[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-10136

Non-Argument Calendar

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D.C. Docket No. 5:11-cv-00761-CLS

ALABAMA EDUCATION ASSOCIATION, 

an Alabama non-profit corporation, 

A-VOTE, 

an Alabama political committee, 

PAM HILL, 

JEFF BREECE, 

CHASSITY SMITH, 

CATHEY MCNEAL, 

DOROTHY J. STRICKLAND, 

RONALD SLAUGHTER, 

 Plaintiffs - Appellants,

versus

ROBERT BENTLEY, et al.,

 Defendants,

MADISON COUNTY BOARD OF EDUCATION, 

ROBERT L. BROUSSARD, 

in his official capacity as the District Attorney for Madison County, 

THOMAS L. WHITE, JR., 

HUNTSVILLE CITY BOARD OF EDUCATION, 

CITY OF MADISON BOARD OF EDUCATION, 

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ROBERT T. TREESE, III, 

DR. THOMAS BICE,

in his official capacity as Superintendent of Education,

MARK A. HEINRICH,

in his official capacity as Chancellor of Postsecondary Education, et al.,

 Defendants - Appellees.

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Appeal from the United States District Court

for the Northern District of Alabama

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(September 28, 2016)

Before MARTIN, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM: 

This appeal involves Alabama Act No. 2010-761 (codified at Ala. Code § 

17-17-5) (“Act 761”). Act 761 “prohibit[s] a state or local government employee 

from arranging ‘by payroll deduction or otherwise’ the payment of any 

contribution to an organization that uses any portion of those contributions for 

‘political activity.’” Ala. Educ. Ass’n v. State Superintendent of Educ., 665 F.3d 

1234, 1235 (11th Cir. 2011) (“AEA I”). The Act has birthed numerous federal and 

state court opinions. See In re Mike Hubbard, 803 F.3d 1298, 1302–05 (11th Cir. 

2015) (setting forth the background of Act 761 and its litigious history). Although 

the overall procedural history of the Act 761 cases is somewhat complex, the 

procedural history central to this appeal is not. We are reviewing the district 

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court’s order dismissing plaintiffs’ claim that Act 761 violates the unconstitutional 

conditions doctrine. For the following reason, we affirm.

I. BACKGROUND

Plaintiffs/Appellants, the Alabama Education Association and others

(referred to collectively as the “AEA”), filed a pre-enforcement complaint 

challenging Act 761 on the basis that it violated the First Amendment, Equal 

Protection, and Due Process. Two days before the Act’s effective date in 2011, the 

district court entered a preliminary injunction at the AEA’s request, finding that the 

Act was likely overbroad in violation of the First Amendment and void for 

vagueness under the Due Process Clause. Although the AEA asserted an 

unconstitutional conditions claim in its complaint, the district court’s grant of the 

preliminary injunction was not based on this claim. Various defendants appealed 

the district court’s grant of the preliminary injunction. In its initial opinion, this 

court certified questions to the Supreme Court of Alabama and modified the 

injunction in the interim. See AEA I, 665 F.3d at 1238–39. The Alabama Supreme 

Court answered the certified questions, see State Superintendent of Educ. v. Ala. 

Educ. Ass’n, 144 So. 3d 265, 274–78 (Ala. 2013) (“AEA II”) (clarifying that the 

Act only reached government-facilitated payments), and this court entered a 

second opinion, reversing the district court’s grant of a preliminary injunction. See 

Ala. Educ. Ass’n v. State Superintendent of Educ., 746 F.3d 1135, 1139–40 (11th 

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Cir. 2014) (“AEA III”) (holding that the plaintiffs could not demonstrate a 

substantial likelihood of success on the merits of either their overbreadth claim or 

their void for vagueness challenge).

Meanwhile, during the pending preliminary injunction appeal, the district 

court allowed discovery to proceed on the AEA’s First Amendment retaliation 

claim, although the claim was not explicitly stated in the complaint. As part of the 

AEA’s discovery request, the district court ordered nonparty state legislative 

leaders to produce their legislative files concerning Act 761. These individuals 

filed petitions for writs of mandamus in this court, challenging the district court’s 

refusal to quash AEA’s subpoenas requesting their legislative files. This court held 

that the district court abused its discretion in refusing to quash the AEA’s 

subpoenas. See In re Mike Hubbard, 803 F.3d at 1308.

Although the district court allowed the AEA to proceed on its First 

Amendment retaliation claim, it dismissed the remaining claims under Rule 

12(b)(6). Pertinent to the present appeal, in its order of dismissal, the district court 

found that the AEA plaintiffs failed to state an unconstitutional conditions claim 

upon which relief could be granted. Under the doctrine of unconstitutional 

conditions, “the government may not deny a benefit to a person on a basis that 

infringes his constitutionally protected freedom of speech even if he has no 

entitlement to that benefit.” Rumsfeld v. Forum for Academic and Institutional 

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Rights, Inc., 547 U.S. 47, 59, 126 S. Ct. 1297, 1306–07 (2006) (internal quotation 

marks and ellipses omitted). The AEA’s claim is founded on the contention that 

Act 761 places unconstitutional conditions on the availability of the benefit, the 

state mechanism for payroll deduction, to public employee organizations. In its 

complaint, the AEA asserted that “[a] public employee organization that wishes to 

avail itself of this benefit must not only refrain from engaging in constitutionally 

protected ‘political activity’ but must submit a certification to the ‘appropriate 

government entity’ promising that it will not use any dues collected through

payroll deduction for any ‘political activity.’” In its dismissal order, the district 

court relied on its preliminary injunction order in which it rejected the AEA’s 

assertion that Act 761 violated the doctrine of unconstitutional conditions. 

II. DISCUSSION

The Defendants, the Madison County Board of Education and others, 

contend that the district court properly dismissed the AEA’s unconstitutional 

conditions claim, and they urge us to affirm based on the law of the case doctrine. 

We agree.

“Under the ‘law of the case’ doctrine, the findings of fact and conclusions of 

law by an appellate court are generally binding in all subsequent proceedings in the 

same case in the trial court or on a later appeal.” This That & The Other Gift & 

Tobacco, Inc. v. Cobb Cnty., Ga., 439 F.3d 1275, 1283 (11th Cir. 2006) (quoting 

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Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990)). This doctrine also bars 

the rehashing of issues that were decided “explicitly or by necessary implication” 

in a prior appeal. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th 

Cir. 2005); Klay v. All Defendants, 389 F.3d 1191, 1198 (11th Cir. 2004); In re 

Justice Oaks II, Ltd., 898 F.2d 1544, 1550 n.3 (11th Cir. 1990). “The doctrine’s 

central purposes include bringing an end to litigation, protecting against the 

agitation of settled issues, and assuring that lower courts obey appellate orders.” 

This That & The Other Gift & Tobacco, Inc., 439 F.3d at 1283. There are only two 

ways a party can overcome the law of the case doctrine: (1) “if, since the prior 

decision, new and substantially different evidence is produced, or there has been a 

change in the controlling authority” or (2) “the prior decision was clearly 

erroneous and would result in a manifest injustice.” Oladeinde v. City of 

Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000).

These prior decisions rejected the AEA’s unconstitutional conditions claim 

by “necessary implication.” Schiavo, 403 F.3d at 1291. In reaching these 

decisions, this court was reviewing the district court’s order granting a preliminary 

injunction on overbreadth and vagueness grounds. In its request for a preliminary 

injunction, the AEA raised the unconstitutional conditions claim as an alternative 

ground for affirmance. Because this court reversed the district court’s order 

granting the preliminary injunction, it implicitly rejected the AEA’s argument that 

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Act 761 violated their constitutional rights based on the doctrine of 

unconstitutional conditions. This doctrine would have provided this court, upon 

review, with an alternative basis to affirm the district court’s grant of a preliminary 

injunction. Hence, this court’s prior decision in AEA III “implicitly” rejected the 

AEA’s unconstitutional conditions argument. See id. On appeal, the AEA does 

not contend that either exception to the law of the case doctrine applies, and we 

discern no exception. Accordingly, we conclude that the law of the case doctrine 

applies, and we therefore affirm the district court’s judgment of dismissal.

AFFIRMED.

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