Loss of Per Diem Payments Was Not Enough to Secure Article III Standing for Commissioners Fighting Reorganization of an Airport Authority, Holds the Fifth Circuit (in the Fourth Appeal of the Case)

While monetary loss is almost always deemed sufficient to trigger Article III standing, in Jones v. Reeves, No. 24-60371 (5th Cir. Nov. 19, 2024), a Fifth Circuit panel dismisses an eight-year old case (on its fourth appeal) on the ground that the plaintiffs lacked Article III standing to protect per diem payments they recieved by serving on an airport commission.

“Pursuant to state law, the City of Jackson created the Jackson Municipal Airport Authority (‘JMAA’) in 1960 to manage and operate the capital city’s airport. The JMAA is led by five commissioners, all selected by the Jackson city government. The commissioners receive a per diem for services provided to the JMAA and reimbursement for reasonable travel expenses related to the business of the airport.”

Yet in 2016, the Mississippi Legislature replaced the city-led JMAA with a new Jackson
Metropolitan Area Airport Authority (Authority). Under the legislature’s S.B. 2162, “[t]he Authority would be governed by nine commissioners, but only two would be selected by the Jackson city government.” The five JMAA commissioners sued to enjoin the creation of the new Authority, alleging violations of federal equal protection (here, race discrimination and vote dilution) and state constitutional due process. Over time and multiple appeals, the plaintiffs – as they rotated off the JMAA – were replaced by new sitting commisioners, to prevent mootness.

The occasion of this appeal was a dispute over the enforceability of a subpoena against state legislators, who asserted legislative privilege. The legislators appealed a discovery order to comply. The Fifth Circuit, which asserted appellate jurisdiction over three prior appeals, holds that it “continue[s] to have appellate jurisdiction” over this dispute.

The Fifth Circuit dismisses and remands with direction to dismiss that action without prejudice, on grounds of Article III standing.

The panel holds that the injury to plaintiffs, if any, is not sufficiently personal to them to support standing. “The injury that these Commissioner-Plaintiffs allege as a result of S.B. 2162 is an institutional one. Because S.B. 2162 supplants the JMAA with the Authority in its entirety, any alleged injury caused by the statute necessarily affects the JMAA as an entity. Plaintiffs have not alleged any particularized personal injury arising from this governmental restructuring. Plaintiffs are not ‘singled out for specially unfavorable treatment’ when the JMAA (and the commissioners’ positions) is replaced with a new regional airport authority.”

“Plaintiffs also fail to show that they are in effect employees who can claim injury from the loss of the per diem payments and travel reimbursements that accompany the position of JMAA Commissioner . . . . But the Plaintiffs receive no other monetary benefits of employment status, like insurance or retirement compensation, and these minimal payments are not a formal salary. They do not transform purely political appointments to volunteer positions into an employer-employee relationship. The Plaintiffs have no protected property interest in their appointments, nor in the perks that might accompany those appointments. This is why they suffer no personal injury when the office to which they were appointed is terminated or sunset by the legislature.”

The panel distinguishes other cases where prospective loss of per diem payments supported standing. “Moreover, this court’s previous cases concerning personal injury with respect to per diem payments and travel expenses are readily distinguishable . . . . Rather than singling out particular JMAA commissioners for adverse treatment, or disadvantaging JMAA Commissioners vis a vis other airport commissioners, S.B. 2162 eliminates the JMAA altogether and replaces it with a new regional entity . . . . If the seat to which these duties are owed disappears, so too does the need for any associated reimbursement or compensation. With the elimination of the JMAA, there are no official duties requiring a per diem; and in the absence of JMAA -related travel expenses, there is nothing to reimburse.”

At bottom, quoting a prior panel’s dissenting opinion, “This suit is nothing more than a political dispute between state and local governments over control of an airport and the land around it. One side has dragged that fight into federal court by tricking it out in equal protection colors. That won’t fly.”