Loder et al v. McKinney

Filing 77

MEMORANDUM OPINION AND ORDER directing that Judge Reed's 59 motion to dismiss is GRANTED and that the claims of Plaintiffs Charelle Loder and Jack Doe are DISMISSED for lack of standing, as further set out. Signed by Chief Judge William Keith Watkins on 6/11/13. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CHARELLE LODER, et al.,
Plaintiffs,
v.
STEVEN L. REED, et al.,
Defendants.

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CASE NO. 2:11-CV-979-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiffs Charelle Loder and Jack Doe hope to marry.
They filed this lawsuit to challenge an alleged policy and practice of Defendant
Steven Reed, the probate judge of Montgomery County, regarding marriage licenses.
According to the amended complaint, Judge Reed will not issue a marriage license to
a couple unless both of them can provide proof of lawful immigration status. Because
Mr. Doe cannot meet that requirement, he and Ms. Loder believe they cannot wed.
(That belief is unsupported, however, by a failed attempt to obtain a license from
Judge Reed.)
Judge Reed moves to dismiss, and his motion is due to be granted.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343,
and 2201–02. Personal jurisdiction and venue are uncontested.

II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) may assert either a factual attack or
a facial attack to jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond
Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007); Fed. R. Civ. P. 12(b)(1). In a facial
attack, the court examines whether the complaint “sufficiently allege[s] a basis of
subject matter jurisdiction.” Id. As when considering a Rule 12(b)(6) motion to
dismiss for failure to state a claim, on a Rule 12(b)(1) facial attack the court construes
the complaint in the light most favorable to the plaintiff and accepts all well-pleaded
facts in the complaint as true. Id.
III. FACTUAL BACKGROUND
Plaintiffs Charelle Loder and her fiancé Jack Doe want to get married. But they
do not think Defendant Steven L. Reed, the probate judge of Montgomery County,
will allow it. According to the complaint, Judge Reed’s office has a policy of denying
marriage licenses to couples when one or both would-be spouses lack proof of legal
presence in the United States. That means Mr. Doe, a Haitian national who lacks
proof of legal presence in this country, cannot get a marriage license in Montgomery
County.
But Judge Reed says he is willing to issue a marriage license to Ms. Loder and
Mr. Doe – all they have to do is submit a proper application. Judge Reed denies that
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his office requires proof of immigration status before it issues marriage licenses, and
he says Ms. Loder and Mr. Doe would know that if they had applied for one.
Judge Reed moves to dismiss the claims against him for lack of standing.
IV. DISCUSSION
Although the parties disagree on quite a few points of law and fact, the court
will only address one: Judge Reed says Ms. Loder and Mr. Doe lack standing to sue
him for refusing to issue them a marriage license because they never applied for one
in the first place.
And he is right. Federal courts are only empowered to decide “cases” and
“controversies.” U.S. Const. art. III, § 2. At an irreducible constitutional minimum,
that means a plaintiff cannot maintain a lawsuit in federal court unless she can show,
among other things, that she has “suffered an injury in fact.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (quotations
omitted). In the context of lawsuits challenging official policies, that means a plaintiff
must “submit to the challenged policy before pursuing an action to dispute it.” Davis
v. Tarrant Cnty., 565 F.3d 214, 220 (5th Cir. 2009); see also Moose Lodge No. 107
v. Irvis, 407 U.S. 163, 166–71 (1972) (holding that a plaintiff who had never applied
for membership lacked standing to challenge fraternal organization’s discriminatory
membership policies). All this to say, Ms. Loder and Mr. Doe must actually apply for
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a marriage license before they can sue Judge Reed for denying their application;
otherwise, they have not suffered an injury in fact.
The amended complaint does not allege that Ms. Loder and Mr. Doe applied for
a marriage license, and they admit they have not. They argue instead that they should
not have to apply because application would be futile.
That argument has worked once before during this litigation. When Plaintiffs
filed this lawsuit, Judge McKinney (Judge Reed’s predecessor, and the original named
defendant) had an official policy of requiring non-citizens who wanted a marriage
license to “provide proof of legal presence in the United States.” (Doc. # 1 ¶ 44.)
Under that policy, the court concluded that Ms. Loder and Mr. Doe had “adequately
pleaded that applying for marriage licenses would have been a futile gesture and ha[d]
sufficiently demonstrated that the failure to apply should be properly excused.” (Doc.
# 32 at 12.)
That conclusion, however, was “[b]ased on the plain reading of [Judge
McKinney’s] policy.” (Doc. # 32 at 12.) That policy has since been repealed, and its
language is nowhere to be found in the amended complaint. The basis of the court’s
ruling on the first motion to dismiss has no bearing here, and the amended complaint
(the one Judge Reed now moves to dismiss) is notably devoid of any facts that suggest

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application for a marriage license would be futile.1
If Ms. Loder and Mr. Doe apply for a marriage license and are denied one
because Mr. Doe lacks proof of lawful presence in the United States, they might have
a federal cause of action. Until then, and absent any factual allegations demonstrating
the futility of such an application, they have not suffered an injury in fact fairly
attributable to Judge Reed.
V. CONCLUSION
It is therefore ORDERED that Judge Reed’s motion to dismiss (Doc. # 59) is
GRANTED and that the claims of Plaintiffs Charelle Loder and Jack Doe are
DISMISSED for lack of standing.
This order does not affect the claims Plaintiffs Julie and Jonathan Doe have
against Defendant Leon Archer, the Probate Judge of Tallapoosa County.
DONE this 11th day of June, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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The amended complaint does allege, without elaboration, that “[i]t would be futile for
Plaintiffs Charelle Loder and Jack Doe to request a marriage license in Montgomery County.”
(Doc. # 51 ¶ 57.) But that statement amounts to little more than a legal conclusion, one that
finds no support in any of the amended complaint’s factual allegations.
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