                                                                      PUBLISH

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                   FILED
                                                         U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                           SEPTEMBER 08, 2000
                                                            THOMAS K. KAHN
                               No. 99-12251                      CLERK
                         ________________________

                     D. C. Docket No. 87-01159-CV-T-N


JOHN DILLARD,
                                                Plaintiff-Appellee,

DALE EUGENE BROWN,
GEORGE R. JOHNSON, et al.,
                                                Intervenors-Plaintiffs-
                                                Appellants,

                                   versus

BALDWIN COUNTY COMMISSIONERS,
                                                Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________
                            (September 8, 2000)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

     Intervenors Dale Eugene Brown, George R. Johnson, James Austin, Jr., and
Alvin Lee Pitts (the “Intervenors”) appeal the district court’s order granting the

original Plaintiffs’ (the “Dillard Plaintiffs”) motion to dismiss the Intervenors’

complaint. The Intervenors sought to intervene as plaintiffs in order to challenge

the district court’s 1988 remedial order which changed the size of the Baldwin

County Commission from four commissioners to seven in order to remedy a

violation of section 2 of the Voting Rights Act. The district court dismissed the

Intervenors’ complaint, holding that while the Intervenors had standing to bring

their complaint, they failed to state a claim upon which relief can be granted.

Because we conclude that the district court correctly found that the Intervenors had

standing to bring their claims, but incorrectly held that they failed to state a claim,

we reverse the district court’s order and remand for further proceedings consistent

with this opinion.1

                                              I.

       This case has had a long and protracted history. In 1986, John Dillard and

other African American voters brought suit against the Baldwin County

Commission alleging that the at-large system used to elect its members violated

section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. At the

  1
     On August 4, 2000, we decided the companion case to this one, Wilson v. Minor, ___F3d. ___
(11th Cir. Aug. 4, 2000). In Wilson we held that the 1988 injunction ordered by this Court to
remedy a section 2 violation of the Voting Rights Act changed the size of the Dallas County
Commission and was, therefore, impermissible under controlling Supreme Court precedent.

                                              2
time of this challenge, the Baldwin County Commission was composed of four

persons elected at-large, one from each of four numbered districts. The case was

one among many Dillard suits in the district courts which challenged the at-large

election systems used by dozens of cities, counties, and school boards across

Alabama. See Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 1459 (M.D.

Ala. 1988) (setting forth the history and evolution of the Dillard cases).

      The Baldwin County Commission conceded liability and the district court

ordered relief. To remedy the violation, the district court ordered the Commission

to increase its membership from four to seven persons elected from single-member

districts in order to ensure a majority-black voting district. The court noted that

only 15.34% of the County’s population was black and the number was expected to

decrease after the 1990 census. Dillard v. Baldwin County Comm’n, 694 F. Supp.

836, 839-40 (M.D. Ala. 1988),amended by, 701 F. Supp. 808 (M.D. Ala. 1988),

aff’d, 862 F.2d 878 (11th Cir. 1988) (table). Therefore, the court concluded, “to

create a majority-black voting-age district in the county, the size of the commission

must be increased to seven.” Id. at 843. The court’s remedy created a district with

a black population expected to be over 63% in 1990.

      In October 1996, the Intervenors moved to intervene in the case as plaintiffs

and sought to have the 1988 remedial order vacated in light of the Supreme Court’s


                                          3
decision in Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994),

and this Circuit’s holdings in White v. Alabama, 74 F.3d 1058 (11th Cir. 1996),

and Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc), cert. denied, 514

U.S. 1083, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995). In their complaint, the

Intervenors alleged that by increasing the size of the Commission from four to

seven members in order to create a majority black district, the district court

“exceede[d] its authority granted by Congress in the Voting Rights Act, and

violate[d] the Tenth and Eleventh Amendments . . . .” Complaint at 7. The

Intervenors asked the court to enter an order modifying the injunction and

providing for the establishment of a districting plan composed of four single-

member districts with the probate judge acting as chair of the Commission. The

Intervenors did not seek a return to at-large election of the commissioners.

      Neither party opposed the Intervenors’ motion, but both reserved the right to

challenge the legal sufficiency of the Intervenors’ complaint. The district court

granted the Intervenors’ motion to intervene subject to the parties’ reservations.

      In December 1996, the Dillard Plaintiffs moved to dismiss the complaint-in-

intervention arguing that the Intervenors lacked standing to challenge the 1988

Order and that the complaint failed to state a claim upon which relief can be

granted. On June 18, 1999, the district court granted the Dillard Plaintiffs’ motion


                                          4
to dismiss. The district court held that the Intervenors had standing to challenge

the 1988 injunction “insofar as they claim that the defendants’ implementation of

the court’s remedial order violates their rights.” Order at 6. However, the court

concluded, the Intervenors failed to state a claim upon which relief can be granted.

According to the district court, the Intervenors failed to state a claim under the

Tenth and Eleventh Amendments because the rights deprivation they alleged was

the result of state rather than federal authority, and they failed to state a claim

under section 2 of the Voting Rights Act because they did not allege that the 1988

injunction resulted in vote discrimination on account of race. The court also

concluded that Fed. R. Civ. P. 60 did not provide a proper vehicle for the

Intervenors to seek relief from the injunction.

                                           II.

      We review the district court’s order of dismissal de novo and will uphold a

dismissal only if it appears beyond doubt that the allegations in the complaint,

when viewed in the light most favorable to the plaintiff, do not state a claim upon

which relief can be granted. See Southeast Florida Cable, Inc. v. Martin County,

Fla., 173 F.3d 1332, 1335 n.5 (11th Cir. 1999). Standing is a jurisdictional issue

which is also reviewed de novo. See Engineering Contractors Assn. of South

Florida Inc. v. Metropolitan Dade County, 122 F.3d 895, 903 (11th Cir. 1997),


                                            5
cert. denied, 523 U.S. 1004, 118 S.Ct. 1186, 140 L.Ed.2d 317 (1998).

                                             A.

       Indeed, standing is a threshold jurisdictional question which must be

addressed prior to and independent of the merits of a party’s claims. See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 1016, 140 L.Ed.2d

210 (1998); Florida Assoc. of Med. Equip. Dealers v. Apfel, 194 F.3d 1227, 1230

(11th Cir. 1999); EF Hutton & Co., Inc. v. Hadley, 901 F.2d 979, 983 (11th Cir.

1990). We are obliged to consider standing sua sponte even if the parties have not

raised the issue. See United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431,

2435, 132 L.Ed.2d 635 (1995); University of South Alabama v. American Tobacco

Co., 168 F.3d 405, 410 (11th Cir. 1999). In this case, the Appellees2 have argued

that the Intervenors lack standing to pursue their claims and that the district court’s

dismissal of the Intervenors’s complaint for failure to state a claim should be

affirmed on this alternative ground.

       To satisfy the constitutional requirements of standing, a plaintiff must make

three showings:

       First, the plaintiff must have suffered an “injury in fact”--an invasion
       of a legally protected interest which is (a) concrete and particularized,


   2
     Appellees in this case are both the Dillard Plaintiffs and the Baldwin County Commission
Defendants.

                                             6
      and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
      Second, there must be a causal connection between the injury and the
      conduct complained of--the injury has to be “fairly . . . trace[able] to
      the challenged action of the defendant, and not . . . th[e] result [of] the
      independent action of some third party not before the court.” Third, it
      must be “likely,” as opposed to merely “speculative,” that the injury
      will be “redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119

L.Ed.2d 351 (1992) (internal citations and footnote omitted). See also Church v.

Huntsville, 30 F.3d 1332, 1335 (11th Cir. 1994) (quoting Valley Forge Christian

College v. Americans United for Separation of Church and State, 454 U.S. 464,

472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)); Harris v. Evans, 20 F.3d 118,

1121 (11th Cir. 1994).

      Appellees claim that the district court erred in finding that the Intervenors

had Article III standing to challenge the 1988 injunction. Appellees’ first

argument is particular to Appellants’ standing to bring their Tenth Amendment

claim. They say that Appellants cannot have standing to assert their Tenth

Amendment claim unless they establish standing to bring some other constitutional

or statutory claim. Second, and more broadly, Appellees claim that the

Intervenors have not alleged a sufficiently concrete and particularized injury to

establish standing. Finally, Appellees assert that this Circuit’s case law, which

suggests that the Intervenors have alleged an injury sufficient to establish standing,


                                           7
has been overruled by subsequent Supreme Court rulings. We are not persuaded

and address each argument in turn.

      First, Appellees argue that private plaintiffs cannot have standing to assert

Tenth Amendment claims except in circumstances where they establish some

particularized injury which is redressable under some other constitutional or

statutory provision. Appellees rely for support on Seniors Civil Liberties Assn.,

Inc. v. Kemp, 965 F.2d 1030 (11th Cir. 1992) and Atlanta Gas Light Co. v. Dep’t

of Energy, 666 F.2d 1359 (11th Cir. 1982). Neither case supports their contention.

       In Seniors, the plaintiffs, individual residents of a housing complex for

older persons and the Seniors Civil Liberties Association (SCLA), challenged the

1988 amendments to the Fair Housing Act, which prohibited discrimination against

families with children. The individual plaintiffs lived in a housing complex that

prohibited children under the age of 16 from living in the complex, and the SCLA

represented the rights of elderly people to peaceful occupancy of their residences.

See Seniors, 965 F.2d at 1032. Plaintiffs argued that the familial status

antidiscrimination provision of the Fair Housing Act violated their First, Fifth, and

Tenth Amendment rights. Id. at 1033.

      We first addressed the question of plaintiffs’ standing to assert their claims,

and we held that the individual plaintiffs had standing because “there exists ‘a


                                          8
realistic danger of sustaining a direct injury as a result of the [Fair Housing Act’s]

operation or enforcement.’” Id. at 1033 (quoting Babbitt v. United Farm Workers’

Nat’l Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979)). We

held that the SCLA also had standing as the representative of its members. Id.

      In a footnote, we addressed whether the plaintiffs had standing to bring a

claim under the Tenth Amendment. We explained that, as with other types of

claims, the plaintiffs would have standing to assert a Tenth Amendment claim only

if they could show that they suffered a concrete injury resulting from the

challenged activity. We observed that “this court has said before that, if injury or

threatened injury exists, private parties have standing to assert Tenth Amendment

challenges . . . .” Id. at 1034 n.6 (citing Atlanta Gas, 666 F.2d at 1368 n. 16). We

then reiterated that the plaintiffs had shown an injury sufficient to establish

standing to advance their Tenth Amendment claims just as they had established

standing to assert their other claims. Id.

      In Atlanta Gas, petitioner gas distribution companies brought a pre-

enforcement challenge against various provisions of the Fuel Use Act. The

petitioners challenged the constitutionality of the Act under the Commerce clause,

the Tenth Amendment and the due process clause of the Fifth Amendment. We

held that petitioners had standing to assert both their commerce clause and Tenth


                                             9
Amendment claims and considered these claims on the merits. As for their Tenth

Amendment claim, we explained that the private petitioners “may make

constitutional objections based on any of [the Act’s] provisions so long as they

show the requisite injury in fact and its causal relation to the action in question.”

Atlanta Gas, 666 F.2d at 1368 n. 16. We concluded “that injury in fact exists or is

likely to occur in this case.” Id.

      Appellees nevertheless contend that the private plaintiffs’ standing to assert

Tenth Amendment claims in Seniors and Atlanta Gas somehow was contingent on

their having standing to assert some other constitutional or statutory claim. There

is nothing in either of these cases, however, to support this argument. Indeed, our

case precedent makes clear that in order to establish standing to bring a Tenth

Amendment claim, just as for any other claim, the plaintiff must show that it

suffered an injury in fact caused by the challenged action. Moreover, even if a

private plaintiff’s standing to assert a Tenth Amendment claim were contingent

upon its having standing to assert some other constitutional or statutory claim, the

Intervenors would still have standing to assert their Tenth Amendment claim in this

case because they have shown standing to assert a claim under section 2 of the

Voting Rights Act. See discussion infra pp. 10-18.

      Next, Appellees argue that the Intervenors lack standing to challenge the


                                           10
1988 injunction because they have not alleged a sufficiently concrete and

particularized injury. As Appellees essentially concede, however, our ruling in

Meek v. Metropolitan Dade County, Fla, 985 F.2d 1471 (11th Cir. 1993), holds

otherwise.

      In Meek, we affirmed the standing of residents to participate in an action

challenging the constitutionality of the election scheme to which they were subject.

The plaintiffs, black and Hispanic residents of Dade County, challenged a voting

scheme in which the eight County Commissioners were selected from eight

districts but each commissioner was elected at-large. The plaintiffs argued that the

at-large election scheme violated section 2 of the Voting Rights Act. Two

residents of Dade County, who were registered voters, sought to intervene to

defend the existing election scheme. The district court denied the intervenors’

motions holding that their interests were identical to the defendants’ and

adequately represented by them. After a bench trial, the district court ruled that the

election scheme did violate section 2, and the defendants decided not to appeal the

decision. The intervenors filed new motions to intervene in order to pursue the

defendants’ appeal. The district court denied these motions without explanation.

      We reversed, making clear that the intervenors had suffered an injury

sufficiently concrete not only to permit them to intervene in the action but also to


                                          11
give them standing to pursue the action on appeal. We explained:

      The intervenors sought to vindicate important personal interests in
      maintaining the election system that governed their exercise of
      political power, a democratically established system that the district
      court’s order had altered. As such, they alleged a tangible actual or
      prospective injury and did not merely challenge unlawful conduct in
      the abstract. See generally, e.g., Lujan v. Defenders of Wildlife, 504
      U.S. 555, —, 112 S.Ct. 2130, 2144, 119 L.Ed.2d 351 (1992).
      Moreover, we reject appellees’ contention that the intervenors had
      only nonjusticiable generalized grievances simply because they
      asserted interests widely shared by others. Allen v. Wright, 468 U.S.
      737, 756-60, 104 S.Ct. 3315, 3327-29, 82 L.Ed.2d 556 (1984).

Meek, 985 F.2d at 1480; see also Clark v. Putnam County, 168 F.3d 458, 461 (11th

Cir. 1999) (holding that six African American voters were entitled to intervene to

defend a court ordered single-member-district voting plan because they had an

interest at stake in the action and that interest was not adequately represented by

the existing defendants in the action).

      Appellees contend that Meek and Clark do not answer the standing question

in this case because the intervenors in both Meek and Clark came into the action as

defendants only seeking to maintain the status quo and were not therefore required

to satisfy the higher standing requirements applicable to parties asserting claims for

relief. Appellees are correct that we have held that a party seeking to intervene

into an already existing justiciable controversy need not satisfy the requirements of

standing as long as the parties have established standing before the court. See


                                          12
Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989) (holding “that a party

seeking to intervene need not demonstrate that he has standing in addition to

meeting the requirements of Rule 24 as long as there exists a justiciable case and

controversy between the parties already in the lawsuit”). But, in Meek, we found

that the intervenors not only had the right to intervene in the dispute but also that

they had standing, because of their interest in “vindicat[ing] important personal

interests,” Meek, 985 F.2d at 1480, to pursue the case themselves on appeal after

the original defendants decided not to. “It is well-settled . . . that when an

intervener appeals and the party on whose side he intervened does not, the

intervenor must demonstrate standing in order to continue the suit.” Cox Cable

Communications, Inc. v. United States, 992 F.2d 1178, 1181 (11th Cir. 1993)

(citing Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48

(1986)). See also Arizonans for Official English v. Arizona, 520 U.S. 43, 65, 117

S.Ct. 1055, 1067, 137 L.Ed.2d 170 (1997) (stating that “[a]n intervenor cannot

step into the shoes of the original party unless the intervenor independently ‘fulfills

the requirements of Article III’”) (quoting Diamond, 476 U.S. at 68, 106 S.Ct. at

1706-07).

      In Meek, therefore, we not only found that the intervenors, as voters subject

to the challenged election scheme, satisfied the requirements for intervention under


                                          13
Fed. R. Civ. P. 24, but also, and necessarily, that they independently satisfied the

requirements for Article III standing. Moreover, we noted that were we to hold

otherwise, “we would be forced to conclude that most of the plaintiffs also lack

standing, a conclusion foreclosed by the many cases in which individual voters

have been permitted to challenge election practices.” Meek, 985 F.2d at 1480

(citing Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971);

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).

      Finally, essentially recognizing that Meek controls the standing question in

this case, Appellees suggest that Meek was wrongly decided in light of subsequent

Supreme Court decisions. Appellees rely for support on the Supreme Court’s

rulings in Arizonans for Official English, 520 U.S. 43, 117 S.Ct. 1055, Raines v.

Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), and United States v.

Hays, 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1992). None of these cases,

however, furthers Appellees’ cause.

      In Arizonans for Official English a state employee, Maria-Kelly F. Yniguez,

sued the State and its Governor, Attorney General, and Director of the Department

of Administration seeking an injunction against enforcement of a state

constitutional amendment making English the state’s official language. The

district court declared the amendment unconstitutional and the state governor


                                          14
decided not to appeal. The state attorney general, as well as Arizonans for Official

English Committee (AOE) and its Chairman Robert Park, the amendment’s

sponsors, sought to intervene in order to defend the amendment on appeal. The

district court denied their motions. The Ninth Circuit concluded that AOE and

Park had standing to proceed as party appellants, but affirmed the district court’s

ruling that the amendment was unconstitutional.

      The Supreme Court vacated both the court of appeals and district court

opinions holding that because Yniguez had resigned from her position with the

state while the case was on appeal the case had become moot. In dicta, the Court

expressed “grave doubts” about whether AOE and Park had standing under Article

III to pursue appellate review of the amendment. Arizonans for Official English,

520 U.S. at 66, 117 S.Ct. at 1068. AOE and Park had argued that as the initiative’s

proponents they had a quasi-legislative interest in defending the constitutionality of

the measure they sponsored. The Court noted that while it has “recognized that

state legislators have standing to contest a decision holding a state statute

unconstitutional if state law authorizes legislators to represent the State’s

interests[,]” AOE and its members were not elected representatives and the Court

was “aware of no Arizona law appointing initiative sponsors as agents of the

people of Arizona to defend, in lieu of public officials, the constitutionality of


                                          15
initiatives made law of the State.” Id. at 65, 117 S.Ct. at 1068. The Court also cast

doubt on AOE’s assertion of representational or associational standing noting that

“[t]he requisite concrete injury to AOE members is not apparent.” Id. at 66, 117

S.Ct. at 1068.

      The question of whether AOE and Park had standing as the sponsors of

particular legislation to represent the state’s interest in defending that legislation

provides no guidance on whether voters who live within the governing unit have

standing to challenge an allegedly illegal voting scheme to which they are subject

by virtue of their residence. Moreover, as we have noted, the Court in Arizonans

for Official English did not even resolve the standing issue because of its

conclusion that the case was moot. Id.

      In Raines, individual members of Congress brought an action challenging

the constitutionality of the Line Item Veto Act. The district court found that the

plaintiffs had Article III standing based on their claim that the Act diluted their

Article I voting power. The district court then granted the plaintiffs’ motion for

summary judgment holding that the Act constituted an unconstitutional delegation

of legislative power to the President. The Supreme Court took direct appeal of the

case as provided for in the Act and vacated the judgment of the district court

holding that the plaintiffs did not have standing to bring suit. The Court explained:


                                           16
      [A]ppellees have alleged no injury to themselves as individuals [], the
      institutional injury they allege is wholly abstract and widely dispersed
      [], and their attempt to litigate this dispute at this time and in this form
      is contrary to historical experience. We attach some importance to the
      fact that appellees have not been authorized to represent their
      respective Houses of Congress in this action, and indeed both Houses
      actively oppose their suit.

Raines, 521 U.S. at 829, 117 S.Ct. at 2322. As with Arizonans for Official

English, the fact that the Congressmembers in Raines did not have standing to

challenge the Act because they had not been harmed as individuals, but only as

members of an institution which they were not authorized to represent, sheds no

light on whether the voters in this case, who are individually subject to and

affected by the election scheme they challenge, have standing.

      Finally, in Hays, the Supreme Court held that the appellees lacked standing

to challenge a Louisiana redistricting plan when none of the appellees resided in

the district that was the focus of their racial gerrymander claim. Hays, 515 U.S. at

739, 115 S.Ct. at 2433. The Court emphasized, however, that voters who lived in

the allegedly gerrymandered district would have suffered an injury sufficient to

establish standing. According to the Court, “Where a plaintiff resides in a racially

gerrymandered district [ ] the plaintiff has been denied equal treatment because of

the legislature’s reliance on racial criteria, and therefore has standing to challenge

the legislature’s action.” Hays, 515 U.S. at 744-45, 115 S.Ct. at 2436 (citations


                                          17
omitted). Hays set forth a bright-line standing rule for a particular class of cases

alleging illegal racial gerrymandering with respect to voting districts: if the

plaintiff lives in the racially gerrymandered district, she has standing; if she does

not, she must produce specific evidence of harm other than the fact that the

composition of her district might have been different were it not for the

gerrymandering of the other district. Hays’ narrow holding regarding standing in

the gerrymandering context is entirely consistent with our broader holding in Meek

that respondents had standing to defend the election scheme to which they were

subject when that entire election scheme had been challenged as illegal. In both

cases, the essential point remains that one who resides in the area directly affected

by the allegedly illegal voting scheme has standing to challenge that scheme. Hays

is in no way inconsistent with our holding in Meek.

        The case at hand is squarely controlled by this Court’s holding in Meek, and

Meek has neither been explicitly overruled nor implicitly undermined by the

Supreme Court’s decisions in Arizonans for Official English, Raines, or Hays.3 As


    3
       Our decision in Meek is altogether consonant with the holdings of other circuits granting
voters standing to challenge election schemes to which they are subject. See League of United Latin
American Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 845 (5th Cir. 1993) (finding judges
who had intervened as defendants had Article III standing as voters affected by the challenged
judicial election scheme to pursue the case independently on appeal); United Jewish Organizations
of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 520-21 (2d Cir. 1975) (holding that white voters
had standing as voters to challenge New York’s legislative redistricting plan as illegally racially
drawn).

                                                18
a result, we are bound to follow Meek and to conclude, as the district court did,

that the Intervenors have standing to assert their claims in this case. See United

States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (explaining that “it is the

firmly established rule of this Circuit that each succeeding panel is bound by the

holding of the first panel to address an issue of law, unless and until that holding is

overruled en banc, or by the Supreme Court”).

                                           B.

      We turn now to the merits of the Intervenors’ claims. The Intervenors argue

that the district court erred in ruling that they failed to state a claim under section 2

of the Voting Rights Act, the Tenth Amendment, or the Eleventh Amendment, and

also erred in ruling that they failed to satisfy the requirements for relief under Fed.

R. Civ. P. 60(b).

      Section 2 of the Voting Rights Act provides: “No voting qualification or

prerequisite to voting or standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner which results in a denial

or abridgement of the right of any citizen of the United States to vote on account of

race or color . . . .” 42 U.S.C. 1973(a). Section 2 continues: “[N]othing in this

section establishes a right to have members of a protected class elected in numbers

equal to their proportion in the population.” 42 U.S.C. 1973(b).


                                           19
      The district court held that the Intervenors failed to state a claim under

section 2 because “[t]o make a valid claim under § 2 of the Voting Rights Act . . .

the plaintiff-interveners would have to allege, at a minimum, that the court’s

remedial order results in vote-discrimination against them on account of race,

color, or membership in a language minority. See 42 U.S.C.A. § 1973(a). But the

complaint-in-intervention contains no allegation of racial discrimination of any

kind.” Order at 14-15.

      The Intervenors’ complaint does, however, allege that the district court

intentionally increased the size of the Baldwin County Commission and redrew the

district lines specifically in order to create a majority black district. Complaint, ¶

18. According to the Complaint:

             The Court rejected a remedy proposed by the Commission,
      which would have eliminated only the numbered place feature of the
      existing system, and further ordered, over the objection of the
      Commission, an increase in the size of the Commission. Noting that
      only 15.34% of the County’s population was black, and only 14% of
      the population expected to be present after the 1990 census, the Court
      said: “It is clear that, to create a majority-black voting-age district in
      the county, the size of the commission must be increased to seven.
      Thus, an increase is essential to vindicating the Sec. 2 rights of the
      county’s black citizens . . . . [T]he strong Congressional command of
      Sec. 2--that the political process be open to blacks and whites equally-
      -directs that the court accede to the plaintiffs’ request that the size of
      the commission be increased to seven.” [Dillard v. Baldwin County
      Comm’n, 694 F. Supp. 836, 843 (M.D. Ala. 1988)]. By increasing the
      size of the Commission, the court provided a district with a black
      population expected to be over 63% in 1990. Id.

                                           20
Complaint, ¶ 18. Moreover, the Complaint alleges that the Intervenors have been

hurt by this racially-based increase in the size of the County Commission. See

Complaint, ¶ 14 (alleging that “Plaintiff-Intervenors . . . are residents, citizens, and

qualified electors of Baldwin County, Alabama. Each is adversely affected by the

increase in the number of members of the Commission”).

      This Court has made clear in Nipper and White that a district court may not

remedy a section 2 violation by changing the size of a county commission. In

Nipper, black voters and an association of black attorneys challenged the system of

at-large elections used to elect judges in Florida’s Fourth Judicial Circuit Court.

The appellants asked the court to remedy the alleged section 2 violation by creating

subdistricts to ensure their ability to elect black judges of their choice. See

Nipper, 39 F.3d at 1496-97. This Court, sitting en banc, denied appellants relief on

the ground that the relief they sought was improper. We stated clearly that under

the Supreme Court’s holding in Holder, “federal courts may not mandate as a

section 2 remedy that a state or political subdivision alter the size of its elected

bodies.” Id. at 1532; see also White, 74 F.3d at 1072 (same). By alleging that they

are being subjected to, and their voting power is being affected by, an illegal

election scheme that was plainly created because of or on account of race, the


                                           21
Intervenors have adequately stated a claim for a section 2 violation of the Voting

Rights Act.

       The district court also held, and the Appellees argue on appeal, that the

Intervenors failed to state a claim under 42 U.S.C. § 1983 for violations of the

Tenth and Eleventh Amendments because the Intervenors are challenging the

actions of state actors while the Tenth and Eleventh Amendments only protect

against deprivations of rights committed by federal actors.4 According to the

district court: “The interveners allege deprivations of their rights secured by the

tenth and eleventh amendments to the United States Constitution, but none of the

defendants could possibly deprive them of any such rights. The tenth and eleventh

amendments protect against certain exercises of federal power; they do not give

individuals any rights against the exercise of state authority.” Order at 9.

       We are unpersuaded by the district court’s logic. The district court seems to

conclude that because a federal court injunction is being implemented and imposed


   4
      The Tenth Amendment limits the power of the Federal Government and reserves powers to
the states. See New York v. United States, 505 U.S. 144, 156-57, 112 S.Ct. 2408, 2418, 120
L.Ed.2d 120 (1992). The Tenth Amendment states: “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people.” U.S. Const. amend. X. The Eleventh Amendment protects state sovereign immunity
in federal courts. See Idaho v. Coeur D’Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct. 2028,
2033, 138 L.Ed.2d 438 (1997). The Eleventh Amendment states: “The judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI.

                                                  22
by a state body--here the Baldwin County Commission--the activity being

challenged necessarily becomes state activity and state activity alone. We

disagree. What is being challenged here is the allegedly unconstitutional decision

by a federal district court to alter the size of a local governing body. Activity

performed pursuant to a federal court order is not transformed into the exclusive

exercise of state power simply because it is performed by state actors who are

obeying a federal court injunction. See Printz v. United States, 521 U.S. 898, 925-

26, 117 S.Ct. 2365, 2379-80, 138 L.Ed.2d 914 (1997) (making clear that the Tenth

Amendment prohibits “commandeering” state governments to administer federal

regulatory programs); Peel v. Florida Dep’t of Transp., 600 F.2d 1070, 1081-85

(5th Cir. 1979) (considering, but denying on summary judgement, a Tenth

Amendment challenge to a federal court order requiring a state agency to reinstate

a former employee pursuant to the Veterans’ Reemployment Rights Act because,

in that case, the exercise of Congress’ war power outweighed the interference with

the state’s self determination). We cannot shield federal court orders from

constitutional challenge simply because the federal court’s orders are being

implemented by local officials.

      The Intervenors also argue that the district court erred in ruling that they did

not have a basis for relief under Fed. R. Civ. P. 60. Rule 60(b) provides: “On a


                                          23
motion and upon such terms as are just, the court may relieve a party or a party’s

legal representative from a final judgment, order, or proceeding for the following

reasons: . . .5) . . . it is no longer equitable that the judgment should have

prospective application . . . . This rule does not limit the power of a court to

entertain an independent action to relieve a party from a judgment, order, or

proceeding . . . .” The district court ruled that the Intervenors could not seek relief

under Rule 60 because “Rule 60 operates by motion only,” and because Rule 60

does not define the substantive law as to the grounds for vacating judgments, but

“‘merely prescribes the practice in proceedings to obtain relief.’” Order at 11

(quoting 1946 Advisory Comm. Notes, Fed. R. Civ. P. 60).

       Instead of filing a Rule 60 motion, the Intervenors essentially filed an

independent action (albeit under the original case number) bringing entirely new

claims from those previously asserted by the Dillard Plaintiffs. The language of

Rule 60 makes clear, however, that relief may be sought through an independent

action as well as by a motion filed in the original action. See Rule 60(b)

(providing that “[t]his rule does not limit the power of a court to entertain an

independent action to relieve a party from a[n] . . . order”).5 Moreover, while the

  5
     The Advisory Committee Notes to the 1946 Amendment to Rule 60 also make clear the option
of seeking relief through an independent action. According to the Notes: “Two types of procedure
to obtain relief from judgments are specified in the rules as it is proposed to amend them. One
procedure is by motion in the court and in the action in which the judgment was rendered. The other

                                                24
district court is correct that Rule 60 does not itself provide a substantive cause of

action, we have already found that the Intervenors have stated substantive causes

of action challenging the 1988 injunction. We conclude, therefore, that Rule 60

does provide the Intervenors with a proper procedural tool to seek relief from the

1988 injunction.

                                               C.

       Finally, the Intervenors ask that this Court itself order the modification of

the 1988 injunction to provide for four single-member districts rather than seven,

and to remand the case to the district court only to have it supervise the

development of the appropriate districting plan. We decline this invitation,

however, because there are issues remaining that are best addressed first by the

district court. For example, the district court should consider whether the fact that

the 1988 injunction was predicated on findings of intentional discrimination by the

legislature has any impact on how Holder, Nipper, and White affect this case.

While Holder, Nipper, and White make clear that changing the size of the Baldwin

County Commission was an improper remedy for a section 2 violation, the cases

do not address whether such a remedy might have been appropriate to remedy a




procedure is by a new or independent action to obtain relief from a judgment, which action may or
may not be begun in the court which rendered the judgment.”

                                               25
violation of the Fourteenth Amendment. Indeed, in Holder the Supreme Court

remanded the case to the court of appeals to consider the plaintiffs’ Fourteenth

Amendment claim. See Holder, 512 U.S. at 885, 114 S.Ct. at 2588.6

        Accordingly, we will not reach out and summarily modify the 1988

injunction. Instead, we reverse the district court’s order dismissing the

Intervenors’ complaint-in-intervention and remand the case to the district court for

further proceedings consistent with this opinion.

        REVERSED AND REMANDED.

BARKETT, Circuit Judge, concurring specially:

        Based on the precedent of this Circuit, I concur in the majority’s conclusion that

this case be remanded for further proceedings. While I have reservations about

whether Atlanta Gas and Light Co. v. Dep’t of Energy, 666 F.2d. 1359, 1368 n.16

(11th Cir.) cert. denied, 459 U.S. 836 (1982), and Senior Civil Liberties Ass’n v.

Kemp, 965 F.2d 1030, 1034 n.6 (11th Cir. 1992), were correct in saying that private

plaintiffs have standing to assert Tenth Amendment claims, I agree that they foreclose

Appellees arguments in this regard.1

   6
       This example is meant to illustrate not limit the scope of the district court’s review.
   1
      But see Tennessee Elec. Power Co. v. T.V.A., 306 U.S. 118, 144 (1939) (observing in passing
that “absent the states or their officers,” private parties “have no standing . . . to raise any question
under the [Tenth] Amendment.”); see also Nance v. EPA, 645 F.2d 701, 716 (9th Cir. 1981)
(“insofar as the Tenth Amendment is designed to protect the interest of states qua states,” standing
of private party “may be seriously questioned”); Metrolina Family Practice Group, P.A. v. Sullivan,
767 F. Supp. 1314, 1320 (W.D.N.C. 1989), aff'd, 929 F.2d 693 (4th Cir. 1991).

                                                   26
       Although it does not make a difference in the outcome of this proceeding, I

think that the majority’s additional finding that the Intervenors state a claim under

Section 2 of the Voting Rights Act is erroneous. Having reviewed the Complaint in

Intervention, I do not believe that it contains any of the requisite allegations for

asserting a claim under the Voting Rights Act.2 The Intervenors have not alleged that

their right to vote has been denied or abridged on account of race or color. They do

not allege that they personally suffer vote dilution because there are seven instead of

four commissioners, or that the expanded commission size in any other way impairs

their equal opportunity to participate fully in the political process and elect the

candidate of their choice. The only allegation to which the majority opinion points

is the Intervenors’ assertion that “the district court intentionally increased the size of

the Baldwin County Commission and redrew the district lines specifically in order to

create a majority black district.” Maj. op. at 20. This allegation is not sufficient, in

my view, to establish a claim under the Voting Rights Act.




   2
     Section 2 of the Voting Rights Act provides: “No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed or applied by any State or political subdivision
in a manner which results in a denial or abridgement of the right of any citizen of the United States
to vote on account of race or color . . . .” 42 U.S.C. 1973(a).

                                                 27
