     Case: 09-50352 Document: 00511291539 Page: 1 Date Filed: 11/11/2010




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

                                              FILED
                                                            November 11, 2010
                                No. 09-50352
                                               Lyle W. Cayce
                                                    Clerk
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE; TEXAS STATE CONFERENCE OF NAACP BRANCHES; AUSTIN
BRANCH OF THE NAACP; HOME BUILDERS ASSOCIATION OF GREATER
AUSTIN, INC.; NATIONAL ASSOCIATION OF HOME BUILDERS, INC.,

                                         Plaintiffs-Appellants,
v.

CITY OF KYLE, TEXAS,

                                         Defendant-Appellee.


                           Cons. w/ No. 09-50505


NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE; TEXAS STATE CONFERENCE OF NAACP BRANCHES; AUSTIN
BRANCH OF THE NAACP; HOME BUILDERS ASSOCIATION OF GREATER
AUSTIN, INC.; NATIONAL ASSOCIATION OF HOME BUILDERS, INC.,

                                         Plaintiffs-Appellees,
v.

CITY OF KYLE, TEXAS,

                                         Defendant-Appellant.


               Appeals from the United States District Court
             for the Western District of Texas (Austin Division)
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                         No. 09-50352 Cons. w/ No. 09-50505

Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.
JENNIFER WALKER ELROD, Circuit Judge:
       This appeal presents two standing issues: (1) whether the National
Association for the Advancement of Colored People, the Texas State Conference
of NAACP Branches, and the Austin Branch of the NAACP (collectively,
“NAACP”) has associational standing; and (2) whether the Home Builders
Association of Greater Austin (“HBA”) and the National Association of Home
Builders (collectively, “Builders Associations”) have organizational standing.
Neither have standing. Accordingly, we AFFIRM the district court’s denial of
declaratory and injunctive relief under the Fair Housing Act (“FHA”).1
Furthermore, we find that Kyle is not entitled to attorneys’ fees under 42 U.S.C.
§ 3613(c)(2) because Plaintiffs’ claims are not frivolous.
                                             I.
       Because the court need not reach any issues beyond standing and the
request for attorneys’ fees, we have set forth only the facts pertinent to those
issues.
       In November 2003, Kyle changed its zoning and subdivision ordinances
governing new single-family residences. The revised ordinances increased the
minimum lot and home sizes for such residences. They also required full exterior
masonry. In November 2005, the National Association for the Advancement of
Colored People, the Texas State Conference of NAACP Branches, and the Austin
Branch of the NAACP (collectively, “NAACP”), and the Builders Associations

       1
        Because Plaintiffs lack standing, we do not reach their FHA claim or the Builders
Associations’ claim that the City retaliated against them for their opposition to the revised
ordinances.

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sued Kyle for violations of the FHA. Specifically, they alleged that the revised
ordinances have caused the price of entry-level, single-family residences to
increase. According to Plaintiffs, this disparately impacts African-Americans and
Hispanics by making new homes unaffordable to more African-American and
Hispanic households than to Caucasian households. To support this allegation,
Plaintiffs relied on a study that the HBA commissioned, which concluded that
the revised ordinances disproportionately excluded certain minority groups from
buying single-family residences in the relevant areas. The HBA is a lobbying
group that focuses on local, state, and national legislative and regulatory
changes that affect the residential-construction industry.
      Plaintiffs sought a declaration that the revised ordinances are invalid
under the FHA as well as a permanent injunction preventing Kyle from
enforcing the revised ordinances in a manner that discriminates against
minorities. After a bench trial, the district court denied declaratory and
injunctive relief, finding that the statistical evidence offered by Plaintiffs was
insufficient to establish a prima facie case of disparate impact or other
discriminatory effects under the FHA. NAACP v. City of Kyle, A-05-CA-979-LY,
2009 WL 6574497, at *4 (W.D. Tex. Mar. 20, 2009). In doing so, the court
“presume[d] without deciding that Plaintiffs have standing to bring this action.”
Id. at *2 n.6. The court also denied Kyle’s motion for attorneys’ fees (as well as
the motion for reconsideration of that denial) because the court found that the
request was premature in light of this appeal.
                                       II.
      This court reviews the district court’s findings of fact for clear error and
its conclusions of law de novo. Villafranca v. United States, 587 F.3d 257, 260


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(5th Cir. 2009). The court examines standing de novo. United States v.
$500,000.00 in U.S. Currency, 591 F.3d 402, 404 (5th Cir. 2009).
                                             A.
       In their briefs, Plaintiffs assert two grounds for standing: the NAACP
claimed associational standing and the Builders Associations claimed organiza-
tional standing. At oral argument, however, Plaintiffs appeared to abandon their
associational-standing claim and argued that their case “rise[s] or fall[s]”
depending on organizational standing. See Jackson v. Watkins, 619 F.3d 463, 466
n.1 (5th Cir. 2010).2
       However, we need not rely on waiver here, as even assuming that the
argument is not waived, Plaintiffs do not have standing under either an
associational or organizational theory. Article III standing is a jurisdictional
requirement. See Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996); Steel Co. v.


       2
        The April 5, 2010 Notice of Appearance shows that the attorney for the Builders
Association also represented the NAACP at oral argument. During the argument, the court
posed the following questions and the attorney for both the NAACP and the Builders
Associations gave the following answers:

       Q: Let’s talk about standing then precisely. You’re either going to have
       associational standing or standing by virtue of the membership of the
       association, correct?
       A: We are actually contending that the HBA has organizational standing, Your
       Honor. We are claiming we had a diversion of resources . . . .
       Q: You rise or fall on organizational standing.
       A: Yes, sir, I agree with that.

Indeed, the amici for Kyle pointed out, “If I understand counsel’s remarks today, they have
essentially waived the NAACP argument [on associational standing]. . . . That means, as
counsel conceded at argument, that standing in this case rises and falls on the direct-injury
argument that the Builders Association has put forth [(organizational standing based on a
diversion of resources)].” On rebuttal, the attorney for the NAACP and the Builders
Association did not dispute this assertion. Instead, he focused almost entirely on
organizational standing and retaliation.

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Citizens for a Better Env’t, 523 U.S. 83, 93–94 (1998). The Supreme Court
recently reemphasized that, “[w]ithout jurisdiction the court cannot proceed at
all in any cause. Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.” Haywood v. Drown, 129 S.Ct. 2108, 2126 (2009) (quoting
Steel Co., 523 U.S. at 94) (emphases added). Standing under the FHA extends
to the full limits of Article III. See Havens Realty Corp. v. Coleman, 455 U.S. 363,
372 (1982). To have standing, an association or organization must satisfy the
well-known requirements of Lujan:
      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.’” 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.” Third, it must be “likely,” as opposed to merely
      “speculative,” that the injury will be “redressed by a favorable
      decision.”
504 U.S. at 560–61 (internal citations and footnote omitted, alterations in
original); see La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 304 (5th Cir.
2000).
      As to the NAACP’s associational-standing claim, there is no evidence in
the record showing that a specific member of the NAACP has been unable to
purchase a residence in Kyle as a result of the revised ordinances that went into
effect in 2003. There is also no evidence showing when and how the revised
ordinances may deprive a NAACP member of the opportunity to acquire a new
residence in Kyle. Instead, Plaintiffs have pointed only to evidence suggesting,


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in the abstract, that some minority members may be less able to afford such
residences due to the revised ordinances. This is insufficient for associational
standing because the alleged injury is neither concrete nor imminent. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring an injury in fact that
is concrete and actual or imminent, not conjectural or hypothetical); Tex.
Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (requiring that,
for associational standing, the members must independently meet the Article III
standing requirements).
      Turning to organizational standing, an organization may establish injury
in fact by showing that it had diverted significant resources to counteract the
defendant’s conduct; hence, the defendant’s conduct significantly and “percepti-
bly impaired” the organization’s ability to provide its “activities—with the
consequent drain on the organization’s resources . . . .” Havens, 455 U.S. at 379.
Such injury must be “concrete and demonstrable.” Id.
      In Havens, the Supreme Court held that the organization had standing
because it had sufficiently alleged that the defendant’s steering practices “have
perceptibly impaired its ability to provide counseling and referral services for
low-and moderate-income homeseekers . . . .” Id. The Court explained, “Such
concrete and demonstrable injury to the organization’s activities—with the
consequent drain on the organization’s resources—constitutes far more than
simply a setback to the organization's abstract social interests . . . .” Id.
      Not every diversion of resources to counteract the defendant’s conduct,
however, establishes an injury in fact. In ACORN, this court explained that
“[t]he mere fact that an organization redirects some of its resources to litigation
and legal counseling in response to actions or inactions of another party is


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insufficient to impart standing upon the organization.” 211 F.3d at 305; see also
Ass’n for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health and Mental
Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994). Applying this
standard, the court held that ACORN did not have organizational standing:
       We conclude that ACORN did not demonstrate at trial any impair-
       ment in facilitating open housing. At best ACORN proved the
       resources it expended defending Lewis . . . ; but it did not prove a
       drain on its resources. ACORN’s executive director, Jeffrey Karlson,
       testified at length at the trial. However, Karlson neither mentioned
       any specific projects ACORN had to put on hold while working on
       Lewis’ case nor did he describe in any detail how ACORN had to
       re-double efforts in the community to combat discrimination.
Id.
       Plaintiffs acknowledge that, under ACORN, their litigation efforts cannot
establish injury in fact. Thus, they point to the HBA’s “prelitigation” responses
to the revised ordinances (before and after they were passed), which include a
$15,000 study on the impact of the revised ordinances and lobbying “to get the
City to back down on the Revised Ordinances.” With respect to the latter,
Plaintiffs submitted exhibits at trial, primarily showing (1) that the HBA held
a meeting on August 9, 2003 to discuss the ordinances; (2) that, in August and
September of 2003, the HBA corresponded with Kyle and others—in six emails
and one fax—about the ordinances; (3) that the HBA drafted a two-page speech
to the members of the Kyle Zoning Commission; and (4) that the HBA obtained
a copy of the minutes of the “Regular Meeting of the Planning and Zoning
Commission,” held on October 14, 2003. The HBA’s vice president of public policy
also testified that she had spent significant time on the revised ordinances,
which she could have spent on other matters.



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      Plaintiffs have not explained how the activities described above, which
basically boil down to examining and communicating about developments in
local zoning and subdivision ordinances, differ from the HBA’s routine lobbying
activities. Furthermore, Plaintiffs have not identified any specific projects that
the HBA had to put on hold or otherwise curtail in order to respond to the
revised ordinances. See ACORN, 211 F.3d at 305. Instead, Plaintiffs have only
conjectured that the resources that the HBA had devoted to the revised
ordinances could have been spent on other unspecified HBA activities. Cf. Ass’n
for Retarded Citizens of Dallas, 19 F.3d at 243 (an injury in fact may not be
“conjectural”). In short, Plaintiffs have not demonstrated that the diversion of
resources here concretely and “perceptibly impaired” the HBA’s ability to carry
out its purpose. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). At
most, they have established “simply a setback to the organization’s abstract
social interests.” Id.; accord Florida State Conference of NAACP v. Browning,
522 F.3d 1153, 1166 (11th Cir. 2008) (upholding standing because, “[i]nstead of
‘abstract social interests,’ the plaintiffs have averred that their actual ability to
conduct specific projects during a specific period of time will be frustrated by
Subsection 6’s enforcement.”). Thus, there is no injury in fact, and consequently,
we must dismiss this case for lack of standing.
                                         B.
      Kyle asks for attorneys’ fees under 42 U.S.C. § 3613(c)(2), which states
that “the court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee and costs.” There is no evidence that Plaintiffs’ claims were
“frivolous, unreasonable, or groundless.” De Jesus Nazario v. Morris Rodriguez,




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554 F.3d 196, 200 n.3 (1st Cir. 2009) (citing Hensley v. Eckerhart, 461 U.S. 424,
429 n.2 (1983)). Therefore, we deny the motion for attorneys’ fees.
      AFFIRMED.




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