Ark. State Conf. NAACP v. Ark. Bd. of Apportionment

91 F.4th 967

ARKANSAS STATE CONFERENCE NAACP and Arkansas Public Policy Panel, Appellants v. ARKANSAS BOARD OF APPORTIONMENT, et al., AppelleesUnited States of America, et al., Amici on Behalf of Appellant(s)Honest Elections Project, et al., Amici on Behalf of Appellee(s)

No: 22-1395

United States Court of Appeals, Eighth Circuit

January 30, 2024

Appeal from U.S. District Court for the Eastern District of Arkansas - Central (4:21-cv-01239-LPR)

ORDER

The petition for rehearing en banc is denied. The petition for panel rehearing is also denied.

Chief Judge Smith, Judge Colloton and Judge Kelly would grant the petition for rehearing en banc.

Judge Shepherd did not participate in the decision or consideration of this matter.

STRAS, Circuit Judge, with whom GRUENDER, Circuit Judge, joins, concurring in the denial of rehearing en banc.

The panel opinion mostly speaks for itself, except for two new arguments. One is the plaintiffs' shift in focus to a § 1983 action and the other a hardline stance on the cross-appeal requirement that no one has brought up before now. Neither was before the panel.

I.

All along, the plaintiffs have focused on whether the Voting Rights Act contains a private right of action under § 2. The possibility of enforcing § 2 through some other statute appears to have been an afterthought, even though other § 2 plaintiffs have invoked § 1983 from the start, beginning with their complaints. See, e.g., Compl. at 75, 79, 81-83, N.C. State Conf. of the NAACP v. Berger, No. 1:23-cv-01104-WO-LPA (M.D.N.C. filed Dec. 19, 2023), 2023 WL 8812633; Compl. at 34, 38-39, Winnebago Tribe of Neb. v. Thurston County, No. 8:23-cv-0020-RFR-JMD (D. Neb. filed Jan. 19, 2023), 2023 WL 362295; Compl. at 51, Robinson v. Ardoin, No. 3:22-cv-00211-SDD-SDJ (M.D. La. filed Mar. 30, 2022); Compl. at 1, Turtle Mountain Band of Chippewa Indians v. Jaeger, No. 3:22-cv-00022-PDW-ARS (D.N.D. filed Feb. 7, 2022).

Here, by contrast, the plaintiffs did not plead a § 1983 claim, brief it below, or request leave to add it, even after being "put . . . on notice of the possible deficienc[y] in their original complaint." Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 963, 964 n.3 (8th Cir. 2015) (noting that "whether to request leave to amend or stand on the complaint" is "an ordinary tactical decision," and plaintiffs are not entitled to a do-over if it turns out badly); see also GWG DLP Funding V, LLC v. PHL Variable Ins. Co., 54 F.4th 1029, 1036-37 (8th Cir. 2022) (explaining that plaintiffs seeking a without-prejudice dismissal must "show a willingness to amend the complaint" in a way that would "save the meritless claim" (citations omitted)). It is true that the district court raised the private-right-of-action issue on its own, but it still had no obligation to address a claim the plaintiffs never pleaded.

It was a similar story on appeal. The first time the plaintiffs mentioned § 1983 was in a footnote in their opening brief. It recited the general rule that statutes creating private rights are enforceable under § 1983, along with a one-sentence description of two exceptions to that rule, including one that applies when Congress has "creat[ed] a comprehensive enforcement scheme that is incompatible with individual enforcement." Appellants Br. at 29 n.16 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284 n.4, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)). And critically, there was no argument that they had pleaded enough to preserve the issue or had raised it in some other way to the district court. Instead, the argument was that they were entitled to an amendment—one they had never requested—because the application of § 1983 is "a pure[ ] legal issue that [was] beyond doubt." Id. (quoting Robinson v. Norling, 25 F.4th 1061, 1063 (8th Cir. 2022)).

It may well turn out that private plaintiffs can sue to enforce § 2 of the Voting Rights Act under § 1983. But without briefing on the issue, we could not say it was "beyond doubt." Id. And it would have been backwards to treat the plaintiffs' choice not to add a § 1983 claim as the reason to decide they could. See Ash, 799 F.3d at 964 n.3. So we did what we usually do—address the case the parties brought—and considered whether the Voting Rights Act allows for private enforcement of § 2. See Greenlaw v. United States, 554 U.S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ("We wait for cases to come to us, and when they do we normally decide only questions presented by the parties." (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in the denial of rehearing en banc))). We concluded the answer to that specific question was "no."

II.

We also answered another question posed to us by the plaintiffs: did the district court make a mistake in treating the absence of a private right of action as a jurisdictional defect? It did, but then the plaintiffs wanted us to wind back the clock and start the case over again. We explained why, in the context of this case, their requested remedy did not work.

Instead, we modified the judgment to the usual disposition when the complaint does not state a claim and the plaintiffs have not tried to fix it: a dismissal with prejudice. The defendants did not cross-appeal, but they argued for "remand . . . with instructions to modify [the] judgment to a dismissal with prejudice." Appellees Br. at 55. The plaintiffs never argued in response that the absence of a cross-appeal ruled out this remedy. Not in their reply brief, not even in their petition for rehearing. See Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (explaining that if a court of appeals "notice[s]" an unraised issue, it "is not 'required' to raise [the issue] sua sponte" if it "is not a jurisdictional matter"); United States v. Nunez-Hernandez, 43 F.4th 857, 859 (8th Cir. 2022) ("Forfeiture occurs when a party has an argument available but fails to assert it on time."); cf. Greenlaw, 554 U.S. at 240, 243, 128 S.Ct. 2559 (enforcing the cross-appeal requirement after it was raised in the petition for rehearing). The word "cross-appeal" never appears, not even once.

It has long been the law in this circuit that "the cross-appeal requirement is a non-jurisdictional rule of practice," meaning we have no obligation to raise it on our own. Gross v. FBL Fin. Servs., Inc., 588 F.3d 614, 621 (8th Cir. 2009); see also Greenlaw, 554 U.S. at 245, 128 S.Ct. 2559 (declining to overrule our precedent treating the rule as discretionary); id. at 256-57, 128 S.Ct. 2559 (Alito, J., dissenting) (concluding that it is "a prime example of a rule of practice, subject to exceptions" (citation omitted)); id. at 255, 128 S.Ct. 2559 (Breyer, J., concurring in the judgment) (agreeing with Justice Alito). It makes no difference that the disposition changed. Even without a cross-appeal, we have frequently reclassified a dismissal—from without prejudice to with prejudice—when the circumstances call for it, including when no one raises the issue. Here are just a few examples: Persechini v. Callaway, 651 F.3d 802, 808 (8th Cir. 2011); Knutson v. City of Fargo, 600 F.3d 992, 1000 (8th Cir. 2010); Williams v. Schario, 93 F.3d 527, 529 (8th Cir. 1996) (per curiam); Radaszewski ex rel. Radaszewski v. Telecom Corp., 981 F.2d 305, 311 (8th Cir. 1992); see also Doyle v. Trans Union, 638 F. App'x 559, 560 (8th Cir. 2016) (unpublished per curiam); Hollowell v. Hosto, 389 F. App'x 583, 584 (8th Cir. 2010) (unpublished per curiam); Warren v. Fort Dodge Corr. Facility, 372 F. App'x 685 (8th Cir. 2010) (unpublished per curiam); cf. Core & Main, LP v. McCabe, 62 F.4th 414, 417 n.1 (8th Cir. 2023) (making a dismissal "with prejudice" with the plaintiff's consent but no cross-appeal). And we are not the only ones who do it. See, e.g., Sherwood v. Marchiori, 76 F.4th 688, 697 (7th Cir. 2023); Clementine Co., LLC v. Adams, 74 F.4th 77, 90 n.4 (2d Cir. 2023); Lord Abbett Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1208 (11th Cir. 2012) (per curiam); Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc) (creating a "prudential" exception).

The reason is that appeals do not come in one-size-fits-all packaging. Here, it would have been strange to require the defendants to appeal the same issue the plaintiffs did. After all, the plaintiffs were the ones arguing that the district court should not have raised the private-right-of-action issue on its own because it was non-jurisdictional. They were right about the problem, but wrong about the solution. As the panel opinion explains, there was little to gain by ignoring the clear implication of their argument just because we did not have a second appeal from the defendants spelling out the consequences. See Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1217-18 (8th Cir. 2023) (explaining why "unwind[ing] everything" was the "wrong . . . solution").

III.

The panel did the best it could with the case it had, one complicated by twists, turns, and shifting arguments, not to mention today's invitation to shadow box with arguments no one made. I, for one, have no doubt that the district judge, the panel, and this court have been "dispassionate arbiter[s] of [the] issues" actually "presented by the parties," even if reasonable minds might disagree about the right answer. Post at 974.

COLLOTON, Circuit Judge, with whom KELLY, Circuit Judge, joins, dissenting from denial of rehearing en banc.

The panel majority in this case rendered an ambitious and unprecedented ruling that an aggrieved voter does not have a private right of action under § 2 of the Voting Rights Act of 1965 to enforce the right to vote. Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204 (8th Cir. 2023). According to the panel, only the Attorney General of the United States may bring an action under the Act to enforce § 2. If that were the proper issue for decision on this appeal, then it would be a matter of exceptional importance that...