Carver v. City of New York

09-2053-cv
Carver v. City of N.Y.

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2009
6
7
8 (Argued: April 5, 2010 Decided: September 23, 2010)
9
10 Docket No. 09-2053-cv
11
12 - - - - - - - - - - - - - - - - - - - - -x
13
14 WALTER E. CARVER, individually, and on behalf of those
15 similarly situated,
16
17 Plaintiff-Appellant,
18
19 - v.-
20
21 THE CITY OF NEW YORK, a body corporate and politic, MICHAEL
22 R. BLOOMBERG, individually and in his official capacity as
23 Mayor of the City of New York, NEW YORK CITY HUMAN RESOURCES
24 ADMINISTRATION, DEPARTMENT OF SOCIAL SERVICES, an agency of
25 the City of New York, ROBERT DOAR, individually and in his
26 official capacity as Administrator and Commissioner of the
27 New York City Human Resources Administration and Department
28 of Social Services, NEW YORK CITY HEALTH AND HOSPITALS
29 CORPORATION, a New York corporation, ALAN D. AVILES,
30 individually and in his official capacity as President and
31 Chief Executive Officer of New York City Health and
32 Hospitals Corporation, NEW YORK CITY DEPARTMENT OF
33 TRANSPORTATION, an agency of the City of New York, JANETTE
34 SADIK-KHAN, individually and in her official capacity as
35 Commissioner of the New York Department of Transportation,
36
37 Defendants-Appellees.
38
39 - - - - - - - - - - - - - - - - - - - -x
40

41 Before: JACOBS, Chief Judge, WINTER and WALKER,
42 Circuit Judges.
 1
2 Plaintiff Walter Carver appeals from an April 1, 2009

3 judgment of the United States District Court for the Eastern

4 District of New York (Sifton, J.), dismissing his complaint

5 for lack of standing. As a recipient of public assistance

6 from the City of New York, Carver was required to work for

7 the City, and was paid minimum wage, under a program funded

8 in whole or part by the State of New York. Pursuant to

9 state law, the State intercepted part of a lottery prize won

10 by Carver as reimbursement for public assistance, and paid

11 the funds over to the City. Carver sued the City, asserting

12 various constitutional violations and violations of the

13 minimum wage laws. The district court dismissed Carver’s

14 suit on the ground that no action of the City defendants

15 caused Carver’s injury. AFFIRMED IN PART, VACATED IN PART,

16 and REMANDED.

17 Judge Winter dissents in a separate opinion.

18 RICHARD D. LAMBORN, Bronx, NY,
19 for Plaintiff-Appellant.
20
21 MORDECAI NEWMAN, Assistant
22 Corporation Counsel (Larry A.
23 Sonnenshein, Abigail Lynne
24 Goldenberg, of counsel), for
25 Michael A. Cardozo, Corporation
2
 1 Counsel of the City of New York,
2 New York, NY, for Defendants-
3 Appellees.
4
5 DENNIS JACOBS, Chief Judge:

6 Plaintiff Walter Carver appeals from an April 1, 2009

7 judgment of the United States District Court for the Eastern

8 District of New York (Sifton, J.), dismissing his complaint

9 for lack of standing. As a recipient of public assistance

10 from the City of New York, Carver was required to work for

11 the City, and was paid minimum wage, under a program funded

12 in whole or part by the State of New York. State law

13 requires all state public-assistance recipients to reimburse

14 the state for the assistance they receive, if they win the

15 lottery. Carver won the lottery. It is alleged that the

16 State intercepted part of the prize, and paid it over to the

17 City. Carver sued the City (and various officials and

18 agencies), seeking to recoup the prize money as well as

19 prospective injunctive and declaratory relief. On behalf of

20 himself and others similarly situated, he alleged (inter

21 alia) violation of state and federal constitutional rights

22 and of state and federal minimum wage laws. The United

3
 1 States District Court for the Eastern District of New York

2 (Sifton, J.) dismissed for lack of standing on the ground

3 that no action of the City defendants caused Carver’s

4 injury.

5 Insofar as the district court dismissed Carver’s

6 minimum-wage claims for retrospective relief, we hold that

7 dismissal was in error, and accordingly vacate the court’s

8 judgment. In so holding, we express no opinion on the

9 merits of these claims, or any defenses that defendants may

10 raise. Otherwise, we affirm.

11

12 I

13 New York City’s Work Experience Program (“the WEP”)

14 employs public-assistance recipients in the public sector as

15 a condition of receiving public funds. N.Y. Social Services

16 Law § 336. Walter Carver worked for the City under the WEP

17 from 1993 to March of 2000. For his work, Carver alleges

18 that he was paid the equivalent of federal minimum wage in

19 cash and public-assistance funds.

20 On or about August 10, 2007, Carver won $10,000 in the

4
 1 New York State lottery.

2 Section 131-r of the New York Social Services Law

3 provides that any recipient of state public-assistance funds

4 who wins a lottery prize of $600 or more must “reimburse the

5 [state department of social services] from the winnings,” up

6 to half of the prize amount:

7 Any person who is receiving or has received,
8 within the previous ten years, public assistance
9 pursuant to the provisions of this article, and
10 who wins a lottery prize of six hundred dollars or
11 more shall reimburse the [state department of
12 social services] from the winnings, for all such
13 public assistance benefits paid to such person
14 during the previous ten years; provided, however,
15 that such crediting to the department shall in no
16 event exceed fifty percent of the amount of the
17 lottery prize.

18 N.Y. Soc. Serv. L. § 131-r. To enforce this obligation,

19 § 131-r directs the state commissioner of social services to

20 “enter into an agreement with the director of the lottery,

21 pursuant to [N.Y. Tax L. § 1613-b], for the crediting of

22 lottery prizes against public assistance benefits.” Id.;

23 see also N.Y. Tax L. § 1613-b (directing the state Office of

24 Temporary and Disability Assistance to coordinate the

25 crediting of lottery prizes pursuant to N.Y. Soc. Serv. L.

5
 1 § 131-r).

2 Pursuant to N.Y. Social Services Law § 131-r and N.Y.

3 Tax Law § 1613-b, the New York State Office of Temporary and

4 Disability Assistance (“OTDA”) intercepted $5000, to be

5 credited against the public assistance Carver had been paid.

6 Carver alleges that the intercepted funds were then paid

7 over to New York City. To recover his intercepted winnings,

8 Carver initiated a series of lawsuits in state and federal

9 court.

10 Carver initiated this lawsuit on September 10, 2008,

11 styling his complaint as a putative class action on behalf

12 of himself and all others similarly situated. Named as

13 defendants were the City of New York, and various subsidiary

14 agencies and city officials; Carver did not join the State

15 of New York or any State agency or employee. Carver

16 asserted [1] a taking violative of his rights under the

17 federal and New York state constitutions; [2] a violation of

18 his equal protection rights under the federal and New York

19 state constitutions; [3] a violation of substantive due

20 process under the federal and New York state constitutions;

6
1 [4] a violation of § 206 of the Fair Labor Standards Act, 29

2 U.S.C. § 206;1 [5] a violation of New York state minimum

3 wage law, N.Y. Labor Law § 652; 2 and [6] inadequate notice

4 of his rights as a lottery winner, in violation of N.Y. Tax

5 Law § 1613-b(6).3 He sought, inter alia, damages and

1
29 U.S.C. § 206 provides, in relevant part:

Every employer shall pay to each of his employees
who in any workweek is engaged in commerce or in
the production of goods for commerce, or is
employed in an enterprise engaged in commerce or
in the production of goods for commerce, wages at
the following rates.

29 U.S.C. § 206(a). The rates referred to are thereafter
specified. See id.
2
Section 652 of the New York Labor Law provides, in
relevant part, that “[e]very employer shall pay to each of
its employees for each hour worked a wage of not less than”
a specified rate. N.Y. Labor L. § 652(1).
3
Section 1613-b(6) of the New York Tax Law provides,
in its entirety:

The office of temporary and disability assistance
shall notify the prize winner in writing, of the
amount of such prize winning to be credited
against public assistance benefits and the
procedure and time frame by which the prize winner
may contest such crediting. Such procedure shall
include the address and telephone number of the
office of temporary and disability assistance and
who the prize winner may contact with respect to
correction of any error in such crediting
concerning such individual’s liability for public
assistance benefits or with respect to payment of
7
 1 prospective injunctive and declaratory relief. Before

2 serving an answer, the defendants moved to dismiss under

3 Federal Rule of Civil Procedure 12(b)(1), for lack of

4 standing, and under Rule 12(b)(6), for failure to state a

5 claim.

6 On April 1, 2009, the district court granted the

7 defendants’ motion, dismissing Carver’s complaint under Rule

8 12(b)(1) for lack of standing. The court explicitly

9 declined to reach the merits of Carver’s claims, premising

10 its decision to dismiss entirely on standing grounds. This

11 appeal timely followed.

12

13 II

14 Standing is a federal jurisdictional question

15 “determining the power of the court to entertain the suit.”

16 Warth v. Seldin, 422 U.S. 490, 498 (1975). “[A] plaintiff

17 must demonstrate standing for each claim and form of relief

18 sought.” Baur v. Veneman, 352 F.3d 625, 642 n.15 (2d Cir.

19 2003). At issue in this case is Article III standing, for

such liability.
8
 1 which a plaintiff must show [1] that he “suffered an injury-

2 in-fact--an invasion of a legally protected interest which

3 is (a) concrete and particularized . . . and (b) actual or

4 imminent, not conjectural or hypothetical”; [2] that there

5 was a “causal connection between the injury and the conduct

6 complained of”; and [3] that it is “likely, as opposed to

7 merely speculative, that the injury will be redressed by a

8 favorable decision.” Lujan v. Defenders of Wildlife, 504

9 U.S. 555, 560 (1992) (citations and internal quotation marks

10 omitted). “[E]ach element [of standing] must be supported

11 in the same way as any other matter on which the plaintiff

12 bears the burden of proof, i.e., with the manner and degree

13 of evidence required at the successive stages of the

14 litigation.” Id. at 561. “Because standing is challenged

15 [here] on the basis of the pleadings, we [therefore] accept

16 as true all material allegations of the complaint, and must

17 construe the complaint in favor of the complaining party.”

18 W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d

19 100, 106 (2d Cir. 2008) (internal quotation marks omitted).

20 We review questions of standing de novo. Id.

9
 1 The district court found first that “[t]he only injury

2 alleged by plaintiff is the withholding of his lottery

3 winnings,” and held that such withholding qualified as an

4 “injury-in-fact.” The court went on, however, to hold that

5 causation was lacking: that the “OTDA, not the City

6 Defendants, effected the action that constitutes [Carver’s]

7 claimed injury,” and that Carver “ha[d] not alleged any

8 facts supporting an inference that the City Defendants

9 influenced [the] OTDA’s decision to withhold [his] lottery

10 winnings.” “In fact,” stated the court, “according to

11 plaintiff’s allegations, the City Defendants took no

12 relevant action in this matter (other than supervising

13 plaintiff’s participation in the [WEP] years prior to the

14 events leading to this action) until after [the] OTDA

15 withheld plaintiff’s lottery winnings, at which time they

16 allegedly accepted funds which were transferred to them

17 pursuant to a system of statutes, regulations, contracts[,]

18 and practices.” (internal quotation marks omitted).

19 We disagree. Carver has standing to assert his

20 minimum-wage claims insofar as he alleges injury when the

10
 1 City paid him minimum wage subject to a reimbursement

2 obligation. Carver pertinently claims that the City

3 defendants violated state and federal labor law by paying

4 him minimum wage while requiring that he return some portion

5 of those wages in the event he won the lottery. On this

6 theory, Carver was directly injured by the City’s alleged

7 failure to abide by state and federal labor law when

8 compensating him for his work.

9 True, on this theory, the City seemingly could not have

10 complied with its minimum-wage obligations without, for

11 example, agreeing to return (or reject) any intercepted

12 lottery winnings as necessary to ensure that Carver’s wages

13 did not fall below statutory minimums, or exempting his

14 wages from the reimbursement obligation, or paying him more

15 (in anticipation of his lottery win). But this is a merits

16 issue not necessary for us to consider here, and we decline

17 to do so. The standing question is distinct from whether

18 Carver has a cause of action. See, e.g., Whitmore v.

19 Arkansas, 495 U.S. 149, 155 (1990) (“Our threshold inquiry

20 into standing ‘in no way depends on the merits of the

11
 1 [petitioner’s] contention that particular conduct is

2 illegal,’” (quoting Warth, 422 U.S. at 500) (alteration in

3 original)); Am. Civil Liberties Union of N.M. v.

4 Santillanes, 546 F.3d 1313, 1319 (10th Cir. 2008) (“Standing

5 is not a proxy for ruling on the merits and is determined at

6 the outset of the lawsuit.”); Long Term Care Partners, LLC

7 v. United States, 516 F.3d 225, 241 (4th Cir. 2008) (“At its

8 core, ‘the question of standing is whether the litigant is

9 entitled to have the court decide the merits of the dispute

10 or of particular issues,” Warth, 422 U.S. at 498 . . . ,

11 which is always a distinct inquiry from the question of how

12 a litigant’s claim should be decided.”); Lerman v. Bd. of

13 Elections in City of N.Y., 232 F.3d 135, 143 n.9 (2d Cir.

14 2000) (same); 13A Charles Alan Wright et al., Federal

15 Practice and Procedure § 3531, at 23 & nn. 36, 38 (3d ed.

16 2008) (same).

17 Alternatively, Carver has standing to assert his

18 minimum-wage claims because the City’s actions indirectly

19 caused the interception of his lottery prize. As a rule,

20 causation is shown if the defendants’ actions had a

12
 1 “determinative or coercive effect” on the action that

2 produced the injury. Bennett v. Spear, 520 U.S. 154, 169

3 (1997). Though causation is lacking if the claimed injury

4 results from “the independent action of some third party not

5 before the court,” a plaintiff need not allege that “the

6 defendant’s actions [were] the very last step in the chain

7 of causation” to demonstrate that the defendant’s actions

8 caused the claimed injury. Id. It suffices that the

9 defendant’s actions had a “determinative or coercive effect

10 upon the action of someone else” who directly caused the

11 claimed injury. Id. Thus, causation turns on the degree to

12 which the defendant’s actions constrained or influenced the

13 decision of the final actor in the chain of causation.

14 Compare id. at 169 (holding that an administrative advisory

15 opinion caused the advisee’s action because it played a

16 “central role” in the advisee’s decision: The advisee would

17 have had to articulate any reasons for disagreeing with the

18 advice, and would have “run[] a substantial risk” if the

19 advice had been ignored), with Simon v. E. Ky. Welfare

20 Rights Org., 426 U.S. 26, 28, 42-43 (1976) (holding that an

13
 1 IRS Revenue Ruling “allowing favorable tax treatment to a

2 nonprofit hospital that offered only emergency-room services

3 to indigents” did not cause hospitals to deny other services

4 to indigents because “[i]t is purely speculative whether the

5 denials . . . fairly can be traced to [the Ruling] or

6 instead result[ed] from decisions made by the hospitals

7 without regard to the tax implications”).

8 Although Carver’s alleged injury was ultimately caused

9 by the actions of the State OTDA (a non-party), the State

10 OTDA’s actions were a result of the City’s prior conduct,

11 such that the City is a sufficient cause of Carver’s injury

12 for the purpose of standing. New York law affords the State

13 OTDA no discretion in obtaining reimbursement of public-

14 assistance funds; if a public-assistance recipient wins the

15 lottery, the OTDA must intercept his winnings. And there is

16 no other relevant basis for State interception of a lottery

17 winner’s prize. It was thus because the City paid Carver in

18 public-assistance funds that were conditioned on recoupment

19 that the OTDA intercepted his lottery winnings, and that he

20 suffered injury. Cf. Bennett, 520 U.S. at 169 (finding

14
 1 sufficient causation where the purported indirect cause

2 played a “central role” in the decision that directly caused

3 the plaintiff’s injury, but where the decision-maker

4 nevertheless enjoyed some discretion); G&G Fire Sprinklers

5 Inc. v. Bradshaw, 146 F.3d 893, 900 (9th Cir. 1998) (finding

6 that the State of California caused a sub-contractor’s

7 injury, where the State withheld payment from a prime State

8 contractor who in turn withheld payment from the sub-

9 contractor, because, though the prime contractor had

10 discretion to pay the sub-contractor, “the money would not

11 have been withheld but for the [S]tate’s actions”). This is

12 enough to support Carver’s standing on his minimum-wage

13 claims, which allege that he was injured by the taking of

14 his lottery prize in retroactive derogation of his rights

15 under state and federal labor law.

16 Accordingly, the district court’s judgment is vacated

17 insofar as it dismissed Carver’s state and federal minimum-

18 wage claims.4 Our holding does not prejudge the merits of

4
As discussed in Part IV, this disposition applies
only to Carver’s claims for retrospective relief.
15
 1 Carver’s claims or of any defenses that defendants may

2 raise; any merits questions are more appropriately

3 considered in the first instance by the district court.

4

5 III

6 Carver alleges that the notice of interception given by

7 the ODTA did not conform to law. When a lottery winner’s

8 prize is intercepted by the OTDA, N.Y. Tax Law § 1613-b(6)

9 requires, inter alia, that the OTDA “notify the prize winner

10 in writing” of “the address and telephone number of the

11 [OTDA] and who[m] the prize winner may contact” regarding

12 his intercepted prize.5 Carver alleges that the notice he

5
N.Y. Tax Law § 1613-b(6) provides, in its entirety:

The office of temporary and disability assistance
shall notify the prize winner in writing, of the
amount of such prize winning to be credited
against public assistance benefits and the
procedure and time frame by which the prize winner
may contest such crediting. Such procedure shall
include the address and telephone number of the
office of temporary and disability assistance and
who the prize winner may contact with respect to
correction of any error in such crediting
concerning such individual’s liability for public
assistance benefits or with respect to payment of
such liability.

16
 1 received from the OTDA omitted “a telephone number or

2 address of a specific individual to contact.” This failure

3 was directly caused by the OTDA alone, and not by any of the

4 named defendants; but the OTDA is not a defendant in this

5 case. Cf., e.g., Lujan, 504 U.S. at 560 (noting that

6 standing is lacking where the injury is “the result of the

7 independent action of some third party not before the court”

8 (quoting Simon, 426 U.S. at 41-42 (brackets omitted)).

9 Carver similarly lacks standing to assert his

10 constitutional claims. In asserting his takings and

11 substantive due process claims, he alleges that he was

12 injured by the taking of his lottery prize; and in asserting

13 his equal protection claims, he alleges that he was injured

14 by the discriminatory taking of his lottery prize on the

15 basis of his status as a public-assistance recipient. But

16 these injuries were caused solely by the State: No action of

17 the City caused the State to levy the challenged tax. Cf.,

18 e.g., id.

19

20 IV

17
 1 Carver likewise lacks standing to obtain prospective

2 relief. To establish standing to obtain prospective relief,

3 a plaintiff “must show a likelihood that he will be injured

4 in the future.” Shain v. Ellison, 356 F.3d 211, 215 (2d

5 Cir. 2004) (ellipsis and internal quotation marks omitted);

6 accord City of Los Angeles v. Lyons, 461 U.S. 95, 105

7 (1983). The odds of winning big in a lottery are often

8 analogized to being hit twice by lightning. And Carver does

9 not even allege any intention to buy more lottery tickets.

10 Moreover, Carver does not allege that he is currently

11 receiving public assistance, or that he is likely to require

12 it in the future. Cf. Shain, 356 F.3d at 215-16 (holding

13 that plaintiff who had been subjected to police strip-search

14 policy lacked standing to enjoin future strip searches

15 because he had not alleged any likelihood that he would

16 again be subject to the strip-search policy). 6

6
Nor does Carver’s class action allegation alter the
prospective standing analysis. Even if Carver’s putative
class included current public-assistance recipients, the
standing problem would persist: A “class action allegation
adds nothing to the standing inquiry since the named
plaintiffs ‘must allege and show that they personally have
been injured, not that injury has been suffered by other,

18
 1

2 CONCLUSION

3 For the foregoing reasons, Carver has standing to

4 assert his minimum-wage claims (only), and to seek all

5 retrospective relief. He lacks standing on the remainder.

6 We express no opinion on the merits of Carver’s claims or

7 any defenses that defendants may raise. The district court

8 explicitly declined to reach the merits below, and it would

9 be premature to reach them for the first time on appeal:

10 They are better left to the district court to consider in

11 the first instance. The district court’s judgment is

12 accordingly AFFIRMED IN PART and VACATED IN PART, and the

13 case is REMANDED for further proceedings.

unidentified members of the class to which they belong and
which they purport to represent.’” Doe v. Blum, 729 F.2d
186, 190 n.4 (2d Cir. 1984) (quoting Warth, 422 U.S. at
502).

19
 09-2053
Carver v. City of New York

WINTER, Circuit Judge, dissenting:

I respectfully dissent.

1 The present appeal involves a New York state tax on lottery

2 winnings by persons who previously received direct welfare or

3 workfare benefits. N.Y. Tax Law § 1613-b (McKinney 2010). A

4 withholding (“interception” in appellant’s lexicon) of this tax

5 occurs before the lottery winner receives his or her winnings,

6 presumably along with a similar withholding of federal, state,

7 and local income taxes. Id. at § 1613-b(3).

8 The tax provision contains no language governing

9 disbursement of the revenue received. The complaint alleges that

10 New York State, by reason of New York law, regulation or custom,

11 disburses the revenue from this tax to the municipality that paid

12 the welfare benefits. This allegation is refined in appellant’s

13 brief, which states that only one-half of the tax withheld from

14 lottery winnings ($2500 in Carver’s case) is disbursed to the

15 municipality while the other half is kept by the state. The

16 “reimbursement” to the municipality is an attempt to conform to

17 New York Social Services Law Section 153 requiring that New York

18 State bear one-half of the welfare disbursements made by

19 municipalities. N.Y. Soc. Serv. Law § 153(1)(d) (McKinney 2010).

20 There is no allegation that the City plays any role

21 whatsoever in the levying of the tax, its collection, or the

1
 1 disbursement of the funds. At best, the City passively receives

2 the money from the State, along with other State subsidies.

3 The complaint alleges that the harm to Carver is the

4 withholding of the state tax on his lottery winnings. Notably,

5 there is no allegation in the complaint, or provision in any New

6 York law or regulation, that, if the State ceased to disburse

7 these funds to the City or if the City rejected them, the State

8 would return the $2500 to Carver rather than keep it for itself.

9 The statute creating the tax and the provision regarding

10 disbursement are entirely separate and independent. Changing the

11 rules regarding disbursement would, therefore, have no effect on

12 the levying of the tax on Carver. Nor does he allege otherwise.

13 Given the allegations of the complaint, Carver has no

14 standing to bring a Fair Labor Standards Act (“FLSA”) action

15 against the City. The State made all relevant decisions and took

16 all the administrative actions that resulted in the withholding

17 of Carver’s winnings. The City has done absolutely nothing to

18 cause the loss to Carver of his lottery winnings.

19 My colleagues seek to address this problem by theorizing

20 that the City workfare payments to Carver were “conditioned,”

21 when made, on a possible “recoupment.” Of course, no such

22 express condition can be found in the workfare payments Carver

23 received, because the so-called “recoupment” could occur, if at

24 all, only by operation of the provisions of whatever state laws

2
 1 existed when and if Carver won the lottery. Either the tax or

2 the disbursement, or both, might well have been altered or

3 repealed by the State, and by the State alone, when and if Carver

4 won the lottery.

5 The theory that the workfare payments to Carver inflicted an

6 injury because they were “conditioned” on compliance with

7 whatever state tax laws might be in effect when and if he won the

8 lottery is surely a stretch. The workfare payments were also

9 conditioned on all taxes, federal, state, and local that might be

10 levied. Indeed, all wages paid by all employers to all employees

11 are conditioned on the levying and/or withholding of federal,

12 state, and local taxes.1 In my view, an employer does not

13 inflict an injury on an employee by paying wages that may be

14 taxed.

15 Moreover, limiting the adjudication of Carver’s claims to

16 the party that took his winnings (and will keep the part

17 disbursed to the City if the City were to reject or return it)

18 risks no miscarriage of justice. All Carver had to do was join

19 the State as a defendant. Indeed, he has sued the State in state

1
Federal regulation expressly allows employers to deduct taxes imposed
by the law of any sovereign without regard to the fact that the deduction
reduces the net wage below FLSA standards. 29 C.F.R. § 531.38 (2010). In
short, the City itself could impose and deduct an income tax on Carver that
reduced his workfare payments below FLSA standards and still not violate those
standards. Id.
Moreover, the FLSA has a statute of limitations of two years. 29 U.S.C.
§ 255(a) (2010). If the violation occurred when the workfare payments were
made, as my colleagues theorize, rather than when the State took the money,
any claim would be time-barred.

3
 1 court. The present case is thus one of two judicial proceedings

2 initiated over the withholding of Mr. Carver’s lottery winnings,

3 of which $2500 was disbursed to the City. The other state court

4 action asserts all the various claims made here, including the

5 FLSA claim, against the State for the full $5000.

6 This is not, therefore, a case in which standing doctrine

7 should be stretched beyond recognizable parameters. The

8 judicial, municipal, and private resources poured into Carver’s

9 attempt to recover $5000 must be in excess of six figures. Now

10 we have to face a remand to the district court followed perhaps

11 by another appeal to this court.

12 I therefore respectfully dissent.

13

14

15

16

17

18

19

4