review and opine on the matter.

The Full Panel Finds…

On December 13th, a 7-5 majority ruled that the plaintiffs — two Birmingham minimum-wage employees and public interest groups — did not have standing to sue the Alabama attorney general over the 2016 state law. Standing is a threshold procedural requirement — any plaintiff in a lawsuit must establish that he or she has been actually damaged by the alleged conduct. Per the full panel’s ruling, the plaintiff workers did not show that their lower-wage damages were sufficiently traceable to the attorney general’s conduct.

The previous three-judge ruling, that this current opinion vacated, believed the plaintiffs did have standing against the Alabama attorney general because of his authority to enforce the state provision, creating a sufficient connection to the plaintiffs’ injuries.

As posed by the full panel’s majority: “what, exactly, do they say the attorney general did wrong — how, exactly, do they trace their injuries to his ‘conduct’?” The court then rejected the plaintiffs’ two responses: (1) that he had failed to discharge his statutory duty to proclaim? that the state law was unconstitutional and (2) as a result of his conduct, the City of Birmingham failed to implement its increased wage ordinance. The ruling emphasized that the attorney general has no enforcement role in the state law passed, rather these plaintiffs’ “immediate gripe is with their employers, who aren’t paying the ordinance-prescribed wages.” Instead of suing the AG, the plaintiffs could have sued their respective employers for failing to pay the City’s minimum wage amount, which would have likely resulted in their employers defending based on the state-wide law and teed up a challenge to the state law with the attorney general then potentially intervening as a party. But that is not what happened.

As the court summarized its ruling, “we hold that plaintiffs lack Article III standing to bring their equal-protection claim against the Alabama attorney general because they have failed to establish that their injuries (while real and cognizable) are fairly traceable to the attorney general’s conduct or that those injuries would be redressed by a decision in their favor.”

The Dissent Disagrees

The five-judge dissent contended that the majority opinion sidestepped the main issue of whether the state law deprived Birmingham’s black citizens of equal economic opportunity based on an overly onerous standard, especially at only the early pleading stage of the lawsuit. The dissent believed the plaintiffs alleged enough in the complaint to show injury and traceability to the attorney general and would have allowed the equal-protection claim to proceed.

Are We Done Yet?

By affirming the dismissal based on the lack of standing, the court never reached the actual merits. Specifically, the court did not address whether the plaintiffs had alleged a plausible 14th Amendment equal-protection claim. The possibility remains that the state law will be challenged via a lawsuit against an employer. As framed by the dissent: “[w]hy dismiss this action for failing to present a justiciable case or controversy when, as even the majority acknowledges, the same parties will ultimately be fighting the same controversy if employees are forced to sue their employers?” We shall see if this is the final chapter or more remains to be written.