Moore v. Bryant

• Decision Date: 31 March 2017
• Docket Number: No. 16-60616,16-60616
• Citation: 853 F.3d 245
• Parties: Carlos E. MOORE, Plaintiff–Appellant v. Governor Dewey Phillip BRYANT, In his Official Capacity, Defendant–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

853 F.3d 245

Carlos E. MOORE, Plaintiff–Appellant

v.Governor Dewey Phillip BRYANT, In his Official Capacity, Defendant–Appellee

No. 16-60616

United States Court of Appeals, Fifth Circuit.

FILED March 31, 2017

Carlos Eugene Moore, Esq., Moore Law Office, P.L.L.C., Grenada, MS, Michael T. Scott, Reed Smith, L.L.P., Philadelphia, PA, for Plaintiff–Appellant.

Douglas T. Miracle, Assistant Attorney General, Office of the Attorney General, Jackson, MS, for Defendant–Appellee.

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 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.]" Id. at 560, 112 S.Ct. 2130 (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, 112 S.Ct. 2130 (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, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Heckler v. Mathews , 465 U.S. 728, 739–40, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) ), abrogated in part on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc. , ––– U.S. ––––, 134 S.Ct. 1377, 188 L.Ed.2d 392 (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 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, 118 S.Ct. 1428, 140 L.Ed.2d 575 (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 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, 104 S.Ct. 3315. 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 Fed.Appx. 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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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, 129 S.Ct. 1125, 172 L.Ed.2d 853 (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 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, 113 S.Ct. 2297, 124 L.Ed.2d 586 (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, 104 S.Ct. 3315 ("The stigmatic injury thus requires identification of some concrete interest with respect to which respondents are personally subject to...