United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
the Court is Lieutenant Governor Tate Reeves' motion to
dismiss for lack of subject matter jurisdiction. The
background of this case was recited in an earlier Order and
need not be repeated. See Stallworth v. Bryant, No.
3:16-CV-246-CWR-FKB, 2016 WL 4410162, at *1 (S.D.Miss. Aug.
18, 2016). The familiar dismissal standard
Lieutenant Governor argues that he should be dismissed
because the plaintiffs have not yet suffered an injury at his
hands. While S.B. 2162 gives him the power to appoint a board
member to the newly-planned “Jackson Metropolitan Area
Airport Authority, ” the Lieutenant Governor observes
that he “has twice agreed not to take any
action in connection with that appointment during the
pendency of this lawsuit.” Docket No. 78, at 2.
argument is unpersuasive. It is settled law that
“[f]uture injuries can provide the basis for
standing.” Barber v. Bryant, --- F.3d ---,
2017 WL 2702075, at *6 (5th Cir. June 22, 2017) (citation
omitted). Under S.B. 2162, the Lieutenant Governor has the
power to injure the plaintiffs in their legal and property
rights by appointing someone to a replacement airport board.
If he had no ability to inflict this injury, there would be
no need for his agreement not to wield his appointment power
during this lawsuit. The agreement itself confirms the nature
of the injury at the heart of this litigation.
Lieutenant Governor's next argument is more complicated.
It goes like this: even if he did wield his appointment
power, his appointment would have no legal effect because
“the FAA will not recognize any change in sponsorship
of the Jackson Medgar Wiley-Evers International Airport while
this litigation is pending.” Docket No. 78, at 3. The
result, he says, is that the plaintiffs cannot possibly be
injured by his actions.
a puzzling assertion. If everyone with a S.B. 2162-authorized
appointment power raised this argument-saying that this
lawsuit cannot proceed against them because the new
board's power is ultimately contingent upon FAA
approval-there would be no defendant left in this lawsuit.
The FAA would have no litigation to defer to. And with no
decision on the constitutionality of S.B. 2162, the FAA would
not approve a transfer of the airport's ownership. That
cannot be the result the movants intend.
this, the Lieutenant Governor suggests that the plaintiffs
should proceed solely against the Governor in his capacity as
chief executive officer of the state. But this is problematic
too. The Governor cannot be sued in federal court solely
because he is the chief executive officer of Mississippi.
See Barber v. Bryant, 193 F.Supp.3d 677 (S.D.Miss.
2016); Campaign for S. Equal. v. Miss. Dep't of Human
Servs., 175 F.Supp.3d 691, 701 (S.D.Miss. 2016). Rather,
as the State's attorneys have repeatedly emphasized,
binding law holds that “the . . . state official must
have some enforcement connection with the challenged
statute” before he or she may be sued in federal court.
Okpalobi v. Foster, 244 F.3d 405, 415 (5th Cir.
2001) (en banc).
precedent gives us some clarity. The Lieutenant Governor
plainly has a role in carrying out S.B. 2162; the bill gives
him the power to appoint a board member to the new airport
authority. Under Okpalobi and its progeny, he is a
proper defendant in this suit.
the Lieutenant Governor's rebuttal analogizes this case
to Alford v. Moulder, No. 3:16-CV-350-CWR-LRA, 2016
WL 3449911, at *2 (S.D.Miss. June 20, 2016). Alford
was- and still is, as it remains pending-a civil rights
dispute in which this Court declined to issue a preliminary
injunction because the plaintiffs' alleged injuries were
not imminent. The Lieutenant Governor's emphasis is
misplaced, however, because in Alford the Court
actually credited the plaintiffs' standing arguments.
See Alford v. Moulder, No. 3:16-CV-350-CWR-LRA,
Docket No. 23, at 1 (S.D.Miss. June 22, 2016) (denying motion
for reconsideration) (noting the “significant practical
difference between the ‘actual or imminent' injury
needed for standing and the ‘imminent' injury
needed to receive a preliminary injunction. The first asks
whether the plaintiffs will suffer harm. The second asks
whether there is a substantial threat the plaintiffs will
suffer that harm immediately.”). If
Alford is indeed “the case most directly on
point, ” as the Lieutenant Governor's rebuttal
asserts, then the constitutional requirements of standing are
motion is denied.
 Because the motion was filed after the
Lieutenant Governor answered, it will be construed as one for
judgment on the pleadings. The same legal standard applies.
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