Case: 23-60647 Document: 00517021974 Page: 1 Date Filed: 01/04/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 4, 2024
No. 23-60647 Lyle W. Cayce
____________ Clerk
National Association for the Advancement of Colored
People, NAACP; Mississippi State Conference of the
National Association for the Advancement of Colored
People, Mississippi NAACP; Jackson City Branch of the
NAACP, Jackson NAACP; Derrick Johnson;
Frank Figgers; Charles Taylor; Markyel Pittman;
Charles Jones; Nsombi Lambright-Haynes,
Plaintiffs—Appellants,
versus
Sean Tindell, in his official capacity as Commissioner of Public Safety;
Bo Luckey, in his official capacity as Chief of the Mississippi Department of
Public Safety Office of Capitol Police; Lynn Fitch, in her official capacity as
Attorney General of the State of Mississippi,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:23-CV-272
______________________________
Before Smith, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:
Case: 23-60647 Document: 00517021974 Page: 2 Date Filed: 01/04/2024
No. 23-60647
The NAACP and other individuals and interest groups (collectively
“plaintiffs”) sued several Mississippi public officials, seeking injunctive and
declaratory relief. This appeal concerns plaintiffs’ emergency motions for an
injunction pending appeal of the district court’s denial of a preliminary
injunction. For the reasons that follow, both emergency motions are denied.
Additionally, we vacate the temporary administrative stay issued by this
administrative panel on December 31, 2023.
I.
On April 21, 2023, the Governor of Mississippi signed into law House
Bill 1020 (“H.B. 1020”). See H.B. 1020, Reg. Sess., 2023 Miss. Laws
ch. 546. This law, which became effective January 1, 2024, creates a new
inferior court for Jackson’s Capitol Complex Improvement District
(“CCID”). The CCID is an administrative area within the City of Jackson,
covering roughly nine square miles surrounding the State Capitol. The area
allegedly contains a disproportionate share of Jackson’s white residents.
As relevant here, H.B. 1020 both expands the size of the CCID and
creates a new “CCID court.” The judge of that new court has concurrent
jurisdiction with Jackson’s municipal court and is authorized to hear misde-
meanor violations and violations of city ordinances and to handle preliminary
matters in felony cases. But, unlike other municipal courts in Mississippi—
whose judges and prosecutors are appointed by locally elected officials—the
Chief Justice of the Mississippi Supreme Court will appoint the CCID
court’s judge, and the Mississippi Attorney General will appoint the court’s
prosecutors.
Feeling aggrieved by this scheme, plaintiffs sued under 42 U.S.C.
§ 1983. Relevant here, they claim that the appointments of the judge and
prosecutors by the Chief Justice and State Attorney General, respectively,
violate their Fourteenth Amendment rights to equal protection of the law.
2
Case: 23-60647 Document: 00517021974 Page: 3 Date Filed: 01/04/2024
No. 23-60647
On November 13, 2023, plaintiffs filed a motion for preliminary injunction,
seeking to enjoin the appointments. A complicated procedural history
followed.
Plaintiffs wished to receive a ruling on their motion before H.B. 1020
went into effect on January 1, 2024. Receiving no such ruling by Decem-
ber 30, 2023, plaintiffs sought emergency relief from this court on Decem-
ber 31, claiming—with precedent—that the district court’s inaction had the
“practical effect” of denying a preliminary injunction. Several hours later,
we granted plaintiffs’ motion, styling it as a temporary stay, ordered the
motion for an injunction pending appeal to be carried with the case, and
directed the district court to issue a final, appealable order by noon on
Wednesday, January 3, 2024.
Unbeknownst to this court and (apparently) plaintiffs, the district
court did issue an order on December 31, 2023, denying plaintiffs’ motion.1
Though the state defendants had raised several defenses to plaintiffs’
motion,2 the district court found that plaintiffs were unlikely to succeed on
the merits for want of standing. On January 3, 2024, plaintiffs filed an
amended notice of appeal in light of the district court’s order. Plaintiffs again
request an injunction pending appeal.3
We now vacate that temporary administrative stay and deny both
motions for an injunction pending appeal.
_____________________
1
The district court entered its order at approximately 7:42 p.m., or about four
hours before the statute took effect.
2
The Chief Justice of the Mississippi Supreme Court contended that he was
entitled to judicial immunity. All state defendants contended that none of the preliminary-
injunction factors was satisfied.
3
Plaintiffs also appeal the denial of a preliminary injunction. As we are just the
motions panel, we do not rule on that request.
3
Case: 23-60647 Document: 00517021974 Page: 4 Date Filed: 01/04/2024
No. 23-60647
II.
We evaluate a request for an injunction pending appeal according to
the standard for granting or denying a stay pending appeal. See Texas v. U.S.
Dep’t of Homeland Sec., No. 23-50869, --- F.4th ---, 2023 U.S. App. LEXIS
34114, at *2, *9 (5th Cir. Dec. 19, 2023). We consider four factors in deciding
whether to grant a stay pending appeal: (1) whether the moving party has
made a strong showing that it is likely to succeed on the merits; (2) whether
the moving party will be irreparably injured absent a stay; (3) whether the
issuance of a stay will substantially injure the other interested parties; and (4)
where the public interest lies. See id. at *9.
We begin and end with the first factor: likelihood of success on the
merits.
III.
“In the preliminary-injunction context, plaintiffs must make a clear
showing of standing . . . .” Tex. Democratic Party v. Abbott, 978 F.3d 168, 178
(5th Cir. 2020). Article III limits us to deciding only actual “Cases” or
“Controversies.” U.S. Const. art. III, § 2. Corollary to that, we require
“that a litigant have standing to challenge the action sought to be adjudicated
in the lawsuit.” Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (quoting
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,
Inc., 454 U.S. 464, 471 (1982) (internal quotation marks omitted)).
The irreducible constitutional minimum of standing contains
three elements. First, the plaintiff must have suffered an injury
in fact—an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal con-
nection between the injury and the conduct complained of—
the injury has to be fairly traceable to the challenged action of
the defendant, and not the result of the independent action of
some third party not before the court. Third, it must be likely,
4
Case: 23-60647 Document: 00517021974 Page: 5 Date Filed: 01/04/2024
No. 23-60647
as opposed to merely speculative, that the injury will be re-
dressed by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up).
The burden of establishing standing always rests with plaintiffs. See
id. At this stage, “the plaintiffs must make a ‘clear showing’ that they have
standing to maintain the preliminary injunction,”4 for “an injunction is
always improper if the district court lack[s] jurisdiction.”5
Plaintiffs press four theories to establish standing. All fail:
First, plaintiffs theorize that H.B. 1020 causes them to lose “the ben-
efits of their communities being served only by judges and prosecutors who
are chosen locally.” Pl.’s First Mot. at 9. In other words, plaintiffs are com-
plaining that Jackson’s local governing authority—which usually appoints
judges and prosecutors to Jackson’s municipal courts—will not get to do the
same for the new CCID court. That, plaintiffs assert, will make the CCID
court less accountable to the local community, “affect[ing] all Jackson
residents.” Id. at 10.
Plaintiffs utterly fail to demonstrate that they, as members of the Jack-
son community, have any legally protected interest in the CCID court’s
accountability to the Jackson local governing authority (of which they are not
even a part). The only binding caselaw they cite in support is LULAC v.
Clements, 999 F.2d 831 (5th Cir. 1993) (en banc). And for what proposition?
That “[t]he state attempts to maintain the fact and appearance of judicial
_____________________
4
Barber, 860 F.3d at 352.
5
All. for Hippocratic Med. v. FDA, 78 F.4th 210, 227 (5th Cir. 2023), cert. granted
sub nom. Danco Laboratories, L.L.C. v. All. Hippocratic Med., No. 23-236, 2023 WL 8605744
(U.S. Dec. 13, 2023), and cert. granted sub nom. FDA v. All. Hippocratic Med., No. 23-235,
2023 WL 8605746 (U.S. Dec. 13, 2023), and cert. denied, No. 23-395, 2023 WL 8605749
(U.S. Dec. 13, 2023) (citation omitted).
5
Case: 23-60647 Document: 00517021974 Page: 6 Date Filed: 01/04/2024
No. 23-60647
fairness that are central to the judicial task, in part, by insuring that judges
remain accountable to the range of people within their jurisdiction.” Pl.’s
First Mot. at 9 (quoting LULAC, 999 F.2d at 869).6
As should be plain, LULAC is wholly inapposite. That case dealt with
alleged vote dilution in violation of Section 2 of the Voting Rights Act. Infor-
mation about “[t]he interests behind the existing court structure” might be
relevant when determining, in the totality of the circumstances, whether a
Section 2 violation has occurred. LULAC, 999 F.2d at 869. But it is of no
relevance to the accountability of prosecutors and judges.
Possibly recognizing that weakness, plaintiffs, in their second motion,
attempt to analogize their claims to vote dilution. See Pl.’s Second Mot. at
9–10. Claiming that they live within the district and therefore suffer from a
“‘district specific’ dilution of voting rights,” they mistake the difference
between being able to vote on equal footing—which is what the Equal
Protection Clause protects—and the substantive impact of their vote—i.e.,
what the politicians they vote for have the power to do. Pl.’s Second Mot.
at 10 (quoting Gill v. Whitford, 138 S.Ct. 1916, 1920 (2018)). As discussed
below, plaintiffs have failed to show that Jackson’s local authorities have the
power to appoint the CCID court’s judge or prosecutors. See infra discussion
of dilution.
Plaintiffs’ assertion that they hold a legally protected interest in the
CCID court’s accountability to local officials arrives before us unsupported
by law or reason. That the CCID court will (purportedly) be less account-
able, relative to other municipal courts in Jackson, to the local governing
authority does not “mean that plaintiffs have suffered a concrete and partic-
_____________________
6
Never mind that this quotation comes not from any portion of that opinion’s
analysis but from a recap of Texas’s argument.
6
Case: 23-60647 Document: 00517021974 Page: 7 Date Filed: 01/04/2024
No. 23-60647
ularized, actual[,] and imminent injury to interests protected by the Equal
Protection Clause.” Stallworth v. Bryant, 936 F.3d 224, 231 (5th Cir. 2019)
(finding Jackson voters lacked standing to sue over appointment of certain
municipal airport commissioners).
Plaintiffs’ first theory of standing still fails even assuming, arguendo,
that they hold a legally protected interest in the CCID court’s accountability.
That injury is not particularized—as their own briefing admits, the purported
loss of benefits is one that “will affect all Jackson residents.” Pl.’s First Mot.
at 10. Plaintiffs make only a weak attempt to demonstrate that the loss of
benefits affects them in a “personal and individual way.” Spokeo Inc. v.
Robins, 578 U.S. 330, 339 (2016) (citation and internal quotation marks omit-
ted); see Pl.’s Second Mot. at 12. The benefits of accountability are no more
likely to accrue to “especially politically engaged” voters than to anyone else.
Id. At most, the new prosecutors and court might, “conjecturally or hypo-
thetically,” bring a meritless prosecution, making one of the plaintiffs a party
to a proceeding in the CCID court. Defs. of Wildlife, 504 U.S. at 560 (cleaned
up). But plaintiffs have made no such showing. “Generalized and undiffer-
entiated,” plaintiffs’ claimed injury “could occur to anyone who” lives in
Jackson. Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 388 (5th Cir. 2017)
(cleaned up).
Second, plaintiffs theorize they will be harmed as voters in two ways.
They first assert H.B. 1020 will “take[] away” appointment power from
locally elected officials. Pl.’s First Mot. at 10. Additionally, they speculate
that the challenged legislation will “dilute the local government’s control
over the enforcement of its own laws within the CCID’s borders, a core
government function.” Id.
Plaintiffs’ second theory similarly fails to establish standing. They
have not shown any injury to a legally protected interest they hold as voters.
7
Case: 23-60647 Document: 00517021974 Page: 8 Date Filed: 01/04/2024
No. 23-60647
Their first assertion, that H.B. 1020 takes away power from local offi-
cials, has no basis in fact. The challenged legislation creates a new CCID
court, staffed with a newly appointed judge and newly appointed prosecutors.
Plaintiffs have not shown that H.B. 1020 alters or affects—in any way—the
method of appointment for any municipal court in Jackson. Nothing has been
taken away from Jackson’s local governing authority.
The second assertion, that H.B. 1020 “dilute[s] the local govern-
ment’s control,” is similarly unfounded. Id. Plaintiffs cite no authority for
the proposition that Jackson’s local governing authority has the exclusive
power to appoint judges and prosecutors for the CCID court which, although
“functional[ly] equivalent” to a municipal court, does not share “all features
of municipal courts.” Saunders v. State, 371 So. 3d 604, 616 (Miss. 2023).7
A mere political subdivision, Jackson is but “a subordinate unit of govern-
ment created by the State to carry out delegated governmental functions,”
with “no privileges or immunities under the federal constitution which it may
invoke in opposition to the will of its creator.” Ysura v. Pocatello Educ. Ass’n,
555 U.S. 353, 363 (2009) (cleaned up). The legislature decided against giving
Jackson’s local officials a new grant of power over the new court. That is the
right and prerogative of the legislature, not of Jackson’s voters.
Thus, there is no support for plaintiffs’ theory that the city’s voters
possess a legally protected interest in electing local officials with exclusive
appointment power for the CCID court. Their second theory fails to estab-
lish standing.
Third, plaintiffs theorize that H.B. 1020 causes stigmatic harm. They
take offense at the legislature’s decision to vest appointment power else-
_____________________
7
See also id. at 617 (“[T]he CCID does not literally have to be a municipal court to
function like one . . . .”).
8
Case: 23-60647 Document: 00517021974 Page: 9 Date Filed: 01/04/2024
No. 23-60647
where, interpreting it as “infantilizing treatment” and an indication that
black residents are “‘innately inferior and therefore . . . less worthy partici-
pants in the political community.’” Pl.’s First Mot. at 10 (quoting Heckler v.
Mathews, 465 U.S. 728, 739–40 (1984)). Establishing standing based on stig-
matic harm requires plaintiffs to allege discriminatory treatment—no matter
how strongly plaintiffs feel about H.B. 1020’s message. Barber, 860 F.3d
at 357–58. But mere offense at the message is all that plaintiffs allege. There
is no allegation that H.B. 1020 will alter any of plaintiffs’ planned conduct,
and we are left to speculate as to the injuries they might suffer. See id. at 357.
So stigmatic injury does not establish plaintiffs’ standing.
Last, plaintiffs theorize that benefits from the CCID court will flow
primarily to a “disproportionately white population.” Pl.’s First Mot. at 11.
But, as the very authority plaintiffs cite mentions, that is an injury-in-fact only
if “the government erects a barrier that makes it more difficult for members
of one group to obtain a benefit than it is for members of another group . . . .”
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville,
Fla., 508 U.S. 656, 666 (1993). And plaintiffs’ briefing is silent as to what
“barrier” H.B. 1020 erects beyond an ipse dixit claim that the claimed
irregular borders are such a barrier.
* * * * *
In sum, plaintiffs fail to plead a cognizable injury-in-fact and thus lack
standing to assert their claims. Without standing, they cannot obtain an
injunction. Both motions for an injunction pending appeal are DENIED.
The temporary administrative stay issued on December 31, 2023, is
VACATED.
9