Janie Ingalls v. U.S. Space and Rocket Center ( 2017 )


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  •               Case: 15-13797      Date Filed: 02/16/2017     Page: 1 of 19
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-13797
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:14-cv-00699-WKW-TFM
    JANICE INGALLS, et al.,
    Plaintiffs - Appellants,
    versus
    U.S. SPACE AND ROCKET CENTER, et al.,
    Defendants - Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    ________________________
    (February 16, 2017)
    Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and SMITH, * District
    Judge.
    *
    Honorable C. Lynwood Smith, Jr., United States District Judge for the Northern District of
    Alabama, sitting by designation.
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    PER CURIAM:
    Dr. Wernher von Braun, a visionary rocket scientist, was responsible for
    Nazi Germany’s V-2 rocket, and, after World War II, for putting American Apollo
    astronauts on the moon. Also a visionary for earthly endeavors, he was responsible
    for convincing the Alabama Legislature to create the U.S. Space & Rocket Center,
    which put his rockets and work on display for future generations. Dr. von Braun
    probably hoped that the Center would, like his rockets, launch visitors’
    imaginations to the moon and back and keep America’s vigor for rocket science
    alive. He probably did not expect, however, that his Center would also be the
    launching pad for a federal equal protection and due process law suit.
    Decades after the Center opened its doors, three former employees sued
    executives of the Space Science Exhibit Commission, which is responsible for
    running the Center, for failing to pay holiday and longevity benefits allegedly due
    to them under Alabama law. The former employees alleged that this failure,
    among other things, violated their federal equal protection and due process rights.
    The Commission executives countered by filing a motion to dismiss under Federal
    Rule of Civil Procedure 12(b)(6), asserting that they are protected from suit by
    qualified immunity. The district court agreed with the executives and dismissed
    the claims against them. This timely appeal followed.
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    Following a review of the record, and with the benefit of oral argument, we
    affirm. With respect to the equal protection claim, the former employees failed to
    allege a violation of clearly established law. The due process claim fails because
    the former employees concede that they will receive adequate process in their
    parallel Alabama state court litigation.
    I
    The second amended complaint alleges the following facts, which we accept
    as true. See Timson v. Sampson, 
    518 F.3d 870
    , 872 (11th Cir. 2008).
    A
    In March of 1970, the U.S. Space & Rocket Center opened its doors in
    Huntsville, Alabama, and began offering visitors a unique glimpse into the United
    States space program. To manage the facility and programming, the Alabama
    Legislature established the Alabama Space Science Exhibit Commission. See
    Alabama Code §§ 41-9-430 through 41-9-439. Today, as Dr. von Braun had
    hoped, the U.S. Space & Rocket Center, operated by the Commission, provides the
    leading museum experience for those interested in the United States space
    program.
    In January of 2014, the Alabama State Department of Public Accounts,
    which is responsible for auditing entities that receive or use state funds, issued a
    report detailing its audit of the Commission for 2007–2012. The audit report
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    found, among other things, that the Commission had failed to provide appropriate
    holiday and longevity pay to its employees as required by certain Alabama statutes.
    Specifically, the report concluded that (1) “[t]he Commission/USS&RC provides
    six fewer holidays to its state employees than are mandated by law for state
    employees,” and (2) “[t]he Commission/USS&RC’s employees who were entitled
    to receive longevity payments received less than the amount to which they were
    entitled.”
    To remedy the failure, the Department of Public Accounts recommended as
    follows:
    The Commission should award to its employees the holidays provided
    by the Code of Alabama 1975, Section 1-3-8(a), and should provide a
    day of compensatory leave or paid compensation in lieu of any
    holiday on which the employee is required to work, as required by the
    Code of Alabama 1975, Section 1-3-8(e).
    The Commission should re-compute longevity pay for each employee
    for all years in which they were qualified to receive longevity pay for
    reason of not having received a cost of living pay increase and should
    pay the employees the total amount of all underpayments due them.
    The Department of Public Accounts released the report first to the
    Commission, and then to the public. After the report was issued, the Commission
    held a meeting with its employees. The Commission’s management acknowledged
    the report and voiced its collective belief that the audit report findings were wrong.
    Management also said that the Commission would, if required, implement changes
    to the current employee benefits program. To date, Commission executives have
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    adopted none of the changes regarding holiday and longevity pay recommended by
    the Department of Public Accounts.
    C
    The appellants, three former Commission employees, brought suit against
    several Commission executives for failing to provide them holiday pay pursuant to
    Alabama Code § 1-3-8(e) and longevity pay increases under Alabama Code § 36-
    6-11(a). As relevant here, the former employees alleged that these failures violated
    their federal equal protection and due process rights.1
    In relevant part, § 1-3-8(e) provides that “[a]ny state employee working on a
    state holiday shall receive a day of compensatory leave or paid compensation in
    lieu of the holiday as provided herein.” The paid holidays are listed in § 1-3-8(a),
    and § 1-3-8(b) specifies when those holidays shall be taken during the year.
    Although Commission employees were provided a benefits program that included
    some of the listed holidays, six of the holidays listed under § 1-3-8(a) were
    excluded.
    Under § 36-6-11(a), “[e]ach person employed by the State of Alabama” is
    entitled to certain longevity pay. This provision awards the following longevity
    compensation to state employees:
    1
    The former employees sued additional parties and asserted more claims, but they are not at
    issue on appeal.
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    [A] lump sum the first payday of December each year the sum of
    three hundred dollars ($300) per annum after such employee has
    served for a total period of five years and shall receive the payment
    until the tenth year of total service, at which time the payment shall be
    made in a like manner and at a like time but in the amount of four
    hundred dollars ($400) per annum until the fifteenth year of total
    service, at which time the payment shall be made in a like manner and
    at a like time but in the amount of five hundred dollars ($500) per
    annum until the twentieth year of total service, at which time the
    payment shall be made in a like manner and at a like time but in the
    amount of six hundred dollars ($600) per annum until the twenty-fifth
    year of total service, at which time the payment shall be made in a like
    manner and at a like time, but in the amount of seven hundred dollars
    ($700) as long as the employee remains in service.
    
    Id. The Commission’s
    benefits program provided employees these longevity pay
    benefits.
    When state employees fail to receive cost-of-living pay raises, the longevity
    pay statute also provides for an increase in longevity pay:
    Beginning October 1, 2006, and continuing each fiscal year thereafter
    in which an employee does not receive a cost-of-living increase in
    compensation, each per annum amount provided in this subsection
    shall be increased by one hundred dollars ($100) per year to a
    maximum amount of one thousand dollars ($1,000) for 25 years of
    total service as long as the employee remains in service.
    
    Id. This increase
    in the longevity pay was excluded from the Commission’s
    benefits program.
    II
    “A motion to dismiss a complaint on qualified immunity grounds will be
    granted if the complaint fails to allege the violation of a clearly established
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    constitutional right.” St. George v. Pinellas Cty., 
    285 F.3d 1334
    , 1337 (11th Cir.
    2002) (quotation marks and citation omitted). “Whether the complaint sets forth a
    violation is a question of law that we review de novo.” Griffin Indus., Inc. v. Irvin,
    
    496 F.3d 1189
    , 1199 (11th Cir. 2007).
    In conducting this review, “[w]e are required to accept the facts as set forth
    in the . . . complaint as true, and our consideration is limited to those facts
    contained in the pleadings and attached exhibits.”         
    Id. “[A]ny conclusory
    allegations, unwarranted deductions of fact or legal conclusions masquerading as
    facts,” on the other hand, “do not prevent dismissal.” Weissman v. Nat’l Ass’n of
    Sec. Dealers, Inc., 
    500 F.3d 1293
    , 1305 (11th Cir. 2007) (en banc).          See also
    Chandler v. Sec’y of Florida Dep’t of Transp., 
    695 F.3d 1194
    , 1198–99 (11th Cir.
    2012) (“[T]he tenet that a court must accept as true all of the allegations contained
    in a complaint is inapplicable to legal conclusions.”).
    Qualified immunity “protects all but the plainly incompetent or those who
    knowingly violate the law.” Jordan v. Mosley, 
    487 F.3d 1350
    , 1354 (11th Cir.
    2007) (citations and quotation marks omitted). The defense protects government
    officials sued in their individual capacities from liability when (1) they act within
    the scope of their discretionary authority, and (2) their conduct “violates no clearly
    established statutory or constitutional rights of which a reasonable person would
    have known.” 
    Id. (citation and
    quotation marks omitted).
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    If a state official was acting “within the scope of his discretionary authority,
    the burden falls to the plaintiff to show that qualified immunity is inappropriate.”
    Jacoby v. Baldwin Cty., 
    835 F.3d 1338
    , 1344 (11th Cir. 2016). To meet this
    burden, a plaintiff must (1) “allege facts that establish that the [official] violated
    [his] constitutional rights,” and (2) “show that the right involved was clearly
    established at the time of the putative misconduct.” 
    Id. (citation and
    quotation
    marks omitted). “We may consider these two prongs in either order, and a public
    official is entitled to qualified immunity if the plaintiff fails to establish either
    one.” 
    Id. (citing Pearson
    v. Callahan, 
    555 U.S. 223
    , 236 (2009)).
    “For a constitutional right to be clearly established, its contours must be
    sufficiently clear that a reasonable official would understand that what he is doing
    violates that right.”   Hope v. Pelzer, 
    536 U.S. 730
    , 739 (2002) (citation and
    quotation marks omitted). This may be shown in one of three ways: “(1) case law
    with indistinguishable facts clearly establishing the constitutional right; (2) a broad
    statement of principle within the Constitution, statute, or case law that clearly
    establishes a constitutional right; or (3) conduct so egregious that a constitutional
    right was clearly violated, even in the total absence of case law.” Lewis v. City of
    W. Palm Beach, Fla., 
    561 F.3d 1288
    , 1291 (11th Cir. 2009) (citations omitted).
    “In this circuit, the case law can be ‘clearly established’ for qualified immunity
    only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals,
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    or the highest court of the state where the case arose.” Jenkins v. Talladega City
    Bd. of Educ., 
    115 F.3d 821
    , 826 n.4 (11th Cir. 1997).
    For a broad statement of principle to clearly establish a constitutional right,
    the case law must provide “fair warning” to the state actor, meaning that “in the
    light of pre-existing law the unlawfulness must be apparent.” Terrell v. Smith, 
    668 F.3d 1244
    , 1256 (11th Cir. 2012) (citations and quotation marks omitted). This
    encompasses “those situations where the official’s conduct lies so obviously at the
    very core of what the [relevant constitutional provision] prohibits that the
    unlawfulness of the conduct was readily apparent to the official, notwithstanding
    the lack of case law.” Maddox v. Stephens, 
    727 F.3d 1109
    , 1121 (11th Cir. 2013)
    (citation and quotation marks omitted) (addition in original).
    III
    The former employees argue that the Commission executives are not
    protected by qualified immunity for two reasons. First, they did not act within
    their discretionary authority when they decided not to pay benefits required by
    Alabama law. Second, their decision violated clearly established equal protection
    and due process rights, whether or not there was case law directly on point. We
    disagree with both arguments.
    A
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    The Commission executives acted within their discretionary authority when
    they decided not to provide their employees with holiday and longevity pay. The
    relevant inquiry is “whether the act complained of, if done for a proper purpose,
    would be within, or reasonably related to, the outer perimeter of an official’s
    discretionary duties.” Harbert Int’l, Inc. v. James, 
    157 F.3d 1271
    , 1282 (11th Cir.
    1998). The former employees ask us to examine “whether it was within the
    defendant’s authority to commit the allegedly illegal act,” but “framed that way,”
    the inquiry becomes “not more than an untenable tautology.” 
    Id. at 1282–83.
    Whether an act fell within an official’s discretion is “distinct” from whether that
    same act was illegal. See Sims v. Metro. Dade Cty., 
    972 F.2d 1230
    , 1236 (11th
    Cir. 1992).
    The question is whether the executives had the authority to set the
    appropriate pay and fringe benefits for the Commission’s employees. See Harbert
    Int’l, 
    Inc., 157 F.3d at 1282
    –83; 
    Sims, 972 F.2d at 1236
    . Clearly they did. The
    enabling legislation authorizes the Commission to “allocate and expend funds from
    all donations, income and revenue from any source whatsoever,” Ala. Code § 41-9-
    432(11), and to “fix the compensation of . . . personnel,” Ala. Code § 41-9-
    432(13). This suit, moreover, is premised on the former employees’ assertion that
    the executives were responsible for operating the Commission and had the power
    to adjust employee compensation, including holiday and longevity pay. Setting the
    10
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    Commission employees’ fringe benefits was a task that fell squarely within the
    executives’ discretionary authority.
    B
    The former employees failed to allege violations of their clearly established
    equal protection rights. The Commission’s employees are uniquely situated under
    Alabama law, and an apparent conflict between the Commission’s enabling
    legislation and the benefits statutes gave the executives a reasonable statutory basis
    for their decision. Under these circumstances, qualified immunity protects the
    executives from suit.
    1
    The holiday pay statute requires that state supervisors who fail to schedule
    listed holidays “justify that action in writing to the Director of State Personnel.”
    Ala. Code § 1-3-8(d)–(f). The Director of State Personnel, however, is a position
    created under Alabama’s Merit System Act, and the Commission’s employees are
    expressly excluded from the Merit System Act under the Commission’s enabling
    statute.   See Ala. Code § 41-9-432(13) (providing that the Commission’s
    “executive director and such additional personnel shall not be subject to the
    provisions of the state Merit System Act”). The holiday pay statute also instructs
    that an “employee shall receive pay at a rate not less than the employee’s usual and
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    customary rate of pay for any compensatory leave day[.]” Ala. Code § 1-3-8(f).
    Yet the Commission’s enabling legislation, contrary to this command, gives the
    Commission authorization “[t]o allocate and expend funds from all donations,
    income and revenue from any source whatsoever coming into its treasury[.]” Ala.
    Code § 41-9-432(11) (emphasis added). And it states that the Commission “shall
    fix the compensation of . . . personnel and such compensation shall be paid from
    the funds of the commission.” Ala. Code § 41-9-432(13).
    The longevity pay statute also apparently conflicts with the Commission’s
    enabling legislation. Although the longevity pay statute does state that it applies
    “whether [the employee is] subject to the state Merit System or not,” it
    nevertheless commands that employees be paid “in addition to all salaries or
    wages” “from such funds as the salaries of the several state employees are,
    respectively, paid[.]” Ala. Code § 36-6-11(b), (d). This latter command is at odds
    with the Commission’s enabling statute, which created an entity that self-funds and
    has discretion to set its employees’ compensation. See Ala. Code § 41-9-432(13)
    (providing that “additional personnel and such compensation shall be paid from the
    funds of the commission”); Ala. Code § 41-9-432(11) (affording the Commission
    discretion “[t]o allocate and expend funds from all donations, income and revenue
    from any source whatsoever coming into its treasury”).
    2
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    The former employees argue that our decision in Strickland v. Alderman, 
    74 F.3d 260
    (11th Cir. 1996), and the Alabama Supreme Court’s decision in Barbour
    Cty. Comm’n v. Employees of Barbour Cty. Sheriff’s Dep’t, 
    566 So. 2d 493
    (Ala.
    1990), established that the executives’ failure to pay them fringe benefits under
    Alabama law violated their clearly established equal protection rights. Our review
    of these cases, however, leads us to a different conclusion. We discuss Alderman
    first, and then turn to Barbour County.
    The former employees cite to Alderman for the “broad, clearly established
    principle,” Appellants’ Br. at 21–22, that “unequal application of a facially neutral
    statute may violate the Equal Protection 
    Clause.” 830 F.2d at 264
    .      But in
    Alderman, we explained that to prevail on such an equal protection claim plaintiffs
    must establish that they were “treated differently than similarly situated persons.”
    
    Id. at 264
    (ellipsis omitted). This showing is important:
    The reason that there is a similarly situated requirement in the first
    place is that at their heart, equal protection claims, even class of one
    claims, are basically claims of discrimination. To maintain this focus
    on discrimination, and to avoid constitutionalizing every state
    regulatory dispute, we are obliged to apply the similarly situated
    requirement with rigor.
    Griffin Indus., 
    Inc., 496 F.3d at 1207
    (citations and quotation marks omitted). That
    is why we also explained in Alderman that “[d]ifferent treatment of dissimilarly
    situated persons does not violate the equal protection 
    clause.” 74 F.3d at 265
    (emphasis added) (citation and quotation marks omitted).
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    Although the former employees may allege that they have been treated
    unlike “other state employees,” Second Amended Complaint, D.E. 31, at ¶¶ 104–
    109, the outlined statutory scheme makes clear that they were uniquely situated
    under the statutes creating the Commission and establishing its powers.          See
    
    Weissman, 500 F.3d at 1305
    (“[C]onclusory allegations, unwarranted deductions of
    fact or legal conclusions masquerading as facts do not prevent dismissal.”). Given
    the potential difference between Commission employees and other Alabama state
    employees, Alderman did not put the Commission executives on notice that their
    decision violated clearly established federal equal protection rights. See Corey
    Airport Servs., Inc. v. Decosta, 
    587 F.3d 1280
    , 1285 (11th Cir. 2009) (“By clearly
    established we mean it would be clear to a reasonable official that his conduct was
    unlawful in the situation he confronted.”) (citation and quotation marks omitted).
    The former employees also rely on the Alabama Supreme Court’s Barbour
    County decision, which they claim recognized that the “unequal application of a
    facially neutral law” gives rise to an equal protection claim. Appellants’ Br. at 23.
    As with Alderman, their reliance is misplaced.
    In Barbour County, the Alabama Supreme Court concluded that the Barbour
    County Commission’s decision to arbitrarily include some employees in its
    retirement and insurance benefits program while excluding others violated the
    federal equal protection and due process rights of County employees. 
    566 So. 2d 14
                  Case: 15-13797     Date Filed: 02/16/2017   Page: 15 of 19
    at 494. The Barbour County Commission had passed a resolution providing that
    all its “public employees” who held “fully budgeted positions on a full normal
    working time basis” were permitted to participate in a certain benefits program. 
    Id. But certain
    obviously and undebatably eligible employees were excluded by other
    language in the resolution or by actions of the Commission, and those employees
    sued. 
    Id. Upon review,
    the Alabama Supreme Court concluded the Barbour
    County Commission’s “attempted classifications” to justify excluding obviously
    eligible employees were “not based on substantial distinctions between the
    employees,” and did “not achieve the very purposes set forth in the [r]esolution.”
    
    Id. at 498
    (ellipsis omitted). This “unreasonable” “attempt to justify the unequal
    treatment of various of its employees,” the Alabama Supreme Court reasoned,
    violated those “employees’ rights to due process and equal protection.”          
    Id. (ellipsis omitted).
    The circumstances which provided the basis for the holding in Barbour
    County are absent here.        The Commission here, unlike the Barbour County
    Commission, did not create and then discriminatorily apply a benefits scheme to
    exclude clearly eligible employees from coverage.          Instead, the Commission
    executives made a decision to not provide full longevity and holiday pay to
    employees who, as we have outlined, are uniquely situated under an existing, state-
    wide statutory scheme.      Barbour County would not have made clear to a
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    reasonable official that the decision to not provide greater holiday and longevity
    pay was unlawful.2 See 
    Decosta, 587 F.3d at 1285
    .
    3
    We recognize that, as alleged, the Department of Public Accounts found that
    Commission employees were entitled to greater holiday and longevity pay. But
    that does not affect our analysis. The former employees are not asserting claims
    under Alabama law, but under the federal Constitution. In order to resolve whether
    qualified immunity protects the Commission executives from suit, therefore, we
    need not take sides in a dispute about Alabama law between two Alabama
    agencies. Qualified immunity “shield[s] officials from harassment, distraction, and
    liability when they perform their duties reasonably.” 
    Callahan, 555 U.S. at 231
    .
    And we need only conclude that, at least under the circumstances presented, the
    former employees cannot overcome qualified immunity. See 
    Maddox, 727 F.3d at 1120
    (qualified immunity “prevents public officials from being intimidated—by
    the threat of lawsuits that jeopardize the official and her family’s welfare
    personally—from doing their jobs”).
    2
    The former employees, moreover, failed to allege circumstances so obviously at the core of
    what equal protection prohibits that, notwithstanding a lack of on-point case law, the
    unlawfulness of the executives’ conduct was apparent. See, e.g., 
    Alderman, 74 F.3d at 264
    .
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    C
    The former employees’ procedural due process claim fails because Alabama
    state law affords adequate process to compensate for the loss allegedly caused by
    the Commission executives. See generally McKinney v. Pate, 
    20 F.3d 1550
    , 1564
    (11th Cir. 1994) (en banc). The former employees conceded at oral argument that
    Alabama law recognizes their claims and provides adequate process to address
    their alleged pecuniary harm. They even admitted that this appeal would be moot
    if an Alabama state court awarded them all the relief sought in their parallel state
    court litigation. The due process claim does not survive these concessions.
    For nearly a quarter century, the law of this circuit has been that “the
    presence of a satisfactory state remedy mandates that we find that no procedural
    due process violation occurred.” 
    McKinney, 20 F.3d at 1564
    . “It is well-settled
    that a constitutional violation is actionable under § 1983 only when the state
    refuses to provide a process sufficient to remedy the procedural deprivation.”
    Reams v. Irvin, 
    561 F.3d 1258
    , 1266 (11th Cir. 2009) (citations and quotation
    marks omitted).     Here, “because adequate state remedies were available,” the
    former employees have “failed to state a procedural due process claim.” Cotton v.
    Jackson, 
    216 F.3d 1328
    , 1330 (11th Cir. 2000).3
    3
    There are some exceptions to this general rule, such as when due process requires pre-
    deprivation process, see Hoefling v. City of Miami, 
    811 F.3d 1271
    , 1283 (11th Cir. 2016)
    (discussing cases), but they are not applicable here.
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    The former employees’ assertion that they “arguably” lack process for their
    breach of contract claim against the Commission, see Appellants’ Br. at 30, is of
    no moment. The governing due process inquiry focuses only on whether state
    remedial process compensates litigants for the alleged loss they have suffered.
    See, e.g., 
    McKinney, 20 F.3d at 1564
    (“McKinney’s state remedy is adequate. The
    Supreme Court held in Parratt that the state’s remedial procedure need not provide
    all relief available under section 1983; as long as the remedy could have fully
    compensated the [employee] for the property loss he suffered, the remedy satisfies
    procedural due process.”) (citation and quotation marks omitted); Horton v. Bd. of
    Cty. Comm’rs of Flagler Cty., 
    202 F.3d 1297
    , 1300 (11th Cir. 2000) (“[T]he
    McKinney rule looks to the existence of an opportunity-to whether the state courts,
    if asked, generally would provide an adequate remedy for the procedural
    deprivation the federal court plaintiff claims to have suffered. If state courts
    would, then there is no federal procedural due process violation regardless of
    whether the plaintiff has taken advantage of the state remedy or attempted to do
    so.”). As the former employees concede, their Alabama state court litigation
    provides adequate process against the Commission executives for their alleged
    losses. The former employees’ due process claim therefore cannot withstand the
    Commission executives’ motion to dismiss.
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    IV
    In their initial brief, the former employees also contend that the district court
    erred in ruling that they lacked standing to pursue their claims for prospective
    injunctive relief. See Appellants’ Br. at 32–36. But in their reply brief, the former
    employees say that the issue “is still not in a posture for proper consideration,” and
    urge us not to address it. See Appellants’ Reply Br. at 13. Though the former
    employees incorrectly presume that they will be able to engage in discovery with
    respect to injunctive relief, they have nevertheless abandoned any challenge to the
    district court’s ruling on standing by asserting that the matter is not ripe for
    adjudication.
    V
    For the reasons outlined above, we affirm the district court’s dismissal, on
    qualified immunity grounds, of the former employees’ equal protection and due
    process claims against the Commission executives.
    AFFIRMED.
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