Case: 13-15483     Date Filed: 11/20/2014   Page: 1 of 28




                                                                           [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-15483
                           ________________________

                      D.C. Docket No. 1:12-cv-02735-MHS



TONY W. STRICKLAND,

                                                  Plaintiff - Appellant,

versus

RICHARD T. ALEXANDER,
Clerk of Court of the State Court of
Gwinnett County, Georgia,
GREENE & COOPER, LLP,
JPMORGAN CHASE BANK, NA,

                                                  Defendants - Appellees,

DISCOVER BANK,

                                              Defendant.
                           ________________________

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

                               (November 20, 2014)
               Case: 13-15483        Date Filed: 11/20/2014      Page: 2 of 28




Before WILSON and ROSENBAUM, Circuit Judges, and SCHLESINGER, *
District Judge.

ROSENBAUM, Circuit Judge:

       Plaintiff-Appellant Tony W. Strickland’s limited funds include those that he

obtained from a workers’ compensation settlement after suffering a permanent

disability on the job and those that he receives from his Social Security disability

payments. He keeps these funds in two bank accounts that he shares with his wife,

who, like Strickland, is entirely dependent on the funds in the accounts to live.

Luckily for Strickland, the law protects workers’ compensation funds and Social

Security disability payments from garnishment.

       But that did not stop one of Strickland’s creditors from having the clerk of

court for the State Court of Gwinnett County, Georgia, issue a garnishment

summons that resulted in the freezing of Strickland’s workers’ compensation funds

for almost four months before Strickland’s creditor finally conceded that

Strickland’s funds were exempt from garnishment and agreed to the dissolution of

the hold on his funds. Now Strickland seeks declaratory and injunctive relief

against the Georgia post-judgment garnishment statute to prevent that same thing

from happening again to him and his wife, who remain judgment debtors. Because

it is substantially likely that Strickland and his wife’s exempt funds soon will again

       *
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
                                               2
             Case: 13-15483     Date Filed: 11/20/2014   Page: 3 of 28


be the subject of a garnishment summons, we reverse the district court's dismissal

of Strickland’s lawsuit for lack of standing and remand for consideration of

whether Georgia’s post-judgment garnishment statute is constitutionally sound.

                                         I.

      In 2004, Strickland beat nasal cavity cancer. Because of his condition,

however, he was unable to work as many hours as he could before he fell ill. He

soon found himself unable to pay all of his bills, and in 2005, he defaulted on his

Discover Bank (“Discover”) credit-card balance. In 2009, to recover the balance

owed, Discover, represented by Greene & Cooper, LLP (“G&C”), filed suit against

Strickland in State Court for Fulton County, Georgia. (Civil Action No.

09VS171247).

      Also in 2009, Strickland injured his back at work, leaving him permanently

disabled.   In February 2011, he received a $30,000 workers’ compensation

settlement to compensate him for his injury. He deposited these funds into a newly

formed JPMorgan Chase Bank, N.A. (“Chase”) savings account and listed his wife

as a joint accountholder so that she would be able to access the funds should his

health further deteriorate. The Stricklands periodically drew upon these funds to

help pay for living and healthcare expenses. In the fall of 2011, Strickland also

began receiving Social Security Disability benefits.




                                         3
                Case: 13-15483       Date Filed: 11/20/2014       Page: 4 of 28


       On April 4, 2012, Discover obtained a default judgment against Strickland

for the monies he owed in the principal amount of $13,849.93, plus interest of

$2,138.64, attorney’s fees of $1,613.61, and court costs of $147.50.1

Approximately three months later, on July 6, 2012, Discover, again represented by

G&C, filed a garnishment action against Strickland’s Chase funds to enforce its

default judgment in the State Court of Gwinnett County, Georgia.

       At that time and to this day, Defendant-Appellee Richard T. Alexander was

and is the Gwinnett County clerk of court.                Accordingly, Alexander’s office

generated the garnishment summons to be served upon Chase (the garnishee) in

accordance with Georgia’s statutory requirements. The summons, served on July

11, 2012, advised Chase to “hold all [of Strickland’s] property, money and wages,

except what is exempt,” but did not provide an explanation as to what types of

property are exempt from garnishment (such as unemployment benefits, Social

Security Disability benefits, and workers’ compensation benefits). Georgia does

not require garnishment summonses to include such information. Pursuant to the

summons, Chase promptly put a hold on Strickland’s account.

       Strickland learned of the garnishment on July 16, 2012, when he received a

certified letter from G&C and a first-class letter from Chase. G&C’s letter notified
       1
         These amounts add up to $17,749.68, although the record refers to the total amount that
Discover sought to garnish as $18,096.65, and $18,302.65. We need not concern ourselves with
the actual sum sought by Discover in the garnishment proceeding because it does not bear on the
issues in this appeal, and, in any case, Discover filed a satisfaction of judgment on November 27,
2012.
                                                4
             Case: 13-15483       Date Filed: 11/20/2014   Page: 5 of 28


Strickland that a garnishment proceeding had been instituted against his property

and provided the case caption and amount sought, but it did not mention that

Strickland’s funds might be exempt from garnishment.

      For its part, Chase’s letter explained that the bank had recently received the

garnishment summons, and that, as a result, it was required by federal law to place

a hold on Strickland’s account. It further advised Strickland that he would be

unable to access the funds in his account and informed him of potential bank fees

that he might become liable for, the need to consult with an attorney, and the way

in which the funds could be released. Unlike the G&C letter, however, the Chase

letter also disclosed to Strickland that certain forms of property might be exempt

from garnishment, such as unemployment benefits, disability benefits, and

workers’ compensation benefits. Therefore, the Chase letter recommended that

Strickland “immediately contact the judgment creditor’s attorney” if he believed

that his funds might be exempt.

      Upon receipt of these letters, Strickland went to the nearest Chase branch,

where he was told that the remainder of his workers’ compensation settlement

funds, totaling $15,652.67, had in fact been frozen. Following the suggestion

contained within Chase’s letter, Strickland contacted G&C to try to persuade it to

release the garnishment, but to no avail. Strickland then became “upset, felt

nauseous, and began to cry and shake,” because, according to Strickland, the


                                           5
               Case: 13-15483        Date Filed: 11/20/2014      Page: 6 of 28


frozen funds were vital to the Stricklands’ ability to pay for living and healthcare

expenses.

       On August 20, 2012, Chase answered the garnishment summons by paying

into court $15,652.67, which constituted the entire remainder of Strickland’s

workers’ compensation funds. These funds were retained by the clerk’s office

throughout the pendency of the garnishment action.

       Acting through counsel, Strickland first tried to resolve the matter without

resorting to the formal claims process. When he was unsuccessful, Strickland then

filed a statutory claim to the funds on September 4, 2012, on the grounds that the

funds were exempt from garnishment under Georgia law. 2 Discover opposed the

claim, and a hearing was scheduled for October 24, 2012. The day before the

hearing, however, Discover voluntarily dismissed the action.

       An order to release the funds was entered on October 24, 2012. On October

29, 2012, the court clerk’s office issued a check for the return of Strickland’s

workers’ compensation funds, which Strickland’s counsel received on November

2, 2012. Discover filed a satisfaction of judgment on November 27, 2012.




       2
         See O.C.G.A. § 34-9-84 (“No claim for [workers’] compensation under this chapter
shall be assignable, and all compensation and claims therefor shall be exempt from all claims of
creditors.”).
                                                6
                Case: 13-15483     Date Filed: 11/20/2014   Page: 7 of 28


                                            II.

         Strickland filed the present action on August 8, 2012, while Discover’s state-

court garnishment action was still pending and when his funds were therefore still

frozen.     At that time, Chase had not yet filed its answer in the state-court

garnishment action, so Strickland was unable to assert any direct claim for the

funds.

         Strickland also set forth the following pertinent allegations in his complaint:

               27.    Mr. Strickland is still a judgment debtor to
                      [Discover] . . . .

               28.    This judgment is likely to remain unsatisfied for
                      some time because Mr. Strickland and his wife
                      currently subsist on a modest income, consisting
                      only of Mr. Strickland’s monthly check for Social
                      Security Disability, in the amount of $1,300.00.

               29.    This account is likely to be the subject of a future
                      garnishment because Ms. Strickland, the joint
                      account holder, has judgments against her, as well
                      as other debts that are likely to be reduced to
                      judgment. Furthermore Mr. Strickland has another
                      bank account, which contains only his Social
                      Security Disability income, which may be subject
                      to garnishment by Discover.           Neither Mr.
                      Strickland nor his wife is likely to satisfy any of
                      their debts in the near future.

Compl. ¶¶ 27–29. In light of these facts, Strickland brought two claims against

Discover, Chase, G&C, and Alexander: one under 42 U.S.C. § 1983 for acting

under color of state law and unconstitutionally depriving Strickland of his property


                                             7
                Case: 13-15483       Date Filed: 11/20/2014        Page: 8 of 28


in violation of the Due Process Clause of the Fourteenth Amendment to the United

States Constitution, and one under the Georgia Bill of Rights for depriving

Strickland of his property in violation of the Due Process Clause of the Georgia

Constitution.     In short, he alleged that Georgia’s post-judgment garnishment

statute, O.C.G.A. § 18-4-60, et seq., failed to provide him with sufficient notice of

the garnishment and exemptions, and it failed to establish procedures complying

with due-process requirements that would allow him to challenge the garnishment

by claiming an exemption and having his funds returned.

       Strickland sought various forms of relief, including the following: (1) a

declaration that the specified portions of the garnishment statute are

unconstitutional; (2) injunctive relief against Alexander, Discover, G&C, and

Chase to restrain them from using the allegedly unconstitutional garnishment

process against Strickland’s property and from freezing any exempt funds in the

future; and (3) monetary damages against Discover, G&C, and Chase for the

injuries that Strickland alleged that he incurred as a result of his Chase funds

having been frozen.3


       3
         Strickland alleged that he “suffered great hardship” due to his inability to draw upon his
workers’ compensation funds for nearly four months. For instance, Strickland has a heart
condition for which he takes medication. Failure to take the medication every day puts him at
greater risk for a stroke. By the end of July 2012, Strickland’s funds had run out, and because he
could not access his workers’ compensation funds, he could not purchase his medicine for three
days. Although he did not suffer a stroke or other cardiac episode during this three-day hiatus,
Strickland alleged that the increased health risk that he faced while not taking his medicine
caused him and his family great emotional distress. Additionally, in October 2012, Strickland
                                                 8
               Case: 13-15483        Date Filed: 11/20/2014      Page: 9 of 28


       After Discover dissolved the underlying debt and dismissed its garnishment

claim, it was dismissed from this action with prejudice, by consent. The trial court

then turned its attention to the outstanding motions to dismiss filed by Chase and

G&C, respectively.        On April 11, 2013, the trial court granted Chase’s Rule

12(b)(6), Fed. R. Civ. P., motion, concluding that Chase had not acted “under the

color of state law” for purposes of Strickland’s 42 U.S.C. § 1983 claims. In the

same order, the court determined that Strickland lacked standing to continue

pursuing injunctive and declaratory relief against G&C and similarly sua sponte

dismissed without prejudice Strickland’s claims for injunctive and declaratory

relief against Alexander.

       The dismissal order, however, preserved Strickland’s claims for damages

against G&C, holding that Strickland had stated a claim for violation of his due-

process rights.     The parties then presented a record upon cross motions for

summary judgment stipulating that Strickland had suffered damages in the amount

of $10,000 for his inability to access his workers’ compensation funds for nearly

four months as a result of the garnishment action initiated by G&C. Concluding

that G&C was protected by a “good faith” defense and that Strickland had failed to



developed a blood clot in his hand that required surgery. He delayed surgery to address the
problem, however, because he could not afford the hundreds of dollars that the procedure would
cost since he could not access his workers’ compensation funds. Eventually, because his hand
became so swollen that he could not use it, and because his forearm had turned black, his family
decided that Strickland must schedule the surgery, anyway, and worry about payment later.
                                               9
             Case: 13-15483       Date Filed: 11/20/2014   Page: 10 of 28


satisfy its burden of proof to affirmatively show G&C’s bad faith, the court granted

G&C’s motion for summary judgment on October 29, 2013. Strickland then lodged

this timely appeal against Defendant Alexander only.

                                          III.

      We review de novo an order granting a motion to dismiss. Amnesty Int’l v.

Battle, 

, 1176 (11th Cir. 2009) (citation omitted). In conducting our

review, we “accept all well-pleaded factual allegations as true and construe the

facts in the light most favorable to the plaintiff.”        

internal

quotation marks omitted).        We also consider de novo whether a plaintiff has

standing. 

                                          IV.


      In this appeal, we must decide three questions: (1) whether Strickland had

standing to seek declaratory and injunctive relief against Defendant-Appellee

Alexander; (2) assuming that Strickland had standing, whether the release of

Strickland’s funds and the satisfaction of the judgment creditor’s claim mooted

Strickland’s claim against Defendant-Appellee Alexander; and (3) assuming that

Strickland had standing and that his claim has not been mooted, whether various

provisions of Georgia’s post-judgment garnishment statute satisfy Fourteenth

Amendment and Georgia state constitutional due-process requirements.              We

address each question in turn.

                                           10
             Case: 13-15483     Date Filed: 11/20/2014   Page: 11 of 28


A. Justiciability

      Article III of the Constitution extends the jurisdiction of federal courts to

only “Cases” and “Controversies.” Lujan v. Defenders of Wildlife, 

,

559, 

, 2136 (1992). The case-or-controversy restriction imposes

what are generally referred to as “justiciability” limitations. Socialist Workers

Party v. Leahy, 

, 1244 (11th Cir. 1998) (citing United States v. Fla.

Azalea Specialists, 

, 621-22 (11th Cir. 1994) (citing Flast v. Cohen,

, 94-95, 

, 1949-50 (1968))). Justiciability doctrine serves

two purposes: (1) it aims to prevent the judiciary from infringing on the powers of

the executive and legislative branches, and (2) it seeks to ensure that the judiciary

considers only those matters presented in an adversarial context. 

Azalea 

).

      Justiciability doctrine is composed of “three strands”: standing, ripeness,

and mootness. See 

. The failure of any one of these

strands can deprive a federal court of jurisdiction.      This case involves both

standing and mootness issues.

      1.     Standing

      At an “irreducible constitutional minimum,” standing imposes upon a

plaintiff the requirement to make the following three showings:

             (1)    the plaintiff must have suffered an “injury in
                    fact”—an invasion of a legally protected interest
                                          11
             Case: 13-15483      Date Filed: 11/20/2014   Page: 12 of 28


                   which is (a) concrete and particularized, and (b)
                   “actual or imminent, not ‘conjectural’ or
                   ‘hypothetical[;]’”

             (2)   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[;]” and

             (3)   it must be “likely,” as opposed to merely
                   “speculative,” that the injury will be “redressed by
                   a favorable decision.”

504 U.S. at 

(citation omitted)).

             a. Injury in Fact

      Where the plaintiff seeks declaratory or injunctive relief, as opposed to

damages for injuries already suffered, for example, the injury-in-fact requirement

insists that a plaintiff “allege facts from which it appears there is a substantial

likelihood that he will suffer injury in the future.” Malowney v. Fed. Collection

Deposit Grp., 

, 1346 (11th Cir. 1999) (citations omitted). This is

because injunctions regulate future conduct only; they do not provide relief for past

injuries already incurred and over with. See Church v. City of Huntsville, 

, 1337 (11th Cir. 1994). So a plaintiff seeking declaratory or injunctive relief

must allege and ultimately prove “a real and immediate—as opposed to a merely

hypothetical or conjectural—threat of future injury.” 

                                          12
             Case: 13-15483    Date Filed: 11/20/2014   Page: 13 of 28


      In considering whether Strickland had satisfied this requirement, the district

court concluded that Strickland did not because it found that the risk that

Strickland would suffer future injury was too remote. The court reached this

conclusion based in large part on Malowney, 

, a case where the

plaintiffs challenged Florida’s post-judgment garnishment statute. While we can

understand how the district court reached this conclusion, in Malowney, we

expressly chose not to consider whether facts as they exist in Strickland’s case

would satisfy the injury-in-fact requirement. 

at 1347 n.6. Now that

we are faced with these facts, we conclude that Malowney and its brief discussion

of Finberg v. Sullivan, 

(3d Cir. 1980), warrant the conclusion that

Strickland has alleged sufficient facts in this case to demonstrate a substantial

likelihood that he will suffer garnishment proceedings in the future under

Georgia’s post-judgment garnishment statute.

      In Malowney, a bank froze the plaintiffs’ checking-account funds in

accordance with a writ of 

.     At the time of

garnishment, the only funds in the account were Social Security Disability benefits

and United States Army retirement benefits, both of which are exempt from

garnishment under federal law. 

The plaintiffs sued the clerk of a

circuit court that issued the writ, seeking only declaratory relief pursuant to 42

U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201.                

13-15483       Date Filed: 11/20/2014       Page: 14 of 28


Specifically, they sought a judgment declaring notice provisions of Florida’s post-

judgment garnishment statute unconstitutional in part because those provisions

failed to afford the plaintiffs adequate due process. 

reviewed the district court’s order granting the motion to dismiss, 4

we concluded that “the amended complaint [did] not contain any allegations which

could reasonably support a finding that the Malowneys are likely to be subject to

future injury from the application of the statute they challenge.” 

The

absence of several facts underpinned this determination.

       First, we noted that the complaint did not allege that the Malowneys had

checking-account funds likely to be subject to garnishment in the future, or even

that they were still judgment debtors. 

reasons, we declined to

speculate that the Malowneys were, or soon would become, indebted to a different

judgment creditor and, as a result, would have a garnishment issued against them

under the challenged statute. 

emphasized that both the creditor that obtained the garnishment

summons against the Malowneys’ bank account and the bank that froze the

Malowneys’ account were both on notice of the exempt status of the Malowneys’

funds as a result of the Malowneys’ case. 

We doubted that they
       4
          The district court in Malowney concluded that Florida’s post-judgment garnishment
statute satisfies due process and is constitutional because it provides sufficient notice and an
adequate opportunity to be heard. 

. We did not reach this issue on
appeal because we held that the claim should have been dismissed since the plaintiffs lacked
standing. 

13-15483     Date Filed: 11/20/2014    Page: 15 of 28


would risk liability over wrongful garnishment again in the future. 

made the likelihood of a recurrence of the attempted garnishment of the

Malowneys’ exempt funds weak and deprived the Malowneys of standing to seek

declaratory and injunctive relief. 

      In reaching this conclusion in Malowney, we were careful to distinguish the

Third Circuit’s decision in Finberg, 

. 

n.6.

In Finberg, a widow whose sole source of income was Social Security retirement

benefits, sought to have the application of Pennsylvania’s post-judgment

garnishment statute declared unconstitutional after the statute was used to initiate

garnishment proceedings on Finberg’s bank accounts that held her Social Security

. The Third Circuit determined that Finberg’s claim

had not been mooted as a result of Finberg’s recovery of all of the funds that had

been attached through the garnishment proceedings because Finberg had

demonstrated “a ‘reasonable expectation’ that [she would] be subject to a

recurrence of the activity that [she] challenge[d].” 

(citation omitted).

      When we discussed Finberg in Malowney, we explained,

             Finberg . . . involved different facts, because in that case
             the plaintiff remained a judgment debtor, and she was an
             elderly widow on a modest income, from which the court
             inferred that the judgment was likely to remain
             unsatisfied for some time. . . .




                                          15
             Case: 13-15483    Date Filed: 11/20/2014   Page: 16 of 

n.6. Although we noted that the Third Circuit had considered

Finberg under a mootness analysis, as opposed to a standing analysis, see 

that the Finberg Court found, under the facts that Finberg alleged, a

“reasonable expectation” that Finberg would be subjected again to garnishment

proceedings on her exempt funds certainly suggests that the Third Circuit would

have found these same facts to have been sufficient to establish standing by

demonstrating a “substantial likelihood” that Finberg would suffer injury in the

form of garnishment proceedings on her exempt funds in the future.

      Taking Strickland’s allegations as true and liberally construing the complaint

in his favor (as we must when we review a motion to dismiss), we note that none

of the disqualifying facts that existed in Malowney are present in Strickland’s case,

yet all of the facts, plus more, that allowed Finberg to escape mootness exist in

Strickland’s case. Unlike the Malowneys but similar to Finberg, Strickland alleged

in his complaint that he and his joint-accountholder wife were both judgment

debtors and that his wife had “judgments against her, as well as other debts that are

likely to be reduced to judgment.” Because of this situation, as Strickland points

out in his brief, he is “essentially a sitting duck.” Also unlike the Malowneys but

again similar to Finberg’s situation as construed by the court, Strickland averred

that he and his wife subsist on a very modest income consisting only of

Strickland’s disability benefits, so they were very unlikely to satisfy their


                                         16
             Case: 13-15483     Date Filed: 11/20/2014   Page: 17 of 28


outstanding debts “for some time.” In addition, and once again in contrast to the

Malowneys, Strickland asserted that, at a bank other than Chase, he had a second

account containing only his Social Security disability income.

      All of these facts point strongly to one conclusion: it is substantially likely

that it is simply a matter of time before another judgment creditor seeks to garnish

the monies that the Stricklands have in at least one of their bank accounts. And,

unlike in Malowney, we cannot count on the creditor and the bank to have learned

their lessons that the Stricklands’ funds are exempt.       This is so because the

Stricklands have judgments against them from creditors other than Discover, the

creditor involved in this case. And they have a second bank account containing

exempt funds at a bank other than Chase, the bank involved in this case. These

circumstances create a “real and immediate” likelihood of future injury and satisfy

the injury-in-fact requirement for seeking declaratory and injunctive relief.

             b. Causation

      We also find that Strickland has met the second standing requirement: that

the injury suffered is fairly traceable to the defendant. This “causal connection”

must “link the injury to the complained-of conduct” of the defendant and is not

satisfied if the injury results instead from “the independent action of some third

party not before the court.” Ga. Latino Alliance for Human Rights v. Governor of

Ga., 

, 1257 (11th Cir. 2012) (quoting Bennett v. Spear, 

             Case: 13-15483     Date Filed: 11/20/2014   Page: 18 of 28


154, 167, 

, 1163 (1997) (quotation marks omitted)). In making this

inquiry, we note that “even harms that flow indirectly from the action in question

can be said to be ‘fairly traceable’ to that action for standing purposes.” Focus on

the 

(citation omitted).

      Here, Defendant Alexander is the court clerk with the responsibility to

process garnishments by docketing the garnishment affidavit, issuing the summons

of garnishment, depositing the garnished property into the court registry, and

holding the property. At the time that Strickland filed his complaint, Defendant

Alexander had docketed the garnishment and issued the summons of garnishment.

He was awaiting receipt of the garnished property from Chase and planned to hold

the property until the garnishment action was resolved. Similarly, the next time

that Strickland’s property is the subject of a garnishment action, Alexander will be

required to follow these exact same procedures. So Strickland’s inability to access

his exempt funds will be “fairly traceable” to Alexander’s actions, not to “the

independent action of some third party not before the court.”

      Nor, as Alexander suggests, does the fact that “his duties are ministerial in

nature” somehow render Strickland’s injury not fairly traceable to Alexander.

Alexander provides no authority for the proposition that conduct must be

“unlawful” for a resulting constitutional deprivation to be “fairly traceable” to that

conduct, and he similarly identifies no support for the notion that an injury cannot


                                         18
              Case: 13-15483         Date Filed: 11/20/2014   Page: 19 of 28


be deemed “fairly traceable” to ministerial conduct. We decline to reach such a

conclusion.

      In Finberg, the Third Circuit considered whether the prothonotary and

sheriff who issued the writ of execution and served it on the garnishee were proper

defendants in the action. In conducting this analysis, the Third Circuit noted that it

had to determine whether the prothonotary and sheriff “[met] the prerequisites to

adjudication in a federal 

.     In other words, the court

evaluated whether a causal connection between Finberg’s injury and the

prothonotary and sheriff’s actions existed under standing doctrine.

      The Third Circuit concluded that the prothonotary and sheriff’s actions

constituted the “immediate causes of the attachment and freezing of [the

plaintiff’s] bank accounts.” 

As the court further explained, “If the rules

that they were executing are unconstitutional, their actions caused an injury to [the

plaintiff’s] legal rights.”    

this conclusion, the Third Circuit

expressly rejected the proposition that the requisite causation did not exist because

the prothonotary and the sheriff executed only ministerial duties in issuing and

serving the garnishment. 

reasoned that “the inquiry is not into the

nature of an official’s duties but into the effect of the official’s performance of his

duties on the plaintiff’s rights.” 

13-15483      Date Filed: 11/20/2014   Page: 20 of 28


      This case is exactly the same: Alexander’s docketing of the garnishment

affidavit and issuance of the summons of garnishment were the immediate cause of

the attachment and freezing of Strickland’s account, and the requirement that he

execute these ministerial duties in the future when presented with the appropriate

documents means that Alexander will again be a cause of any garnishment that

befalls Strickland. As a result, Strickland’s injury is fairly traceable to Alexander’s

conduct.

                c. Redressability

      Finally, turning to the third prong of the standing inquiry, it is likely that

Strickland’s injury would be redressed by a favorable decision. A federal court

could declare the Georgia garnishment process unconstitutional or enjoin any

future similar actions that lacked adequate due process protections.          Because

Strickland has demonstrated injury in fact, causation, and redressability with

respect to the declaratory and injunctive relief he seeks, Strickland enjoys Article

III standing.

      2. Mootness

      Having established that a justiciable controversy existed between Strickland

and Alexander at the time that Strickland filed his complaint, we must now decide

whether the controversy became moot when Strickland received his previously

garnished funds from the State Court of Gwinnett County.


                                             20
             Case: 13-15483      Date Filed: 11/20/2014    Page: 21 of 28


      The Supreme Court has often remarked that “the doctrine of mootness can

be described as the doctrine of standing set in a time frame: The requisite personal

interest that must exist at the commencement of the litigation (standing) must

continue throughout its existence (mootness).” Friends of the 

, 120 S. Ct. at 709 (citation and internal quotation marks omitted).              But

mootness and standing “are distinct doctrines that must not be confused.” Sheely v.

MRI Radiology Network, P.A., 

, 1189 n.16 (11th Cir. 2007). The

principle difference is that exceptions to the mootness doctrine exist, while they do

not for standing. 

here, the “capable of repetition, yet evading review” exception

to mootness is at issue. 

applies when “(1) the challenged action

was in its duration too short to be fully litigated prior to its cessation or expiration,

and (2) there was a reasonable expectation that the same complaining party would

be subjected to the same action again.” Bourgeois v. Peters, 

, 1308

(11th Cir. 2004) (citation and internal quotation marks omitted). We find that

Strickland has satisfied both of these requirements.

      First, garnishment proceedings against exempt funds are generally too short

to be fully litigated before the challenged conduct is ceased. As the Third Circuit

explained in Finberg,

             Any lawsuit challenging the constitutionality of the
             attachment would require, at the very least, one year to
                                           21
             Case: 13-15483     Date Filed: 11/20/2014    Page: 22 of 28


             proceed from the filing of a complaint in the district court
             to the entry of judgment in this court. The attachment
             probably would end within that time with the occurrence
             of either of two events: the release of the accounts from
             attachment pursuant to claims of exemption, as occurred
             here, or the entry of a final judgment in the state court
             garnishment action. . . . Neither event should take as
             long as one year to occur because the issues and
             procedures in a garnishment are relatively simple. . . .

(citations omitted). In Finberg, the proceedings lasted for

six months. 

law, garnishment proceedings similarly require less than a

year to complete. Georgia’s post-judgment garnishment statute generally provides

a garnishee with forty-five days to answer a garnishment summons. O.C.G.A. §

18-4-62(a). The judgment debtor may then file a claim for funds within fifteen

days of the garnishee’s answer. O.C.G.A. § 18-4-85. Therefore, although a court

typically will not rule on any exemptions within sixty days of the commencement

of a garnishment action, it is unlikely that a garnishment action will last longer

than a few months. In this case, less than four months went by between Discover’s

filing of the garnishment action against Strickland and Discover’s dismissal of that

very same action.

      While state-court garnishment proceedings are relatively short in duration,

constitutional challenges to statutes in federal court, in contrast, can easily require

more than a year to resolve. The state attorney general may wish to become


                                          22
             Case: 13-15483     Date Filed: 11/20/2014    Page: 23 of 28


involved in the proceedings, discovery may be appropriate, and the issues raised

may be complex. Additional time, of course, would be required for appellate, and,

if appropriate, Supreme Court review of any district-court decision.

      For these reasons, we have held that activities spanning less than one year

are likely to evade review. 

(“[W]e conclude that one

year is an insufficient amount of time . . . to adjudicate the typical case.

Consequently, if this issue arises again . . . it is likely to evade review because the

[challenged conduct] will occur before the parties have a final ruling on the merits

from a court of last resort.”). See also Turner v. Rogers, ___ U.S. ___, 

, 2515 (2011) (because periods of incarceration of less than twelve months are

not long enough for a person to challenge the constitutionality of the procedures

used to subject the person to incarceration, where a person can show that he is

likely to suffer future imprisonment of less than twelve months for the same

reason, the case does not become moot upon the prisoner’s release from

incarceration).

      Other courts tend to agree with this proposition, particularly in the context of

challenges to garnishment statutes.      For example, besides the Third Circuit’s

decision in Finberg, the First Circuit in Dionne v. Bouley, 

, 1349 (1st

Cir. 1985), concluded that a challenge to Rhode Island’s garnishment statute was

not moot even if the funds sought to be garnished had been released because “[b]y


                                          23
             Case: 13-15483      Date Filed: 11/20/2014    Page: 24 of 28


the time a case can be heard and decided in the federal court, the attached funds

will usually have been obtained by the creditor or else released.” Similarly, in

Harris v. Bailey, 

, 616 (4th Cir. 1982), the Fourth Circuit determined

that a challenge to West Virginia’s garnishment statute was not moot, though the

plaintiff’s funds had been returned to her, because the state’s “brief procedure” was

capable of evading review.       Strickland’s challenge to Georgia’s garnishment

statute suffers from the same durational problem: the garnishment proceeding

itself is highly unlikely to outlive the length of time that it takes to resolve the

constitutionality of the statute used to execute the garnishment proceeding. As a

result, Strickland’s challenge to Georgia’s post-judgment garnishment statute

satisfies the first prong of the “capable of repetition, yet evading review” test.

      It also satisfies the second prong.       We have already concluded in our

analysis of the injury-in-fact requirement under the standing inquiry that a

substantial likelihood exists that Strickland’s funds will again be garnished to

attempt to satisfy a debt against him or his wife that has already been reduced to a

judgment.     Certainly, where a substantial likelihood of an event exists, a

“reasonable expectation” does as well. In summary, Strickland’s available funds

consist solely of his exempt workers’ compensation monies and his exempt Social

Security disability payments. His meager income cannot currently or in the near

term satisfy his and his wife’s outstanding debts, some of which have already been


                                           24
               Case: 13-15483     Date Filed: 11/20/2014   Page: 25 of 28


reduced to judgments. And, because Strickland’s wife is a joint accountholder of

both bank accounts, Strickland’s funds within those accounts are at significant risk

of garnishment. So garnishment proceedings against Strickland are “capable of

repetition.”    See also 

(finding a “reasonable

expectation” that garnishment proceedings against an indebted widow on a modest

income would again occur).

       For these reasons, we hold that the release of Strickland’s funds and the

satisfaction of his debt to Discover did not moot Strickland’s claim against

Defendant Alexander and that Strickland’s claim for declaratory and injunctive

relief still presents a live controversy.

B. Constitutionality of Georgia’s Post-Judgment Garnishment Statute

       Because Strickland has established that he has standing and his claim is not

moot, we now turn to the constitutionality of Georgia’s post-judgment garnishment

statute. Although the Supreme Court has remarked that the courts of appeals enjoy

discretion to determine what questions may be taken up and resolved for the first

time on appeal, “[i]t is the general rule . . . that a federal appellate court does not

consider an issue not passed upon below.” Singleton v. Wulff, 

, 119-

21, 

, 2876-77 (1976) (citation omitted). The reason for this is to

ensure that all parties have had an opportunity to offer all evidence they believe




                                            25
              Case: 13-15483     Date Filed: 11/20/2014   Page: 26 of 28


relevant to the issues so that they will not be surprised when the issues are decided

by final decision on appeal without first having had an opportunity to be heard. 

for example, the Supreme Court held that the Eighth Circuit’s

resolution on the merits of a challenge to the constitutionality of a Missouri statute

was improper and “an unacceptable exercise of [the Eighth Circuit’s] appellate

jurisdiction.” 

96 S. Ct. at 2877. In that case, the defendant had filed

only a pre-answer motion to dismiss for lack of standing and had filed no answer

or other pleading addressing the merits, had stipulated to no facts, had given no

intimation of what defenses, if any, he might have other than that the plaintiffs’

alleged lack of standing, and had limited himself on appeal entirely to the standing

determination. 

of the constitutional issue in this case suffers similarly.

Here, although Defendant-Appellee Alexander filed an answer to Strickland’s

complaint, like the Singleton defendant, Alexander did not substantively address

the constitutionality of the challenged portions of the statute in the district court.

And, while Alexander has briefed the constitutional issue on appeal for the first

time, he is not charged with defending the constitutionality of Georgia’s statutes;

that is the job of the Attorney General of the State of Georgia. Nor, unlike

Georgia’s Attorney General, does Alexander have a real interest in the

constitutionality of the statute at issue here.


                                            26
             Case: 13-15483    Date Filed: 11/20/2014   Page: 27 of 28


      Moreover, based on the record below, it appears that Georgia’s Attorney

General may indeed wish to participate in proceedings relating to the

constitutionality of Georgia’s post-judgment garnishment statute.         Although

Georgia’s Attorney originally declined to intervene in this action after being

provided notice that the matter involved a challenge to the constitutionality of

O.C.G.A. § 18-4-60, he indicated that he intended to monitor the case and that he

might file an amicus brief addressing the constitutionality of the statute. Once the

district court dismissed this action sua sponte for lack of standing, however, the

Attorney General likely believed that no need existed to file an amicus brief

addressing the constitutionality of the statute with our Court.     We think that

development of the constitutional issue would benefit from Georgia’s Attorney

General’s involvement, should he elect to participate in the proceedings. We

therefore remand this case to the district court for further proceedings to evaluate

the constitutionality of the challenged portions of Georgia’s post-judgment

garnishment statute, O.C.G.A. § 18-4-60, et seq.

                                             V.

      In sum, we hold that Strickland enjoys Article III standing. We further

conclude that Strickland’s claim is not moot but rather presents a live controversy

that is ready for adjudication. Finally, we decline to pass on the constitutionality

of Georgia’s post-judgment garnishment statute before ensuring that all interested


                                        27
                Case: 13-15483   Date Filed: 11/20/2014   Page: 28 of 28


parties have had notice and, if desired, a chance to present all evidence and

argument, and the district court has had an opportunity to examine and consider

that evidence and argument when ruling on the merits. For these reasons, we

reverse the district court’s sua sponte dismissal of Strickland’s claims against

Alexander and remand to the district court for further proceedings consistent with

this opinion.

      REVERSED AND REMANDED.




                                          28