# Voice of the Experienced v. Cantrell

> District Court, E.D. Louisiana · October 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10190049

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10190049

## How later opinions describe it (automated extraction)

- explaining that an injury to the “fundamental right to vote” can qualify as an injury in fact
- explaining that an injury to the “fundamental right to vote” can qualify as an injury in fact
- explaining that “[a] violation of the APA’s notice-and-comment requirements is one example of a deprivation of a procedural right”
- explaining that “the party invoking federal jurisdiction” bears the burden of establishing standing

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VOICE OF THE EXPERIENCED CIVIL ACTION

VERSUS No. 23-5067

LATOYA CANTRELL SECTION I

ORDER & REASONS
Before the Court is a motion1 to remand the above-captioned matter to Orleans
Parish Civil District Court filed by plaintiff Voice of the Experienced (“VOTE”).
Defendant, Mayor LaToya Cantrell in her official capacity (“Mayor Cantrell”),
opposes the motion.2 On October 2, 2023, the Court issued an order and reasons
deferring ruling on the motion and ordering the parties to submit supplemental
briefing regarding VOTE’s standing to bring this lawsuit.3 The parties each
submitted a supplemental memorandum.4 The parties also submitted responses5 to
each other’s memoranda. For the reasons below, the Court now grants VOTE’s motion
to remand.
I. BACKGROUND
This case involves the City of New Orleans’ (the “City”) reallocation of $32
million for the construction of Phase III, an addition to the Orleans Justice Center

1 R. Doc. No. 5.
2 R. Doc. No. 11.
3 R. Doc. No. 26.
4 R. Doc. Nos. 27, 28.
5 R. Doc. Nos. 29, 30.
(“OJC”) required to bring the jail into compliance with the consent decree in Jones v.
Gusman, E.D. La. Case No. 12-859. On September 1, 2023, VOTE filed a lawsuit in
Louisiana state court, seeking declaratory and injunctive relief against Mayor

Cantrell in her official capacity, based on the City’s reallocation of funds from its
capital budget.6 Such funds are to be used to complete Phase III, although VOTE
alleges that this reallocation was “in violation of the City’s Home Rule Charter.”7
VOTE also moved for the entry of a temporary restraining order (“TRO”) and a
preliminary injunction. On that same day, the Orleans Civil District Court denied
VOTE’s request for a TRO and scheduled a hearing for September 5, 2023.8

Mayor Cantrell then removed this matter to federal court, asserting that this
Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because VOTE’s
state court petition “demands the Mayor and/or City Council be enjoined from
compliance with the federal mandates of the consent decree.”9 VOTE now moves to
remand this case to state court, asserting that this Court lacks subject matter

6 R. Doc. No. 1-2 (VOTE’s state-court petition for declaratory and permanent
injunctive relief), at 50, ¶¶ 15–16.
7 Id.
8 Id. at 1.
9 R. Doc. No. 1, ¶ 9.
jurisdiction because this case does not involve a federal question, but “concerns only
municipal and state-law claims.”10
As stated, the Court previously ordered the parties to file supplemental

briefing on the issue of standing, explaining that—even if the Court finds it has
federal question jurisdiction over the case—it must remand the case to state court if
it finds that VOTE lacked Article III standing at the time of removal. The parties
timely filed supplemental briefing and responses.11
II. STANDARD OF LAW

a. Standing
Pursuant to the federal removal statute, a civil action brought in a state court
may be removed to the federal district court embracing the place where such action

10 R. Doc. No. 5-1, at 3. The Court notes that VOTE also moved to expedite its motion
to remand, R. Doc. No. 6, and the Court denied that motion. R. Doc. No. 15. VOTE
then moved for reconsideration of that decision, R. Doc. No. 16, and the Court denied
that motion as well. R. Doc. No. 19. In its motion for reconsideration, VOTE stated
that it has now learned of additional instances where Mayor Cantrell allegedly
“violated municipal and state law to fast-track the construction of Phase III.” R. Doc.
No. 16-1, at 5. Specifically, VOTE argues that the Sheriff’s current conditional use
permit does not authorize the construction of Phase III and that the building permits
issued by the City of New Orleans were issued ultra vires and were therefore illegal.
Id. at 5–8. Mayor Cantrell responds that this zoning issue was “specifically addressed
by Magistrate Judge North in an October 14, 2022 minute entry,” where “the Court
directed the city to proceed without regard to the [City Planning Commission]’s and
the [City] Council’s failure to act on a zoning variance, as the Court perceives those
omissions to be primarily political in nature and, in any event, it has never been clear
to this Court that a variance or new conditional use permit is required for this project
in the first instance.” R. Doc. No. 20, at 2 (quoting Jones v. Gusman, E.D. La. Case
No. 12-859, R. Doc. No 1564, at 2–3). Mayor Cantrell also argues that VOTE failed to
timely appeal the zoning approval. Id. at 2–3. Because the motion pending before the
Court is a motion to remand, the Court does not address any of these substantive
arguments.
11 R. Doc. Nos. 27, 28, 29, 30.
is pending so long as the federal courts have original jurisdiction over that action. 28
U.S.C. § 1441(a). In a removed case, the defendant, as the party invoking federal
jurisdiction, bears the burden of establishing that all elements of jurisdiction—

including Article III standing—existed at the time of removal. Williams v. Parker,
843 F.3d 617, 621 (5th Cir. 2016) (explaining that “the party invoking federal
jurisdiction” bears the burden of establishing standing); Buras v. Hill, No. 22-CV-753,
2023 WL 4234393, at *1 (E.D. Tex. June 28, 2023) (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)). “Article III of the Constitution limits federal courts’
jurisdiction to certain ‘Cases’ and ‘Controversies.’” Tenth St. Residential Ass’n v. City

of Dallas, 968 F.3d 492, 499 (5th Cir. 2020) (citing Clapper v. Amnesty Int’l USA, 568
U.S. 398, 408 (2013)). “The doctrine of standing is ‘an essential and unchanging part
of the case-or-controversy requirement of Article III.’” Id. (quoting Defs. of Wildlife,
504 U.S. 555, 560 (1992)).
To invoke the jurisdiction of the federal courts, “three well-known
requirements” must be met. Id. “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.’”
N.A.A.C.P. v. City of Kyle, 626 F.3d 233, 237 (5th Cir. 2010) (citing Defs. of Wildlife,
504 U.S. at 560–61) (cleaned up). “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. (citing Defs. of Wildlife, 504 U.S.
at 560–51) (cleaned up). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’
that the injury will be ‘redressed by a favorable decision.’” Id. (citing Defs. of Wildlife,
504 U.S. at 560–51) (cleaned up).

Because Article III standing is part of the Court’s subject matter jurisdiction,
if the Court determines that the plaintiff does not have Article III standing to bring
this lawsuit in federal court, it must remand the case to state court. See 28 U.S.C.
§ 1447(c) (“If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”); see also Buras, 2023 WL
4234393, at *1–4 (explaining that, once a district court concludes a plaintiff lacks

standing in a removed case, “remand is required, not dismissal”).
b. Federal Question Jurisdiction
As discussed, removal is proper only if the federal courts have ‘original
jurisdiction’ over the action. 28 U.S.C. § 1441(a). Federal district courts have “original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. This form of original jurisdiction is known as federal
question jurisdiction.

Generally, “questions concerning federal question jurisdiction are resolved by
application of the ‘well-pleaded complaint’ rule.” Hart v. Bayer Corp., 199 F.3d 239,
243 (5th Cir. 2000) (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152-
53 (1908)). That rule “provides that the plaintiff’s properly pleaded complaint
governs the jurisdictional inquiry.” Id. at 243–44. “If, on its face, the plaintiff’s
complaint raises no issue of federal law, federal question jurisdiction is lacking.” Id.
at 244 (citing Franchise Tax Bd. of the State of Cali. v. Constr. Laborers Vacation
Trust for S. Cali., 463 U.S. 1, 10, (1983)).
As explained, the removing party “bears the burden of demonstrating that a

federal question exists.” Gulf Coast Plastic Surgery, Inc. v. Standard Ins. Co., 562 F.
Supp. 2d 760, 764 (E.D. La. June 3, 2008) (Vance, J.) (citing In re Hot-Hed Inc., 477
F.3d 320, 323 (5th Cir. 2007)). “Any ambiguities are construed against removal
because the removal statute should be strictly construed in favor of remand.” Smith
v. Barrett Daffin Frappier Turner & Engel, L.L.P., 735 F. App’x 848, 852 (5th Cir.
2018) (internal quotation omitted); see also African Methodist Episcopal Church v.

Lucien, 756 F.3d 788, 793 (5th Cir. 2014) (“any contested issues of facts and any
ambiguities of state law must be resolved in favor of remand” (quotation omitted)).
In Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005),
“the Supreme Court recognized that ‘in certain cases federal-question jurisdiction will
lie over state-law claims that implicate significant federal issues.’” Mitchell v.
Advanced HCS, L.L.C., 28 F.4th 580, 588 (5th Cir. 2022) (quoting Grable, 545 U.S. at
312). “The Grable doctrine provides that, even when a state court petition pleads only

state law causes of action, federal jurisdiction nonetheless exists ‘if a federal issue is:
(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the federal-state balance approved by
Congress.’” Box v. PetroTel, Inc., 33 F.4th 195, 201 (5th Cir. 2022) (quoting Gunn v.
Minton, 568 U.S. 251, 258 (2013)). Some courts have found that Grable’s four prongs
are satisfied in the context of a third party’s challenge to actions taken pursuant to a
federal consent decree. See, e.g., Police Ass’n of New Orleans v. City of New Orleans,
572 F. Supp.3d 265 (E.D. La. 2021) (Morgan, J.); Los Angeles Police Protective League
v. City of Los Angeles, No. 08-00784, 2008 WL 11454760 (C.D. Cal. June 20, 2008),

aff’d 314 F. App’x 72 (9th Cir. 2009).
III. ANALYSIS
a. Standing
As discussed, for this Court to have jurisdiction over the instant case, Mayor
Cantrell must establish that VOTE has Article III standing. To demonstrate VOTE’s

standing, Mayor Cantrell must first demonstrate that VOTE has suffered an injury
in fact. Defs. of Wildlife, 504 U.S. at 560. An association or organization can establish
injury in fact either through “associational standing” or through “organizational
standing.” OCA-Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017). For
“associational standing” to exist, the association’s members must have individual
standing and the interests the association seeks to protect must be germane to its
purpose. Id. Pursuant to the organizational standing theory, an organization can

establish standing in its own name if it meets the same standing test that applies to
individuals. Id.
According to Mayor Cantrell, VOTE has standing based on its allegation that
“the City ‘has deprived VOTE, its membership, and the general public of their
statutorily and constitutionally guaranteed right to participate in any hearing
concerning the Capital Budget’” and deprived VOTE of its “right to engage in the
democratic process.”12 It therefore appears Mayor Cantrell is arguing that VOTE has
both associational standing through its membership and organizational standing in
its own name. Mayor Cantrell argues that VOTE has alleged an injury that is

“concrete and particularized” as well as “actual” through these allegations.13
VOTE’s petition states that “VOTE has standing to protect its membership’s
franchise, to make certain that it is not diluted, diminished or negated in any
manner[.]”14 According to VOTE, “VOTE and its membership have vested economic
and political interests in the democratic, public and legislative process that regulates
1) the development of the City’s annual Capital and Operating Budget; and 2) OJC’s

use of its property. VOTE and its members regularly participate in public hearings
and comment periods concerning these matters.”15 Further, “[m]any of VOTE’s
members have been in jail in OJC, are currently in jail at OJC, or have loved ones
incarcerated at OJC.”16
VOTE explains that, “[a]s an organization, VOTE devotes significant economic
resources to efforts targeted at reforming the conditions at OJC. These resources
include not only money, but also the thousands of hours in time and effort expended

by its members to participate and organize around administrative efforts, and local

12 R. Doc. No. 27, at 2 (quoting R. Doc. No. 1-2 (VOTE’s state-court memorandum in
support of its motion for a temporary restraining order and preliminary injunction),
at 10).
13 Id. at 2–3.
14 R. Doc. No. 1-2, at 49 (VOTE’s state-court petition for declaratory and injunctive
relief), ¶ 2.
15 Id. ¶ 3.
16 Id. ¶ 7.
legislative efforts that concern the parish jail.”17 VOTE then details several of its
previous efforts, including work “to have City Council amend [a land-use] ordinance
to reduce the jail’s capacity to the current 1,250-bed cap[,]” work on a municipal bail

reform ordinance, and contributions to ending a per-diem funding system “that paid
[the] Sheriff per incarcerated person per day.”18 Based on this, VOTE states that
“[v]iolations of the City Charter budget process directly and adversely impact the
social, economic, and political interests of VOTE’s members.”19
In short, both Mayor Cantrell’s supplemental briefing and VOTE’s petition
state that the injury in this case is the deprivation of the right to participate in a

hearing concerning the capital budget. Mayor Cantrell attempts to frame this as a
deprivation of a constitutional right. According to Mayor Cantrell, “VOTE
specifically, concretely, and particularly alleged that the actions of the City deprived
VOTE of its constitutionally guaranteed right to participate in a public hearing and
engage in the democratic process.”20 Mayor Cantrell does not cite any constitutional
provisions guaranteeing this right. VOTE’s petition does cite two provisions of the

17 Id. ¶ 8.
18 Id. ¶¶ 9–11.
19 Id. ¶ 12.
20 R. Doc. No. 27, at
Louisiana Constitution, but neither guarantees such a right.21 The only source
setting forth a right to participate in this type of hearing is the City’s Home Rule
Charter, which provides specific procedures that the City must follow when

developing or amending its capital budget and also provides that “[a]ny person shall
be entitled upon request in writing to the Clerk of Council and subject to such
regulation as the Council may have prescribed, to a reasonable hearing on any
proposed ordinance.” Home Rule Charter of the City of New Orleans, art. III, §§ 3-
117, 3-107(6), https://council.nola.gov/laws/.
It is true that certain “harms specified by the Constitution,” such as

abridgement of free speech, infringement of free exercise, and deprivation of the
fundamental right to vote, qualify as “concrete” for purposes of Article III standing.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2023) (collecting cases); O’Hair
v. White, 675 F.2d 680, 688 (5th Cir. 1982) (explaining that an injury to the
“fundamental right to vote” can qualify as an injury in fact). However, the deprivation
of the right to participate in a hearing concerning a city’s budget is a different story.
That is a procedural injury, analogous to a denial of the ability to participate in a

notice-and-comment period for an administrative agency. See, e.g., Summers v. Earth

21 R. Doc. No. 1-2, at 10–11. Specifically, VOTE quotes from a provision of the
Louisiana Constitution stating that “[n]o person shall be deprived of life, liberty, or
property, except by due process of law.” Id. (quoting La. Const. art. I, § 2). VOTE also
quotes from another section of Louisiana’s Constitution stating that “[a]ll courts shall
be open, and every person shall have an adequate remedy by due process of law and
justice, administered without denial, partiality, or unreasonable delay, for injury to
him in his person, property, reputation, or other rights.” Id. at 11 (quoting La. Const.
art. I, §§ 22).
Island Inst., 555 U.S. 488, 497 (2009) (explaining that the denial of the ability to file
comments on certain Forest Service actions constituted the “deprivation of a
procedural right”); Texas v. Equal Emp. Opportunity Comm’n, 933 F.3d 433, 447 (5th

Cir. 2019) (explaining that “[a] violation of the APA’s notice-and-comment
requirements is one example of a deprivation of a procedural right”).
“[D]eprivation of a procedural right without some concrete interest that is
affected by the deprivation—a procedural right in vacuo—is insufficient to create
Article III standing.” Summers, 555 U.S. at 497. As the Supreme Court recently
emphasized, it has “never held a litigant who asserts [a procedural] right is excused

from demonstrating that it has a ‘concrete interest that is affected by the deprivation’
of the claimed right.” Dep’t of Educ. v. Brown, 600 U.S. 551, 563 (2023) (quoting
Summers, 555 U.S. at 496–97).
Despite this precedent, Mayor Cantrell argues that the violation of VOTE’s
procedural right to a hearing itself constitutes an injury in fact to VOTE.22 That is
not correct. In fact, another district court in the Fifth Circuit recently rejected a
similar Article III standing argument. In that case, the plaintiff had argued that the

only injury in fact he had to demonstrate was the deprivation of procedural due
process through the City’s alleged modification of a preliminary plat for a new
development without notice or advertisement and without allowing him the
opportunity to be heard. 920 South Beach Blvd., LLC v. City of Bay Saint Louis, No.
21-cv-263, 2023 WL 274170, at *6 (S.D. Miss. Mar. 31, 2023).

22 R. Doc. No. 27, at 2–3.
The court emphasized that “a plaintiff must allege a deprivation of a
procedural right that affects some concrete interest.” Id. (citing Deutsch v. Annis
Enters., Inc., 882 F.3d 169, 173 (5th Cir. 2018)). It also quoted the Supreme Court’s

recent analysis of two different hypothetical plaintiffs’ lawsuits “to show how the
concrete harm principle operates in practice”:
Suppose first that a Maine citizen's land is polluted by a nearby factory.
She sues the company, alleging that it violated a federal environmental
law and damaged her property. Suppose also that a second plaintiff in
Hawaii files a federal lawsuit alleging that the same company in Maine
violated that same environmental law by polluting land in Maine. The
violation did not personally harm the plaintiff in Hawaii.
920 South Beach Blvd., 2023 WL 2749170, at *7 (quoting TransUnion LLC, 141 S.
Ct. at 22).
Ultimately, the court found that the plaintiff had alleged an injury in fact for
purposes of Article III standing because the plaintiff had argued that, “[a]s a result
of the City’s improper approval of the preliminary plat . . . , the City violated certain
ordinances which caused injury to the Plaintiff’s own property including the
imminent risk of increased water, hazards, and flooding as well as injury to its
property value[.]” Id. at *7 (cleaned up). Those separate injuries had a “close
relationship” to harms traditionally redressed by the courts, and the court therefore
found they were concrete and particularized to the plaintiff. Id. at *8.
Crucially, VOTE has not alleged that the reallocation of the $32 million in
question—which allegedly took place without a hearing—impaired any concrete
interest of VOTE or its members separate from the deprivation of the procedural right
to participate in a hearing. For example, VOTE has not alleged that, because of the
City’s actions, VOTE “lost [its] chance to secure a concrete interest” such as a property
interest, its members’ right to vote, or some other injury with a close relationship to
a harm traditionally redressed by the courts. See TransUnion, 141 S. Ct. at 2206.

That sets this case apart from 920 South Beach, where the plaintiff alleged that the
deprivation of his procedural right to be heard based on the City’s modification of the
plat without notice or advertisement led to violations of ordinances which caused
injury to the plaintiff’s property. As in Defenders of Wildlife, “[t]his is not a case where
plaintiffs are seeking to enforce a procedural requirement the disregard of which
could impair a separate concrete interest of theirs (e.g., the procedural requirement

for a hearing prior to denial of their license application, or the procedural requirement
for an environmental impact statement before a federal facility is constructed next
door to them).” 504 U.S. at 572.
The fact that the City’s Home Rule Charter grants this procedural right does
not change the analysis. Even where “a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that right,” Article III standing
still requires a concrete injury beyond the violation of that statute. Spokeo, Inc. v.

Robins, 578 U.S. 330, 341 (2016). Accordingly, the Court is not persuaded that Mayor
Cantrell has met her burden of demonstrating that VOTE suffered a concrete injury
in fact. Rather, VOTE has suffered “a procedural injury in vacuo” and the Court
therefore lacks subject matter jurisdiction over the case. Summers, 555 U.S. at 497.23

23 Because Mayor Cantrell has not shown that VOTE suffered a concrete injury, the
Court need not consider whether the injury alleged is particularized, actual or
imminent, fairly traceable to Mayor Cantrell, or redressable by this Court.
b. Federal Question Jurisdiction
Although it appears that VOTE’s petition may raise a federal question
pursuant to Grable,24 the Court need not analyze this question because it concludes
that VOTE lacks Article III standing.

IV. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that VOTE’s motion to remand is GRANTED based on the
lack of Article III standing. The case is REMANDED to Orleans Parish Civil District
Court for further proceedings.
New Orleans, Louisiana, October 23, 2023.

LANCE : AFRICK
UNITED STATES DISTRICT JUDGE

24 See, e.g., Police Ass’n of New Orleans v. City of New Orleans, 572 F. Supp.3d 265
(E.D. La. 2021) (Morgan, J.) (finding Grable’s prongs satisfied in the context of a third
party’s challenge to actions taken pursuant to a federal consent decree); Los Angeles
Police Protective League v. City of Los Angeles, No. 08-00784, 2008 WL 11454760 (C.D.
Cal. June 20, 2008), aff'd 314 F. App’x 72 (9th Cir. 2009) (same).
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190049. Public record. Not legal advice.