Hassan Swann v. Secretary, State of Georgia ( 2012 )


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  •                                                                              [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 10-14901             FEB 2, 2012
    ________________________        JOHN LEY
    CLERK
    D.C. Docket No. 1:09-cv-02674-TWT
    HASSAN SWANN,
    llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellant,
    DAVID A. HARTFIELD,
    llllllllllllllllllllllllllllllllllllllll                                        Plaintiff,
    versus
    SECRETARY, STATE OF GEORGIA,
    in his official capacity as Secretary of State for the State of Georgia,
    THE DEKALB COUNTY BOARD OF REGISTRATIONS AND ELECTIONS,
    MICHAEL P. COVENY,
    CATHERINE GILLIARD,
    LEONA PERRY, et al.,
    llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (February 2, 2012)
    Before EDMONDSON and PRYOR, Circuit Judges, and HOPKINS,* District Judge.
    PRYOR, Circuit Judge:
    This appeal addresses whether a former inmate of a county jail has standing
    to complain that state and local officials failed to mail him a ballot at the jail even
    though he never asked them to mail him a ballot there. Hassan Swann appeals the
    summary judgment in favor of the Secretary of State of Georgia and several
    elections officials for DeKalb County, Georgia. Swann’s complaint alleges that
    the officials’ application of a Georgia statute that governs absentee voting, Ga.
    Code Ann. § 21-2-381(a)(1)(D), denied him the right to have a ballot mailed to
    him at the jail and prevented him from voting while he was incarcerated in the fall
    of 2008. But Swann would not have received a ballot at the jail regardless of the
    officials’ application of the statute because he provided only his home address on
    his application for an absentee ballot. Swann’s alleged injury was not fairly
    traceable to any actions of the officials. We vacate the summary judgment entered
    by the district court and remand with instructions to dismiss for lack of subject
    matter jurisdiction.
    *
    Honorable Virginia Emerson Hopkins, United States District Judge for the Northern
    District of Alabama, sitting by designation.
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    I. BACKGROUND
    In anticipation of the presidential election held on November 4, 2008, the
    staff of the DeKalb County Jail held voter registration drives at the jail and
    encouraged inmates to register to vote and to apply for absentee ballots. Hassan
    Swann was among the inmates who completed an application for an absentee
    ballot. Swann was a resident of DeKalb County and was incarcerated in the jail
    from September to December 2008 based on a misdemeanor conviction. The
    application requested on separate lines Swann’s “Address as Registered” and
    “Address (Ballot to be mailed).” Swann wrote the address of his home in DeKalb
    County on the line labeled “Address as Registered.” He left blank the space for
    his “Address (Ballot to be mailed),” because, as he later testified at his deposition,
    he “didn’t know DeKalb County[] [Jail’s] address.” He makes no allegation that
    any of the officials refused to tell him the address of the jail or instructed him to
    leave blank the space for the mailing address.
    Other inmates requested on their applications that their absentee ballots be
    mailed to the jail, and on September 29, 2008, Maxine Daniels, the assistant
    director of registrations and elections for DeKalb County, informed an employee
    of the jail that the absentee ballot clerk would not mail absentee ballots to the jail.
    Daniels explained that, under Georgia law, the clerk “could not mail an absentee
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    ballot for a non-disabled voter to another address in DeKalb County other than
    their registered address.” She based this explanation on a Georgia statute that
    provides that, “[e]xcept in the case of physically disabled electors residing in the
    county or municipality, no absentee ballot shall be mailed to an address other than
    the permanent mailing address of the elector as recorded on the elector’s voter
    registration record or a temporary out-of-county or out-of-municipality address,”
    Ga. Code Ann. § 21-2-381(a)(1)(D).
    Daniels and Jeffrey Mann, the chief deputy sheriff of DeKalb County, later
    developed a solution to allow inmates to receive their ballots at the jail. They
    agreed that the absentee ballot clerk would mail ballots to the home addresses of
    inmates, and relatives of inmates would be permitted to leave the ballots in a drop
    box at the jail for distribution to the inmates. Swann contends that he “was
    unaware of the drop box and expected the election office to mail his absentee
    ballot to the jail given that he would still be confined on election day,” even
    though he had listed only his home address on his application for an absentee
    ballot.
    The absentee ballot clerk did not mail Swann’s ballot to the jail. Daniels
    testified that, according to her records, the absentee ballot clerk mailed Swann a
    ballot to Swann’s home address because that was the only address that Swann had
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    provided. Swann never received his ballot, and he was unable to vote in the
    election held on November 4, 2008.
    Swann and another former inmate, David A. Hartfield, filed a complaint in
    the district court against the officials. The complaint alleged that their application
    of section 21-2-381(a)(1)(D) was unconstitutional because it “prevents people who
    are incarcerated in county jails, but who retain the right to vote, from voting by
    absentee ballot if they are incarcerated in the county of their residence.” The
    complaint alleged that application of the statute by the officials violated the Equal
    Protection Clause of the Fourteenth Amendment because it deprived an inmate
    incarcerated in his county of residence the right to have a ballot mailed to him at
    the jail. The complaint also alleged a violation of the Due Process Clause of the
    Fourteenth Amendment. The complaint requested declaratory and injunctive
    relief, nominal damages, and attorney’s fees. Before it ruled on the claims alleged
    in the complaint, the district court dismissed Hartfield as a plaintiff because of his
    failure to comply with an order of the court.
    Swann and the officials filed motions for summary judgment, and the
    district court granted a summary judgment in favor of the officials. The district
    court reasoned that, because Swann did not request that his ballot be mailed to the
    jail, his “equal protection claim fails because he was not treated differently than
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    similarly situated inmates.” The district court also reasoned that the statute “did
    not prevent [Swann] from [voting]” because “even if Georgia law permitted the
    Board to mail absentee ballots to inmates confined in their county of residence,
    Swann’s ballot would still have been mailed to his registered address, not the
    DeKalb County jail.” The district court did not address whether Swann had
    standing.
    II. STANDARD OF REVIEW
    “We review issues of standing de novo.” Hollywood Mobile Estates Ltd. v.
    Seminole Tribe of Fla., 
    641 F.3d 1259
    , 1264 (11th Cir. 2011) (quoting Common
    Cause/Ga. v. Billups, 
    554 F.3d 1340
    , 1349 (11th Cir. 2009)) (internal quotation
    marks omitted).
    III. DISCUSSION
    We cannot reach the merits of this appeal because Swann lacks standing.
    “Article III of the United States Constitution limits the jurisdiction of federal
    courts to ‘Cases’ and ‘Controversies.’” Hollywood Mobile 
    Estates, 641 F.3d at 1264
    (quoting U.S. Const. Art. III, § 2). “Standing is an irreducible minimum
    necessary under Article III’s case-or-controversy requirement.” Kelly v. Harris,
    
    331 F.3d 817
    , 819 (11th Cir. 2003). We have held that “‘[s]tanding is a threshold
    jurisdictional question which must be addressed prior to and independent of the
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    merits of a party’s claims.’” Bochese v. Town of Ponce Inlet, 
    405 F.3d 964
    , 974
    (11th Cir. 2005) (quoting Dillard v. Baldwin Cnty. Comm’rs, 
    225 F.3d 1271
    , 1275
    (11th Cir. 2000)). “The Supreme Court has explained that the ‘irreducible
    constitutional minimum’ of standing under Article III consists of three elements:
    an actual or imminent injury, causation, and redressability.” Hollywood Mobile
    
    Estates, 641 F.3d at 1265
    (citing Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    ,
    560–61, 
    112 S. Ct. 2130
    , 2136 (1992)).
    We need not determine whether Swann suffered an injury when he did not
    receive a ballot or whether a favorable decision would redress this alleged injury
    because Swann’s non-receipt of a ballot was not “‘fairly . . . trace[able] to the
    challenged action of the defendant[s].’” 
    Lujan, 504 U.S. at 560
    , 112 S. Ct. at 2136
    (first and second alterations in original) (quoting Simon v. E. Ky. Welfare Rights
    Org., 
    426 U.S. 26
    , 41–42, 
    96 S. Ct. 1917
    , 1926 (1976)). Lujan explained that an
    injury is not fairly traceable to the actions of a defendant if caused by the
    “‘independent action of some third party not before the court,’” 
    Lujan, 504 U.S. at 560
    , 112 S. Ct. at 2136 (quoting 
    Simon, 426 U.S. at 42
    , 96 S. Ct. at 1926), and
    likewise a controversy is not justiciable when a plaintiff independently caused his
    own injury. Cf. Pennsylvania v. New Jersey, 
    426 U.S. 660
    , 664, 
    96 S. Ct. 2333
    ,
    2335 (1976); see also Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 
    178 F.3d 7
    350, 358 (5th Cir. 1999). Several of our sister circuits similarly have held that a
    plaintiff lacks standing to challenge a rule if an independent source would have
    caused him to suffer the same injury. See, e.g., Donahue v. City of Boston, 
    371 F.3d 7
    , 14 (1st Cir. 2004); Marshall v. Meadows, 
    105 F.3d 904
    , 906 (4th Cir.
    1997); Howard v. N.J. Dep’t of Civil Serv., 
    667 F.2d 1099
    , 1101–03 (3d Cir.
    1981). See also 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
    Federal Practice and Procedure § 3531.5 (3d ed. 2008) (“Rather than a break in
    one causal chain, standing may be defeated by finding a different cause.”).
    Swann’s failure to provide the address of the jail on his application independently
    caused his alleged injury. Swann would not have received a ballot at the jail
    regardless of the application of the statute by the officials.
    Swann’s lawsuit is based on an imaginary set of facts: an imaginary request
    to send his ballot to the jail and an imaginary refusal on the ballot clerk’s part to
    send a ballot to him. Swann asked the ballot clerk to mail Swann’s absentee ballot
    to Swann’s home – no other address was given in the application for the ballot –
    and the clerk says a ballot was sent to Swann’s home. Nothing wrongful can arise
    from those facts.
    Swann erroneously argues that we should apply a futility exception to the
    standing requirement and excuse his failure to request that his ballot be mailed to
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    the jail. He contends that “it is unequivocally clear that if [he] had indeed
    requested on his absentee ballot application that his ballot be mailed to him at the
    DeKalb County jail, nothing different would have happened,” but Swann can only
    speculate that the absentee ballot clerk would have dishonored a request to mail
    his ballot to the jail. The authorities that Swann cites are inapposite. These
    decisions either address pre-enforcement challenges to statutes, see, e.g., Fla. State
    Conf. of NAACP v. Browning, 
    522 F.3d 1153
    , 1164 (11th Cir. 2008), or involve
    the submission of successive applications to an administrative board after the
    plaintiff has already made at least one submission, see, e.g., Greenbriar, Ltd. v.
    City of Alabaster, 
    881 F.2d 1570
    , 1575–76 (11th Cir. 1989).
    Swann did not have standing to sue the officials, and the district court erred
    when it granted a summary judgment. “‘[A] grant of summary judgment is a
    decision on the merits[,] . . . [but] a court must dismiss a case without ever
    reaching the merits if it concludes that it has no jurisdiction.’” Goodman ex rel.
    Goodman v. Sipos, 
    259 F.3d 1327
    , 1331 n.6 (11th Cir. 2001) (third and fourth
    alterations in original) (quoting Capitol Leasing Co. v. Fed. Deposit Ins. Corp.,
    
    999 F.2d 188
    , 191 (7th Cir. 1993)).
    IV. CONCLUSION
    We VACATE the judgment of the district court and REMAND with
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    instructions to DISMISS for lack of subject matter jurisdiction.
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