standing found where plaintiff made regular bids for certain type of contract
How later courts described this case
- standing found where plaintiff made regular bids for certain type of contract
Written by the judges who cited it.
The opinion
March 18, 2025
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GEOFFREY POLK, § CIVIL ACTION NO
Plaintiff, § 4:24-cv-02198
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
TEXAS DEPARTMENT §
OF INSURANCE and §
TEXAS INSURANCE §
COMMISSIONER, §
Defendants. §
OPINION AND ORDER OF DISMISSAL
The Fifth Circuit recently affirmed dismissal of the
action brought in Lowery v Texas A&M University for lack
of standing. 2024 WL 4614714 (5th Cir). A well-qualified
finance professor there asserted that he was “able and
ready” to apply for a teaching position, but he hadn’t yet
applied. Id at *1. This was so, he said, because the
university where he wanted to teach allegedly
discriminated on the basis of race and sex. The Fifth
Circuit found that failure ever to even submit an
application was “fatal” to his case because there was “little
evidence that submitting a job application would be a futile
gesture.” Ibid, citing Carney v Adams, 141 SCt 493, 503
(2020) (citation omitted).
This action suffers from the same defect. Plaintiff
Geoffrey Polk is an attorney who seeks to become a Texas
Escrow Officer. See Dkt 12 at ¶¶4, 8–9. Polk is licensed to
practice law in Texas, but he’s otherwise a resident of
Florida and currently domiciled in Illinois. See id at ¶¶4,
7. He alleges that, upon inquiry when applying for the
necessary license, he “was advised by Defendants,
pursuant to Section 2652.051(c)(1) of the Texas Insurance
Code, he was not eligible for an Escrow Officer License as
he is not a ‘bona fide resident’ of Texas or ‘a state adjacent’
to Texas.” Id at ¶9. Polk nonetheless “desires to obtain his
Texas Escrow Officer License,” which he believes to be a
“fundamental right” and necessary to pursue his “common
calling.” Id at ¶¶12–13; see also id at ¶¶5–6 (noting that
Polk holds similar license in Florida and twenty-four other
states).
Rather than apply for the subject license, Polk instead
brought this suit, seeking declaratory and injunctive relief
that the residency requirement and the procedure for
license renewal are in violation of both the Equal
Protection and Privileges and Immunities Clauses. Id at
¶¶25–34; see Texas Insurance Code §§2652.051(c)(1),
2652.056(1).
Defendants Texas Department of Insurance and Texas
Insurance Commissioner sought dismissal under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Dkt 13.
The parties were ordered to provide supplemental briefing
as to whether Polk had standing to challenge the Texas
statutes at issue, given that he’d never actually applied for
the subject license and been denied. Dkt 21. They did so.
Dkts 22 & 23; see also Dkt 24 (reply).
Rule 12(b)(1) of the Federal Rules of Civil Procedure
permits dismissal of an action for lack of subject-matter
jurisdiction. Subject-matter jurisdiction is inherently a
threshold matter. Steel Co v Citizens for a Better
Environment, 523 US 83, 94–95, (1998), quoting Mansfield,
Coldwater & Lake Michigan Railway Co v Swan, 111 US
379, 382 (1884). Federal courts are under an obligation to
ensure that it exists, even if they must raise the question
sua sponte. Fort Bend County, Texas v Davis, 139 SCt 1843,
1849 (2019), citing Gonzalez v Thaler, 565 US 134, 141
(2012).
The burden is on the party asserting jurisdiction to
establish by a preponderance of the evidence that it is
proper. New Orleans & Gulf Coast Railway Co v Barrois,
533 F3d 321, 327 (5th Cir 2008). This includes the burden
to establish Article III standing by showing that the
plaintiff has suffered an injury in fact, the injury is fairly
traceable to the challenged conduct, and the injury is likely
to be redressed by a favorable decision. Lujan v Defenders
of Wildlife, 504 US 555, 560–61 (1992); Spokeo Inc v
Robins, 578 US 330, 338 (2016). As to the requirement
of injury in fact, it means that “a claimed injury must be
real—‘it must actually exist.’ And it must not be ‘too
speculative for Article III purposes.’” Earl v Boeing Co, 53
F4th 897, 901–02 (5th Cir 2022) (citations omitted).
Polk concedes that he’s never applied for a license to
become a Texas Escrow Officer. Dkts 12 at ¶9 & 22 at 3.
Even so, he argues that the “deterred applicant doctrine”
provides him standing as a would-be applicant discouraged
from applying due to discriminatory practices. Dkt 22 at 4,
citing International Brotherhood of Teamsters v United
States, 421 US 324 (1977). As even he acknowledges, such
doctrine has almost exclusively been cabined to contexts of
fair housing and employment discrimination. Id at 4 n 4;
for example, see Champlin v Experis US, Inc, 2017 WL
635563 (SD Tex) (ADEA case); Abrams v Baylor College of
Medicine, 581 F Supp 1570 (SD Tex 1984) (Title VII);
United States v East Texas Motor Freight, Inc, 643 F2d 304
(5th Cir 1981) (Title VII). But notably, the decision in
Lowery itself dealt with assertions of race and sex
discrimination and found the lack of application to divest
the plaintiff of any showing as to injury in fact. 2024 WL
4614714, *1. That determination controls here.
Polk cites without development a single district court
opinion that applied the deterred-applicant doctrine to a
constitutional claim similar to the one at issue here. Dkt 22
at 4, citing Walsh v City & County of Honolulu, 423 F Supp
2d 1094 (D Haw 2006). Decision there involved non-
resident plaintiffs who were “deterred” from applying to
“public positions” because Hawaii law allowed only current
and former residents to apply. Id at 1099–1100. The
plaintiffs alleged that the law violated their right to travel,
challenging it (like here) as a violation under the Privileges
and Immunities and Equal Protection Clauses. Id at 1098.
Certain language in Walsh reads quite broadly,
suggesting that standing was no impediment to the
challenge by plaintiffs despite not having yet applied to the
specific government jobs at issue. Id at 1099-1100. But it’s
elsewhere clear that both plaintiffs had applied previously
for other positions with the city and been rejected partially
due to lack of residency. Id at 1098. Such distinction
matters. Compare Carney v Adams, 141 SCt at 498
(standing denied where plaintiff had merely expressed
interest in applying for available judgeships), with Gratz v
Bollinger, 589 US 244, 261-62 (2008) (standing found
where plaintiff applicant had applied, been denied, and
was “able and ready” to apply as a transfer student);
Northeastern Florida Chapter of Associated General
Contractors of America v City of Jacksonville, 508 US 656,
668 (1993) (standing found where plaintiff made regular
bids for certain type of contract). And indeed, it is a
distinction drawn by the Fifth Circuit itself in Lowery. See
2024 WL 4614714, at *1.
That Polk would prefer to file a lawsuit rather than file
an application doesn’t allow him simply to assume that an
adverse outcome would meet any such application. Instead,
he lacks standing to bring his constitutional challenge to
the subject provisions of the Texas Insurance Code because
he hasn’t suffered an injury in fact.
This action is DISMISSED WITHOUT PREJUDICE for lack of
subject-matter jurisdiction.
Any pending motions are likewise DENIED WITHOUT
PREJUDICE as moot, including the pending motion to
dismiss for failure to state a claim. Dkt 13.
This is a FINAL JUDGMENT.
SO ORDERED.
Signed on _March 18, 2025 _, at Houston, Texas.
Z.
Hon. Charles Eskridg
United States District Judge