     Case: 16-60616   Document: 00513935604     Page: 1   Date Filed: 03/31/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                 No. 16-60616                          FILED
                                                                 March 31, 2017
                                                                  Lyle W. Cayce
CARLOS E. MOORE,                                                       Clerk

             Plaintiff - Appellant

v.

GOVERNOR DEWEY PHILLIP BRYANT, In his Official Capacity,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Southern District of Mississippi


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
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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 (1992). “First, the plaintiff must have suffered an injury in fact—


       1 Plaintiff raised additional standing theories before the district court including a
Thirteenth Amendment claim and a claim that the Mississippi flag incited racial violence.
He has abandoned those theories here.
       2 Dismissals for lack of Constitutional standing are granted pursuant to Rule 12(b)(1).

See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011).
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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 (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 (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 (1984) (quoting Heckler v.
Mathews, 465 U.S. 728, 739–40 (1984)), abrogated in part on other grounds by
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (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
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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
(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
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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. 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 F. App’x 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 (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
(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



       3 In Horne, the plaintiffs argued that Establishment Clause cases were relevant to
show standing. See Br. for Appellants, Nat’l Ass’n for the Advancement of Colored People v.
Horne, at 23 n.5, 626 F. App’x 200 (9th Cir. 2015) (No. 13-17247), 2014 WL 1153838 (arguing
that Establishment Clause cases could demonstrate stigmatic injury standing in an equal
protection case). Nonetheless, without citation to Establishment Clause cases, the Ninth
Circuit straightforwardly applied Allen.
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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 (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 (“The stigmatic injury thus requires
identification of some concrete interest with respect to which respondents are
personally subject to discriminatory treatment.             That interest must
independently satisfy the causation requirement of standing doctrine.”);
Bowlby v. City of Aberdeen, 681 F.3d 215, 227 (5th Cir. 2012) (noting that an
equal protection claim requires proof of unequal treatment).
      Second, Plaintiff argues that Allen is inapplicable.         On Plaintiff’s
reading, Allen does not apply because “the allegation here is that the State has
itself acted with a discriminatory purpose in the design of its state flag, that
Plaintiff is unavoidably, and frequently, and personally exposed to the state’s
demeaning and discriminatory message, and that it has impacted him
personally in a variety of ways.” However, Plaintiff’s reading does not comport
with Allen’s text or its subsequent interpretation.        Allen held that when
plaintiffs ground their equal protection injuries in stigmatic harm, they only
have standing if they also allege discriminatory treatment. Allen, 468 U.S. at
755. That Plaintiff alleges that he personally and deeply feels the impact of
Mississippi’s state flag, however sincere those allegations are, is irrelevant to
Allen’s standing analysis unless Plaintiff alleges discriminatory treatment.
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See, e.g., Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 822 (7th
Cir. 2014) (holding that the Allen inquiry is unchanged when plaintiffs claimed
to be part of small group facing discrimination); In re U.S. Catholic Conference,
885 F.2d 1020, 1026 (2d Cir. 1989) (finding that under Allen clergy do not have
special standing status based on the sincerity of their beliefs); Mehdi v. U.S.
Postal Serv., 988 F. Supp. 721, 731 (S.D.N.Y. 1997) (“Plaintiffs in this case have
not alleged a personal denial of equal treatment, and thus any claim that the
Postal Service has denied the plaintiffs equal protection by refusing to put up
the Muslim Crescent and Star must be dismissed for want of standing.”).
      Third, Plaintiff contends that if he does not have standing to challenge
Mississippi’s flag then no plaintiff would ever have standing to challenge
discriminatory government speech.              Preliminarily, in cases where the
Government engages in discriminatory speech, that speech likely will be
coupled with discriminatory treatment. 4          See, e.g., Allen, 468 U.S. at 755
(distinguishing Heckler because there the stigmatic speech was coupled with
discriminatory treatment). In any event, “[t]he assumption that if [Plaintiff
has] no standing to sue, no one would have standing, is not a reason to find
standing.”    Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 489 (1982) (quoting Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)).
      2. Hostile Workplace and Physical Injury
      Plaintiff next argues, in an analogy not presented to the district court,
that he has standing because he encounters the flag in his work as a prosecutor
and “[i]t is well established that the presence of a Confederate flag even in a
place of private employment, and even less than continuously, can create or



      4 Moreover, discriminatory government speech would certainly be useful in proving a
discriminatory treatment claim, because it loudly speaks to discriminatory purpose.
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contribute to an actionable ‘hostile work environment.’” He also contends that,
as a result of his exposure to the Mississippi flag, he suffers various physical
injuries.
      Both arguments suffer the same defect as Plaintiff’s stigmatic-injury
claim. Plaintiff’s exposure to the Mississippi flag in courtrooms where he
practices and his alleged physical injuries resulting from that exposure
demonstrate that he strongly feels the stigmatic harm flowing from the flag.
Allen recognized that “[t]here can be no doubt that [stigma] is one of the most
serious consequences of discriminatory government action . . . .” Allen, 468
U.S. at 755. Nonetheless, Allen found that stigma alone was insufficient to
satisfy the injury-in-fact requirement. Id. Accordingly, under Allen and its
progeny, stigmatic injury does not transform into injury in fact just because
the source of the stigmatic injury is frequently confronted or the stigmatic
harm is strongly, sincerely, and severely felt. See, e.g., Newdow v. Lefevre, 598
F.3d 638, 643 (9th Cir. 2010) (applying Allen even when the Plaintiff argued
that he personally suffered harm as a result of the Government’s stigmatizing
speech); Harris v. United States, 447 F. Supp. 2d 208, 212 (D. Conn. 2005)
(“However, it is not the seriousness of the harm but its generality that
determines whether a federal court is the proper forum for addressing it.”).
Moreover, analogizing Plaintiff’s equal protection claim to a hostile work
environment claim fails for the same reason that the Establishment Clause
analogy fails: under Title VII, 42 U.S.C. § 2000e et seq., exposure to a hostile
work environment alone is the injury; under the Equal Protection Clause it is
not. Compare Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (noting that
Title VII “is not limited to economic or tangible discrimination . . . [but also]
includes requiring people to work in a discriminatorily hostile or abusive
environment” (internal quotation marks and citations omitted)), with Allen,
468 U.S. at 755 (equal protection standing requires more than stigma alone).
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Accordingly, we conclude that Plaintiff’s hostile workplace and physical injury
theories are insufficient to plead injury in fact.
      3. Harm to Plaintiff’s Daughter
      Last, Plaintiff alleges in his proposed Fourth Amended Complaint that
his daughter is harmed by two Mississippi statutes, which require her to be
exposed to the Mississippi flag in school. Section 37-13-5 requires that the
Mississippi flag be flown in close proximity to all public schools and that “there
shall be given a course of study concerning . . . the flag of the State of
Mississippi. The course of study shall include the history of [the] flag and what
[it] represent[s] and the proper respect therefor.” Miss. Code § 37-13-5(1), (3).
Section 37-13-7 requires that “[t]he pledge of allegiance to the Mississippi flag
shall be taught in the public schools of this state[.]” Miss. Code § 37-13-7(2).
Plaintiff does not allege that either statute has yet violated his daughter’s
rights; instead, he claims that when she begins school she will “be forced to
learn, adopt, utter or communicate speech which she finds objectionable” in
violation of the First Amendment.
      The district court rejected this standing theory. It reasoned that Section
37-13-5 does not facially violate the Constitution because it merely requires
“children to be taught about the history of the Mississippi flag” and that
Section 37-13-7 does not facially violate the Constitution because it “does not
require any student to recite the Mississippi pledge.” Finding that Plaintiff
failed to plead that either statute clearly risked violating his daughter’s
constitutional rights, the district court concluded that Plaintiff could not show
injury. We agree.
      The district court properly construed both Mississippi statutes.             As
always, statutory interpretation begins “with the plain language and structure
of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 350 F.3d 482, 486
(5th Cir. 2003). Section 37-13-5 requires that Mississippi students be “given
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a course of study” concerning the Mississippi flag and be taught “proper
respect” for the flag. Miss. Code § 37-13-5(3). Plaintiff argues that the statute
mandates that his daughter be taught to “respect” the flag “no matter its
origins, no matter the malicious intent of the State in adopting it, and no
matter the destructive and demoralizing impact on young minds.” We do not
agree that the statute requires so much. Instead, the statute demands that
children be taught “proper respect” for the flag. “Proper” means “correct” or
“marked by suitability, rightness, or appropriateness.” Merriam-Webster’s
Collegiate Dictionary 932 (10th ed. 2002). The words “correct” or “suitable”
imply neither a positive nor a negative level of respect; under a plain reading
of the statute all that is required to be taught is the history of the flag and the
respect that it is due, whatever that may be. Likewise, Section 37-13-7 does
not require that students pledge allegiance to the Mississippi flag. Instead,
the statute only requires that the Mississippi pledge be taught in public
schools, without mandating that schools teach a particular viewpoint about the
pledge. See Miss. Code § 37-13-7(2). Accordingly, neither statute requires
anything more than that students be taught about the flag and the pledge. The
statutes do not facially violate the Constitution.          See, e.g., Freiler v.
Tangipahoa Par. Bd. of Educ., 185 F.3d 337, 342 (5th Cir. 1999) (absent
constitutional violation, states “have the right to prescribe the academic
curricula of their public school systems”).
      Because neither statute compels the violation of Plaintiff’s daughter’s
rights, Plaintiff’s claim boils down to an assertion that Mississippi could, but
need not, apply its law in an unconstitutional way. This assertion is too
speculative to support standing. See, e.g., Henderson, 287 F.3d at 380 (finding
that plaintiffs did not have standing to bring a facial challenge when plaintiffs’
alleged injury was that a newly created state council might violate the
Establishment Clause).
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                                       III
      We agree with the district court that Plaintiff failed adequately to plead
injury in fact and therefore failed to establish standing. See Okpalobi v. Foster,
244 F.3d 405, 425 (5th Cir. 2001) (en banc) (“If any one of these three
elements . . . is absent, plaintiffs have no standing in federal court[.]”).
Accordingly, we need not reach causation, redressability, or the political
question doctrine.
      AFFIRMED.




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