In an amazing opinion last July, an Eleventh Circuit panel ruled (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act had “stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.” I outlined my criticisms of that ruling in this post and won’t repeat them here.
I’d instead like to pass along some encouraging news that I had missed. Back in January, the Eleventh Circuit granted rehearing en banc of the case and vacated the panel’s ruling. The court has instructed counsel “to focus their briefs on the following issues”:
(1) Whether the plaintiffs have standing under Article III of the Constitution.
(2) Whether the Attorney of Alabama is a proper defendant under Ex Parte Young, 209 U.S. 123 (1908).
(3) Whether the complaint states a claim of racial discrimination, in violation of the Equal Protection Clause, that is plausible under the pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Iqbal v. Ashcroft, 556 U.S. 662 (2009).
Oral argument will take place next Tuesday, June 25.