MISSISSIPPI RISING COALITION; RONALD VINCENT; LEA CAMPBELL; PAMELA BLACKWELL, Plaintiffs - Appellants
CITY OF OCEAN SPRINGS, MISSISSIPPI, Defendant-Appellee
from the United States District Court for the Southern
District of Mississippi
HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
appeal the district court's order dismissing their claims
under the Fair Housing Act ("FHA"), 42 U.S.C.
§ 3601 et seq. The district court ruled that
plaintiffs lack both Article III and statutory standing. We
are a non-profit organization, Mississippi Rising Coalition,
and various residents of Ocean Springs, Mississippi.
Plaintiffs allege that defendant, the City of Ocean Springs
("the City"), violated the FHA when the City's
Board of Aldermen passed a resolution requiring the
Mississippi state flag to be flown over city hall and other
municipal buildings. Specifically, plaintiffs claim that
flying the state flag, which includes the Confederate battle
flag in its canton, amounts to "racial steering"
under the FHA because it deters African-Americans from living
in or moving to Ocean Springs. See Gladstone Realtors v.
Village of Bellwood, 441 U.S. 91, 94 (1979) (defining
"racial steering" as "directing prospective
home buyers interested in equivalent properties to different
areas according to their race").
states that "[a]n aggrieved person may commence a civil
action in an appropriate United States district court or
state court . . . to obtain appropriate relief with respect
to [a] discriminatory housing practice or breach." 42
U.S.C. § 3613(a)(1)(A). An "aggrieved person"
means a person who "(1) claims to have been injured by a
discriminatory housing practice; or (2) believes that such
person will be injured by a discriminatory housing practice
that is about to occur." 42 U.S.C. § 3602(i). Under
the FHA, then, one must allege the existence of a
"discriminatory housing practice" as a threshold
requirement to be considered an "aggrieved person"
with standing to sue.
agree with the district court that plaintiffs lack both
Article III and statutory standing to bring their FHA claims.
plaintiffs have not alleged a sufficient "injury in
fact" to confer Article III standing. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). We
recently held that exposure to the Mississippi state flag did
not constitute an injury sufficient to confer standing for an
equal protection claim. See Moore v. Bryant, 853
F.3d 245, 250-53 (5th Cir. 2017) ("That Plaintiff
alleges that he personally and deeply feels the impact of
Mississippi's state flag, however sincere those
allegations are, is irrelevant to . . . standing analysis
unless Plaintiff alleges discriminatory treatment."),
cert. denied, 138 S.Ct. 468 (2017). If exposure to a
flag does not injure a plaintiff for equal protection
purposes, exposure to the same flag does not injure a
plaintiff for FHA purposes either. Plaintiffs'
allegations therefore fail to establish Article III standing,
as the district correctly held.
plaintiffs' allegations also fail to establish statutory
standing under the FHA. The only act they allege is the
City's resolution requiring the Mississippi state flag to
be flown over public buildings. That is not a
"discriminatory housing practice" as required by
the FHA, and plaintiffs are therefore not "aggrieved
persons" under the statute. 42 U.S.C. § 3602(i).
Plaintiffs do not allege that the City is refusing to sell or
rent homes to African-Americans, or to any other racial
group. See 42 U.S.C. § 3604(a). Nor do they
allege that the City has made housing "unavailable"
or "den[ied]" it to anyone. Id. Plaintiffs
may believe that flying the flag in question makes living in
the City less desirable, but the complained-of action does
not plausibly equate to making housing unavailable under the
statute. See, e.g., Tenafly Eruv Ass'n, Inc. v.
Borough of Tenafly, 309 F.3d 144, 157-58 n.13 (3rd Cir.
2002) ("[N]o court has stretched the 'make
unavailable or deny' language of § 3604(a) to
encompass actions that both (1) do not actually make it more
difficult (as opposed to less desirable) to obtain housing
and (2) do not directly regulate or zone housing or
activities within the home.").
also invoke 18 U.S.C. § 3604(c), but it does not help
their case. That subsection makes it unlawful "[t]o
make, print, or publish . . . any notice, statement, or
advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or
discrimination based on race . . . or an intention to make
any such preference, limitation, or discrimination." 18
U.S.C. § 3604(c) (emphasis added.) Even assuming
arguendo that displaying a state flag could be
considered "making" or "publishing" a
"notice, statement, or advertisement," that alone
does not plausibly suggest that the City has done anything
"with respect to the sale or rental of a dwelling."
Such a capacious reading of "with respect to the sale or
rental of a dwelling" would risk converting any decision
by a municipal body into to a potential FHA claim, regardless
of its connection to the sale or rental of housing. We
decline to read the FHA so broadly. We therefore agree with
the district court that plaintiffs cannot be considered
"aggrieved persons" capable of suing under the FHA.
42 U.S.C. § 3613(a)(1)(A).
the City has moved for sanctions and costs against plaintiffs
and their counsel. While we disagree with plaintiffs'
arguments, sanctions are appropriate only for frivolous
appeals-meaning that "the result [of the appeal] is
obvious or the arguments of error are wholly without merit
and the appeal is taken in the face of clear, unambiguous,
dispositive holdings of this and other appellate
courts." Streamline Prod. Sys., Inc. v. Streamline
Mfg., Inc., 851 F.3d 440, 463 n.12 (5th Cir. 2017)
(citations and internal quotations omitted). Although we
believe the answer to the question is straightforward, we are
aware of no precedent from our court or the Supreme ...