CARLOS E. MOORE, Plaintiff - Appellant
GOVERNOR DEWEY PHILLIP BRYANT, In his Official Capacity, Defendant-Appellee
from the United States District Court for the Southern
District of Mississippi
BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
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 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.
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)).
 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
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- 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).
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.
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.
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
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
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
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 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 ...