         Case: 16-17564   Date Filed: 07/28/2017     Page: 1 of 7


                                                      [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-17564
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 2:16-cv-00313-MHH

AUSTIN BURDICK,

                                              Plaintiff-Appellant,

                                versus

JUSTICE ANTHONY M. KENNEDY,
an individual,
JUSTICE STEPHEN G. BREYER,
an individual,
JUSTICE RUTH BADER GINSBURG,
an individual,
JUSTICE SONIA SOTOMAYOR,
an individual,
JUSTICE ELENA KAGAN,
an individual, et al.,

                                              Defendants-Appellees.

                     ________________________

             Appeal from the United States District Court
                for the Northern District of Alabama
                    ________________________

                            (July 28, 2017)
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Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

          Attorney Austin Burdick appeals the district court’s dismissal of his pro se

Fifth Amendment Bivens 1 action and claims for breach of contract and breach of

fiduciary duty.        He filed this suit against Supreme Court Justices Anthony

Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena

Kagan, five United States Supreme Court Justices who Burdick claims have issued

a judicial decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), in violation of

their oath of office and to the detriment of the plaintiff. On appeal, Burdick first

argues that the district court erred by sua sponte dismissing his claims for lack of

standing. He claims that he suffered a concrete injury when the Justices “rendered

the Constitution a nullity” in Obergefell, preventing him from making certain

arguments to “protect his clients’ constitutional rights” and depriving him of his

interest in his law license. In the alternative, Burdick argues that the district court

erred by dismissing his claims on the independent grounds of judicial immunity

and failure to state a plausible claim. After thorough review, we affirm.

          We review de novo a dismissal for lack of standing. Scott v. Taylor, 470

F.3d 1014, 1017 (11th Cir. 2006).            We review factual findings underlying a

standing determination for clear error. Am. Civil Liberties Union of Fla., Inc. v.

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          Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1195 (11th Cir. 2009). Although a

complaint need not set forth detailed factual allegations, the plaintiff must allege

sufficient facts to render a claim “plausible on its face.”     Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A complaint does not “suffice if it tenders

naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

      The party invoking federal jurisdiction bears the burden of establishing

standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The “irreducible

constitutional minimum of standing” comprises three elements: injury-in-fact,

causation, and redressability. Id. at 560–61. “At the pleading stage, general

factual allegations of injury resulting from the defendant’s conduct may suffice

. . . . ” Id. at 561. To establish injury-in-fact, a plaintiff must show that he

“suffered an invasion of a legally protected interest that is concrete and

particularized and actual or imminent, not conjectural or hypothetical.” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quotations omitted). For an injury to

be “concrete,” it must be “real, and not abstract.” Id. (quotations omitted). For an

injury to be “imminent,” “the anticipated injury [must] occur with[in] some fixed

period of time in the future.” Am. Civil Liberties Union of Fla., 557 F.3d at 1193

(quotations omitted, second alteration in original). A “legally cognizable injury

requires infringement of an interest protected by statute or otherwise.” Primera


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Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d 1295, 1304

(11th Cir. 2006) (quotation and alteration omitted). “That interest must consist of

obtaining compensation for, or preventing, the violation of a legally protected

right.” Id. (quotation omitted). Indeed, standing requires “personal injury suffered

by [a party] as a consequence of the alleged constitutional error, other than the

psychological consequence presumably produced by observation of conduct with

which one disagrees.”      Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 486 (1982) (quotation and

citation omitted). “[S]tanding is not measured by the intensity of the litigant’s

interest or the fervor of his advocacy.” Id.

      Here, the district court correctly concluded that Burdick has not articulated

an injury-in-fact sufficient for standing. Burdick, a lawyer practicing law primarily

in the Northern District of Alabama, claimed in his complaint that his practice of

law is primarily focused on the protection of basic constitutional rights of United

States citizens. He alleged that through the majority opinion in Obergefell v.

Hodges, 135 S. Ct. 2584 (2015), the five United States Supreme Court justices

named in the complaint “rendered the Constitution a nullity, [and] deprived [him]

of a property right interest in his law license.” He has said little else to explain the

effect of the ruling on his interests. At a hearing before the district court, Burdick

argued that his law license has “been severely crippled” by the decision, he “can’t


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use [his law license] for its full intended purpose[,]” and he would enjoy legal

practice less because he could no longer argue that “the 14th Amendment protects

[his] clients against state action . . . .” On appeal, Burdick reiterates that he

suffered a concrete injury because the Justices “rendered the Constitution a nullity”

in Obergefell by preventing him from making certain arguments to “protect his

clients’ constitutional rights” and therefore depriving him of his “property right

interest in his law license[,]” “all income that he would have received had the

Constitution not been destroyed[,]” and the enjoyment he derives “from utilizing

his law license . . . [to] protect[] the constitutional rights of [his] clients.”

       Burdick has not said nearly enough to state an injury resulting from the

Obergefell decision. In Obergefell, 135 S. Ct. 2584, the Supreme Court held that

same-sex couples may exercise the fundamental right to marry in all states. With

nothing more to go on than these bald allegations, we are left entirely to guess

what his clients’ interests are, and how they will be implicated by the decision in

Obergefell. All he tells us is his clients have constitutional rights that have been

“destroyed” by Obergefell. On this record, we cannot say that the district court

erred -- much less “belittle[d]” Burdick’s claim -- by concluding that Burdick’s

general proposition that he anticipates he will lose arguments that are based on

legal theories that the Supreme Court rejected in Obergefell does not implicate a

“legally protected interest.”       Indeed, at the hearing before the district court,


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Burdick acknowledged that he has not lost his law license, and his participation

throughout this case has revealed that he is still able to practice law and make

arguments in the federal courts. His only complaint, it seems, is that the arguments

he makes on behalf of his clients will not be successful in light of Obergefell. But

because there is no constitutional provision, statute, or other authority to suggest

that a court must accept a party’s arguments, a lawyer has no legally protected

interest in winning those arguments. Cf. United States v. S. Fla. Water Mgmt.

Dist., 922 F.2d 704, 711 (11th Cir. 1991) (noting in Rule 24 intervention context

that, if a railroad defendant is “free to suspend its service,” the economic interest of

the intervenor factory relying on the railroad would not be “legally protectable”);

cf. also Hensley v. Eckerhart, 461 U.S. 424, 449 (1983) (Brennan, J., concurring in

part and dissenting in part) (“[A]ttorneys can never be 100% certain they will win

even the best case.”). Without any legally protected interest in winning his legal

arguments, Burdick has failed to identify an injury-in-fact.

      And even if Burdick had a legally protected interest in winning his

constitutional arguments -- and plainly he did not -- the district court did not err in

concluding that Burdick’s allegations are “vague,” “abstract assertion[s]” that

were insufficient to establish a concrete injury. Burdick’s complaint identifies no

specific legal argument he has lost or will imminently lose as a result of

Obergefell. Nor does it identify any factual basis for his allegation that Obergefell


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will cause him to lose income.       Burdick’s abstract allegations simply do not

demonstrate any actual or imminent concrete injury. See Elend v. Basham, 471

F.3d 1199, 1206–09 (11th Cir. 2006) (holding that, without details about when,

where, and how future protests would occur, general allegations regarding secret

service’s policy of restricting protestors to protest zones and plaintiffs’ intent to

attend future protests were insufficient to demonstrate an imminent, concrete

injury); see also City of Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983)

(holding that plaintiff lacked standing where alleged threat from police chokehold

was conditional).      Accordingly, the district court did not err by dismissing

Burdick’s claims for lack of standing.

      Because we affirm the district court’s dismissal for lack of a justiciable case

or controversy, we have no occasion to address the district court’s other grounds

for dismissal.

      AFFIRMED.




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