App. 1
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`-----------------------------------------------------------------------
`
`No. 18-50710
`-----------------------------------------------------------------------
`
`DAVID MCMAHON; STEVEN LITTLEFIELD;
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INCORPORATED,
`
`
`Plaintiffs - Appellants
`v.
`PRESIDENT GREGORY L. FENVES,
`In His Official Capacity as President
`of the University of Texas at Austin,
`
`
`Defendant - Appellee
`**************************************************
`Consolidated with 18-50800
`RICHARD BREWER; TEXAS DIVISION, SONS OF
`CONFEDERATE VETERANS, INCORPORATED,
`
`
`Plaintiffs - Appellants
`v.
`RON NIRENBERG, Mayor of the City of San Antonio,
`In his Individual Capacity; ROBERTO TREVINO,
`San Antonio City Councilman in his Individual
`Capacity; WILLIAM SHAW, San Antonio City
`Councilman in his Individual Capacity; REBECCA
`VIAGRAN, San Antonio City Councilman in her
`Individual Capacity; REY SALDANA, San Antonio
`City Councilman in his Individual Capacity;
`SHIRLEY GONZALES, San Antonio City
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`-----------------------------------------------------------------------
`
`No. 18-50710
`-----------------------------------------------------------------------
`
`DAVID MCMAHON; STEVEN LITTLEFIELD;
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INCORPORATED,
`
`
`Plaintiffs - Appellants
`v.
`PRESIDENT GREGORY L. FENVES,
`In His Official Capacity as President
`of the University of Texas at Austin,
`
`
`Defendant - Appellee
`**************************************************
`Consolidated with 18-50800
`RICHARD BREWER; TEXAS DIVISION, SONS OF
`CONFEDERATE VETERANS, INCORPORATED,
`
`
`Plaintiffs - Appellants
`v.
`RON NIRENBERG, Mayor of the City of San Antonio,
`In his Individual Capacity; ROBERTO TREVINO,
`San Antonio City Councilman in his Individual
`Capacity; WILLIAM SHAW, San Antonio City
`Councilman in his Individual Capacity; REBECCA
`VIAGRAN, San Antonio City Councilman in her
`Individual Capacity; REY SALDANA, San Antonio
`City Councilman in his Individual Capacity;
`SHIRLEY GONZALES, San Antonio City
`
`
`
`App. 2
`
`Councilman in her Individual Capacity; GREG
`BROCKHOUSE, San Antonio City Councilman
`in his Individual Capacity; ANA SANDOVAL, San
`Antonio City Councilman in her Individual Capacity;
`MANUEL PALAEZ, San Antonio City Councilman
`in his Individual Capacity; JOHN COURAGE, San
`Antonio City Councilman in his Individual Capacity;
`CLAYTON PERRY, San Antonio City Councilman
`in his Official Capacity; CITY OF SAN ANTONIO,
`
`
`Defendants - Appellees
`No. 18-50710 c/w
`No. 18-50800
`-----------------------------------------------------------------------
`
`Appeals from the United States District Court
`for the Western District of Texas
`-----------------------------------------------------------------------
`
`(Filed Jan. 3, 2020)
`Before CLEMENT, ELROD, and DUNCAN, Circuit
`Judges.
`
`EDITH BROWN CLEMENT, Circuit Judge:
`
`This consolidated case involves First Amendment
`
`and state-law challenges to the removal or relocation
`of Confederate monuments from a San Antonio park
`and on the University of Texas’s Austin campus. In the
`University case, David McMahon, Steven Littlefield,
`and the Texas Division of the Sons of Confederate Vet-
`erans sued the University of Texas to reverse its deci-
`sion to relocate several Confederate statues. In the San
`Antonio case, Richard Brewer and the Texas Division
`
`
`
`App. 3
`
`of the Sons of Confederate Veterans first moved to tem-
`porarily restrain the City of San Antonio from remov-
`ing a Confederate monument and two cannons from
`a City park and then moved to compel their reinstalla-
`tion. Both district courts dismissed Plaintiffs’ First
`Amendment claims for lack of standing and then de-
`clined to exercise supplemental jurisdiction over their
`state-law claims. Plaintiffs appealed. We affirm the
`district courts’ dismissals.
`
`
`
`I.
`In the early 1900s, Major George Littlefield, a
`
`Civil War veteran, donated funds to the University of
`Texas to build a “massive bronze arch over the south
`entrance to the campus,” a statue of President Wood-
`row Wilson, and statues of five Confederate leaders:
`Jefferson Davis, Robert E. Lee, Albert Sidney John-
`ston, and John H. Reagan. The University placed the
`statues on its campus in the 1930s, but never built the
`arch.
`
`About a century later, University President Greg-
`
`ory Fenves had the statues relocated. Plaintiffs David
`McMahon, Steven Littlefield, and the Texas Division of
`the Sons of Confederate Veterans sued to enjoin the
`University—first in state court and then in federal
`court in Austin—to reverse its decision to relocate the
`statues. See McMahon v. Fenves, 323 F. Supp. 3d 874
`(W.D. Tex. 2018). The Texas trial court dismissed the
`suit for lack of standing; the Texas court of appeals af-
`firmed; the Texas Supreme Court denied review. See
`
`
`
`App. 4
`
`Bray v. Fenves, No. 06-15-00075-CV, 2016 WL 3083539
`(Tex. App.—Texarkana Mar. 24, 2016, pet. denied)
`(mem. op.).
`
`Plaintiffs’ federal complaint alleges First Amend-
`
`ment and Texas Monument Protection Act violations
`and claims that the Board of Regents breached the
`bequest agreement and exceeded its authority over
`the University. The Sons of Confederate Veterans are
`a non-profit organization, and McMahon and Little-
`field claim to be “descendant[s] of Confederate veter-
`ans,” with Littlefield a descendant of Major Littlefield.
`Fenves moved to dismiss for lack of subject-matter ju-
`risdiction, arguing that Plaintiffs lacked standing be-
`cause they did not suffer a concrete and particularized
`injury. The district court granted Fenves’s motion,
`holding that Plaintiffs’ familial ties to Confederate
`veterans did not mean that relocating Confederate
`statues, which allegedly silenced Plaintiffs’ political
`viewpoint, caused them a cognizable injury. McMahon,
`323 F. Supp. 3d at 879-81. The court, citing Lujan v.
`Defenders of Wildlife, 504 U.S. 555, 576 (1992), stated
`that “[o]ur system of governance assigns the vindica-
`tion of value preferences to the democratic political
`process, not the judicial process.” Id. at 880. After the
`court dismissed Plaintiffs’ First Amendment claim, it
`declined to exercise supplemental jurisdiction over
`their remaining state-law claims. Id. at 881-82.
`
`In the San Antonio case, the City Council gave the
`
`United Daughters of the Confederacy permission to
`erect a “Confederate Monument” in a City park in
`1899. About ten years later, the City placed two
`
`
`
`App. 5
`
`cannons next to the monument. According to meeting
`minutes from the Albert Sidney Johnston Camp of the
`United Confederate Veterans, Congress donated the
`cannons “for the benefit of the Confederate Camp.”1
`
`About a century later, the City Council passed an
`
`ordinance to remove the monument and cannons from
`the park. The Texas Division of the Sons of Confeder-
`ate Veterans, this time with Richard Brewer, sued the
`City in federal court in San Antonio. See Brewer v. Ni-
`renberg, No. SA:17-CV-837-DAE, 2018 WL 8897851
`(W.D. Tex. Sept. 17, 2018). They moved for a temporary
`restraining order to prevent the City from removing
`the monument and cannons. The district court denied
`the motion, but ordered the City to remove the monu-
`ment “in such a manner as to preserve [its] integrity,”
`and further, that it “be stored in a secure location in
`order to protect it from damage or from being de-
`faced[,] pending resolution of this lawsuit.” Id. at *1.
`Plaintiffs then amended their complaint, adding as De-
`fendants the City Councilmembers in their individual
`capacities and alleging claims for First Amendment
`and Texas Antiquities Code violations, for rendering
`impossible a charitable gift’s purpose, and for con-
`version. The City moved for summary judgment on
`all Plaintiffs’ claims, and the individual Defendants
`moved to dismiss.
`
`The district court granted the City’s summary-
`
`judgment motion on Plaintiffs’ First Amendment claim,
`
`
`1 Presumably, “Confederate Camp” refers to the Albert Sid-
`
`ney Johnston Camp.
`
`
`
`App. 6
`
`holding that Plaintiffs lacked standing because their
`alleged injuries were not particularized. Id. at *4. The
`San Antonio court followed the Austin court’s lead,
`stating that, though “Plaintiffs are likely more deeply
`attached to the values embodied by the Monument
`than the average person walking through [the City
`park], . . . ‘their identities as descendants of Confeder-
`ate veterans do not transform an abstract ideological
`interest in preserving the Confederate legacy into
`a particularized injury.’ ” Id. (quoting McMahon, 323
`F. Supp. 3d at 880).
`
`Brewer, unlike the individual Plaintiffs in the Uni-
`
`versity case, also asserted standing as a municipal tax-
`payer. The court held that, because the monument was
`removed and the funds to do so were already expended,
`Brewer’s request to enjoin the removal and the ex-
`penditure was moot. Id. at *5. It also held that, because
`Brewer no longer sought an injunction and because
`taxpayers lack standing to sue for previously expended
`funds, he lacked taxpayer standing. Id. With all Plain-
`tiffs’ federal claims dismissed, the court declined to ex-
`ercise supplemental jurisdiction over Plaintiffs’ state-
`law claims and then denied the individual Defendants’
`motion to dismiss as moot. Id. at *6.
`
`Plaintiffs in both cases appealed, and the cases
`
`were consolidated.
`
`
`
`
`
`
`App. 7
`
`II.
`The issue before us is whether Plaintiffs have
`
`standing to bring their First Amendment claims.2 We
`review whether jurisdiction exists de novo. Physician
`Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir.
`2012). The party asserting jurisdiction has the burden
`of establishing it. Id. At the motion-to-dismiss stage,
`this means “alleg[ing] a plausible set of facts establish-
`ing jurisdiction.” Id.; see FED. R. CIV. P. 12(b)(1).
`
`Plaintiffs argue that they have standing under
`
`Lujan to bring their free-speech claims. Brewer argued
`in his briefing that he has municipal-taxpayer stand-
`ing to bring his free-speech claim, but abandoned this
`ground for standing at oral argument. We therefore do
`not address that issue. See, e.g., In re Thalheim, 853
`F.2d 383, 386 (5th Cir. 1988) (“summarily affirm[ing]”
`the district court on a claim that appellant “expressly
`abandoned” at oral argument).
`
`To establish standing, Plaintiffs must show that
`
`they have suffered an injury in fact: a personal injury
`that is traceable to the defendant’s alleged conduct and
`that is likely to be redressed by a favorable decision.
`Lujan, 504 U.S. at 560-61. This injury must be both
`“concrete” and “particularized.” Id. at 560. An injury is
`particularized if it “affect[s] the plaintiff in a personal
`
`2 Plaintiffs’ other claims arise under state law. Both district
`
`courts declined to exercise discretionary supplemental jurisdic-
`tion over these state-law claims after dismissing Plaintiffs’ free-
`speech claims. Plaintiffs do not challenge this holding on appeal.
`Thus, Plaintiffs have forfeited any argument that the district
`courts erred in not exercising jurisdiction over these claims.
`
`
`
`App. 8
`
`and individual way.” Id. at 560 n.1. That is, the plaintiff
`must have “a direct stake in the outcome.” See Sierra
`Club v. Morton, 405 U.S. 727, 740 (1972). To satisfy this
`injury-in-fact test, Plaintiffs therefore must allege
`more than an injury to someone’s concrete, cognizable
`interest; they must “be [themselves] among the in-
`jured.” Id. at 734-35.
`
`Plaintiffs argue that, because they have unique
`
`ties to these Confederate monuments and to the Con-
`federacy, these monuments express Plaintiffs’ political
`viewpoint and, therefore, that Defendants’ removal or
`relocation of these monuments violated Plaintiffs’
`First Amendment rights. That is, Plaintiffs claim to
`have standing because moving these monuments in-
`jured their free-speech rights. But even if Plaintiffs al-
`lege a concrete free-speech interest—i.e., if moving
`these monuments even implicates the First Amend-
`ment—they fail to show that the violation of this inter-
`est is, in fact, an injury to their rights. This is because,
`though these ties might give Plaintiffs strong reasons
`to care about these monuments, Plaintiffs fail to ex-
`plain how these ties give Plaintiffs a First Amendment-
`based stake in the outcome of this litigation. They
`claim that these monuments are their speech, but fail
`to plausibly allege how these ties make that so.
`
`The United Daughters of the Confederacy, Major
`
`Littlefield, and Congress donated these monuments or
`the funds to build them. Plaintiffs argue on appeal that
`these donors or the beneficiaries of these donations
`collaborated with the University or the City when
`erecting or placing them and, therefore, co-authored
`
`
`
`App. 9
`
`the political speech that the monuments express. But
`Plaintiffs never argue that they donated the monu-
`ments or the funds for building them or explain how
`they “co-authored” the monuments’ speech. So even if
`displaying these monuments was private speech, and
`even if moving them impermissibly abridged that speech,
`Plaintiffs have failed to plausibly show that these mon-
`uments are their speech.
`
`To be clear, Plaintiffs do not assert these free-
`
`speech claims on another party’s behalf. If they did,
`prudential limitations on standing would likely bar
`their suit. See, e.g., Warth v. Seldin, 422 U.S. 490, 499
`(1975) (“[A] plaintiff generally must assert his own le-
`gal rights and interests, and cannot rest his claim to
`relief on the legal rights or interests of third parties.”).
`Nor do they assert that they attempted to speak but
`that the University or the City thwarted that attempt.
`Cf., e.g., Rosenberger v. Rector & Visitors of Univ. of Va.,
`515 U.S. 819 (1995) (state university denied student
`group funding to print student newspaper). Nor that
`they have been prevented from hearing speech. C.f.,
`e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S.
`555, 576 (1980) (“Free speech carries with it some free-
`dom to listen.”). Instead, they insist that they suffered
`a particularized First Amendment injury because mov-
`ing these monuments abridged their speech. But their
`position is based on a fundamental confusion about
`what makes an injury particularized.
`
`Plaintiffs state several reasons why they are par-
`
`ticularly invested in these monuments. They feel strongly
`about the message these monuments supposedly convey
`
`
`
`App. 10
`
`about the Confederacy and the Civil War. They claim
`to be descendants of Confederate veterans, including
`one of the donors. They claim that these monuments
`were public charitable gifts and that Plaintiffs are
`among the intended beneficiaries. For example, they
`argue that the cannons were donated for the benefit of
`the United Confederate Veterans and that the Sons of
`Confederate Veterans, as the successor association to
`that group, is now that gift’s intended beneficiary.
`Plaintiffs therefore care deeply about preserving mon-
`uments that convey a viewpoint that they support and
`that, they believe, their ancestors donated for their
`benefit. And Plaintiffs believe that these ties give them
`unique reasons for caring about these monuments,
`which means that their allegedly unconstitutional re-
`moval caused Plaintiffs a particularized injury—it is
`particular to them because only they have these al-
`leged ties. But that is not how particularity works.
`Plaintiffs confuse having particular reasons for caring
`about these monuments with having a particularized
`injury.
`
`Plaintiffs would of course prefer a world where the
`
`University and the City display Plaintiffs’ favored
`monuments. Plaintiffs provide reasons—presumably
`strong ones—for why they are more attached to the
`monuments’ viewpoint than the general public is. But
`strong reasons are no better than weak ones at giving
`Plaintiffs a direct and personal stake in this litigation.
`To be sure, we do not doubt that Plaintiffs are offended
`by the removal of these monuments or that they feel
`this offense more acutely because of their familial ties.
`
`
`
`App. 11
`
`These ties, however, do not distinguish Plaintiffs from
`any other persons who might claim offense at the re-
`moval of these monuments. This is because these ties
`affect only the magnitude of Plaintiffs’ indignation, not
`the nature of their injury. For Plaintiffs, their injury is
`the pain of believing that a certain expression of a
`viewpoint with which they agree has been unconstitu-
`tionally removed from public display. That is a gener-
`alized psychological injury, not a particularized free-
`speech one—it is felt by all who are offended by this
`removal. That Plaintiffs are more offended than some-
`one who is likeminded yet lacks these ties does not
`make that generalized injury particularized. Nor does
`it morph these monuments into Plaintiffs’ own speech.
`Plaintiffs have shown only a rooting interest in the
`outcome of this litigation, not a direct and personal
`stake in it. They are in the same position as any enthu-
`siastic onlooker.
`
` Moreover, Plaintiffs’ contentions that they are the
`beneficiaries of these gifts or are the successors-in-in-
`terest to a beneficiary are red herrings. The standing
`this might confer is for their state-law claims—e.g.,
`that the University breached a bequest agreement or
`that the City rendered a charitable gift impossible—
`not for their First Amendment claims. Thus, these
`facts are irrelevant to whether Plaintiffs have stand-
`ing for their federal claims.
`
`The fundamental and fatal flaw with Plaintiffs’
`
`argument is that they conflate agreeing with speech
`with authoring speech. They claim that their speech
`has been abridged, yet conspicuously absent from their
`
`
`
`App. 12
`
`allegations is anything showing this to be true. Plain-
`tiffs merely agree with the ideas that they feel these
`monuments express and sued in hopes of keeping them
`on display. They are undoubtedly passionate about
`these ideas and are upset that symbols of their values,
`like these monuments, have been removed from the
`public square. But what Plaintiffs seek is only to “vin-
`dicate their own value preferences,” not to redress a
`First Amendment injury particular to them. See Sierra
`Club, 405 U.S. at 740. Their passion, however sincere,
`does not place them among the injured. Thus, Plain-
`tiffs have not alleged a particularized injury.
`
`
`
`III.
`Because Plaintiffs have not alleged a particular-
`
`ized injury, they lack standing to bring their First
`Amendment claims. We AFFIRM the district courts’
`judgments.
`
`
`
`
`
`
`
`
`App. 13
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`-----------------------------------------------------------------------
`No. 18-50800
`-----------------------------------------------------------------------
`D.C. Docket No. 5:17-CV-837
`RICHARD BREWER; TEXAS DIVISION, SONS OF
`CONFEDERATE VETERANS, INCORPORATED,
`Plaintiffs - Appellants
`
`v.
`RON NIRENBERG, Mayor of the City of San Antonio,
`In his Individual Capacity; ROBERTO TREVINO,
`San Antonio City Councilman in his Individual
`Capacity; WILLIAM SHAW, San Antonio City
`Councilman in his Individual Capacity; REBECCA
`VIAGRAN, San Antonio City Councilman in her
`Individual Capacity; REY SALDANA, San Antonio
`City Councilman in his Individual Capacity;
`SHIRLEY GONZALES, San Antonio City Councilman
`in her Individual Capacity; GREG BROCKHOUSE,
`San Antonio City Councilman in his Individual
`Capacity; ANA SANDOVAL, San Antonio City
`Councilman in her Individual Capacity; MANUEL
`PALAEZ, San Antonio City Councilman in his
`Individual Capacity; JOHN COURAGE, San Antonio
`City Councilman in his Individual Capacity;
`CLAYTON PERRY, San Antonio City Councilman in
`his Official Capacity; CITY OF SAN ANTONIO,
`Defendants - Appellees
`
`
`
`
`
`App. 14
`
`Appeal from the United States District Court
`for the Western District of Texas
`
`(Filed Jan. 3, 2020)
`Before CLEMENT, ELROD, and DUNCAN, Circuit
`Judges.
`
`
`
`JUDGMENT
`
`This cause was considered on the record on appeal
`
`and was argued by counsel.
`
`It is ordered and adjudged that the judgment of
`
`the District Court is affirmed.
`
`IT IS FURTHER ORDERED that appellants pay
`
`to appellees the costs on appeal to be taxed by the
`Clerk of this Court.
`
`
`
`
`
`
`
`
`App. 15
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`-----------------------------------------------------------------------
`No. 18-50710
`-----------------------------------------------------------------------
`D.C. Docket No. 1:17-CV-822
`DAVID MCMAHON; STEVEN LITTLEFIELD;
`TEXAS DIVISION, SONS OF CONFEDERATE
`VETERANS, INCORPORATED,
`Plaintiffs - Appellants
`
`v.
`PRESIDENT GREGORY L. FENVES, In His Official
`Capacity as President of the University of Texas at
`Austin,
`
`Defendant – Appellee
`Appeals from the United States District Court
`for the Western District of Texas
`(Filed Jan. 3, 2020)
`Before CLEMENT, ELROD, and DUNCAN, Circuit
`Judges.
`
`
`
`JUDGMENT
`
`This cause was considered on the record on appeal
`
`and was argued by counsel.
`
`It is ordered and adjudged that the judgment of
`
`the District Court is affirmed.
`
`
`
`App. 16
`
`IT IS FURTHER ORDERED that appellants pay
`
`to appellees the costs on appeal to be taxed by the
`Clerk of this Court.
`
`
`
`
`
`
`
`
`App. 17
`
`UNITED STATES DISTRICT COURT
`for the
`Western District of Texas
`
`
`
` Richard Brewer, et al.
`Plaintiff
`v.
` Ron Nirenberg, et al.
`Defendant
`
`Civil Action No.
`SA-17-CV-837-DAE
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`
`
`
`JUDGMENT IN A CIVIL ACTION
`
`(Filed Sep. 17, 2018)
`The court has ordered that (check one):
` the plaintiff (name) _____________________ recover
`from the defendant (name) _________________ the
`amount of _____________________________ dollars
`
`($ _________), which includes prejudgment interest at
`the rate of ____ %, plus postjudgment interest at the
`rate of ____ %, along with costs.
` the plaintiff recover nothing, the action be dis-
`missed on the merits, and the defendant (name)
`_____________________________ recover costs from the
`plaintiff (name) __________________________________
`🗹 Other:
`The Court GRANTS Defendants’ Motion for
`Summary Judgment or, in the Alternative,
`Motion to Dismiss, and DENIES AS MOOT
`Defendants Nirenberg, et.al., Plaintiffs’ fed-
`eral law claims are DISMISSED for LACK
`
`
`
`App. 18
`
`OF STANDING, Plaintiffs’ state law claims
`are DISMISSED WITHOUT PREJUDICE.
`
`This action was (check one):
` tried by a jury with Judge __________________ pre-
`siding, and the jury has rendered a verdict.
` tried by Judge ________________ without a jury
`and the above decision was reached.
` decided by Judge David Alan Ezra.
`Date: 09/17/2018
`CLERK OF COURT
` Wayne Garcia
`Signature of Clerk
`or Deputy Clerk
`
`
`
`
`
`
`
`
`
`
`App. 19
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`SAN ANTONIO DIVISION
`
`ORDER GRANTING MOTION FOR
`SUMMARY JUDGMENT; DENYING
`AS MOOT MOTION TO DISMISS
`(Filed Sep. 17, 2018)
`Before the Court are Defendants the Mayor of San
`
`Antonio, Texas, and ten members of the San Antonio
`City Council’s Motion for Summary Judgment or Alter-
`natively, Motion to Dismiss (Dkt. # 54), and Defen-
`dants Nirenberg, Trevino, Shaw, Viagran, Saldana,
`
`No. SA:17-CV-837-DAE
`
`
`RICHARD BREWER, and
`TEXAS DIVISION SONS
`OF CONFEDERATE
`VETERANS, INC.,
`
` Plaintiffs,
`vs.
`RON NIRENBERG, ROBERTO
`TREVINO, WILLIAM SHAW,
`REBECCA VIAGRAN,
`REY SALDANA, SHIRLEY
`GONZALES, GREG
`BROCKHOUSE, ANA
`SANDOVAL, MANNY
`PALAEZ, JOHN COURAGE,
`CLAYTON PERRY, and the
`CITY OF SAN ANTONIO,
`
` Defendants.
`
`
`§§§§§§§§§§§§§§§§§§§
`
`
`
`App. 20
`
`Gonzales, Brockhouse, Sandoval, Palaez, Courage
`and Perry, in their individual capacities’ Rule 12(b)(6)
`Motion to Dismiss (Dkt. # 59). Pursuant to Local Rule
`CV-7(h), the Court finds these matters suitable for dis-
`position without a hearing. Upon careful consideration
`of the arguments asserted in the parties’ memoranda,
`the Court, for the reasons that follow, GRANTS the
`Motion for Summary Judgment (Dkt. # 54), and DE-
`NIES AS MOOT the Motion to Dismiss (Dkt. # 59).
`
`
`
`BACKGROUND
`The Sons of Confederate Veterans (“Confederate
`
`Veterans) is an organization dedicated to preserving
`the memory of Americans who fought for the Confed-
`eracy during the Civil War.1 (See Dkt. # 44.) According
`to the Confederate Veteran’s website, its membership
`is limited to male descendants of Confederate Veter-
`ans. See http://www.scv.org/new/. Defendants are the
`Mayor and City Council members of the City of San
`Antonio. (Dkt. # 44 at 1–3.)
`
`In August 2017, the San Antonio City Council en-
`
`acted an ordinance for the removal of a Confederate
`Monument (“the Monument”) located in Travis Park
`in downtown San Antonio. On August 31, 2017, the
`City Council voted to remove the Monument. One day
`before, on August 30, 2017, Plaintiffs Richard Brewer
`and the Texas Division of the Confederate Veterans
`
`
`1 Although not clear from Plaintiffs’ filings, the individual
`
`Plaintiff is presumably a member of the Confederate Veterans.
`(See Dkts. ## 1, 2.)
`
`
`
`App. 21
`
`(collectively, “Plaintiffs”), filed suit against Defendants
`in this Court, alleging federal claims under the First
`Amendment and for Due Process, as well as state law
`claims for attempted trespass to land and for breach of
`an easement. (Dkt. # 1.) Plaintiffs simultaneously filed
`a motion for Temporary Restraining Order (“TRO”),
`asking the Court to immediately restrain Defendants
`from removing the Monument. (Dkt. # 2.) After a hear-
`ing, the Court denied the motion for TRO, but directed
`that the removal of the Monument be carried out in
`such a manner as to preserve the integrity of the Mon-
`ument, and that the Monument be stored in a secure
`location in order to protect it from damage or from be-
`ing defaced pending resolution of this lawsuit. (Dkt. # 7
`at 8-9.) On September 1 and 2, 2017, the City removed
`the Monument.
`
`After several other filings in this case, Plaintiffs
`
`were granted leave to file a second amended complaint.
`(Dkt. # 44.) Plaintiffs’ second amended complaint added
`a new defendant, the City of San Antonio (“the City”),
`and added that suit be brought against each council
`member in both their official and individual capacities.
`(Id.) The complaint alleges causes of action for viola-
`tion of free speech, violation of the Texas Antiquities
`Code, a claim for charitable trust/gift, and a conversion
`claim. (Id.)
`
`On July 16, 2018, Defendants filed the motion for
`
`summary judgment or, in the alternative, motion to
`dismiss. (Dkt. # 54.) On August 13, 2018, Plaintiffs filed
`a response in opposition. (Dkt. # 56.) Defendants filed
`a reply on August 27, 2018. (Dkt. # 58.) On September
`
`
`
`App. 22
`
`4, 2018, Defendant council members, in their individ-
`ual capacities, filed the motion to dismiss. (Dkt. # 59.)
`
`
`
`I.
`
`LEGAL STANDARD
`Summary Judgment
`A movant is entitled to summary judgment upon
`
`showing that “there is no genuine dispute as to any
`material fact,” and the movant is entitled to judgment
`as a matter of law. Fed. R. Civ. P. 56(a); see also Meadaa
`v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir.
`2014). A dispute is only genuine “if the evidence is such
`that a reasonable jury could return a verdict for the
`nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
`U.S. 242, 248 (1986).
`
`The moving party bears the initial burden of
`
`demonstrating the absence of any genuine issue of ma-
`terial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
`(1986). If the moving party meets this burden, the non-
`moving party must come forward with specific facts
`that establish the existence of a genuine issue for trial.
`Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime.
`Inc., 738 F.3d 703, 706 (5th Cir. 2013) (quoting Allen v.
`Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir.
`2000)). “Where the record taken as a whole could not
`lead a rational trier of fact to find for the non-moving
`party, there is no ‘genuine issue for trial.’ ” Hillman v.
`Loga, 697 F.3d 299, 302 (5th Cir. 2012) (quoting Matsu-
`shita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
`U.S. 574, 587 (1986)).
`
`
`
`App. 23
`
`In deciding whether a fact issue has been created,
`
`the court must draw all reasonable inferences in favor
`of the nonmoving party, and it “may not make credibil-
`ity determinations or weigh the evidence.” Tiblier v.
`Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting
`Reeves v. Sanderson Plumbinu Prods., Inc., 530 U.S.
`133, 150 (2000)). However, “[u]nsubstantiated assertions,
`improbable inferences, and unsupported speculation
`are not sufficient to defeat a motion for summary judg-
`ment.” United States v. Renda Marine, Inc., 667 F.3d
`651, 655 (5th Cir. 2012) (quoting Brown v. City of
`Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
`
`
`
`II. Federal Rule of Civil Procedure 12
`Rule 12(c) provides that “[a]fter the pleadings are
`
`closed—but early enough not to delay trial—a party
`may move for judgment on the pleadings.” The stand-
`ard for deciding a motion under Rule 12(c) is the same
`as the one for deciding a motion to dismiss under Rule
`12(b)(6). See Great Plains Trust Co. v. Morgan Stanley
`Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002)
`(“A number of courts have held that the standard to be
`applied in a Rule 12(c) motion is identical to that used
`in a Rule 12(b)(6) motion.” (citation and internal quo-
`tation marks omitted)).
`
`Under Rule 12(b)(6), the court evaluates the
`
`pleadings by “accept[ing] ‘all well-pleaded facts as true,
`viewing them in the light most favorable to the plain-
`tiff[s].’ ” In re Katrina Canal Breaches Litig., 495 F.3d
`191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr.
`
`
`
`App. 24
`
`Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th
`Cir. 2004)). To survive defendants’ motions, plaintiffs’
`pleadings must allege enough facts “to state a claim to
`relief that is plausible on its face.” Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
`plausibility when the plaintiff[s] plead[ ] factual con-
`tent that allows the court to draw the reasonable infer-
`ence that the defendant is liable for the misconduct
`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`“The plausibility standard is not akin to a ‘probability
`requirement,’ but it asks for more than a sheer possi-
`bility that a defendant has acted unlawfully.” Id. (quot-
`ing Twombly, 550 U.S. at 556); see also Twombly, 550
`U.S. at 555 (“Factual allegations must be enough to
`raise a right to relief above the speculative level[.]”).
`“[W]here the well-pleaded facts do not permit the court
`to infer more than the mere possibility of misconduct,
`the complaint has alleged—but it has not ‘shown’—
`‘that the pleader is entitled to relief.’ ” Iqbal, 556 U.S.
`at 679 (alteration omitted) (quoting Rule 8(a)(2)).
`
`Furthermore, under Rule 8(a)(2), a pleading must
`
`contain “a short and plain statement of the claim show-
`ing that the pleader is entitled to relief.” Although “the
`pleading standard Rule 8 announces does not require
`‘detailed factual allegations,’ it demands more than ‘la-
`bels and conclusions.’ ” Iqbal, 556 U.S. at 678 (quoting
`Twombly, 550 U.S. at 555). And “ ‘a formulaic recitation
`of the elements of a cause of action will not do.’ ” M.
`(quoting Twombly, 550 U.S. at 555).
`
`
`
`
`
`
`
`
`App. 25
`
`DISCUSSION
`Defendants’ motion for summary judgment seeks
`
`dismissal of Plaintiffs’ claims on the basis that: (1)
`Plaintiffs lack standing to bring some or all of the
`claims; (2) Plaintiffs have failed to state a claim on
`which relief can be granted; (3) there is no evidence to
`support one or more element of Plaintiffs asserted
`causes of action; and (4) the Court lacks jurisdiction
`over some of the claims. (Dkt. # 54.) The Court will first
`consider whether Plaintiffs have standing to bring any
`of their claims.
`
`Defendants argue that Plaintiffs do not have
`
`standing to bring some or all of their claims. (Dkt. # 54.)
`Defendants contend that Plaintiffs have not alleged
`any particularized interest and therefore have not al-
`leged a sufficient injury in fact to confer standing. De-
`fendants also assert that Plaintiff Brewer does not
`have taxpayer standing nor do Plaintiffs have organi-
`zational standing.
`
`To have standing to sue, a plaintiff must show that
`
`he personally suffered some actual or threatened in-
`jury, that the injury is fairly traceable to the defend-
`ant’s challenged action, and that the relief requested
`will redress the injury. Doe v. Tamipahoa Parish Sch.
`Bd., 494 F.3d 494, 496 (5th Cir. 2007); Center for Indi-
`vidual Freedom v. Carmouche, 449 F.3d 655, 659 (5th
`Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504
`U.S. 555, 560 (1992)). In addition, the injury must be
`an “invasion of a legally protected interest which is
`(a) concrete and particularized, and (b) actual or
`
`
`
`App. 26
`
`imminent, not conjectural or hypothetical.” Lujan, 504
`U.S. at 560. The Fifth Circuit strictly enforces the
`standing requirement as an essential element of sub-
`ject matter jurisdiction. See Doe, 494 F.3d at 498 (cit-
`ing Bender v. Williamsport Area Sch. Dist., 475 U.S.
`534, 541–42 (1986)).
`
`
`
`A. Concrete and Particularized
`To satisfy the injury-in-fact prong, a plaintiff must
`
`allege an invasion of a “legally protected interest,” that
`is both “concrete and particularized.” Plaintiffs assert
`they have standing to sue on the basis that “Defend-
`ants impermissible restriction of plaintiffs’ right to ex-
`pression of their political
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