     Case: 17-50970      Document: 00515025687   Page: 1   Date Filed: 07/08/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                  No. 17-50970                          FILED
                                                                     July 8, 2019
                                                                   Lyle W. Cayce
CITY OF HEARNE, TEXAS                                                   Clerk

             Plaintiff
v.

MILTON JOHNSON,

             Defendant-Cross Claimant - Appellee
v.

BRYAN F. RUSS, JR.,

             Cross Defendant - Appellant



                 Appeal from the United States District Court
                      for the Western District of Texas


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      This is an appeal from the denial of qualified immunity to a city attorney
in a Section 1983 suit. We conclude the plaintiff does not have standing to
pursue the claim in federal court. We therefore VACATE and DISMISS.
              FACTUAL AND PROCEDURAL BACKGROUND
      Organizers in Hearne, Texas circulated an initiative petition to force a
forensic audit of the city’s finances. Under the City’s charter, a petition, after
being signed by a required number of voters, is submitted to the City. At that
point, a designated City administrator has fifteen days to transmit the petition
    Case: 17-50970      Document: 00515025687      Page: 2   Date Filed: 07/08/2019



                                    No. 17-50970
to the city council. Within ten days of receiving the petition, the city council
may adopt the measure the petition demands or send it to an election. Milton
Johnson, an organizer of the petition here, submitted the petition to the City’s
clerk in March 2016. Johnson alleges the City’s policy was to have the clerk
forward petitions to the county elections administrator for verification of the
required signatures. Here, though, he claims the city attorney Bryan Russ
obtained the signature pages to prevent their delivery to the county elections
administrator in an effort to keep the initiative from appearing on a ballot.
      While Russ was allegedly preventing the signatures’ certification and
before any of them were certified, the city council considered Johnson’s petition
and voted to challenge its validity. That challenge came in the form of a
lawsuit against Johnson in Texas state court on grounds having nothing to do
with the signature requirement. By the end of April 2016, all of the signatures
were delivered for certification.
      Along with his answer to the City’s suit, Johnson filed a third-party
complaint against Russ and his law firm under 42 U.S.C. § 1983.               Russ
removed the suit to federal court in July 2016, relying on the right to remove
when federal and state law claims are joined. See 28 U.S.C. § 1441(c). The
City and Johnson subsequently settled their dispute. Johnson’s claims against
the law firm were dismissed for failure to state a claim. See FED. R. CIV. P.
12(b)(6). The only surviving dispute is Johnson’s Section 1983 claim against
Russ. Russ moved for summary judgment based on qualified immunity, but
the motion was denied. He appealed.
                                    DISCUSSION
      Johnson alleges that Russ violated his “First Amendment right to
petition for redress of grievances as well as his Fourteenth Amendment right
to equal protection.”    We decline to reach the merits of Russ’s qualified


                                         2
     Case: 17-50970       Document: 00515025687          Page: 3     Date Filed: 07/08/2019



                                       No. 17-50970
immunity defense to these arguments because Johnson lacks standing to
assert either. 1
       Neither party has questioned our jurisdiction over this appeal, but “we
must raise the issue of jurisdiction on our own motion if necessary.” Bernhard
v. Whitney Nat’l Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a sua
sponte examination of the district court’s jurisdiction. See United States v.
Creamer Indus. Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the party
asserting federal jurisdiction must show it exists, an obligation that applies
even when we sua sponte raise the question in the review of a summary
judgment determination. Ford v. NYLCare Health Plans of Gulf Coast, Inc.,
301 F.3d 329, 332–33 (5th Cir. 2002).
       It is true that Johnson involuntarily arrived in the federal court because
the defendant Russ removed the case from state court. Once in federal court,
though, Johnson sought the court’s resolution of Section 1983 claims against
Russ. In order to have the court resolve those claims, it is Johnson’s burden to
demonstrate we have jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 339, 342 n.3 (2006).
       The jurisdictional question is whether Johnson has standing. He “must
show: (1) [he] has suffered, or imminently will suffer, a concrete and
particularized injury-in-fact; (2) the injury is fairly traceable to [Russ’s]
conduct; and (3) a favorable judgment is likely to redress the injury.” Houston
Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007).




       1 On appeal, Johnson also asserts a First Amendment retaliation claim and argues
Russ’s actions would chill behavior protected by the First Amendment. He did not present
these arguments in his amended complaint, and he only made passing reference to retaliation
in opposition to Russ’s motion for summary judgment. Plaintiffs waive an argument when
“they fail[] to argue or brief it to the district court” and instead only make general reference
to it. Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir. 2018). Johnson has
waived these arguments.
                                               3
    Case: 17-50970      Document: 00515025687      Page: 4    Date Filed: 07/08/2019



                                   No. 17-50970
Mere allegations are insufficient to defeat a motion for summary judgment.
Instead, through an affidavit or other evidence, the opponent of the motion
must offer “specific facts” that “will be taken to be true.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992) (citations omitted).          In our ana;ysis of
standing, we grant Johnson “all reasonable factual inferences” in deciding
whether any “genuine issue of material fact exists.” Barrett Comput. Servs.,
Inc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).
      We separately examine standing for Johnson’s two current claims.


      I.      First Amendment claim
      The First Amendment prohibits Congress from “mak[ing a] law . . .
abridging . . . the right of the people . . . to petition the Government for a redress
of grievances.”    U.S. CONST. amend. I.         The requirements of the First
Amendment generally apply to the states through the Fourteenth Amendment.
Meyer v. Grant, 486 U.S. 414, 420 (1988). States are not required to grant their
citizens a right to seek reform through popular initiatives, but if they do so,
they must comply with the First Amendment’s protection of freedom of
expression.    John Doe 1 v. Reed, 561 U.S. 186, 195 (2010).              The First
Amendment does not mandate a result once such petitions are received. See
Minnesota State Bd. For Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984).
Johnson claims Russ violated his right to petition because he “tried to keep the
initiative off the ballot by keeping the city council from knowing the number of
eligible signatures on the petition.” Under the City’s charter, the signature
requirement is a preliminary step to the city council’s review of a petition.
Once the city council reviews a petition, it can decide to send it to a ballot or
unilaterally approve the proposed measure.
       The sort of harm Johnson alleges is a “procedural injury.”              “[T]he
claimed injury arises from an alleged failure on the part of the injury-causing
                                          4
    Case: 17-50970     Document: 00515025687       Page: 5   Date Filed: 07/08/2019



                                   No. 17-50970
party to adhere to a prescribed process in adjudicating the petitioner’s
substantive rights, rather than from the substantive decision itself.” Spectrum
Five LLC v. FCC, 758 F.3d 254, 264 n.10 (D.C. Cir. 2014). These injuries occur
when a defendant “fails to follow a . . . procedure, . . . and this failure increases
the risk of future harm.” Christopher T. Burt, Procedural Injury Standing
after Lujan v. Defenders of Wildlife, 62 U. CHI. L. REV. 275, 276 (1995). This
squares with Johnson’s claims because Russ’s alleged misdeeds do not
intrinsically injure Johnson. They only injure him to the extent they affect his
ability to place the petition before the city council and ultimately place the
issue on a ballot.
      It is not enough to create standing to claim that the process for handling
Johnson’s petition was not followed.         A “deprivation of a procedural right
without some concrete interest that is affected by the deprivation — a
procedural right in vacuo — is insufficient to create Article III standing.”
Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Johnson stipulated
in district court that the city council considered the petition and voted to
challenge it in a Texas state court only seven days after he submitted it.
Further, the City’s challenge to the petition was unrelated to the signature
requirement. Johnson attempts to make a fact dispute out of whether the
City’s challenge was related to the signature requirement.             The record,
however, contains the complaint filed in Texas state court. There is no factual
doubt that the City’s challenge to the petition’s validity was on grounds
unrelated to the signature requirement. Johnson also stipulated all of the
signatures were submitted in a timeframe sufficient to place the petition on a
ballot before federal jurisdiction was invoked. See TEX. ELEC. CODE ANN. §§
3.005(c), 41.001(a) (detailing statutory deadlines for placing issues on a ballot).
      Thus, even if Russ failed to follow some required procedure regarding
the petition signatures, his alleged actions were not an injury “connected to [a]
                                         5
    Case: 17-50970     Document: 00515025687    Page: 6   Date Filed: 07/08/2019



                                 No. 17-50970
substantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting
Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir.
2002)). Because Johnson’s claimed procedural injury does not impact any
concrete interest, he lacks standing to claim that Russ violated his First
Amendment right to petition.


      II.     Equal Protection claim
      Johnson’s equal protection claim relies on a theory sometimes referred
to as a “class-of-one” claim. He argues Russ intentionally singled him out for
treatment “different[] from others similarly situated” with “no rational basis
for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000).     Although Russ’s alleged treatment of the signatures is a
procedural injury in the context of the First Amendment right to petition, it
might also be an equal protection injury. A constitutional violation can occur
simply with “the denial of equal treatment resulting from the imposition of [a]
barrier [to a benefit], not the ultimate inability to obtain the benefit.”
Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 666 (1993). That is, an equal protection injury
occurs in “the inability to compete on an equal footing in the . . . process,”
regardless of whether there was any loss of a substantive benefit. Id.
      Here, Russ’s alleged actions did not create any barrier for Johnson.
Again, the city council considered the petition and acted on it seven days after
Johnson submitted it and before any of the signatures were certified. By the
time Johnson’s claims arrived at the district court, the City had processed the
petition as completely as it could have within the necessary timeframes.
Johnson did not encounter any barrier erected by Russ in the processing of the
petition, and he does not have standing to bring his equal protection claim.
                                       ***
                                        6
    Case: 17-50970    Document: 00515025687    Page: 7   Date Filed: 07/08/2019



                                No. 17-50970
      In deciding the proper order to conclude our review, we are guided by the
fact that even though this case was removed from state court, the only claims
are under Section 1983 for violations of the United States Constitution. In a
similar combination of a suit removed from state court that pursued only
federal claims for which the plaintiff had no standing, we affirmed dismissal
of the action and did not consider a remand to state court. Williams v. Parker,
843 F.3d 617, 623 (5th Cir. 2016). Nothing in the current case suggests a
different order.
      The district court’s decision is VACATED and the case is DISMISSED.




                                      7
     Case: 17-50970       Document: 00515025687         Page: 8     Date Filed: 07/08/2019



                                       No. 17-50970
JAMES L. DENNIS, Circuit Judge, dissenting:
       Plaintiff Milton Johnson challenges the City of Hearne’s response to a
petition he submitted seeking to place on the ballot an initiative requiring the
City to conduct a forensic audit of its finances. Johnson alleges that the City’s
mishandling of his petition, on which he and others had secured 517
signatures, violated his First Amendment right to petition the government for
the redress of grievances. 1           Instead of deciding whether the alleged
mishandling violates the Constitution, the majority incorrectly determines
that Johnson lacks a sufficiently concrete injury-in-fact to pursue his claims of
constitutional violation. Because I disagree with this conclusion and instead
believe Johnson has demonstrated an injury-in-fact, I respectfully dissent.
       To reach this result, the majority relies on the proposition that Johnson
asserts merely a “procedural injury” claiming violation of “a procedural right
in vacuo,” and for that reason his injury is insufficiently concrete to confer
standing under the Supreme Court’s decision in Summers v. Earth Island
Institute, 555 U.S. 488 (2009).           Because Johnson’s contention that Russ
mishandled his initiative petition was not, according to the majority,
“connected to a substantive result,” his “procedural injury does not impact any
concrete interest.” Respectfully, the majority’s use of the “procedural injury”
concept here is mistaken.          The Supreme Court in Spokeo, Inc. v. Robins



       1 Although it appears unfair that Johnson should be required to demonstrate standing
to a degree that would survive summary judgment when he was never put on notice that he
would be required to make such a showing because no one moved for summary judgment on
the basis of lack of standing below, see Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301
F.3d 329, 334–39 (5th Cir. 2002) (Benavides, J., specially concurring), Johnson meets even
this heightened requirement. Johnson points to evidence demonstrating that Russ submitted
certain signature pages to the county election administrator belatedly and did not inform the
City Council of a letter from the administrator stating that the petition had insufficient
signatures.
                                              8
    Case: 17-50970     Document: 00515025687       Page: 9     Date Filed: 07/08/2019



                                   No. 17-50970
explained that “a bare procedural violation, divorced from any concrete harm,
[could not] satisfy the injury-in-fact requirement of Article III” because “Article
III requires a concrete injury even in the context of a statutory violation.” 136
S. Ct. 1540, 1549 (2016), as revised (May 24, 2016). The key word in this
Supreme Court opinion for Johnson’s constitutional claim is “statutory.” Id.
(emphasis added).     The Supreme Court’s precedent makes clear that the
“procedural injury” concept was meant for application only to statutory rights
created by Congress, not rights conferred by the Constitution itself, such as
Johnson’s First Amendment claim. See id. (“Congress’ role in identifying and
elevating intangible harms does not mean that a plaintiff automatically
satisfies the injury-in-fact requirement whenever a statute grants a person a
statutory right and purports to authorize that person to sue to vindicate that
right.” (emphasis added)); Summers, 555 U.S. at 497 (noting that conferral of
a procedural right by Congress does not lower the threshold requirement for
demonstrating an injury-in-fact); Massachusetts v. E.P.A., 549 U.S. 497, 517–
18 (2007) (explaining that the right to sue for a procedural injury is vested in
“a litigant to whom Congress has accorded a procedural right to protect his
concrete interests” (internal quotation marks omitted)).
      Although couched in the language and case law of standing, the
majority’s “procedural injury” analysis is, in reality, a veiled determination
that Johnson’s claims lack merit.       As the majority states, “Russ’s alleged
misdeeds . . . . only injure [Johnson] to the extent they affect his ability to place
the petition before the city council and ultimately on the ballot.” This logic,
though perhaps initially appealing, essentially states that Russ’s conduct did
not violate Johnson’s First Amendment rights.                That is, the majority
essentially finds that the First Amendment’s scope is narrower than Johnson
asserts. Whether that is an accurate statement of the law aside, it is certainly
                                         9
    Case: 17-50970    Document: 00515025687        Page: 10   Date Filed: 07/08/2019



                                    No. 17-50970
not a determination to be made under the guise of a dismissal on standing
grounds for lack of subject-matter jurisdiction.        The Supreme Court has
cautioned against passing on the merits of a case through a determination of
lack of jurisdiction: “Dismissal for lack of subject-matter jurisdiction because
of the inadequacy of the federal claim is proper only when the claim is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal controversy.’”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida
Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)); see also
Bell v. Hood, 327 U.S. 678, 684–85 (1946) (holding jurisdiction existed where
“the right of the petitioners to recover under their complaint will be sustained
if the Constitution and laws of the United States are given one construction
and will be defeated if they are given another”). And, as the Supreme Court
further stated, “[i]t is firmly established in our cases that the absence of a valid
(as opposed to arguable) cause of action does not implicate subject-matter
jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the
case.” Steel Co., 523 U.S. at 89.
      Properly considered, the injury-in-fact analysis for Johnson’s First
Amendment claim is simple. The standard injury-in-fact analysis required by
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) makes quick work of
the injury-in-fact requirement: Where “the plaintiff is himself an object of the
action (or forgone action) at issue,” “there is ordinarily little question that the
action or inaction has caused him injury, and that a judgment preventing or
requiring the action will redress it.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992). Stated another way, “the requirement of standing ‘focuses on the
party seeking to get his complaint before a federal court and not on the issues
he wishes to have adjudicated.’” Valley Forge Christian Coll. v. Americans
                                        10
   Case: 17-50970     Document: 00515025687        Page: 11   Date Filed: 07/08/2019



                                 No. 17-50970
United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)
(quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). Johnson claims that Russ
interfered with his constitutional right to petition the government by
mishandling his initiative petition, and the Supreme Court has expressly
recognized that initiative petitions enjoy protection from government
interference under the First Amendment and circulation of an initiative
petition is “an area in which the importance of First Amendment protections
is at its zenith.”   Meyer v. Grant, 486 U.S. 414, 421–24 (1988) (internal
quotation marks omitted) (finding unconstitutional a Colorado law prohibiting
payments to petition circulators as infringing on First Amendment
protections). I submit that, based on this claimed violation, Johnson easily
demonstrates a sufficiently concrete and particular injury-in-fact.
      For these reasons, I respectfully dissent.




                                      11
