City of Hearne, Texas v. Milton Johnson

Case: 17-50970 Document: 00515025687 Page: 1 Date Filed: 07/08/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-50970 FILED

July 8, 2019

Lyle W. Cayce

CITY OF HEARNE, TEXAS Clerk

Plaintiff

v.

MILTON JOHNSON,

Defendant-Cross Claimant - Appellee

v.

BRYAN F. RUSS, JR.,

Cross Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

This is an appeal from the denial of qualified immunity to a city attorney

in a Section 1983 suit. We conclude the plaintiff does not have standing to

pursue the claim in federal court. We therefore VACATE and DISMISS.

FACTUAL AND PROCEDURAL BACKGROUND

Organizers in Hearne, Texas circulated an initiative petition to force a

forensic audit of the city’s finances. Under the City’s charter, a petition, after

being signed by a required number of voters, is submitted to the City. At that

point, a designated City administrator has fifteen days to transmit the petition

Case: 17-50970 Document: 00515025687 Page: 2 Date Filed: 07/08/2019

No. 17-50970

to the city council. Within ten days of receiving the petition, the city council

may adopt the measure the petition demands or send it to an election. Milton

Johnson, an organizer of the petition here, submitted the petition to the City’s

clerk in March 2016. Johnson alleges the City’s policy was to have the clerk

forward petitions to the county elections administrator for verification of the

required signatures. Here, though, he claims the city attorney Bryan Russ

obtained the signature pages to prevent their delivery to the county elections

administrator in an effort to keep the initiative from appearing on a ballot.

While Russ was allegedly preventing the signatures’ certification and

before any of them were certified, the city council considered Johnson’s petition

and voted to challenge its validity. That challenge came in the form of a

lawsuit against Johnson in Texas state court on grounds having nothing to do

with the signature requirement. By the end of April 2016, all of the signatures

were delivered for certification.

Along with his answer to the City’s suit, Johnson filed a third-party

complaint against Russ and his law firm under 42 U.S.C. § 1983. Russ

removed the suit to federal court in July 2016, relying on the right to remove

when federal and state law claims are joined. See 28 U.S.C. § 1441(c). The

City and Johnson subsequently settled their dispute. Johnson’s claims against

the law firm were dismissed for failure to state a claim. See FED. R. CIV. P.

12(b)(6). The only surviving dispute is Johnson’s Section 1983 claim against

Russ. Russ moved for summary judgment based on qualified immunity, but

the motion was denied. He appealed.

DISCUSSION

Johnson alleges that Russ violated his “First Amendment right to

petition for redress of grievances as well as his Fourteenth Amendment right

to equal protection.” We decline to reach the merits of Russ’s qualified

2

Case: 17-50970 Document: 00515025687 Page: 3 Date Filed: 07/08/2019

No. 17-50970

immunity defense to these arguments because Johnson lacks standing to

assert either. 1

Neither party has questioned our jurisdiction over this appeal, but “we

must raise the issue of jurisdiction on our own motion if necessary.” Bernhard

v. Whitney Nat’l Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a sua

sponte examination of the district court’s jurisdiction. See United States v.

Creamer Indus. Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the party

asserting federal jurisdiction must show it exists, an obligation that applies

even when we sua sponte raise the question in the review of a summary

judgment determination. Ford v. NYLCare Health Plans of Gulf Coast, Inc.,

301 F.3d 329, 332–33 (5th Cir. 2002).

It is true that Johnson involuntarily arrived in the federal court because

the defendant Russ removed the case from state court. Once in federal court,

though, Johnson sought the court’s resolution of Section 1983 claims against

Russ. In order to have the court resolve those claims, it is Johnson’s burden to

demonstrate we have jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 339, 342 n.3 (2006).

The jurisdictional question is whether Johnson has standing. He “must

show: (1) [he] has suffered, or imminently will suffer, a concrete and

particularized injury-in-fact; (2) the injury is fairly traceable to [Russ’s]

conduct; and (3) a favorable judgment is likely to redress the injury.” Houston

Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007).

1 On appeal, Johnson also asserts a First Amendment retaliation claim and argues

Russ’s actions would chill behavior protected by the First Amendment. He did not present

these arguments in his amended complaint, and he only made passing reference to retaliation

in opposition to Russ’s motion for summary judgment. Plaintiffs waive an argument when

“they fail[] to argue or brief it to the district court” and instead only make general reference

to it. Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir. 2018). Johnson has

waived these arguments.

3

Case: 17-50970 Document: 00515025687 Page: 4 Date Filed: 07/08/2019

No. 17-50970

Mere allegations are insufficient to defeat a motion for summary judgment.

Instead, through an affidavit or other evidence, the opponent of the motion

must offer “specific facts” that “will be taken to be true.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (citations omitted). In our ana;ysis of

standing, we grant Johnson “all reasonable factual inferences” in deciding

whether any “genuine issue of material fact exists.” Barrett Comput. Servs.,

Inc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).

We separately examine standing for Johnson’s two current claims.

I. First Amendment claim

The First Amendment prohibits Congress from “mak[ing a] law . . .

abridging . . . the right of the people . . . to petition the Government for a redress

of grievances.” U.S. CONST. amend. I. The requirements of the First

Amendment generally apply to the states through the Fourteenth Amendment.

Meyer v. Grant, 486 U.S. 414, 420 (1988). States are not required to grant their

citizens a right to seek reform through popular initiatives, but if they do so,

they must comply with the First Amendment’s protection of freedom of

expression. John Doe 1 v. Reed, 561 U.S. 186, 195 (2010). The First

Amendment does not mandate a result once such petitions are received. See

Minnesota State Bd. For Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984).

Johnson claims Russ violated his right to petition because he “tried to keep the

initiative off the ballot by keeping the city council from knowing the number of

eligible signatures on the petition.” Under the City’s charter, the signature

requirement is a preliminary step to the city council’s review of a petition.

Once the city council reviews a petition, it can decide to send it to a ballot or

unilaterally approve the proposed measure.

The sort of harm Johnson alleges is a “procedural injury.” “[T]he

claimed injury arises from an alleged failure on the part of the injury-causing

4

Case: 17-50970 Document: 00515025687 Page: 5 Date Filed: 07/08/2019

No. 17-50970

party to adhere to a prescribed process in adjudicating the petitioner’s

substantive rights, rather than from the substantive decision itself.” Spectrum

Five LLC v. FCC, 758 F.3d 254, 264 n.10 (D.C. Cir. 2014). These injuries occur

when a defendant “fails to follow a . . . procedure, . . . and this failure increases

the risk of future harm.” Christopher T. Burt, Procedural Injury Standing

after Lujan v. Defenders of Wildlife, 62 U. CHI. L. REV. 275, 276 (1995). This

squares with Johnson’s claims because Russ’s alleged misdeeds do not

intrinsically injure Johnson. They only injure him to the extent they affect his

ability to place the petition before the city council and ultimately place the

issue on a ballot.

It is not enough to create standing to claim that the process for handling

Johnson’s petition was not followed. A “deprivation 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 v. Earth Island Inst., 555 U.S. 488, 496 (2009). Johnson stipulated

in district court that the city council considered the petition and voted to

challenge it in a Texas state court only seven days after he submitted it.

Further, the City’s challenge to the petition was unrelated to the signature

requirement. Johnson attempts to make a fact dispute out of whether the

City’s challenge was related to the signature requirement. The record,

however, contains the complaint filed in Texas state court. There is no factual

doubt that the City’s challenge to the petition’s validity was on grounds

unrelated to the signature requirement. Johnson also stipulated all of the

signatures were submitted in a timeframe sufficient to place the petition on a

ballot before federal jurisdiction was invoked. See TEX. ELEC. CODE ANN. §§

3.005(c), 41.001(a) (detailing statutory deadlines for placing issues on a ballot).

Thus, even if Russ failed to follow some required procedure regarding

the petition signatures, his alleged actions were not an injury “connected to [a]

5

Case: 17-50970 Document: 00515025687 Page: 6 Date Filed: 07/08/2019

No. 17-50970

substantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting

Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir.

2002)). Because Johnson’s claimed procedural injury does not impact any

concrete interest, he lacks standing to claim that Russ violated his First

Amendment right to petition.

II. Equal Protection claim

Johnson’s equal protection claim relies on a theory sometimes referred

to as a “class-of-one” claim. He argues Russ intentionally singled him out for

treatment “different[] from others similarly situated” with “no rational basis

for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000). Although Russ’s alleged treatment of the signatures is a

procedural injury in the context of the First Amendment right to petition, it

might also be an equal protection injury. A constitutional violation can occur

simply with “the denial of equal treatment resulting from the imposition of [a]

barrier [to a benefit], not the ultimate inability to obtain the benefit.”

Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 666 (1993). That is, an equal protection injury

occurs in “the inability to compete on an equal footing in the . . . process,”

regardless of whether there was any loss of a substantive benefit. Id.

Here, Russ’s alleged actions did not create any barrier for Johnson.

Again, the city council considered the petition and acted on it seven days after

Johnson submitted it and before any of the signatures were certified. By the

time Johnson’s claims arrived at the district court, the City had processed the

petition as completely as it could have within the necessary timeframes.

Johnson did not encounter any barrier erected by Russ in the processing of the

petition, and he does not have standing to bring his equal protection claim.

***

6

Case: 17-50970 Document: 00515025687 Page: 7 Date Filed: 07/08/2019

No. 17-50970

In deciding the proper order to conclude our review, we are guided by the

fact that even though this case was removed from state court, the only claims

are under Section 1983 for violations of the United States Constitution. In a

similar combination of a suit removed from state court that pursued only

federal claims for which the plaintiff had no standing, we affirmed dismissal

of the action and did not consider a remand to state court. Williams v. Parker,

843 F.3d 617, 623 (5th Cir. 2016). Nothing in the current case suggests a

different order.

The district court’s decision is VACATED and the case is DISMISSED.

7

Case: 17-50970 Document: 00515025687 Page: 8 Date Filed: 07/08/2019

No. 17-50970

JAMES L. DENNIS, Circuit Judge, dissenting:

Plaintiff Milton Johnson challenges the City of Hearne’s response to a

petition he submitted seeking to place on the ballot an initiative requiring the

City to conduct a forensic audit of its finances. Johnson alleges that the City’s

mishandling of his petition, on which he and others had secured 517

signatures, violated his First Amendment right to petition the government for

the redress of grievances. 1 Instead of deciding whether the alleged

mishandling violates the Constitution, the majority incorrectly determines

that Johnson lacks a sufficiently concrete injury-in-fact to pursue his claims of

constitutional violation. Because I disagree with this conclusion and instead

believe Johnson has demonstrated an injury-in-fact, I respectfully dissent.

To reach this result, the majority relies on the proposition that Johnson

asserts merely a “procedural injury” claiming violation of “a procedural right

in vacuo,” and for that reason his injury is insufficiently concrete to confer

standing under the Supreme Court’s decision in Summers v. Earth Island

Institute, 555 U.S. 488 (2009). Because Johnson’s contention that Russ

mishandled his initiative petition was not, according to the majority,

“connected to a substantive result,” his “procedural injury does not impact any

concrete interest.” Respectfully, the majority’s use of the “procedural injury”

concept here is mistaken. The Supreme Court in Spokeo, Inc. v. Robins

1 Although it appears unfair that Johnson should be required to demonstrate standing

to a degree that would survive summary judgment when he was never put on notice that he

would be required to make such a showing because no one moved for summary judgment on

the basis of lack of standing below, see Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301

F.3d 329, 334–39 (5th Cir. 2002) (Benavides, J., specially concurring), Johnson meets even

this heightened requirement. Johnson points to evidence demonstrating that Russ submitted

certain signature pages to the county election administrator belatedly and did not inform the

City Council of a letter from the administrator stating that the petition had insufficient

signatures.

8

Case: 17-50970 Document: 00515025687 Page: 9 Date Filed: 07/08/2019

No. 17-50970

explained that “a bare procedural violation, divorced from any concrete harm,

[could not] satisfy the injury-in-fact requirement of Article III” because “Article

III requires a concrete injury even in the context of a statutory violation.” 136

S. Ct. 1540, 1549 (2016), as revised (May 24, 2016). The key word in this

Supreme Court opinion for Johnson’s constitutional claim is “statutory.” Id.

(emphasis added). The Supreme Court’s precedent makes clear that the

“procedural injury” concept was meant for application only to statutory rights

created by Congress, not rights conferred by the Constitution itself, such as

Johnson’s First Amendment claim. See id. (“Congress’ role in identifying and

elevating intangible harms does not mean that a plaintiff automatically

satisfies the injury-in-fact requirement whenever a statute grants a person a

statutory right and purports to authorize that person to sue to vindicate that

right.” (emphasis added)); Summers, 555 U.S. at 497 (noting that conferral of

a procedural right by Congress does not lower the threshold requirement for

demonstrating an injury-in-fact); Massachusetts v. E.P.A., 549 U.S. 497, 517–

18 (2007) (explaining that the right to sue for a procedural injury is vested in

“a litigant to whom Congress has accorded a procedural right to protect his

concrete interests” (internal quotation marks omitted)).

Although couched in the language and case law of standing, the

majority’s “procedural injury” analysis is, in reality, a veiled determination

that Johnson’s claims lack merit. As the majority states, “Russ’s alleged

misdeeds . . . . only injure [Johnson] to the extent they affect his ability to place

the petition before the city council and ultimately on the ballot.” This logic,

though perhaps initially appealing, essentially states that Russ’s conduct did

not violate Johnson’s First Amendment rights. That is, the majority

essentially finds that the First Amendment’s scope is narrower than Johnson

asserts. Whether that is an accurate statement of the law aside, it is certainly

9

Case: 17-50970 Document: 00515025687 Page: 10 Date Filed: 07/08/2019

No. 17-50970

not a determination to be made under the guise of a dismissal on standing

grounds for lack of subject-matter jurisdiction. The Supreme Court has

cautioned against passing on the merits of a case through a determination of

lack of jurisdiction: “Dismissal for lack of subject-matter jurisdiction because

of the inadequacy of the federal claim is proper only when the claim is ‘so

insubstantial, implausible, foreclosed by prior decisions of this Court, or

otherwise completely devoid of merit as not to involve a federal controversy.’”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida

Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)); see also

Bell v. Hood, 327 U.S. 678, 684–85 (1946) (holding jurisdiction existed where

“the right of the petitioners to recover under their complaint will be sustained

if the Constitution and laws of the United States are given one construction

and will be defeated if they are given another”). And, as the Supreme Court

further stated, “[i]t is firmly established in our cases that the absence of a valid

(as opposed to arguable) cause of action does not implicate subject-matter

jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the

case.” Steel Co., 523 U.S. at 89.

Properly considered, the injury-in-fact analysis for Johnson’s First

Amendment claim is simple. The standard injury-in-fact analysis required by

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) makes quick work of

the injury-in-fact requirement: Where “the plaintiff is himself an object of the

action (or forgone action) at issue,” “there is ordinarily little question that the

action or inaction has caused him injury, and that a judgment preventing or

requiring the action will redress it.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992). Stated another way, “the requirement of standing ‘focuses on the

party seeking to get his complaint before a federal court and not on the issues

he wishes to have adjudicated.’” Valley Forge Christian Coll. v. Americans

10

Case: 17-50970 Document: 00515025687 Page: 11 Date Filed: 07/08/2019

No. 17-50970

United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)

(quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). Johnson claims that Russ

interfered with his constitutional right to petition the government by

mishandling his initiative petition, and the Supreme Court has expressly

recognized that initiative petitions enjoy protection from government

interference under the First Amendment and circulation of an initiative

petition is “an area in which the importance of First Amendment protections

is at its zenith.” Meyer v. Grant, 486 U.S. 414, 421–24 (1988) (internal

quotation marks omitted) (finding unconstitutional a Colorado law prohibiting

payments to petition circulators as infringing on First Amendment

protections). I submit that, based on this claimed violation, Johnson easily

demonstrates a sufficiently concrete and particular injury-in-fact.

For these reasons, I respectfully dissent.

11