Wade Steven Gardner v. William Mutz ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10461
________________________
D.C. Docket No. 8:18-cv-02843-VMC-JSS
WADE STEVEN GARDNER,
MARY JOYCE STEVENS,
RANDY WHITTAKER,
In Official Capacity at Southern War Cry,
VETERANS MONUMENTS OF AMERICA, INC.,
Andy Strickland, US Army Ret, President,
PHIL WALTERS,
In his Official Capacity as 1st Lt. Commander of the
Judah P. Benjamin Camp # 2210 Sons of Confederate Veterans,
KEN DANIEL,
In his Official Capacity as Director of
Save Southern Heritage, Inc. Florida,
RANDY WHITTAKER,
Individually,
Plaintiffs - Appellants,
versus
WILLIAM MUTZ,
In his Official Capacity as Mayor of the City of Lakeland, Florida,
TONY DELGADO,
In his Official Capacity as Administrator of the City of Lakeland, Florida,
DON SELVEGE,
In his Official Capacity as City of Lakeland, Florida Commissioner,
JUSTIN TROLLER,
In his Official Capacity as City of Lakeland, Florida Commissioner,
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PHILLIP WALKER,
In his Official Capacity as City of Lakeland, Florida Commissioner,
FLORIDA SECRETARY OF STATE, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 22, 2020)
Before MARTIN, NEWSOM, and O’SCANNLAIN, * Circuit Judges.
NEWSOM, Circuit Judge:
This appeal arises from a lawsuit filed by a group of individuals and
organizations who object to the City of Lakeland’s decision to relocate a
Confederate monument from one city park to another. As relevant here, the
plaintiffs contend that the relocation violates their rights under the First
Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due Process
Clause. The district court rejected the plaintiffs’ First Amendment claim on the
merits and dismissed it with prejudice; the court dismissed the plaintiffs’ due
process claim without prejudice on the ground that they lacked the requisite
standing to pursue it.
*
Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
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Following the district court’s decision, the plaintiffs failed to obtain (or even
seek) a stay, and, by the time the case reached us the City had proceeded to
relocate the monument. On appeal, the plaintiffs challenge the dismissal of their
complaint, and the defendants respond by contesting the plaintiffs’ standing to sue,
defending the district court’s decision on the merits, and contending that the
monument’s relocation has rendered the case moot. We hold that the plaintiffs
lack standing to pursue either their First Amendment claim or their due process
claim. Accordingly, we will vacate and remand the with-prejudice dismissal of the
plaintiffs’ First Amendment claim, with instructions that the district court should
dismiss without prejudice for lack of jurisdiction, and we will affirm the district
court’s without-prejudice dismissal of the plaintiffs’ due process claim.
I
A
The plaintiffs in this case are Wade Steven Gardner, a citizen-taxpayer of
Lakeland; Randy Whittaker, a citizen-taxpayer of Polk County who has, he says,
“Confederate Dead in his family lineage”; Southern War Cry, an organization that
Whittaker administers; the Judah P. Benjamin Camp #2210 Sons of Confederate
Veterans, a subdivision of the nonprofit Florida Division Sons of Confederate
Veterans, Inc., whose self-described purpose is to “‘vindicate the cause’ for which
the Confederate Veteran fought”; Veterans Monuments of America, Inc., a
nonprofit entity dedicated to protecting and preserving war memorials; Mary Joyce
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Stevens, a Georgia resident and a current member and past president of a chapter
of the United Daughters of the Confederacy; and Save Southern Heritage, Inc., a
South Carolina nonprofit formed to “preserve the history of the south for future
generations.”
Most of the defendants in this case are affiliated either with the City of
Lakeland or the State of Florida. The City-related defendants are William Mutz,
Lakeland’s Mayor; Don Selvage, Justin Troller, and Phillip Walker, Lakeland City
Commissioners; and Tony Delgado, the City Manager. The plaintiffs also sued
Michael Ertel, the Florida Secretary of State, 1 and Antonio Padilla, the President of
Energy Services & Products Corporation, which had submitted a proposal for
relocating the monument.
This case centers on a memorial “cenotaph”2 that is dedicated to
Confederate soldiers who died during the Civil War and is—or more accurately,
was—located in Lakeland’s Munn Park, which is a part of a nationally registered
historic district. In 1908, the City granted the United Daughters of the
Confederacy’s petition to erect the monument in Munn Park. The cenotaph is 26
feet tall, weighs about 14 tons, and is engraved with the words “Confederate
Dead,” a poem, and images of Confederate flags. More recently, the City began to
1
Ertel replaced his predecessor in office, Kenneth Detzner.
2
A cenotaph is “[a]n empty tomb or a monument erected in honor of a person who is buried
elsewhere.” Webster’s Second New International Dictionary 433 (1934).
4
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receive complaints about the monument, and in December 2017 the City
Commission agreed to start the process of removing it. In May 2018, the
Commission voted to relocate the cenotaph from Munn Park to Veterans Park,
which is located outside Lakeland’s historic district. The Commission initially
directed that all relocation costs be paid by private donations, but it later agreed to
permit the use of funds from Lakeland’s red-light-camera program to complete the
project.
B
In November 2018, the plaintiffs sued to prevent the cenotaph’s relocation.
Of their complaint’s seven counts, only two are at issue here: Count 1 alleged a
violation of the plaintiffs’ First Amendment rights—in particular, the plaintiffs
complained, the City “ha[d] abridged [their] right to free speech . . . by deciding to
remove the [c]enotaph which communicated minority political speech in a public
forum.” Count 4 alleged a violation of the Due Process Clause—specifically, the
plaintiffs asserted that the City failed “to provide [them] and other like-minded
Florida and American citizens due process, including reasonable notice, an
opportunity to be heard and a hearing before a neutral arbiter, before removing the
Historic Munn Park Cenotaph.”3 The plaintiffs requested both a declaration that
3
The counts not relevant to this appeal are as follows: Count 2 alleged a breach of a bailment
agreement between the city and the United Daughters of the Confederacy; Count 3 alleged
various “[v]iolation[s] of public trust”; Count 5 alleged a violation of Lakeland’s Historic
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the City’s actions violated the Constitution and an injunction to prevent the
monument’s relocation.
The defendants moved to dismiss the plaintiffs’ suit. In their motion, Mutz,
Delgado, Selvage, Troller, and Walker argued that the plaintiffs lacked standing,
that they had failed to state a claim for which relief could be granted, and that, in
any event, their claims were barred by legislative and/or qualified immunity. In
particular, the defendants contended that the plaintiffs hadn’t suffered an “injury in
fact” because they didn’t have a “cognizable claim arising out of the City’s
relocation or removal of a monument on City property.” More particularly still,
they argued that the cenotaph was a form of government speech and that,
accordingly, the plaintiffs didn’t have a “Free Speech claim with respect to [it] or
any due process rights premised on [its] removal.” Ertel and Padilla moved to
dismiss on similar grounds.
The district court granted the defendants’ motions. With respect to the
plaintiffs’ First Amendment claim, the court opted to treat the City officials’
motion to dismiss for lack of subject-matter jurisdiction as a motion to dismiss for
failure to state a claim; for support, the court invoked the proposition that when a
defendant’s jurisdictional challenge “implicates an element of the cause of action,
Preservation Ordinance; and Counts 6 and 7 alleged intent and collusion to violate two Florida
statutes.
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courts are to find that jurisdiction exists and deal with the objection as a direct
attack on the merits of the plaintiff’s case.” Dist. Ct. Order at 9 (internal quotation
marks omitted) (quoting Scarfo v. Ginsberg, 175 F.3d 957, 965 (11th Cir. 1999)
(Barkett, J., dissenting)). Having refocused the inquiry from the plaintiffs’
standing to the merits of their claim, the district court held that the cenotaph is not
private expression but rather a form of government speech and, accordingly, that
the “[p]laintiffs d[id] not have a legally protected interest in that speech” and that
“their First Amendment claim fail[ed] as a matter of law.” Id. at 9–11. The court
rejected the plaintiffs’ due process claim on standing grounds, holding that “[e]ven
if [p]laintiffs had a protected liberty or property interest in the [c]enotaph’s
placement in Munn Park,” their alleged injuries were “not sufficiently
particularized” for Article III purposes. Id. at 12–13 (internal quotation marks and
citation omitted).4 The district court alternatively held that the plaintiffs had failed
to state a cognizable due process claim because they “lack[ed] a liberty interest in
the [c]enotaph and thus [could not] state a procedural due process claim based on
the memorial’s relocation.” Id. at 15. 5
4
The court separately rejected the plaintiffs’ contention that Gardner had standing as a municipal
taxpayer on the ground that no tax dollars had been spent on the relocation.
5
Because it dismissed all of the plaintiffs’ federal claims, the district court declined to exercise
supplemental jurisdiction over the remaining state-law claims. Although they referenced their
state-law claim against the Secretary of State in their notice of appeal, the plaintiffs have offered
no challenge to the district court’s decision to decline supplemental jurisdiction. Because the
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The plaintiffs promptly appealed the district court’s dismissal order to this
Court. For whatever reason, though, they failed to seek a stay pending appeal to
prevent the relocation of the cenotaph while the case wound its way to us, and, in
the meantime, the City of Lakeland proceeded to move the monument from Munn
Park to Veterans Park. In light of the cenotaph’s relocation, the defendants argue
that because “the action [the plaintiffs] sought to prevent has come to pass, the case
is now moot.” Br. of Appellees at 12.
II
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, we have “a special
obligation to satisfy [ourselves] . . . of [our] own jurisdiction” before proceeding to
the merits of an appeal. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95
(1998) (internal quotation marks and citation omitted). The most notable—and
most fundamental—limits on the federal “judicial Power” are specified in Article
III of the Constitution, which grants federal courts jurisdiction only over
enumerated categories of “Cases” and “Controversies.” U.S. Const. art. III, § 2.
This case-or-controversy requirement comprises three familiar “strands”:
plaintiffs haven’t contested the issue in their briefs, it is abandoned. See United States v. Ardley,
242 F.3d 989, 990 (11th Cir. 2001).
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(1) standing, (2) ripeness, and (3) mootness. Christian Coal. of Fla., Inc. v. United
States, 662 F.3d 1182, 1189 (11th Cir. 2011). 6
Two case-or-controversy requirements—standing and mootness—are at
issue in this case: The district court held that the plaintiffs lacked standing to
pursue their due process claims, and the same basic considerations that animated
its decision call into question the plaintiffs’ standing to litigate their First
Amendment claims. And separately, in light of the cenotaph’s removal from
Munn Park during the pendency of the appeal, the defendants contend that the case
is now moot.
So, a threshold question about threshold questions: Which to assess first?
The Supreme Court has clarified that a reviewing court can “choose among
threshold grounds for denying audience to a case on the merits,” Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999), and we have routinely availed
ourselves of that flexibility, see, e.g., Cook v. Bennett, 792 F.3d 1294, 1298–99
(11th Cir. 2015) (addressing standing, then mootness); KH Outdoor, L.L.C. v. Clay
County, 482 F.3d 1299, 1302 (11th Cir. 2007) (addressing mootness, then
standing); Tanner Advert. Grp., L.L.C. v. Fayette County, 451 F.3d 777, 785 (11th
Cir. 2006) (same); Fla. Pub. Interest Research Grp. Citizen Lobby, Inc. v. EPA,
6
Or perhaps four. Cf. Made in the USA Found. v. United States, 242 F.3d 1300, 1312 (11th Cir.
2001) (“The political question doctrine emerges out of Article III’s case or controversy
requirement and has its roots in separation of powers concerns.”).
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386 F.3d 1070, 1082–88 (11th Cir. 2004) (addressing standing, then mootness).
Here, for several reasons, we think it best to start with standing.
First, and perhaps most obviously, standing was—at least in part, anyway—
the basis of the district court’s decision below. As we’ll explain shortly, in
addressing the plaintiffs’ First Amendment claim, the district court improperly
conflated the standing and merits inquiries. But even so, that court perceived and
addressed potential problems with the plaintiffs’ standing to sue, and it makes
sense for us to pick up that thread. Mootness issues, by contrast, arose only during
the pendency of this appeal, when the plaintiffs failed to seek a stay and the
defendants proceeded to relocate the cenotaph. Cf. KH Outdoor, L.L.C., 482 F.3d
at 1301–02 (exercising discretion to address mootness before standing where
mootness had been at issue below).
Second, as we have observed before, standing is “perhaps the most
important,” Fla. Pub. Interest, 386 F.3d at 1083 (internal quotation marks and
citation omitted)—or, alternatively, the “most central,” Kelly v. Harris, 331 F.3d
817, 819 (11th Cir. 2003)—of Article III’s jurisdictional prerequisites. Why so?
One reason, which distinguishes standing from its Article III running buddies, is
that whereas ripeness and mootness are fundamentally temporal—ripeness asks
whether it’s too soon, mootness whether it’s too late—standing doesn’t arise and
evanesce; rather, it “limits the category of litigants empowered to maintain a
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lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). Standing asks, in short, whether a particular
plaintiff even has the requisite stake in the litigation to invoke the federal “judicial
Power” in the first place. U.S. Const. art. III, § 2. So, to compare the doctrines at
issue here, the plaintiff whose suit goes moot once had a “Case” but lost it due to
the march of time or intervening events, whereas the plaintiff who lacks standing
never had a “Case” to begin with.
Finally—and as a purely practical matter—at least in this case the standing
inquiry is more straightforward than the mootness inquiry. Assessing the
plaintiffs’ standing simply requires us to determine whether their alleged injuries—
violations of their interests in “preserv[ing] the history of the south,” “expressing
their free speech[] from a Southern perspective,” “‘vindicat[ing] the cause’ for
which the Confederate Veteran fought,” and “protect[ing] and preserv[ing]
Memorials to American veterans”—constitute Article-III-cognizable harms.
Assessing mootness, by contrast, could get messy. Very briefly, the defendants
contend that the cenotaph’s removal from Munn Park moots the case, because the
very thing that the plaintiffs sought to prevent has now occurred—and in large
part, they add, because the plaintiffs failed to obtain (or even seek) a stay pending
appeal. Seems right. But, the plaintiffs respond—not without some force—this
isn’t a situation that “no longer presents a live controversy with respect to which
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the court can give meaningful relief,” Friends of Everglades v. S. Fla. Water
Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks and
citation omitted), because even now a court could grant them exactly what they
want just by ordering the cenotaph moved back to Munn Park. 7 Makes sense. But
alas, it’s not quite that simple, either—we have deemed cases moot despite the
theoretical availability of relief where (as here) the requested remedy would be
impracticable or exceedingly expensive, and especially where (as here) the
appealing party failed to seek a stay. See, e.g., Fla. Wildlife Fed. v. Goldschmidt,
611 F.2d 547, 549 (5th Cir. 1980). But see, e.g., Chafin v. Chafin, 568 U.S. 165,
175 (2013) (holding that a case was not moot because “[n]o law of physics
prevent[ed]” the plaintiff from receiving the relief requested, even if it seemed
unlikely).
As our tennis-match-ish recitation demonstrates, the mootness question here
is hardly cut and dried. All the more reason, we think, to proceed directly to the
simpler and more straightforward standing issue. See Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 (2007) (expressing approval of
7
This case is different from the usual monument-related dispute, which is brought by a plaintiff
who wants a monument moved—rather than, as here, plaintiffs who want to prevent removal.
See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019); Kondrat’yev v. City
of Pensacola, 949 F.3d 1319, 1321–22 (11th Cir. 2020). In that more typical scenario, removal
moots the case because the plaintiff has gotten exactly what he sought. See, e.g., Staley v. Harris
County, 485 F.3d 305, 309 (5th Cir. 2007).
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taking “the less burdensome course” when faced with competing grounds for
dismissal). 8
* * *
For the reasons explained below, we conclude that the plaintiffs have not
established Article III standing to pursue their First Amendment or due process
claims, which we’ll discuss in turn. Because we can dispose of this case on
standing grounds alone, we needn’t—and won’t—address either mootness or the
merits.9
III
Sitting en banc, we recently had occasion to clarify and reiterate a few
foundational principles regarding plaintiffs’ standing to sue. First, we observed
that “Article III of the United States Constitution limits the ‘judicial Power’—and
thus the jurisdiction of the federal courts—to ‘Cases’ and ‘Controversies,’” Lewis
v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019) (en banc) (quoting U.S.
Const. art. III, § 2), and that “[t]he ‘standing’ doctrine is ‘an essential and
unchanging part of the case-or-controversy requirement,” id. (quoting Lujan v.
8
Fla. Wildlife Fed’n, Inc. v. U.S. Army Corps of Eng’rs, 859 F.3d 1306, 1324 (11th Cir. 2017)
(Tjoflat, J., concurring) (“The necessary inquiry courts must make when deciding between
available nonmerits grounds for dismissal is guided by a non-exhaustive and case-specific set of
considerations. Those considerations may include convenience, fairness, the interests served by
structural principles such as federalism and comity, and judicial economy and efficiency.”).
9
We review a district court’s order granting a motion to dismiss de novo. Mulhall v. Unite Here
Local 355, 667 F.3d 1211, 1213–14 (11th Cir. 2012).
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Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Second, we echoed the Supreme
Court’s definitive recitation of the standing doctrine’s three necessary
prerequisites: (1) “an ‘injury in fact’—an invasion of a legally protected interest
that is both (a) ‘concrete and particularized’ and (b) ‘actual or imminent, not
conjectural or hypothetical’”; (2) “a ‘causal connection’ between [the plaintiff’s]
injury and the challenged action of the defendant”; and (3) a “likel[ihood], not
merely speculati[on], that a favorable judgment will redress [the] injury.” Id.
(quoting Lujan, 504 U.S. at 560–61). Finally, we underscored the fundamental
point that “[b]ecause standing to sue implicates jurisdiction, a court must satisfy
itself that the plaintiff has standing before proceeding to consider the merits of her
claim, no matter how weighty or interesting.” Id.
For the reasons that follow, we conclude that the plaintiffs here lack standing
to sue and, accordingly, that the federal courts lack jurisdiction to consider their
claims.
A
We’ll start with the plaintiffs’ First Amendment claim. First, though, a
brief—but we think important—detour. In particular, before addressing the
plaintiffs’ standing, we must pause to correct a methodological error in the district
court’s analysis. From the premises (1) that the defendants here had contended
that the plaintiffs “lack[ed] standing to assert their First Amendment claim because
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the [c]enotaph is government speech” and (2) that the defendants’ argument in that
respect also went “to the merits of the First Amendment claim,” the district court
concluded that it should, in essence, sidestep the standing issue and proceed
directly to the merits. Having done so, the court held that under Pleasant Grove
City v. Summum, 555 U.S. 460 (2009), the cenotaph was indeed a form of
government speech that didn’t trigger First Amendment protection, and it
accordingly dismissed the plaintiffs’ claims on the merits and with prejudice.
In bypassing standing to address the merits, the district court erred. To
repeat what we said recently in Lewis—repeating there what we had said many
times before—“[b]ecause standing to sue implicates jurisdiction, a court must
satisfy itself that the plaintiff has standing before proceeding to consider the merits
of her claim, no matter how weighty or interesting.” 944 F.3d at 1296 (emphasis
added); accord, e.g., Swann v. Secretary, 668 F.3d 1285, 1288 (11th Cir. 2012)
(“[S]tanding is a threshold jurisdictional question which must be addressed prior to
and independent of the merits of a party’s claims.” (quotation omitted)). Indeed,
the Supreme Court has expressly condemned the exercise of a so-called
“‘hypothetical jurisdiction’ that enables a court to resolve contested questions of
law when its jurisdiction is in doubt.” Steel Co., 523 U.S. at 101. “Hypothetical
jurisdiction,” the Court explained, “produces nothing more than a hypothetical
judgment—which comes to the same thing as an advisory opinion.” Id.
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The district court here seems to have gotten tripped up by language in some
of our cases to the effect that if a defendant’s jurisdictional challenge “implicates
an element of the cause of action, courts are to find that jurisdiction exists and deal
with the objection as a direct attack on the merits of the plaintiff’s case.” Dist. Ct.
Order at 9 (internal quotation marks omitted) (quoting Scarfo v. Ginsberg, 175
F.3d 957, 965 (11th Cir. 1999) (Barkett, J., dissenting)). Two problems: First,
although the district court cited Scarfo, the language it quoted actually comes from
Judge Barkett’s dissent in that case. (The majority there affirmed the dismissal of
a case solely on subject-matter-jurisdiction grounds, refusing to look through to the
merits. See 175 F.3d at 958.) That error, though—easy enough to make in the
Westlaw age—was essentially harmless, as the same language appears in majority
opinions that both predate and postdate Scarfo. See, e.g., Morrison v. Amway
Corp., 323 F.3d 920, 925, 929–30 (11th Cir. 2003); Garcia v. Copenhaver, Bell &
Assocs., M.D.’s, 104 F.3d 1256, 1261 (11th Cir. 1997).
The second problem with the district court’s analysis isn’t so easily shrugged
off. The principle embodied in the language that the district court quoted does not,
as that court seemed to assume, create a broad-ranging exception to the Steel Co.
rule—namely, that jurisdiction should be evaluated before, and separately from,
the merits. Rather, it applies only in a particular circumstance, not presented here.
We have distinguished between “facial” and “factual” attacks on subject-matter
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jurisdiction. See Morrison, 323 F.3d at 924 n.5. “Facial attacks challenge subject
matter jurisdiction based on the allegations in the complaint,” whereas “[f]actual
attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings.”
Id. at 925 n.5. In adjudicating a facial attack, “the district court takes the
allegations as true in deciding whether to grant the motion.” Id. By contrast, when
a court confronts a “factual” attack, it needn’t accept the plaintiff’s facts as true;
rather, “the district court is free to independently weigh facts” and make the
necessary findings. Id. at 925.
However—and now we’re getting to the root of the district court’s error—
even in the context of a factual attack, an exception applies, thereby requiring the
district court to accept the plaintiff’s allegations as true, where a factual question
underlying a challenge to the court’s statutory jurisdiction also “implicate[s] the
merits of the underlying claim.” Id. That sort of “intertwine[ment]” occurs, we
have said, “when ‘a statute provides the basis for both the subject matter
jurisdiction of the federal court and the plaintiff’s substantive claim for relief’”—
for instance, as in Morrison, where the defendant disputed the plaintiff’s
contention that he was an “eligible employee” within the meaning of the FMLA, a
necessary prerequisite (under then-prevailing law) to both the court’s statutory
jurisdiction and the merits of the plaintiff’s cause of action. Id. at 923, 926
(quoting Garcia, 104 F.3d at 1262); accord Garcia, 104 F.3d at 1258–62
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(questioning whether the defendant was a covered “employer” within the meaning
of the ADEA). It is in those unique instances, we have clarified—using the
language the district court quoted here—that “[t]he proper course of action . . . is to
find that jurisdiction exists and deal with the objection as a direct attack on the
merits of the plaintiff’s case.” Morrison, 323 F.3d at 925 (quoting Garcia, 104
F.3d at 1261).
This case, it seems to us, is (at least) thrice removed from that scenario.
First, as the district court itself observed, here the defendants’ “jurisdictional attack
[wa]s based on the face of the pleadings”; they took “the allegations in the
plaintiff[s’] complaint . . . as true for purposes of the motion” to dismiss and
argued that the plaintiffs nonetheless lacked standing—and therefore that the
federal courts lacked jurisdiction—as a matter of law. Dist. Ct. Order at 6.
Second, the issue here is not statutory jurisdiction or standing, but rather whether
the plaintiffs have satisfied the “irreducible constitutional minimum” standing
requirements that emerge from Article III. Lujan, 504 U.S. at 560; cf. Steel Co.,
523 U.S. at 97 n.2 (distinguishing statutory-standing cases, in which the merits and
jurisdictional inquiries may “overlap,” from Article-III-standing cases, in which
the jurisdictional question typically “has nothing to do with the text of [a] statute”
(quotation omitted)). Finally, and in any event, there is—for reasons we will
explain in greater detail below—no necessary overlap or “intertwine[ment]” here
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between the merits of the plaintiffs’ constitutional claims and their standing to sue.
Morrison, 323 F.3d at 926.
Long story short: When the district court here bypassed standing issues and
proceeded directly to the merits of the plaintiffs’ First Amendment claim, it
assumed its own jurisdiction in precisely the way that Steel Co. forbids. There
were, we will see, independent and dispositive threshold standing issues that could
(and should) have been decided first.
B
The “‘[f]irst and foremost’ of standing’s three elements” is injury in fact.
Spokeo, 136 S. Ct. at 1547 (alteration in original) (quoting Steel Co., 523 U.S. at
103). And as already noted, to establish an injury in fact, a plaintiff must
demonstrate, among other things, that he or she has suffered “an invasion of a
legally protected interest that is both . . . ‘concrete and particularized.’” Lewis, 944
F.3d at 1296 (quoting Lujan, 504 U.S. at 560). While they may be related
concepts, concreteness and particularity are in fact “quite different.” Spokeo, 136
S. Ct. at 1548. To pass Article III muster, a plaintiff’s alleged injury must be both
concrete and particularized. See id. As we will explain, the plaintiffs’ injuries here
are neither.
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1
First, concreteness. The Supreme Court recently clarified that to be
concrete, an alleged injury must be “de facto” and “real”—and just as importantly,
“not ‘abstract.’” Id. (quotations omitted). And while a concrete injury needn’t
necessarily be “tangible,” id. at 1549, the Court has consistently held that purely
psychic injuries arising from disagreement with government action—for instance,
“conscientious objection” and “fear”—don’t qualify. See Diamond v. Charles, 476
U.S. 54, 67 (1986); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 417–18 (2013).
The plaintiffs’ alleged injuries here are simply too “abstract” to implicate
Article III. Most generally, the plaintiffs assert that the City “abridged [their] right
to free speech . . . by deciding to remove the [c]enotaph which communicated
minority political speech in a public forum.” But surely the naked recitation of a
constitutional claim isn’t sufficient; if it were, every § 1983 plaintiff would, by
definition, have standing to sue. Somewhat (but not much) more specifically, the
plaintiffs assert that the monument’s relocation infringes their interests in
“preserv[ing] the history of the south,” “expressing their free speech[] from a
Southern perspective,” “‘vindicat[ing] the cause’ for which the Confederate
Veteran fought,” and “protect[ing] and preserv[ing] Memorials to American
veterans.” But those injuries, too, are pretty amorphous. What exactly is the (or a)
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“Southern perspective”? What exactly was “the cause for which the Confederate
veteran fought,” and what exactly does it mean to “vindicate” it?
At bottom, it seems to us, the plaintiffs endorse some meaning that they
ascribe to the monument; they agree with what they take to be the cenotaph’s
message because it aligns with their values. And because they agree with that
message, they disagree with—object to—the monument’s removal from Munn
Park. But the plaintiffs’ inchoate agreement with what they take to be the
cenotaph’s meaning or message—and their consequent disagreement with the
monument’s relocation—does not alone give rise to a concrete injury for Article III
purposes. Cf. Diamond, 476 U.S. at 62 (“The presence of a disagreement, however
sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s
requirements.”); Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 485–86 (1982) (holding that “the
psychological consequence presumably produced by observation of conduct with
which one disagrees . . . is not an injury sufficient to confer standing under Art. III,
even though the disagreement is phrased in constitutional terms”).
2
Even if the plaintiffs had articulated a concrete injury, they couldn’t meet the
standing doctrine’s separate particularity requirement. For an alleged injury to be
sufficiently particularized to confer Article III standing, it must “affect the plaintiff
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in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. Put slightly
differently, the injury cannot be “undifferentiated,” but rather must be “distinct” to
the plaintiff. Spokeo, 136 S. Ct. at 1548 (quotations omitted). Accordingly, we
have held, a plaintiff must show that she has been “directly affected apart from her
special interest in the subject” at issue. Koziara v. City of Casselberry, 392 F.3d
1302, 1305 (11th Cir. 2004) (internal quotation marks and citation omitted). If,
instead, “the plaintiff is merely a ‘concerned bystander,’ then an injury in fact has
not occurred.” Id. (quotation omitted). “Article III standing,” the Supreme Court
has emphasized, “is not to be placed in the hands of concerned bystanders,”
because they “will use it simply as a vehicle for the vindication of value interests.”
Hollingsworth v. Perry, 570 U.S. 693, 707 (2013) (internal quotation marks and
citation omitted).
So again, back to the plaintiffs’ allegations here. They claim interests in
“preserv[ing] the history of the south,” “expressing their free speech[] from a
Southern perspective,” “‘vindicat[ing] the cause’ for which the Confederate
Veteran fought,” and “protect[ing] and preserv[ing] Memorials to American
veterans.” But those interests are “undifferentiated,” collective—not “distinct” to
any of the plaintiffs. Spokeo, 136 S. Ct. at 1548 (quotations omitted). As the
Supreme Court emphasized in Sierra Club v. Morton, “a mere ‘interest in a
problem,’ no matter how longstanding the interest and no matter how qualified [an]
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organization is in evaluating the problem, is not sufficient by itself.” 405 U.S. 727,
739 (1972). Rather, “a party seeking review must allege facts showing that he is
himself adversely affected.” Id. at 740.
In Sierra Club, for example, an environmental organization sued under the
Administrative Procedure Act to challenge development plans that would impact a
national forest and park—it did so based on its “special interest in the conservation
and the sound maintenance of the national parks, game refuges and forests of the
country.” Id. at 729–30 (internal quotation marks omitted). The Supreme Court
acknowledged that “[a]esthetic and environmental well-being . . . are important
ingredients of the quality of life in our society,” and it observed that the mere “fact
that particular environmental interests are shared by the many rather than the few
does not make them less deserving of legal protection through the judicial
process.” Id. at 734. But, the Court clarified, a plaintiff must establish more than
just “an injury to a cognizable interest.” Id. at 734–35. Instead, “the party seeking
review [must] be himself among the injured.” Id. at 735. The Court went on to
hold that the organization’s alleged injuries were insufficiently personal because it
hadn’t pleaded “that its members use[d the impacted land] for any purpose, much
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less that they use[d] it in any way that would be significantly affected by the
proposed actions.” 10 Id.
Just so here—aside from their “special interest in the subject[s]” of
Confederate history, veterans memorials, and the so-called “Southern perspective,”
Koziara, 392 F.3d at 1305, the plaintiffs haven’t shown that they have suffered a
particularized Article III injury of the sort that distinguishes them from other
interested observers and thus qualifies them, specifically, to invoke federal-court
jurisdiction. They don’t allege, for example, that they (or, for the organizational
plaintiffs, their members) routinely visited the monument in Munn Park or,
alternatively, that they won’t be able to visit the monument at its new location in
Veterans Park. Rather, their allegations implicate only the generalized desires to
promote Southern history and to honor Confederate soldiers. Accordingly, just as
in Sierra Club, they haven’t shown themselves—in particular—to be “among the
injured,” 405 U.S. at 735—or, in the words of Hollingsworth, that they are more
than “concerned bystanders” attempting to vindicate their “value interests,” 570
U.S. at 707 (internal quotation marks and citation omitted).
* * *
10
Perhaps sensing that their injuries as alleged in the complaint don’t cut it, the plaintiffs on
appeal articulated a different theory—namely, that we should adopt the reasoning underlying
Justice Douglas’s solo dissent in Sierra Club, and grant them standing to speak for inanimate
objects like the cenotaph at issue here. Needless to say, we can’t do that.
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We conclude, therefore, that the plaintiffs have not established Article III
standing to pursue their First Amendment claim. Accordingly, we may not and do
not proceed to the merits. 11
IV
The plaintiffs separately (and summarily) assert a violation of their rights
under the Due Process Clause. The gist of their one-paragraph allegation is that
the City failed “to provide [them] and other like-minded Florida and American
citizens due process, including reasonable notice, an opportunity to be heard and a
hearing before a neutral arbiter, before removing the Historic Munn Park
Cenotaph.”
Once again, we conclude that we are precluded from reaching the merits.
The same standing deficiencies that sunk the plaintiffs’ First Amendment claim—
namely, that their alleged injuries are neither concrete nor particularized—doom
their due process claim as well. As already explained, the plaintiffs assert interests
in “preserv[ing] the history of the south,” “‘vindicat[ing] the cause’ for which the
Confederate Veteran fought,” “protect[ing] and preserv[ing] Memorials to
11
A brief procedural note: Because the district court rejected the plaintiffs’ First Amendment
claim on the merits, it dismissed that claim with prejudice. That was error; the court should have
dismissed the claim on standing—i.e., jurisdictional—grounds, and thus without prejudice. See
Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th
Cir. 2008) (holding that the plaintiff lacked standing and remanding for reentry of dismissal
order without prejudice in a case where a complaint was erroneously dismissed with prejudice).
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American veterans,” and “expressing their free speech[] from a Southern
perspective.” Those interests are simply too vague, inchoate, and undifferentiated
to implicate Article III. 12
V
We hold that the plaintiffs have not alleged a concrete, particularized injury
and that they therefore lack Article III standing. Accordingly, we lack jurisdiction
to consider the merits of their claims.
With respect to the plaintiffs’ First Amendment claim, we VACATE AND
REMAND with instructions that the district court should dismiss without
prejudice for lack of jurisdiction. We AFFIRM the district court’s without-
prejudice dismissal of the plaintiffs’ due process claim.
12
There are two loose ends, both of which pertain to Gardner’s alleged standing as a Lakeland
taxpayer. First, as the district court explained, “[t]he Complaint alleges that the City is using
private donations as well as revenue from the City’s red light camera program to fund the
relocation of the [c]enotaph.” So, according to the plaintiffs’ own complaint, no tax money was
actually used to relocate the monument. The plaintiffs separately asserted in their complaint that
“Mayor Mutz reportedly used City Taxpayer funds to pay for the postage for a fundraising letter”
aimed at raising private donations to move the cenotaph. They admit, though, that in response to
a public-records request seeking information about these fundraising letters, the City clarified
“that no public funds were used” to distribute them. Any attempt to establish taxpayer standing,
therefore, is unavailing.
In their brief to us, the plaintiffs separately (but relatedly?) contend that the government
defendants “use[d] a subterfuge to prevent assertion of taxpayer standing.” We needn’t address
this issue, as it wasn’t raised in the district court. See, e.g., Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (holding that “[t]his Court has repeatedly held that an issue
not raised in the district court and raised for the first time in an appeal will not be considered by
this court” (internal quotation marks and citation omitted)).
26