                                      John DILLARD, Plaintiff-Appellee,

             Dale Eugene Brown, George R. Johnson, et al., Intervenors-Plaintiffs-Appellants,

                                                        v.

                     BALDWIN COUNTY COMMISSIONERS, Defendant-Appellee.

                                                  No. 99-12251.

                                        United States Court of Appeals,

                                                Eleventh Circuit.

                                                  Sept. 8, 2000.

Appeal from the United States District Court for the Middle District of Alabama.(No. 87-01159-CV-T-N),
Myron H. Thompson, Judge.

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.


    1
     On August 4, 2000, we decided the companion case to this one, Wilson v. Minor, 220 F.3d 1297
(11th Cir.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.
        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 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 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 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), 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, 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 1118, 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




    2
    Appellees in this case are both the Dillard Plaintiffs and the Baldwin County Commission
Defendants.
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, 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 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 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. 3830 - 34.

         Next, Appellees argue that the Intervenors lack standing to challenge the 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 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, 574-76, 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 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 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, 137

L.Ed.2d 170, 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 (1995). 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 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 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:

        [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

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 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


    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).
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).

        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.

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 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 by a state body—here the Baldwin County

Commission—the activity being challenged necessarily becomes state activity and state activity alone. We


    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.
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 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 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 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.



    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 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."
    6
     This example is meant to illustrate not limit the scope of the district court's review.
        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, 103 S.Ct. 81, 74 L.Ed.2d

78 (1982), and Seniors 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

        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 3834-35. This

allegation is not sufficient, in my view, to establish a claim under the Voting Rights Act.


    1
     But see Tennessee Elec. Power Co. v. T.V.A., 306 U.S. 118, 144, 59 S.Ct. 366, 83 L.Ed. 543 (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).
    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).
