                                                                   [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR TH E ELEV ENTH C IRCUIT
                         ________________________                FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEV ENT H CIR CUIT
                                No. 03-12111               FEBRUAR Y 9, 2004
                            Non-Argument Calendar           THOMAS K. KAHN
                          ________________________              CLERK

                    D. C. Docket No. 02-00056-CV -4-WLS-1

WIL LIAM WRI GHT ,
GEO RGE HAW THO RNE ,
POL LY C HER RY,


                                                         Plaintiffs -App ellants,

JOSE PH H OW ARD , III, Rev .,

                                                                       Plaintiff,

                                   versus

DOU GHE RTY COU NTY , GEO RGIA ,
LAMA R REESE , in his official capacity as a member
of the D oughe rty Cou nty Boa rd of C ommis sioners,
LAMA R HUD GINS, in his official capacity as a
member of the Dougherty County Board of
Comm issioners ,
GEORG E BROW N, in his official capacity as a member
of the D oughe rty Cou nty Boa rd of C ommis sioners,
BREN DA RO BINSO N-CUT LER, in her official capacity
as a member of the Dougherty County Board of
Comm issioners , et. al,

                                                        Defen dants-A ppellees.
                             ________________________

                     Appeal from the United States District Court
                         for the M iddle D istrict of G eorgia
                          _________________________
                                (February 9, 2004)


Before TJOF LAT, M ARCU S and GO DBOL D, Circuit Judges.

PER CURIAM:

       This case concerns the issue of standing to bring suit. Appellants are

registered voters o f Dou gherty C ounty, G eorgia, D istrict 5. Th ey brou ght suit

under 42 U.S.C. 2§1983 and 42 U.S.C. §1973, the Voting Rights Act of 1965,

against appellees alleging that the current voting districts are malapportioned, and

thus vio lated their F ourteen th Am endme nt guara ntee of o ne perso n, one v ote.

They sought declaratory and injunctive relief against the further use of the current

voting districts for the Board of Commissioners and the School Board. Moreover,

they sought a court-ordered plan that remedied the malapportionment and complied

with Sections 2 and 5 of the Voting Rights Act, 42 U.S.C. 1973 and 1973c. The

district court granted appellees’ motion for summary judgment, finding that

appellants lacked standing to pursue a case un der §1983 and § 1973 against

appellees because they were not do miciled in the underrepresented voting districts,



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and thus were not harmed. Appellants now appeal, alleging that the district court

(1) erred in both law and fact in holding they lacked standing because they were

over-re presente d and (2 ) abused its discretio n in denying app ellants’ mo tion to

consolidate their case with Knigh ton v. D oughe rty Cou nty, Civ. No. 1:02-CV-130-

2 (WL S) (M .D. Ga .). We af firm.

       We review de novo a district court’s order granting motion for summary

judgment and construe “all reasonable doubts about the facts in favor of the non-

movant.” Browing v. Payton, 918 F.2d 1516, 1520 (11th Cir. 1990). Dismissal for

lack of standing is also reviewed de novo. We review the district court's ruling on

wheth er conso lidation is a pprop riate und er an abu se of disc retion stan dard.

Hargett, III v. Valley Fed. Sav. Bank, 60 F.3d 754, 760 (11th Cir. 1995). “To find

an abuse of discretion, [this court] must find that, on an examination of the record

as a whole, the action complained of adversely affected the substantial rights of the

complaining party.” Id.

       The results of the 2000 census indicated that there had been significant

population change since the 1990 census, requiring that the voting districts for the

Board of Commissioners and the School Board be redrawn. Appellees appointed a

six-member committee (“the Committee”) consisting of three members each from

the Board of County Commissioners and the Board of Education to develop a



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redistricting plan. The Committee was evenly divided with three white members

and three African-American members. In September of 2001, after numerous

hearings, the Committee chose one of the four submitted redistricting plans and

presented the plan to the School Board and County Commission for review. In

November of 2001 appellant Wright submitted three plans for the School Board

and County Commission to review in conjunction with the plan approved by the

Committee. The Committee was reconvened to consider appellant Wright’s plans

in conju nction w ith the plan previou sly selected . The C ommitte e ultimately

retained its previous recommendation and did not endorse any one of appellant

Wrigh t’s plans.

              The County Commissioners and the School Board drafted a resolution

adoptin g the plan recomm ended b y the Co mmittee. I n comp liance w ith Geo rgia

state law th ey asked the Cou nty’s deleg ation to th e Geor gia legislatu re to sub mit

the plan to the Georgia General Assembly. The General Assembly did not to take

action du ring the 2 002 leg islative sess ion. It is un disputed that as a res ult on this

inaction by the Georgia state legislature the districts were unchanged, and thus

remained malapportioned.

                                             Standing

       Article III of the United States Constitution limits the power of federal



                                              4
courts to adjudica ting actua l “cases” an d “contro versies.” U .S. C ONST. art. III, §2,

cl. 1. “This case-or-controversy doctrine fundamentally limits the power of federal

courts in our system of government, [citations omitted], and helps to ‘identify

those disputes which are appropriately resolved through judicial process.’”

Georgia State Conference of NAACP Branches v. Cox, 183 F .3d 125 9, 1262 (11th

Cir. 1999) (quoting Whitmore v. Arkansas, 495 U .S. 149 , 155 (1 990)).

       The most significant doctrine of case-or controversy is the requirement of

standing . Georgia State Conference 183 F.3d at 1262. “In essence the question of

standing is whether the litigant is entitled to have the court decide the merits of the

dispute or of particular issues.” Warth v. Seldin , 422 U.S. 490, 498 (1975). To

establish standing a plaintiff must meet the three-prong test proving that he had

suffered “injury in f act”. In rev iewing the proo f provid ed the co urt mus t bear in

mind th at the “ ‘Ar t[icle] III no tion that fe deral cou rts may ex ercise po wer on ly in

the last reso rt, and as a necessity’ a nd wh en the dis pute is on e ‘tradition ally

thought to be capable of resolution through the judicial process.’” Georg ia State

Conference 183 F.3d at 1262-3 (quoting Allen v. Wright, 468 U.S. 737, 152

(1984)). The three-prong test proving ‘injury in fact’ requires a showing of:

       “[first] the in jury [is] an invasion of a legally protected interest tha t is

       sufficiently concrete and particularized rather than abstract and



                                               5
       indefinite. Second, there must be causal connection between the

       injury and the challenged action of the defendant which is not too

       attenuated. Third, it must be likely rather than speculative that the

       injury will be redressed by a favorable decision.”

Georgia State Conference, 183 F.3d at 1262 (citations and internal quotations

omitted).

       In the case at bar the appellants have failed to meet the second prong of the

‘injury in fact’ test for they have not suffered any harm or injury by the

malapportioned voting districts; in fact they have benefitted from it. This court

noted in Fairley v. Patterson that “the Supreme Court has conclusively established

[citations o mitted], tha t sufficien t damag e throug h unde rreprese ntation to obtain

standing will be inflicted if population equality among voting units is not present.”

493 F.2d 598, 603 (5th Cir. 1974). 1 In this regard this court held that “injury

results only to those persons domiciled in the under-represented voting districts.”

Fairley, 493 F.2d at 603. (citing Skolnick v. Board of Commissioners of Cook

Coun ty, 435 F.2d 361 (7th Cir. 1970) (finding that plaintiff’s lacked standing

because they were not harmed by the malapportionment but in fact were

benefitting from it). Further, over-represented voting district members are barred

1
 Decisions rendered by the United States Court of Appeals for the Fifth Circuit prior to
September 30, 1981 shall be binding as precedent on the Eleventh Circuit. Bonner v. City of
Prithcard, 661 F.2d 1206, 1207 (11th Cir. 1981).

                                               6
from bringing suit on behalf of persons who reside in under-represented voting

districts. Id at 604.

       Appellants contend that, although this court explicitly held in Fairley that

over-represented voting district members lacked standing to bring suit for

malapp ortionm ent wh at it really me ant was that votin g districts th at were s lightly

over-re presente d also ha d standin g becau se they w ere und er-repre sented in

compa rison to th e other o ver-rep resented districts in th eir coun ty. The b asis of this

contention is dicta in the decision, which states, “the electors of Supervisory

Districts N os. 1, 2, an d 3 we re unde rreprese nted”. Fairley, 493 F.2d at 603-4. The

appellan ts conten d that bas ed on th e voting district po pulation numb ers show ed in

footno te 7 of the decision , district 2 w as in fact o ver-rep resented by appr oximate ly

16%, but was underrepresented in comparison to districts 4 and 5, which were

over-re presente d by app roxima tely 84% and 85 %, resp ectively.

       Appellants’ argument is without merit for three reasons. First, as

aforem entioned , Fairely stands fo r the pro position (1) that o nly perso ns residin g in

underrepresented districts have standing for only they fulfill the three prong test of

“injury in fact,” and (2) an over-represented (aka uninjured) person may not bring

suit on behalf of persons who are underrepresented. 493 F.2d at 603-604. Second,

the one sentence contained in Fairley stating that district 2 voters had standing is at



                                              7
best dicta, and thus, “it is neither the law of the case nor binding precedent.” Great

Lakes Dredge & Dock Co. v. Chevron Shipping Co., 957 F .2d 157 5, 1578 (11th

Cir. 1992). Third, our sister circuits have reaffirmed the holding of Fairely, which

limits stand ing to pe rsons w ho resid e in und errepres ented vo ting distric ts. League

of Women Vo ters of Nassau County v. Nassau County Board of Supervisors, 737

F.2d 1 55, 161 (2nd C ir. 1984 ); Minority Police Officers Association of South Bend

v. City of South Bend, Ind., 721 F.2d 197, 202 (7th Cir. 1983).

                                      Consolidation

       A distric t court ha s discretio n over w hether tw o cases m ay be con solidated .

Harge tt, 60 F.3d at 760. A case may not be consolidated with another when one

set of plaintiffs lack standing to assert a claim against the defendants. “Where a

plaintiff never had standing to assert a claim against the defendants, it does not

have standing to amend the complaint and control the litigation by substituting new

plaintiffs, a new class, and a new cause of action.” Summit Office Park, Inc. v.

United States Steel Corp., 639 F.2d 1278, 1282 (5th Cir. 1981).

       Appellants lack standing to bring suit against the appellees because they

have not suffered injury by the malapportionment. By lacking standing to bring a

claim the a ppellants also lack s tanding to amen d the com plaint to co nsolidate with

a party w ho may have stan ding.



                                             8
    The co urt did n ot err in d ismissing the com plaint. Th e judgm ent is

AFFIRMED.




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