              Case: 15-13764     Date Filed: 12/17/2015   Page: 1 of 5


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-13764
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 3:15-cv-00030-DHB-BKE


PHILIP KEEN, JR.,
and all other persons similarly situated,

                                                                Plaintiff-Appellant.

                                    versus

JUDICIAL ALTERNATIVES OF GEORGIA, INC.,


                                                               Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                          ________________________

                                (December 17, 2015)

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Philip Keen Jr., appeals the dismissal of his complaint against Judicial

Alternatives of Georgia, Inc. In 2012, Keen was convicted in the State Court of

Treutlen County, Georgia, of misdemeanor driving under the influence, sentenced

to twelve months of probation, and ordered to pay a $805 fine and service fees

incurred for his supervision by Judicial Alternatives, a private company that

contracted with the state court to supervise its probationers, see Ga. Code Ann.

§ 42-8-100(g). In 2015, Keen filed a putative class action seeking a judgment

declaring section 42-8-100(g) unconstitutional, under the United States and

Georgia Constitutions; declaring void the service contract between the state court

and Judicial Alternatives; and for compensatory damages for money had and

received by Judicial Alternatives. The district court ruled that Keen lacked

standing to challenge the statute under the federal Constitution and that his

remaining claims failed to state a claim for relief. We affirm the dismissal of

Keen’s challenge to section 42-8-100(g) on federal constitutional grounds for lack

of standing and the dismissal of his claims to invalidate the service contract and for

money had and received for failure to state a claim. We vacate that part of the

judgment that addressed the merits of Keen’s challenge to section 42-8-100(g)

under the Georgia Constitution, and we remand for the district court to dismiss that

claim for lack of standing.




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      We review de novo a dismissal for lack of standing and for failure to state a

claim for relief. See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328

(11th Cir. 2013) (standing); Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1115

(11th Cir. 2012) (failure to state a claim). “[B]ecause the constitutional standing

doctrine stems directly from Article III’s ‘case or controversy’ requirement, this

issue implicates our subject matter jurisdiction, and accordingly must be addressed

as a threshold matter regardless of whether it is raised by the parties.” Nat’l Parks

Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003) (internal

citation omitted).

      The district court correctly dismissed for lack of standing Keen’s challenge

to section 42-8-100(g) under the U.S. Constitution. This issue is controlled by our

decision in McGee v. Solicitor General of Richmond County, Georgia, 727 F.3d

1322 (11th Cir. 2013), where we dismissed for lack of standing a complaint, like

Keen’s, for a declaratory judgment that section 42-8-100(g) violated the Fourteenth

Amendment of the U.S. Constitution. Id. at 1324–25. Like McGee, Keen cannot

“demonstrate a sufficient likelihood of being convicted in [the state] court and

being placed on probation.” Id. at 1325.

      The district court erred by reaching the merits of Keen’s challenge to section

42-8-100(g) under the Georgia Constitution. Keen failed to allege that he faced an

actual, imminent injury that would confer standing to challenge the state statute.


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Keen “show[ed] [no] sufficient likelihood” that he will be convicted in the state

court of another misdemeanor offense for which he will receive a sentence of

probation and supervised by Judicial Alternatives. See McGee, 727 F.3d at 1325.

Because the district court lacked jurisdiction to examine the merits of Keen’s

challenge to section 42-8-100(g), we vacate that portion of the judgment

dismissing that claim for failure to state a claim and remand for the district court to

dismiss the claim for lack of jurisdiction.

      Keen argues that he stated a claim for money had and received because the

service contract was invalidated when the county commission, a party to the

agreement, failed to reapprove the agreement in compliance with section 36-30-3

of the Georgia Code, but we need not address that argument because Keen fails to

challenge an alternative ground on which the district court rejected his argument to

invalidate the service contract. The district court ruled that section 36-30-3, which

prohibits “[o]ne council . . . [from] bind[ing] itself or its successors so as to prevent

free legislation in matters of municipal government,” Ga. Code Ann. § 36-30-3,

did not invalidate the service contract because the commission was not a party to

the contract and, in the alternative, because the provision was inapplicable to a

“contract . . . entered into with a local government by virtue of express legislative

authority to do so.” We will not reverse a “judgment that is based on multiple,

independent grounds, [unless] an appellant . . . convinces us that every stated


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ground for the judgment against him is incorrect,” and Keen has abandoned any

challenge that he could have made to the alternative ruling. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). “[I]t follows that the

judgment [dismissing Keen’s claim for money had and received as failing to state a

claim] is due to be affirmed.” Id. Keen also argues that the contract was “not

properly executed” because it was not “attached to the minutes or resolution of the

county commission,” but we will not consider a challenge to the lawfulness of the

contract that Keen failed to present to the district court, see Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

      We AFFIRM the dismissal of Keen’s challenge to section 42-8-100(g)

under the U.S. Constitution for lack of standing and the dismissal of his claims to

invalidate the service contract and for money had and received for failure to state a

claim. But we VACATE that part of the judgment that addressed the merits of

Keen’s challenge to section 42-8-100(g) under the Georgia Constitution, and we

REMAND with instructions for the district court to dismiss that claim for lack of

standing.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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