     Case: 18-50710   Document: 00515257445     Page: 1   Date Filed: 01/03/2020




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

                                                                   FILED
                                                               January 3, 2020
                                 No. 18-50710
                                                                Lyle W. Cayce
                                                                     Clerk
DAVID MCMAHON; STEVEN LITTLEFIELD; TEXAS DIVISION, SONS OF
CONFEDERATE VETERANS, INCORPORATED,

             Plaintiffs - Appellants

v.

PRESIDENT GREGORY L. FENVES, In His Official Capacity as President
of the University of Texas at Austin,

            Defendant - Appellee
****************************************************************
 Consolidated with 18-50800

RICHARD BREWER; TEXAS DIVISION, SONS OF CONFEDERATE
VETERANS, INCORPORATED,

             Plaintiffs - Appellants

v.

RON NIRENBERG, Mayor of the City of San Antonio, In his Individual
Capacity; ROBERTO TREVINO, San Antonio City Councilman in his
Individual Capacity; WILLIAM SHAW, San Antonio City Councilman in his
Individual Capacity; REBECCA VIAGRAN, San Antonio City Councilman in
her Individual Capacity; REY SALDANA, San Antonio City Councilman in
his Individual Capacity; SHIRLEY GONZALES, San Antonio City
Councilman in her Individual Capacity; GREG BROCKHOUSE, San Antonio
City Councilman in his Individual Capacity; ANA SANDOVAL, San Antonio
City Councilman in her Individual Capacity; MANUEL PALAEZ, San
Antonio City Councilman in his Individual Capacity; JOHN COURAGE, San
Antonio City Councilman in his Individual Capacity; CLAYTON PERRY, San
Antonio City Councilman in his Official Capacity; CITY OF SAN ANTONIO,

             Defendants - Appellees
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                Appeals from the United States District Court
                      for the Western District of Texas


Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      This consolidated case involves First Amendment and state-law
challenges to the removal or relocation of Confederate monuments from a San
Antonio park and on the University of Texas’s Austin campus. In the
University case, David McMahon, Steven Littlefield, and the Texas Division of
the Sons of Confederate Veterans sued the University of Texas to reverse its
decision to relocate several Confederate statues. In the San Antonio case,
Richard Brewer and the Texas Division of the Sons of Confederate Veterans
first moved to temporarily restrain the City of San Antonio from removing a
Confederate monument and two cannons from a City park and then moved to
compel their reinstallation. Both district courts dismissed Plaintiffs’ First
Amendment claims for lack of standing and then declined to exercise
supplemental jurisdiction over their state-law claims. Plaintiffs appealed. We
affirm the district courts’ dismissals.
                                          I.
      In the early 1900s, Major George Littlefield, a Civil War veteran,
donated funds to the University of Texas to build a “massive bronze arch over
the south entrance to the campus,” a statue of President Woodrow Wilson, and
statues of five Confederate leaders: Jefferson Davis, Robert E. Lee, Albert
Sidney Johnston, and John H. Reagan. The University placed the statues on
its campus in the 1930s, but never built the arch.


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      About a century later, University President Gregory Fenves had the
statues relocated. Plaintiffs David McMahon, Steven Littlefield, and the Texas
Division of the Sons of Confederate Veterans sued to enjoin the University—
first in state court and then in federal court in Austin—to reverse its decision
to relocate the statues. See McMahon v. Fenves, 323 F. Supp. 3d 874 (W.D. Tex.
2018). The Texas trial court dismissed the suit for lack of standing; the Texas
court of appeals affirmed; the Texas Supreme Court denied review. See Bray v.
Fenves, No. 06-15-00075-CV, 2016 WL 3083539 (Tex. App.—Texarkana Mar.
24, 2016, pet. denied) (mem. op.).
      Plaintiffs’ federal complaint alleges First Amendment and Texas
Monument Protection Act violations and claims that the Board of Regents
breached the bequest agreement and exceeded its authority over the
University. The Sons of Confederate Veterans are a non-profit organization,
and McMahon and Littlefield claim to be “descendant[s] of Confederate
veterans,” with Littlefield a descendant of Major Littlefield. Fenves moved to
dismiss for lack of subject-matter jurisdiction, arguing that Plaintiffs lacked
standing because they did not suffer a concrete and particularized injury. The
district court granted Fenves’s motion, holding that Plaintiffs’ familial ties to
Confederate veterans did not mean that relocating Confederate statues, which
allegedly silenced Plaintiffs’ political viewpoint, caused them a cognizable
injury. McMahon, 323 F. Supp. 3d at 879–81. The court, citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 576 (1992), stated that “[o]ur system of
governance assigns the vindication of value preferences to the democratic
political process, not the judicial process.” Id. at 880. After the court dismissed
Plaintiffs’ First Amendment claim, it declined to exercise supplemental
jurisdiction over their remaining state-law claims. Id. at 881–82.



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                                No. 18-50800
      In the San Antonio case, the City Council gave the United Daughters of
the Confederacy permission to erect a “Confederate Monument” in a City park
in 1899. About ten years later, the City placed two cannons next to the
monument. According to meeting minutes from the Albert Sidney Johnston
Camp of the United Confederate Veterans, Congress donated the cannons “for
the benefit of the Confederate Camp.” 1
      About a century later, the City Council passed an ordinance to remove
the monument and cannons from the park. The Texas Division of the Sons of
Confederate Veterans, this time with Richard Brewer, sued the City in federal
court in San Antonio. See Brewer v. Nirenberg, No. SA:17-CV-837-DAE, 2018
WL 8897851 (W.D. Tex. Sept. 17, 2018). They moved for a temporary
restraining order to prevent the City from removing the monument and
cannons. The district court denied the motion, but ordered the City to remove
the monument “in such a manner as to preserve [its] integrity,” and further,
that it “be stored in a secure location in order to protect it from damage or from
being defaced[,] pending resolution of this lawsuit.” Id. at *1. Plaintiffs then
amended their complaint, adding as Defendants the City Councilmembers in
their individual capacities and alleging claims for First Amendment and Texas
Antiquities Code violations, for rendering impossible a charitable gift’s
purpose, and for conversion. The City moved for summary judgment on all
Plaintiffs’ claims, and the individual Defendants moved to dismiss.
      The district court granted the City’s summary-judgment motion on
Plaintiffs’ First Amendment claim, holding that Plaintiffs lacked standing
because their alleged injuries were not particularized. Id. at *4. The San
Antonio court followed the Austin court’s lead, stating that, though “Plaintiffs




      1   Presumably, “Confederate Camp” refers to the Albert Sidney Johnston Camp.
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are likely more deeply attached to the values embodied by the Monument than
the average person walking through [the City park], . . . ‘their identities as
descendants of Confederate veterans do not transform an abstract ideological
interest in preserving the Confederate legacy into a particularized injury.’” Id.
(quoting McMahon, 323 F. Supp. 3d at 880).
      Brewer, unlike the individual Plaintiffs in the University case, also
asserted standing as a municipal taxpayer. The court held that, because the
monument was removed and the funds to do so were already expended,
Brewer’s request to enjoin the removal and the expenditure was moot. Id. at
*5. It also held that, because Brewer no longer sought an injunction and
because taxpayers lack standing to sue for previously expended funds, he
lacked taxpayer standing. Id. With all Plaintiffs’ federal claims dismissed, the
court declined to exercise supplemental jurisdiction over Plaintiffs’ state-law
claims and then denied the individual Defendants’ motion to dismiss as moot.
Id. at *6.
      Plaintiffs in both cases appealed, and the cases were consolidated.
                                          II.
      The issue before us is whether Plaintiffs have standing to bring their
First Amendment claims. 2 We review whether jurisdiction exists de novo.
Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012). The
party asserting jurisdiction has the burden of establishing it. Id. At the motion-
to-dismiss stage, this means “alleg[ing] a plausible set of facts establishing
jurisdiction.” Id.; see FED. R. CIV. P. 12(b)(1).



      2 Plaintiffs’ other claims arise under state law. Both district courts declined to
exercise discretionary supplemental jurisdiction over these state-law claims after
dismissing Plaintiffs’ free-speech claims. Plaintiffs do not challenge this holding on
appeal. Thus, Plaintiffs have forfeited any argument that the district courts erred in
not exercising jurisdiction over these claims.
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      Plaintiffs argue that they have standing under Lujan to bring their free-
speech claims. Brewer argued in his briefing that he has municipal-taxpayer
standing to bring his free-speech claim, but abandoned this ground for
standing at oral argument. We therefore do not address that issue. See, e.g., In
re Thalheim, 853 F.2d 383, 386 (5th Cir. 1988) (“summarily affirm[ing]” the
district court on a claim that appellant “expressly abandoned” at oral
argument).
      To establish standing, Plaintiffs must show that they have suffered an
injury in fact: a personal injury that is traceable to the defendant’s alleged
conduct and that is likely to be redressed by a favorable decision. Lujan, 504
U.S. at 560–61. This injury must be both “concrete” and “particularized.” Id. at
560. An injury is particularized if it “affect[s] the plaintiff in a personal and
individual way.” Id. at 560 n.1. That is, the plaintiff must have “a direct stake
in the outcome.” See Sierra Club v. Morton, 405 U.S. 727, 740 (1972). To satisfy
this injury-in-fact test, Plaintiffs therefore must allege more than an injury to
someone’s concrete, cognizable interest; they must “be [themselves] among the
injured.” Id. at 734–35.
      Plaintiffs argue that, because they have unique ties to these Confederate
monuments and to the Confederacy, these monuments express Plaintiffs’
political viewpoint and, therefore, that Defendants’ removal or relocation of
these monuments violated Plaintiffs’ First Amendment rights. That is,
Plaintiffs claim to have standing because moving these monuments injured
their free-speech rights. But even if Plaintiffs allege a concrete free-speech
interest—i.e., if moving these monuments even implicates the First
Amendment—they fail to show that the violation of this interest is, in fact, an
injury to their rights. This is because, though these ties might give Plaintiffs
strong reasons to care about these monuments, Plaintiffs fail to explain how

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these ties give Plaintiffs a First Amendment-based stake in the outcome of this
litigation. They claim that these monuments are their speech, but fail to
plausibly allege how these ties make that so.
      The United Daughters of the Confederacy, Major Littlefield, and
Congress donated these monuments or the funds to build them. Plaintiffs
argue on appeal that these donors or the beneficiaries of these donations
collaborated with the University or the City when erecting or placing them
and, therefore, co-authored the political speech that the monuments express.
But Plaintiffs never argue that they donated the monuments or the funds for
building them or explain how they “co-authored” the monuments’ speech. So
even if displaying these monuments was private speech, and even if moving
them impermissibly abridged that speech, Plaintiffs have failed to plausibly
show that these monuments are their speech.
      To be clear, Plaintiffs do not assert these free-speech claims on another
party’s behalf. If they did, prudential limitations on standing would likely bar
their suit. See, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[A] plaintiff
generally must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties.”). Nor do they
assert that they attempted to speak but that the University or the City
thwarted that attempt. Cf., e.g., Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819 (1995) (state university denied student group funding to
print student newspaper). Nor that they have been prevented from hearing
speech. Cf., e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576
(1980) (“Free speech carries with it some freedom to listen.”). Instead, they
insist that they suffered a particularized First Amendment injury because
moving these monuments abridged their speech. But their position is based on
a fundamental confusion about what makes an injury particularized.

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      Plaintiffs state several reasons why they are particularly invested in
these monuments. They feel strongly about the message these monuments
supposedly convey about the Confederacy and the Civil War. They claim to be
descendants of Confederate veterans, including one of the donors. They claim
that these monuments were public charitable gifts and that Plaintiffs are
among the intended beneficiaries. For example, they argue that the cannons
were donated for the benefit of the United Confederate Veterans and that the
Sons of Confederate Veterans, as the successor association to that group, is
now that gift’s intended beneficiary. Plaintiffs therefore care deeply about
preserving monuments that convey a viewpoint that they support and that,
they believe, their ancestors donated for their benefit. And Plaintiffs believe
that these ties give them unique reasons for caring about these monuments,
which means that their allegedly unconstitutional removal caused Plaintiffs a
particularized injury—it is particular to them because only they have these
alleged ties. But that is not how particularity works. Plaintiffs confuse having
particular reasons for caring about these monuments with having a
particularized injury.
      Plaintiffs would of course prefer a world where the University and the
City display Plaintiffs’ favored monuments. Plaintiffs provide reasons—
presumably strong ones—for why they are more attached to the monuments’
viewpoint than the general public is. But strong reasons are no better than
weak ones at giving Plaintiffs a direct and personal stake in this litigation. To
be sure, we do not doubt that Plaintiffs are offended by the removal of these
monuments or that they feel this offense more acutely because of their familial
ties. These ties, however, do not distinguish Plaintiffs from any other persons
who might claim offense at the removal of these monuments. This is because
these ties affect only the magnitude of Plaintiffs’ indignation, not the nature of

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their injury. For Plaintiffs, their injury is the pain of believing that a certain
expression of a viewpoint with which they agree has been unconstitutionally
removed from public display. That is a generalized psychological injury, not a
particularized free-speech one—it is felt by all who are offended by this
removal. That Plaintiffs are more offended than someone who is likeminded
yet lacks these ties does not make that generalized injury particularized. Nor
does it morph these monuments into Plaintiffs’ own speech. Plaintiffs have
shown only a rooting interest in the outcome of this litigation, not a direct and
personal stake in it. They are in the same position as any enthusiastic
onlooker.
      Moreover, Plaintiffs’ contentions that they are the beneficiaries of these
gifts or are the successors-in-interest to a beneficiary are red herrings. The
standing this might confer is for their state-law claims—e.g., that the
University breached a bequest agreement or that the City rendered a
charitable gift impossible—not for their First Amendment claims. Thus, these
facts are irrelevant to whether Plaintiffs have standing for their federal claims.
      The fundamental and fatal flaw with Plaintiffs’ argument is that they
conflate agreeing with speech with authoring speech. They claim that their
speech has been abridged, yet conspicuously absent from their allegations is
anything showing this to be true. Plaintiffs merely agree with the ideas that
they feel these monuments express and sued in hopes of keeping them on
display. They are undoubtedly passionate about these ideas and are upset that
symbols of their values, like these monuments, have been removed from the
public square. But what Plaintiffs seek is only to “vindicate their own value
preferences,” not to redress a First Amendment injury particular to them. See
Sierra Club, 405 U.S. at 740. Their passion, however sincere, does not place



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them among the injured. Thus, Plaintiffs have not alleged a particularized
injury.
                                    III.
      Because Plaintiffs have not alleged a particularized injury, they lack
standing to bring their First Amendment claims. We AFFIRM the district
courts’ judgments.




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