DAVID MCMAHON; STEVEN LITTLEFIELD; TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INCORPORATED, Plaintiffs - Appellants
PRESIDENT GREGORY L. FENVES, In His Official Capacity as President of the University of Texas at Austin, Defendant-Appellee RICHARD BREWER; TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INCORPORATED, Plaintiffs - Appellants
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
Appeals from the United States District Court for the Western
District of Texas
CLEMENT, ELROD, and DUNCAN, Circuit Judges.
BROWN CLEMENT, Circuit Judge
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 Veterans sued the University of Texas to
reverse its decision to relocate several Confederate statues.
In the San Antonio case, Richard Brewer and the Texas
Division of the Sons of Confederate Veterans first moved to
temporarily restrain the City of San Antonio from removing a
Confederate monument and two cannons from a City park and
then moved to compel their reinstallation. Both district
courts dismissed Plaintiffs' First Amendment claims for
lack of standing and then declined to exercise supplemental
jurisdiction over their state-law claims. Plaintiffs
appealed. We affirm the district courts' dismissals.
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 Woodrow Wilson, and
statues of five Confederate leaders: Jefferson Davis, Robert
E. Lee, Albert Sidney Johnston, and John H. Reagan. The
University placed the statues on its campus in the 1930s, but
never built the arch.
century later, University President Gregory 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 affirmed; the Texas Supreme Court
denied review. See Bray v. Fenves, No.
06-15-00075-CV, 2016 WL 3083539 (Tex. App.-Texarkana Mar. 24,
2016, pet. denied) (mem. op.).
federal complaint alleges First Amendment 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
Littlefield claim to be "descendant[s] of Confederate
veterans," with Littlefield a descendant of Major
Littlefield. Fenves moved to dismiss for lack of
subject-matter jurisdiction, arguing that Plaintiffs lacked
standing because 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 vindication 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.
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 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
century later, the City Council passed an ordinance to remove
the monument and cannons from the park. The Texas Division of
the Sons of Confederate Veterans, this time with Richard
Brewer, sued the City in federal court in San Antonio.
See Brewer v. Nirenberg, 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 monument "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 defaced[, ]
pending resolution of this lawsuit." Id. at *1.
Plaintiffs then amended their complaint, adding as Defendants
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 conversion. The City moved for
summary judgment on all Plaintiffs' claims, and the
individual Defendants moved to dismiss.
district court granted the City's summary-judgment motion
on Plaintiffs' First Amendment claim, 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 Confederate 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).
unlike the individual Plaintiffs in the University case, also
asserted standing as a municipal taxpayer. 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 expenditure 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 Plaintiffs' federal claims dismissed, the court
declined to exercise supplemental jurisdiction over
Plaintiffs' state-law claims and then denied the
individual Defendants' motion to dismiss as moot.
Id. at *6.
in both cases appealed, and the ...