Carlos Moore v. Dewey Bryant , 853 F.3d 245 ( 2017 )


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  •      Case: 16-60616   Document: 00513935604     Page: 1   Date Filed: 03/31/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-60616                          FILED
    March 31, 2017
    Lyle W. Cayce
    CARLOS E. MOORE,                                                       Clerk
    Plaintiff - Appellant
    v.
    GOVERNOR DEWEY PHILLIP BRYANT, In his Official Capacity,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Southern District of Mississippi
    Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
    STEPHEN A. HIGGINSON, Circuit Judge:
    The upper, left-hand corner of the Mississippi state flag depicts the
    Confederate battle flag. Plaintiff-Appellant, an African-American, Mississippi
    lawyer, sued Defendant-Appellee, the Governor of Mississippi, claiming that
    the Mississippi flag violates his rights under the Equal Protection Clause of
    the Constitution. The district court sua sponte ordered the parties to brief
    standing and the political question doctrine. In response, Defendant moved to
    dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff
    responded and additionally submitted a sworn declaration in support of his
    standing.   Thereafter, Plaintiff moved to amend, seeking to file a Fourth
    Amended Complaint asserting an equal protection claim on behalf of his
    Case: 16-60616       Document: 00513935604         Page: 2     Date Filed: 03/31/2017
    No. 16-60616
    daughter. The district court held a hearing on the motion to dismiss. At the
    hearing, the parties agreed that Plaintiff could testify about his alleged injuries
    and that his testimony would be accepted as true for the purposes of the motion
    to dismiss. The district court dismissed for lack of standing and denied the
    motion to amend because any amendment would be futile. We AFFIRM. 1
    I
    This Court reviews a dismissal for lack of standing de novo. Little v.
    KPMG LLP, 
    575 F.3d 533
    , 540 (5th Cir. 2009). “It is well settled in this circuit
    that ‘[t]he district court . . . has the power to dismiss [pursuant to Rule 12(b)(1)]
    on any one of three separate bases: (1) the complaint alone; (2) the complaint
    supplemented by undisputed facts evidenced in the record; or (3) the complaint
    supplemented by undisputed facts plus the court’s resolution of disputed
    facts.’” Barrera-Montenegro v. United States, 
    74 F.3d 657
    , 659 (5th Cir. 1996)
    (quoting Voluntary Purchasing Groups, Inc. v. Reilly, 
    889 F.2d 1380
    , 1384 (5th
    Cir.1989)). 2 In this case, the district court decided the motion to dismiss based
    on undisputed facts, “[t]herefore, our review is limited to determining whether
    the district court’s application of the law is correct and . . . whether those facts
    are indeed undisputed.” 
    Id.
    The requirement that a litigant have standing derives from Article III of
    the Constitution, which confines federal courts to “adjudicating actual ‘cases’
    and ‘controversies.’” Henderson v. Stalder, 
    287 F.3d 374
    , 378 (5th Cir. 2002)
    (quoting U.S. Const. art. III, § 2, cl. 1).           “[T]he irreducible constitutional
    minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 560 (1992). “First, the plaintiff must have suffered an injury in fact—
    1 Plaintiff raised additional standing theories before the district court including a
    Thirteenth Amendment claim and a claim that the Mississippi flag incited racial violence.
    He has abandoned those theories here.
    2 Dismissals for lack of Constitutional standing are granted pursuant to Rule 12(b)(1).
    See Harold H. Huggins Realty, Inc. v. FNC, Inc., 
    634 F.3d 787
    , 795 n.2 (5th Cir. 2011).
    2
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    No. 16-60616
    an invasion of a legally protected interest which is (a) concrete and
    particularized, and (b) actual or imminent, not conjectural or hypothetical[.]”
    Id. at 560 (internal quotation marks and citations omitted). “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.”     Id. (internal quotation marks and citations
    omitted). “Third, it must be likely, as opposed to merely speculative, that the
    injury will be redressed by a favorable decision.” Id. at 561 (internal quotation
    marks and citation omitted).
    II
    The district court found that Plaintiff failed adequately to plead injury
    in fact, the first element of standing. On appeal, Plaintiff puts forward three
    injury-in-fact theories. We find each unavailing.
    1. Stigmatic Injury
    Plaintiff first alleges that he is unavoidably exposed to the state flag and
    that the flag’s message is “painful, threatening, and offensive” to him, makes
    him “feel like a second-class citizen,” and causes him both physical and
    emotional injuries.” At its core, Plaintiff’s injury theory is that the Mississippi
    state flag stigmatizes him.
    Stigmatic injury “accords a basis for standing only to ‘those persons who
    are personally denied equal treatment’ by the challenged discriminatory
    conduct[.]”   Allen v. Wright, 
    468 U.S. 737
    , 755 (1984) (quoting Heckler v.
    Mathews, 
    465 U.S. 728
    , 739–40 (1984)), abrogated in part on other grounds by
    Lexmark Int’l, Inc. v. Static Control Components, Inc., 
    134 S. Ct. 1377
     (2014).
    Accordingly, to plead stigmatic-injury standing, Plaintiff must plead that he
    was personally subjected to discriminatory treatment.             See Carroll v.
    Nakatani, 
    342 F.3d 934
    , 946 (9th Cir. 2003) (“Being subjected to a racial
    3
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    classification differs materially from having personally been denied equal
    treatment . . . . [Plaintiff] does not cite, and we do not find, any authority
    supporting the proposition that racial classification alone amounts to a
    showing of individualized harm.”); see also Miller v. Albright, 
    523 U.S. 420
    , 451
    (1998) (O’Connor, J., concurring); Binno v. Am. Bar Assoc., 
    826 F.3d 338
    , 351
    (6th Cir. 2016); Rainbow/PUSH Coal. v. F.C.C., 
    396 F.3d 1235
    , 1241 n.6 (D.C.
    Cir. 2005); Wilson v. Glenwood Intermountain Props., Inc., 
    98 F.3d 590
    , 596
    (10th Cir. 1996); Kurtz v. Baker, 
    829 F.2d 1133
    , 1141 (D.C. Cir. 1987). He has
    not done so and thus, fails to plead injury.
    Plaintiff resists this conclusion in three ways.       First, drawing on
    Establishment Clause cases, which were not presented to the district court,
    Plaintiff argues that exposure to unavoidable and deleterious Government
    speech is sufficient to confer standing. Second, Plaintiff argues that Allen is
    factually inapplicable.   Third, Plaintiff argues that if Allen applies, then
    symbolic, government, hate speech will be insulated from review. We disagree
    with each argument.
    First, the Establishment Clause case law, though vital for its purpose
    and settled as doctrine, is inapplicable. In an Establishment Clause case, a
    plaintiff adequately alleges standing by alleging direct and unwelcome
    exposure to a religious display. See Doe v. Tangipahoa Par. Sch. Bd., 
    494 F.3d 494
    , 497 (5th Cir. 2007) (en banc) (“The question is whether there is proof in
    the record that Doe or his sons were exposed to, and may thus claim to have
    been injured by, invocations given at any Tangipahoa Parish School Board
    meeting.”); Murray v. City of Austin, 
    947 F.2d 147
    , 151 (5th Cir. 1991); see also
    Catholic League for Religious & Civil Rights v. City & Cty. of S.F., 
    624 F.3d 1043
    , 1072–73 (9th Cir. 2010) (en banc) (Graber, J., concurring in part,
    dissenting in part) (collecting cases). But Allen and its progeny make clear
    that those same types of injuries are not a basis for standing under the Equal
    4
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    Protection Clause—that is, exposure to a discriminatory message, without a
    corresponding denial of equal treatment, is insufficient to plead injury in an
    equal protection case. Allen, 
    468 U.S. at 755
    . Indeed, other courts have
    rejected attempts to cross-pollinate Equal Protection Clause standing
    jurisprudence with Establishment Clause cases. See, e.g., Nat’l Ass’n for the
    Advancement of Colored People v. Horne, 626 F. App’x 200, 201 (9th Cir. 2015)
    (unpublished) (“Plaintiffs have not alleged that their members were personally
    denied equal treatment under Allen, as stigmatic injury caused by being a
    target of official discrimination is not itself a personal denial of equal
    treatment.”). 3
    Plaintiff argues that the test for Equal Protection Clause standing must
    mirror the test for Establishment Clause standing because there is no
    “hierarchy of constitutional values” warranting a “sliding scale of standing.”
    True enough, but standing “often turns on the nature and source of the claim
    asserted.” Warth v. Seldin, 
    422 U.S. 490
    , 500 (1975). The reason that Equal
    Protection and Establishment Clause cases call for different injury-in-fact
    analyses is that the injuries protected against under the Clauses are different.
    The Establishment Clause prohibits the Government from endorsing a
    religion, and thus directly regulates Government speech if that speech
    endorses religion. See Pleasant Grove City v. Summum, 
    555 U.S. 460
    , 468
    (2009) (“[G]overnment speech must comport with the Establishment Clause.”).
    Accordingly, Establishment Clause injury can occur when a person encounters
    the Government’s endorsement of religion. See Murray, 947 F.2d at 151. The
    3 In Horne, the plaintiffs argued that Establishment Clause cases were relevant to
    show standing. See Br. for Appellants, Nat’l Ass’n for the Advancement of Colored People v.
    Horne, at 23 n.5, 626 F. App’x 200 (9th Cir. 2015) (No. 13-17247), 
    2014 WL 1153838
     (arguing
    that Establishment Clause cases could demonstrate stigmatic injury standing in an equal
    protection case). Nonetheless, without citation to Establishment Clause cases, the Ninth
    Circuit straightforwardly applied Allen.
    5
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    same is not true under the Equal Protection Clause: the gravamen of an equal
    protection claim is differential governmental treatment, not differential
    governmental messaging. See Ne. Fla. Chapter of Associated Gen. Contractors
    of Am. v. City of Jacksonville, 
    508 U.S. 656
    , 666 (1993) (“When the government
    erects a barrier that makes it more difficult for members of one group to obtain
    a benefit than it is for members of another group, a member of the former group
    seeking to challenge the barrier need not allege that he would have obtained
    the benefit but for the barrier in order to establish standing. The ‘injury in
    fact’ in an equal protection case of this variety is the denial of equal treatment
    resulting from the imposition of the barrier, not the ultimate inability to obtain
    the benefit.”); Allen, 
    468 U.S. at
    757 n.22 (“The stigmatic injury thus requires
    identification of some concrete interest with respect to which respondents are
    personally subject to discriminatory treatment.             That interest must
    independently satisfy the causation requirement of standing doctrine.”);
    Bowlby v. City of Aberdeen, 
    681 F.3d 215
    , 227 (5th Cir. 2012) (noting that an
    equal protection claim requires proof of unequal treatment).
    Second, Plaintiff argues that Allen is inapplicable.         On Plaintiff’s
    reading, Allen does not apply because “the allegation here is that the State has
    itself acted with a discriminatory purpose in the design of its state flag, that
    Plaintiff is unavoidably, and frequently, and personally exposed to the state’s
    demeaning and discriminatory message, and that it has impacted him
    personally in a variety of ways.” However, Plaintiff’s reading does not comport
    with Allen’s text or its subsequent interpretation.        Allen held that when
    plaintiffs ground their equal protection injuries in stigmatic harm, they only
    have standing if they also allege discriminatory treatment. Allen, 
    468 U.S. at 755
    . That Plaintiff alleges that he personally and deeply feels the impact of
    Mississippi’s state flag, however sincere those allegations are, is irrelevant to
    Allen’s standing analysis unless Plaintiff alleges discriminatory treatment.
    6
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    See, e.g., Freedom from Religion Found., Inc. v. Lew, 
    773 F.3d 815
    , 822 (7th
    Cir. 2014) (holding that the Allen inquiry is unchanged when plaintiffs claimed
    to be part of small group facing discrimination); In re U.S. Catholic Conference,
    
    885 F.2d 1020
    , 1026 (2d Cir. 1989) (finding that under Allen clergy do not have
    special standing status based on the sincerity of their beliefs); Mehdi v. U.S.
    Postal Serv., 
    988 F. Supp. 721
    , 731 (S.D.N.Y. 1997) (“Plaintiffs in this case have
    not alleged a personal denial of equal treatment, and thus any claim that the
    Postal Service has denied the plaintiffs equal protection by refusing to put up
    the Muslim Crescent and Star must be dismissed for want of standing.”).
    Third, Plaintiff contends that if he does not have standing to challenge
    Mississippi’s flag then no plaintiff would ever have standing to challenge
    discriminatory government speech.              Preliminarily, in cases where the
    Government engages in discriminatory speech, that speech likely will be
    coupled with discriminatory treatment. 4          See, e.g., Allen, 
    468 U.S. at 755
    (distinguishing Heckler because there the stigmatic speech was coupled with
    discriminatory treatment). In any event, “[t]he assumption that if [Plaintiff
    has] no standing to sue, no one would have standing, is not a reason to find
    standing.”    Valley Forge Christian Coll. v. Ams. United for Separation of
    Church & State, Inc., 
    454 U.S. 464
    , 489 (1982) (quoting Schlesinger v.
    Reservists Comm. to Stop the War, 
    418 U.S. 208
    , 227 (1974)).
    2. Hostile Workplace and Physical Injury
    Plaintiff next argues, in an analogy not presented to the district court,
    that he has standing because he encounters the flag in his work as a prosecutor
    and “[i]t is well established that the presence of a Confederate flag even in a
    place of private employment, and even less than continuously, can create or
    4 Moreover, discriminatory government speech would certainly be useful in proving a
    discriminatory treatment claim, because it loudly speaks to discriminatory purpose.
    7
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    contribute to an actionable ‘hostile work environment.’” He also contends that,
    as a result of his exposure to the Mississippi flag, he suffers various physical
    injuries.
    Both arguments suffer the same defect as Plaintiff’s stigmatic-injury
    claim. Plaintiff’s exposure to the Mississippi flag in courtrooms where he
    practices and his alleged physical injuries resulting from that exposure
    demonstrate that he strongly feels the stigmatic harm flowing from the flag.
    Allen recognized that “[t]here can be no doubt that [stigma] is one of the most
    serious consequences of discriminatory government action . . . .” Allen, 
    468 U.S. at 755
    . Nonetheless, Allen found that stigma alone was insufficient to
    satisfy the injury-in-fact requirement. 
    Id.
     Accordingly, under Allen and its
    progeny, stigmatic injury does not transform into injury in fact just because
    the source of the stigmatic injury is frequently confronted or the stigmatic
    harm is strongly, sincerely, and severely felt. See, e.g., Newdow v. Lefevre, 
    598 F.3d 638
    , 643 (9th Cir. 2010) (applying Allen even when the Plaintiff argued
    that he personally suffered harm as a result of the Government’s stigmatizing
    speech); Harris v. United States, 
    447 F. Supp. 2d 208
    , 212 (D. Conn. 2005)
    (“However, it is not the seriousness of the harm but its generality that
    determines whether a federal court is the proper forum for addressing it.”).
    Moreover, analogizing Plaintiff’s equal protection claim to a hostile work
    environment claim fails for the same reason that the Establishment Clause
    analogy fails: under Title VII, 42 U.S.C. § 2000e et seq., exposure to a hostile
    work environment alone is the injury; under the Equal Protection Clause it is
    not. Compare Harris v. Forklift Sys., Inc., 
    510 U.S. 17
    , 21 (1993) (noting that
    Title VII “is not limited to economic or tangible discrimination . . . [but also]
    includes requiring people to work in a discriminatorily hostile or abusive
    environment” (internal quotation marks and citations omitted)), with Allen,
    
    468 U.S. at 755
     (equal protection standing requires more than stigma alone).
    8
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    Accordingly, we conclude that Plaintiff’s hostile workplace and physical injury
    theories are insufficient to plead injury in fact.
    3. Harm to Plaintiff’s Daughter
    Last, Plaintiff alleges in his proposed Fourth Amended Complaint that
    his daughter is harmed by two Mississippi statutes, which require her to be
    exposed to the Mississippi flag in school. Section 37-13-5 requires that the
    Mississippi flag be flown in close proximity to all public schools and that “there
    shall be given a course of study concerning . . . the flag of the State of
    Mississippi. The course of study shall include the history of [the] flag and what
    [it] represent[s] and the proper respect therefor.” Miss. Code § 37-13-5(1), (3).
    Section 37-13-7 requires that “[t]he pledge of allegiance to the Mississippi flag
    shall be taught in the public schools of this state[.]” Miss. Code § 37-13-7(2).
    Plaintiff does not allege that either statute has yet violated his daughter’s
    rights; instead, he claims that when she begins school she will “be forced to
    learn, adopt, utter or communicate speech which she finds objectionable” in
    violation of the First Amendment.
    The district court rejected this standing theory. It reasoned that Section
    37-13-5 does not facially violate the Constitution because it merely requires
    “children to be taught about the history of the Mississippi flag” and that
    Section 37-13-7 does not facially violate the Constitution because it “does not
    require any student to recite the Mississippi pledge.” Finding that Plaintiff
    failed to plead that either statute clearly risked violating his daughter’s
    constitutional rights, the district court concluded that Plaintiff could not show
    injury. We agree.
    The district court properly construed both Mississippi statutes.             As
    always, statutory interpretation begins “with the plain language and structure
    of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 
    350 F.3d 482
    , 486
    (5th Cir. 2003). Section 37-13-5 requires that Mississippi students be “given
    9
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    a course of study” concerning the Mississippi flag and be taught “proper
    respect” for the flag. Miss. Code § 37-13-5(3). Plaintiff argues that the statute
    mandates that his daughter be taught to “respect” the flag “no matter its
    origins, no matter the malicious intent of the State in adopting it, and no
    matter the destructive and demoralizing impact on young minds.” We do not
    agree that the statute requires so much. Instead, the statute demands that
    children be taught “proper respect” for the flag. “Proper” means “correct” or
    “marked by suitability, rightness, or appropriateness.” Merriam-Webster’s
    Collegiate Dictionary 932 (10th ed. 2002). The words “correct” or “suitable”
    imply neither a positive nor a negative level of respect; under a plain reading
    of the statute all that is required to be taught is the history of the flag and the
    respect that it is due, whatever that may be. Likewise, Section 37-13-7 does
    not require that students pledge allegiance to the Mississippi flag. Instead,
    the statute only requires that the Mississippi pledge be taught in public
    schools, without mandating that schools teach a particular viewpoint about the
    pledge. See Miss. Code § 37-13-7(2). Accordingly, neither statute requires
    anything more than that students be taught about the flag and the pledge. The
    statutes do not facially violate the Constitution.          See, e.g., Freiler v.
    Tangipahoa Par. Bd. of Educ., 
    185 F.3d 337
    , 342 (5th Cir. 1999) (absent
    constitutional violation, states “have the right to prescribe the academic
    curricula of their public school systems”).
    Because neither statute compels the violation of Plaintiff’s daughter’s
    rights, Plaintiff’s claim boils down to an assertion that Mississippi could, but
    need not, apply its law in an unconstitutional way. This assertion is too
    speculative to support standing. See, e.g., Henderson, 
    287 F.3d at 380
     (finding
    that plaintiffs did not have standing to bring a facial challenge when plaintiffs’
    alleged injury was that a newly created state council might violate the
    Establishment Clause).
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    III
    We agree with the district court that Plaintiff failed adequately to plead
    injury in fact and therefore failed to establish standing. See Okpalobi v. Foster,
    
    244 F.3d 405
    , 425 (5th Cir. 2001) (en banc) (“If any one of these three
    elements . . . is absent, plaintiffs have no standing in federal court[.]”).
    Accordingly, we need not reach causation, redressability, or the political
    question doctrine.
    AFFIRMED.
    11
    

Document Info

Docket Number: 16-60616

Citation Numbers: 853 F.3d 245

Filed Date: 3/31/2017

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (27)

Wilson v. Glenwood Intermountain Properties, Inc. , 98 F.3d 590 ( 1996 )

in-re-united-states-catholic-conference-uscc-and-national-conference-of , 885 F.2d 1020 ( 1989 )

Okpalobi v. Foster , 244 F.3d 405 ( 2001 )

Coserv Ltd. Liability Corp. v. Southwestern Bell Telephone ... , 350 F.3d 482 ( 2003 )

Henderson v. Stalder , 287 F.3d 374 ( 2002 )

Little v. KPMG LLP , 575 F.3d 533 ( 2009 )

Newdow v. Lefevre , 598 F.3d 638 ( 2010 )

Harold H. Huggins Realty, Inc. v. FNC, INC. , 634 F.3d 787 ( 2011 )

Paul Kurtz, Dr. v. James A. Baker, Secretary of the Treasury , 829 F.2d 1133 ( 1987 )

Bowlby v. City of Aberdeen, Miss. , 681 F.3d 215 ( 2012 )

Doe v. Tangipahoa Parish School Bd. , 494 F.3d 494 ( 2007 )

Barrera-Montenegro v. USA & Drug Enforcement Administration , 74 F.3d 657 ( 1996 )

rainbowpush-coalition-v-federal-communications-commission-curators-of , 396 F.3d 1235 ( 2005 )

john-carroll-v-james-nakatani-in-his-capacity-as-chairpersondirector-of , 342 F.3d 934 ( 2003 )

Schlesinger v. Reservists Committee to Stop the War , 94 S. Ct. 2925 ( 1974 )

Warth v. Seldin , 95 S. Ct. 2197 ( 1975 )

Valley Forge Christian College v. Americans United for ... , 102 S. Ct. 752 ( 1982 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Mehdi v. United States Postal Service , 988 F. Supp. 721 ( 1997 )

Harris v. United States , 447 F. Supp. 2d 208 ( 2005 )

View All Authorities »