Wade Steven Gardner v. William Mutz

962 F.3d 1329

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 22, 2020
• Docket: 19-10461
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10461 ________________________

D.C. Docket No. 8:18-cv-02843-VMC-JSS

WADE STEVEN GARDNER, MARY JOYCE STEVENS, RANDY WHITTAKER, In Official Capacity at Southern War Cry, VETERANS MONUMENTS OF AMERICA, INC., Andy Strickland, US Army Ret, President, PHIL WALTERS, In his Official Capacity as 1st Lt. Commander of the Judah P. Benjamin Camp # 2210 Sons of Confederate Veterans, KEN DANIEL, In his Official Capacity as Director of Save Southern Heritage, Inc. Florida, RANDY WHITTAKER, Individually,

Plaintiffs - Appellants,

versus

WILLIAM MUTZ, In his Official Capacity as Mayor of the City of Lakeland, Florida, TONY DELGADO, In his Official Capacity as Administrator of the City of Lakeland, Florida, DON SELVEGE, In his Official Capacity as City of Lakeland, Florida Commissioner, JUSTIN TROLLER, In his Official Capacity as City of Lakeland, Florida Commissioner, Case: 19-10461 Date Filed: 06/22/2020 Page: 2 of 26

PHILLIP WALKER, In his Official Capacity as City of Lakeland, Florida Commissioner, FLORIDA SECRETARY OF STATE, et al.,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(June 22, 2020)

Before MARTIN, NEWSOM, and O’SCANNLAIN, * Circuit Judges.

NEWSOM, Circuit Judge:

This appeal arises from a lawsuit filed by a group of individuals and

organizations who object to the City of Lakeland’s decision to relocate a

Confederate monument from one city park to another. As relevant here, the

plaintiffs contend that the relocation violates their rights under the First

Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due Process

Clause. The district court rejected the plaintiffs’ First Amendment claim on the

merits and dismissed it with prejudice; the court dismissed the plaintiffs’ due

process claim without prejudice on the ground that they lacked the requisite

standing to pursue it.

* Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit, sitting by designation.

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Following the district court’s decision, the plaintiffs failed to obtain (or even

seek) a stay, and, by the time the case reached us the City had proceeded to

relocate the monument. On appeal, the plaintiffs challenge the dismissal of their

complaint, and the defendants respond by contesting the plaintiffs’ standing to sue,

defending the district court’s decision on the merits, and contending that the

monument’s relocation has rendered the case moot. We hold that the plaintiffs

lack standing to pursue either their First Amendment claim or their due process

claim. Accordingly, we will vacate and remand the with-prejudice dismissal of the

plaintiffs’ First Amendment claim, with instructions that the district court should

dismiss without prejudice for lack of jurisdiction, and we will affirm the district

court’s without-prejudice dismissal of the plaintiffs’ due process claim.

I A The plaintiffs in this case are Wade Steven Gardner, a citizen-taxpayer of

Lakeland; Randy Whittaker, a citizen-taxpayer of Polk County who has, he says,

“Confederate Dead in his family lineage”; Southern War Cry, an organization that

Whittaker administers; the Judah P. Benjamin Camp #2210 Sons of Confederate

Veterans, a subdivision of the nonprofit Florida Division Sons of Confederate

Veterans, Inc., whose self-described purpose is to “‘vindicate the cause’ for which

the Confederate Veteran fought”; Veterans Monuments of America, Inc., a

nonprofit entity dedicated to protecting and preserving war memorials; Mary Joyce

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Stevens, a Georgia resident and a current member and past president of a chapter

of the United Daughters of the Confederacy; and Save Southern Heritage, Inc., a

South Carolina nonprofit formed to “preserve the history of the south for future

generations.”

Most of the defendants in this case are affiliated either with the City of

Lakeland or the State of Florida. The City-related defendants are William Mutz,

Lakeland’s Mayor; Don Selvage, Justin Troller, and Phillip Walker, Lakeland City

Commissioners; and Tony Delgado, the City Manager. The plaintiffs also sued

Michael Ertel, the Florida Secretary of State, 1 and Antonio Padilla, the President of

Energy Services & Products Corporation, which had submitted a proposal for

relocating the monument.

This case centers on a memorial “cenotaph”2 that is dedicated to

Confederate soldiers who died during the Civil War and is—or more accurately,

was—located in Lakeland’s Munn Park, which is a part of a nationally registered

historic district. In 1908, the City granted the United Daughters of the

Confederacy’s petition to erect the monument in Munn Park. The cenotaph is 26

feet tall, weighs about 14 tons, and is engraved with the words “Confederate

Dead,” a poem, and images of Confederate flags. More recently, the City began to

1 Ertel replaced his predecessor in office, Kenneth Detzner. 2 A cenotaph is “[a]n empty tomb or a monument erected in honor of a person who is buried elsewhere.” Webster’s Second New International Dictionary 433 (1934).

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receive complaints about the monument, and in December 2017 the City

Commission agreed to start the process of removing it. In May 2018, the

Commission voted to relocate the cenotaph from Munn Park to Veterans Park,

which is located outside Lakeland’s historic district. The Commission initially

directed that all relocation costs be paid by private donations, but it later agreed to

permit the use of funds from Lakeland’s red-light-camera program to complete the

project.

B In November 2018, the plaintiffs sued to prevent the cenotaph’s relocation.

Of their complaint’s seven counts, only two are at issue here: Count 1 alleged a

violation of the plaintiffs’ First Amendment rights—in particular, the plaintiffs

complained, the City “ha[d] abridged [their] right to free speech . . . by deciding to

remove the [c]enotaph which communicated minority political speech in a public

forum.” Count 4 alleged a violation of the Due Process Clause—specifically, the

plaintiffs asserted that the City failed “to provide [them] and other like-minded

Florida and American citizens due process, including reasonable notice, an

opportunity to be heard and a hearing before a neutral arbiter, before removing the

Historic Munn Park Cenotaph.”3 The plaintiffs requested both a declaration that

3 The counts not relevant to this appeal are as follows: Count 2 alleged a breach of a bailment agreement between the city and the United Daughters of the Confederacy; Count 3 alleged various “[v]iolation[s] of public trust”; Count 5 alleged a violation of Lakeland’s Historic

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the City’s actions violated the Constitution and an injunction to prevent the

monument’s relocation.

The defendants moved to dismiss the plaintiffs’ suit. In their motion, Mutz,

Delgado, Selvage, Troller, and Walker argued that the plaintiffs lacked standing,

that they had failed to state a claim for which relief could be granted, and that, in

any event, their claims were barred by legislative and/or qualified immunity. In

particular, the defendants contended that the plaintiffs hadn’t suffered an “injury in

fact” because they didn’t have a “cognizable claim arising out of the City’s

relocation or removal of a monument on City property.” More particularly still,

they argued that the cenotaph was a form of government speech and that,

accordingly, the plaintiffs didn’t have a “Free Speech claim with respect to [it] or

any due process rights premised on [its] removal.” Ertel and Padilla moved to

dismiss on similar grounds.

The district court granted the defendants’ motions. With respect to the

plaintiffs’ First Amendment claim, the court opted to treat the City officials’

motion to dismiss for lack of subject-matter jurisdiction as a motion to dismiss for

failure to state a claim; for support, the court invoked the proposition that when a

defendant’s jurisdictional challenge “implicates an element of the cause of action,

Preservation Ordinance; and Counts 6 and 7 alleged intent and collusion to violate two Florida statutes.

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courts are to find that jurisdiction exists and deal with the objection as a direct

attack on the merits of the plaintiff’s case.” Dist. Ct. Order at 9 (internal quotation

marks omitted) (quoting Scarfo v. Ginsberg, 175 F.3d 957, 965 (11th Cir. 1999)

(Barkett, J., dissenting)). Having refocused the inquiry from the plaintiffs’

standing to the merits of their claim, the district court held that the cenotaph is not

private expression but rather a form of government speech and, accordingly, that

the “[p]laintiffs d[id] not have a legally protected interest in that speech” and that

“their First Amendment claim fail[ed] as a matter of law.” Id. at 9–11. The court

rejected the plaintiffs’ due process claim on standing grounds, holding that “[e]ven

if [p]laintiffs had a protected liberty or property interest in the [c]enotaph’s

placement in Munn Park,” their alleged injuries were “not sufficiently

particularized” for Article III purposes. Id. at 12–13 (internal quotation marks and

citation omitted).4 The district court alternatively held that the plaintiffs had failed

to state a cognizable due process claim because they “lack[ed] a liberty interest in

the [c]enotaph and thus [could not] state a procedural due process claim based on

the memorial’s relocation.” Id. at 15. 5

4 The court separately rejected the plaintiffs’ contention that Gardner had standing as a municipal taxpayer on the ground that no tax dollars had been spent on the relocation. 5 Because it dismissed all of the plaintiffs’ federal claims, the district court declined to exercise supplemental jurisdiction over the remaining state-law claims. Although they referenced their state-law claim against the Secretary of State in their notice of appeal, the plaintiffs have offered no challenge to the district court’s decision to decline supplemental jurisdiction. Because the

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The plaintiffs promptly appealed the district court’s dismissal order to this

Court. For whatever reason, though, they failed to seek a stay pending appeal to

prevent the relocation of the cenotaph while the case wound its way to us, and, in

the meantime, the City of Lakeland proceeded to move the monument from Munn

Park to Veterans Park. In light of the cenotaph’s relocation, the defendants argue

that because “the action [the plaintiffs] sought to prevent has come to pass, the case

is now moot.” Br. of Appellees at 12.

II

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, we have “a special

obligation to satisfy [ourselves] . . . of [our] own jurisdiction” before proceeding to

the merits of an appeal. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95

(1998) (internal quotation marks and citation omitted). The most notable—and

most fundamental—limits on the federal “judicial Power” are specified in Article

III of the Constitution, which grants federal courts jurisdiction only over

enumerated categories of “Cases” and “Controversies.” U.S. Const. art. III, § 2.

This case-or-controversy requirement comprises three familiar “strands”:

plaintiffs haven’t contested the issue in their briefs, it is abandoned. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001).

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(1) standing, (2) ripeness, and (3) mootness. Christian Coal. of Fla., Inc. v. United

States, 662 F.3d 1182, 1189 (11th Cir. 2011). 6

Two case-or-controversy requirements—standing and mootness—are at

issue in this case: The district court held that the plaintiffs lacked standing to

pursue their due process claims, and the same basic considerations that animated

its decision call into question the plaintiffs’ standing to litigate their First

Amendment claims. And separately, in light of the cenotaph’s removal from

Munn Park during the pendency of the appeal, the defendants contend that the case

is now moot.

So, a threshold question about threshold questions: Which to assess first?

The Supreme Court has clarified that a reviewing court can “choose among

threshold grounds for denying audience to a case on the merits,” Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 585 (1999), and we have routinely availed

ourselves of that flexibility, see, e.g., Cook v. Bennett, 792 F.3d 1294, 1298–99

(11th Cir. 2015) (addressing standing, then mootness); KH Outdoor, L.L.C. v. Clay

County, 482 F.3d 1299, 1302 (11th Cir. 2007) (addressing mootness, then

standing); Tanner Advert. Grp., L.L.C. v. Fayette County, 451 F.3d 777, 785 (11th

Cir. 2006) (same); Fla. Pub. Interest Research Grp. Citizen Lobby, Inc. v. EPA,

6 Or perhaps four. Cf. Made in the USA Found. v. United States, 242 F.3d 1300, 1312 (11th Cir. 2001) (“The political question doctrine emerges out of Article III’s case or controversy requirement and has its roots in separation of powers concerns.”).

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386 F.3d 1070, 1082–88 (11th Cir. 2004) (addressing standing, then mootness).

Here, for several reasons, we think it best to start with standing.

First, and perhaps most obviously, standing was—at least in part, anyway—

the basis of the district court’s decision below. As we’ll explain shortly, in

addressing the plaintiffs’ First Amendment claim, the district court improperly

conflated the standing and merits inquiries. But even so, that court perceived and

addressed potential problems with the plaintiffs’ standing to sue, and it makes

sense for us to pick up that thread. Mootness issues, by contrast, arose only during

the pendency of this appeal, when the plaintiffs failed to seek a stay and the

defendants proceeded to relocate the cenotaph. Cf. KH Outdoor, L.L.C., 482 F.3d

at 1301–02 (exercising discretion to address mootness before standing where

mootness had been at issue below).

Second, as we have observed before, standing is “perhaps the most

important,” Fla. Pub. Interest, 386 F.3d at 1083 (internal quotation marks and

citation omitted)—or, alternatively, the “most central,” Kelly v. Harris, 331 F.3d

817, 819 (11th Cir. 2003)—of Article III’s jurisdictional prerequisites. Why so?

One reason, which distinguishes standing from its Article III running buddies, is

that whereas ripeness and mootness are fundamentally temporal—ripeness asks

whether it’s too soon, mootness whether it’s too late—standing doesn’t arise and

evanesce; rather, it “limits the category of litigants empowered to maintain a

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lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016). Standing asks, in short, whether a particular

plaintiff even has the requisite stake in the litigation to invoke the federal “judicial

Power” in the first place. U.S. Const. art. III, § 2. So, to compare the doctrines at

issue here, the plaintiff whose suit goes moot once had a “Case” but lost it due to

the march of time or intervening events, whereas the plaintiff who lacks standing

never had a “Case” to begin with.

Finally—and as a purely practical matter—at least in this case the standing

inquiry is more straightforward than the mootness inquiry. Assessing the

plaintiffs’ standing simply requires us to determine whether their alleged injuries—

violations of their interests in “preserv[ing] the history of the south,” “expressing

their free speech[] from a Southern perspective,” “‘vindicat[ing] the cause’ for

which the Confederate Veteran fought,” and “protect[ing] and preserv[ing]

Memorials to American veterans”—constitute Article-III-cognizable harms.

Assessing mootness, by contrast, could get messy. Very briefly, the defendants

contend that the cenotaph’s removal from Munn Park moots the case, because the

very thing that the plaintiffs sought to prevent has now occurred—and in large

part, they add, because the plaintiffs failed to obtain (or even seek) a stay pending

appeal. Seems right. But, the plaintiffs respond—not without some force—this

isn’t a situation that “no longer presents a live controversy with respect to which

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the court can give meaningful relief,” Friends of Everglades v. S. Fla. Water

Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks and

citation omitted), because even now a court could grant them exactly what they

want just by ordering the cenotaph moved back to Munn Park. 7 Makes sense. But

alas, it’s not quite that simple, either—we have deemed cases moot despite the

theoretical availability of relief where (as here) the requested remedy would be

impracticable or exceedingly expensive, and especially where (as here) the

appealing party failed to seek a stay. See, e.g., Fla. Wildlife Fed. v. Goldschmidt,

611 F.2d 547, 549 (5th Cir. 1980). But see, e.g., Chafin v. Chafin, 568 U.S. 165,

175 (2013) (holding that a case was not moot because “[n]o law of physics

prevent[ed]” the plaintiff from receiving the relief requested, even if it seemed

unlikely).

As our tennis-match-ish recitation demonstrates, the mootness question here

is hardly cut and dried. All the more reason, we think, to proceed directly to the

simpler and more straightforward standing issue. See Sinochem Int’l Co. v.

Malaysia Int’l Shipping Corp., 549 U.S. 422, 436 (2007) (expressing approval of

7 This case is different from the usual monument-related dispute, which is brought by a plaintiff who wants a monument moved—rather than, as here, plaintiffs who want to prevent removal. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019); Kondrat’yev v. City of Pensacola, 949 F.3d 1319, 1321–22 (11th Cir. 2020). In that more typical scenario, removal moots the case because the plaintiff has gotten exactly what he sought. See, e.g., Staley v. Harris County, 485 F.3d 305, 309 (5th Cir. 2007).

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taking “the less burdensome course” when faced with competing grounds for

dismissal). 8

* * *

For the reasons explained below, we conclude that the plaintiffs have not

established Article III standing to pursue their First Amendment or due process

claims, which we’ll discuss in turn. Because we can dispose of this case on

standing grounds alone, we needn’t—and won’t—address either mootness or the

merits.9

III

Sitting en banc, we recently had occasion to clarify and reiterate a few

foundational principles regarding plaintiffs’ standing to sue. First, we observed

that “Article III of the United States Constitution limits the ‘judicial Power’—and

thus the jurisdiction of the federal courts—to ‘Cases’ and ‘Controversies,’” Lewis

v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019) (en banc) (quoting U.S.

Const. art. III, § 2), and that “[t]he ‘standing’ doctrine is ‘an essential and

unchanging part of the case-or-controversy requirement,” id. (quoting Lujan v.

8 Fla. Wildlife Fed’n, Inc. v. U.S. Army Corps of Eng’rs, 859 F.3d 1306, 1324 (11th Cir. 2017) (Tjoflat, J., concurring) (“The necessary inquiry courts must make when deciding between available nonmerits grounds for dismissal is guided by a non-exhaustive and case-specific set of considerations. Those considerations may include convenience, fairness, the interests served by structural principles such as federalism and comity, and judicial economy and efficiency.”). 9 We review a district court’s order granting a motion to dismiss de novo. Mulhall v. Unite Here Local 355, 667 F.3d 1211, 1213–14 (11th Cir. 2012).

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Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Second, we echoed the Supreme

Court’s definitive recitation of the standing doctrine’s three necessary

prerequisites: (1) “an ‘injury in fact’—an invasion of a legally protected interest

that is both (a) ‘concrete and particularized’ and (b) ‘actual or imminent, not

conjectural or hypothetical’”; (2) “a ‘causal connection’ between [the plaintiff’s]

injury and the challenged action of the defendant”; and (3) a “likel[ihood], not

merely speculati[on], that a favorable judgment will redress [the] injury.” Id.

(quoting Lujan, 504 U.S. at 560–61). Finally, we underscored the fundamental

point that “[b]ecause standing to sue implicates jurisdiction, a court must satisfy

itself that the plaintiff has standing before proceeding to consider the merits of her

claim, no matter how weighty or interesting.” Id.

For the reasons that follow, we conclude that the plaintiffs here lack standing

to sue and, accordingly, that the federal courts lack jurisdiction to consider their

claims.

A

We’ll start with the plaintiffs’ First Amendment claim. First, though, a

brief—but we think important—detour. In particular, before addressing the

plaintiffs’ standing, we must pause to correct a methodological error in the district

court’s analysis. From the premises (1) that the defendants here had contended

that the plaintiffs “lack[ed] standing to assert their First Amendment claim because

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the [c]enotaph is government speech” and (2) that the defendants’ argument in that

respect also went “to the merits of the First Amendment claim,” the district court

concluded that it should, in essence, sidestep the standing issue and proceed

directly to the merits. Having done so, the court held that under Pleasant Grove

City v. Summum, 555 U.S. 460 (2009), the cenotaph was indeed a form of

government speech that didn’t trigger First Amendment protection, and it

accordingly dismissed the plaintiffs’ claims on the merits and with prejudice.

In bypassing standing to address the merits, the district court erred. To

repeat what we said recently in Lewis—repeating there what we had said many

times before—“[b]ecause standing to sue implicates jurisdiction, a court must

satisfy itself that the plaintiff has standing before proceeding to consider the merits

of her claim, no matter how weighty or interesting.” 944 F.3d at 1296 (emphasis

added); accord, e.g., Swann v. Secretary, 668 F.3d 1285, 1288 (11th Cir. 2012)

(“[S]tanding is a threshold jurisdictional question which must be addressed prior to

and independent of the merits of a party’s claims.” (quotation omitted)). Indeed,

the Supreme Court has expressly condemned the exercise of a so-called

“‘hypothetical jurisdiction’ that enables a court to resolve contested questions of

law when its jurisdiction is in doubt.” Steel Co., 523 U.S. at 101. “Hypothetical

jurisdiction,” the Court explained, “produces nothing more than a hypothetical

judgment—which comes to the same thing as an advisory opinion.” Id.

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The district court here seems to have gotten tripped up by language in some

of our cases to the effect that if a defendant’s jurisdictional challenge “implicates

an element of the cause of action, courts are to find that jurisdiction exists and deal

with the objection as a direct attack on the merits of the plaintiff’s case.” Dist. Ct.

Order at 9 (internal quotation marks omitted) (quoting Scarfo v. Ginsberg, 175

F.3d 957, 965 (11th Cir. 1999) (Barkett, J., dissenting)). Two problems: First,

although the district court cited Scarfo, the language it quoted actually comes from

Judge Barkett’s dissent in that case. (The majority there affirmed the dismissal of

a case solely on subject-matter-jurisdiction grounds, refusing to look through to the

merits. See 175 F.3d at 958.) That error, though—easy enough to make in the

Westlaw age—was essentially harmless, as the same language appears in majority

opinions that both predate and postdate Scarfo. See, e.g., Morrison v. Amway

Corp., 323 F.3d 920, 925, 929–30 (11th Cir. 2003); Garcia v. Copenhaver, Bell &

Assocs., M.D.’s, 104 F.3d 1256, 1261 (11th Cir. 1997).

The second problem with the district court’s analysis isn’t so easily shrugged

off. The principle embodied in the language that the district court quoted does not,

as that court seemed to assume, create a broad-ranging exception to the Steel Co.

rule—namely, that jurisdiction should be evaluated before, and separately from,

the merits. Rather, it applies only in a particular circumstance, not presented here.

We have distinguished between “facial” and “factual” attacks on subject-matter

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jurisdiction. See Morrison, 323 F.3d at 924 n.5. “Facial attacks challenge subject

matter jurisdiction based on the allegations in the complaint,” whereas “[f]actual

attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings.”

Id. at 925 n.5. In adjudicating a facial attack, “the district court takes the

allegations as true in deciding whether to grant the motion.” Id. By contrast, when

a court confronts a “factual” attack, it needn’t accept the plaintiff’s facts as true;

rather, “the district court is free to independently weigh facts” and make the

necessary findings. Id. at 925.

However—and now we’re getting to the root of the district court’s error—

even in the context of a factual attack, an exception applies, thereby requiring the

district court to accept the plaintiff’s allegations as true, where a factual question

underlying a challenge to the court’s statutory jurisdiction also “implicate[s] the

merits of the underlying claim.” Id. That sort of “intertwine[ment]” occurs, we

have said, “when ‘a statute provides the basis for both the subject matter

jurisdiction of the federal court and the plaintiff’s substantive claim for relief’”—

for instance, as in Morrison, where the defendant disputed the plaintiff’s

contention that he was an “eligible employee” within the meaning of the FMLA, a

necessary prerequisite (under then-prevailing law) to both the court’s statutory

jurisdiction and the merits of the plaintiff’s cause of action. Id. at 923, 926

(quoting Garcia, 104 F.3d at 1262); accord Garcia, 104 F.3d at 1258–62

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(questioning whether the defendant was a covered “employer” within the meaning

of the ADEA). It is in those unique instances, we have clarified—using the

language the district court quoted here—that “[t]he proper course of action . . . is to

find that jurisdiction exists and deal with the objection as a direct attack on the

merits of the plaintiff’s case.” Morrison, 323 F.3d at 925 (quoting Garcia, 104

F.3d at 1261).

This case, it seems to us, is (at least) thrice removed from that scenario.

First, as the district court itself observed, here the defendants’ “jurisdictional attack

[wa]s based on the face of the pleadings”; they took “the allegations in the

plaintiff[s’] complaint . . . as true for purposes of the motion” to dismiss and

argued that the plaintiffs nonetheless lacked standing—and therefore that the

federal courts lacked jurisdiction—as a matter of law. Dist. Ct. Order at 6.

Second, the issue here is not statutory jurisdiction or standing, but rather whether

the plaintiffs have satisfied the “irreducible constitutional minimum” standing

requirements that emerge from Article III. Lujan, 504 U.S. at 560; cf. Steel Co.,

523 U.S. at 97 n.2 (distinguishing statutory-standing cases, in which the merits and

jurisdictional inquiries may “overlap,” from Article-III-standing cases, in which

the jurisdictional question typically “has nothing to do with the text of [a] statute”

(quotation omitted)). Finally, and in any event, there is—for reasons we will

explain in greater detail below—no necessary overlap or “intertwine[ment]” here

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between the merits of the plaintiffs’ constitutional claims and their standing to sue.

Morrison, 323 F.3d at 926.

Long story short: When the district court here bypassed standing issues and

proceeded directly to the merits of the plaintiffs’ First Amendment claim, it

assumed its own jurisdiction in precisely the way that Steel Co. forbids. There

were, we will see, independent and dispositive threshold standing issues that could

(and should) have been decided first.

B

The “‘[f]irst and foremost’ of standing’s three elements” is injury in fact.

Spokeo, 136 S. Ct. at 1547 (alteration in original) (quoting Steel Co., 523 U.S. at

103). And as already noted, to establish an injury in fact, a plaintiff must

demonstrate, among other things, that he or she has suffered “an invasion of a

legally protected interest that is both . . . ‘concrete and particularized.’” Lewis, 944

F.3d at 1296 (quoting Lujan, 504 U.S. at 560). While they may be related

concepts, concreteness and particularity are in fact “quite different.” Spokeo, 136

S. Ct. at 1548. To pass Article III muster, a plaintiff’s alleged injury must be both

concrete and particularized. See id. As we will explain, the plaintiffs’ injuries here

are neither.

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First, concreteness. The Supreme Court recently clarified that to be

concrete, an alleged injury must be “de facto” and “real”—and just as importantly,

“not ‘abstract.’” Id. (quotations omitted). And while a concrete injury needn’t

necessarily be “tangible,” id. at 1549, the Court has consistently held that purely

psychic injuries arising from disagreement with government action—for instance,

“conscientious objection” and “fear”—don’t qualify. See Diamond v. Charles, 476

U.S. 54, 67 (1986); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 417–18 (2013).

The plaintiffs’ alleged injuries here are simply too “abstract” to implicate

Article III. Most generally, the plaintiffs assert that the City “abridged [their] right

to free speech . . . by deciding to remove the [c]enotaph which communicated

minority political speech in a public forum.” But surely the naked recitation of a

constitutional claim isn’t sufficient; if it were, every § 1983 plaintiff would, by

definition, have standing to sue. Somewhat (but not much) more specifically, the

plaintiffs assert that the monument’s relocation infringes their interests in

“preserv[ing] the history of the south,” “expressing their free speech[] from a

Southern perspective,” “‘vindicat[ing] the cause’ for which the Confederate

Veteran fought,” and “protect[ing] and preserv[ing] Memorials to American

veterans.” But those injuries, too, are pretty amorphous. What exactly is the (or a)

20 Case: 19-10461 Date Filed: 06/22/2020 Page: 21 of 26

“Southern perspective”? What exactly was “the cause for which the Confederate

veteran fought,” and what exactly does it mean to “vindicate” it?

At bottom, it seems to us, the plaintiffs endorse some meaning that they

ascribe to the monument; they agree with what they take to be the cenotaph’s

message because it aligns with their values. And because they agree with that

message, they disagree with—object to—the monument’s removal from Munn

Park. But the plaintiffs’ inchoate agreement with what they take to be the

cenotaph’s meaning or message—and their consequent disagreement with the

monument’s relocation—does not alone give rise to a concrete injury for Article III

purposes. Cf. Diamond, 476 U.S. at 62 (“The presence of a disagreement, however

sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s

requirements.”); Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 485–86 (1982) (holding that “the

psychological consequence presumably produced by observation of conduct with

which one disagrees . . . is not an injury sufficient to confer standing under Art. III,

even though the disagreement is phrased in constitutional terms”).

Even if the plaintiffs had articulated a concrete injury, they couldn’t meet the

standing doctrine’s separate particularity requirement. For an alleged injury to be

sufficiently particularized to confer Article III standing, it must “affect the plaintiff

21 Case: 19-10461 Date Filed: 06/22/2020 Page: 22 of 26

in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. Put slightly

differently, the injury cannot be “undifferentiated,” but rather must be “distinct” to

the plaintiff. Spokeo, 136 S. Ct. at 1548 (quotations omitted). Accordingly, we

have held, a plaintiff must show that she has been “directly affected apart from her

special interest in the subject” at issue. Koziara v. City of Casselberry, 392 F.3d

1302, 1305 (11th Cir. 2004) (internal quotation marks and citation omitted). If,

instead, “the plaintiff is merely a ‘concerned bystander,’ then an injury in fact has

not occurred.” Id. (quotation omitted). “Article III standing,” the Supreme Court

has emphasized, “is not to be placed in the hands of concerned bystanders,”

because they “will use it simply as a vehicle for the vindication of value interests.”

Hollingsworth v. Perry, 570 U.S. 693, 707 (2013) (internal quotation marks and

citation omitted).

So again, back to the plaintiffs’ allegations here. They claim interests in

“preserv[ing] the history of the south,” “expressing their free speech[] from a

Southern perspective,” “‘vindicat[ing] the cause’ for which the Confederate

Veteran fought,” and “protect[ing] and preserv[ing] Memorials to American

veterans.” But those interests are “undifferentiated,” collective—not “distinct” to

any of the plaintiffs. Spokeo, 136 S. Ct. at 1548 (quotations omitted). As the

Supreme Court emphasized in Sierra Club v. Morton, “a mere ‘interest in a

problem,’ no matter how longstanding the interest and no matter how qualified [an]

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organization is in evaluating the problem, is not sufficient by itself.” 405 U.S. 727,

739 (1972). Rather, “a party seeking review must allege facts showing that he is

himself adversely affected.” Id. at 740.

In Sierra Club, for example, an environmental organization sued under the

Administrative Procedure Act to challenge development plans that would impact a

national forest and park—it did so based on its “special interest in the conservation

and the sound maintenance of the national parks, game refuges and forests of the

country.” Id. at 729–30 (internal quotation marks omitted). The Supreme Court

acknowledged that “[a]esthetic and environmental well-being . . . are important

ingredients of the quality of life in our society,” and it observed that the mere “fact

that particular environmental interests are shared by the many rather than the few

does not make them less deserving of legal protection through the judicial

process.” Id. at 734. But, the Court clarified, a plaintiff must establish more than

just “an injury to a cognizable interest.” Id. at 734–35. Instead, “the party seeking

review [must] be himself among the injured.” Id. at 735. The Court went on to

hold that the organization’s alleged injuries were insufficiently personal because it

hadn’t pleaded “that its members use[d the impacted land] for any purpose, much

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less that they use[d] it in any way that would be significantly affected by the

proposed actions.” 10 Id.

Just so here—aside from their “special interest in the subject[s]” of

Confederate history, veterans memorials, and the so-called “Southern perspective,”

Koziara, 392 F.3d at 1305, the plaintiffs haven’t shown that they have suffered a

particularized Article III injury of the sort that distinguishes them from other

interested observers and thus qualifies them, specifically, to invoke federal-court

jurisdiction. They don’t allege, for example, that they (or, for the organizational

plaintiffs, their members) routinely visited the monument in Munn Park or,

alternatively, that they won’t be able to visit the monument at its new location in

Veterans Park. Rather, their allegations implicate only the generalized desires to

promote Southern history and to honor Confederate soldiers. Accordingly, just as

in Sierra Club, they haven’t shown themselves—in particular—to be “among the

injured,” 405 U.S. at 735—or, in the words of Hollingsworth, that they are more

than “concerned bystanders” attempting to vindicate their “value interests,” 570

U.S. at 707 (internal quotation marks and citation omitted).

10 Perhaps sensing that their injuries as alleged in the complaint don’t cut it, the plaintiffs on appeal articulated a different theory—namely, that we should adopt the reasoning underlying Justice Douglas’s solo dissent in Sierra Club, and grant them standing to speak for inanimate objects like the cenotaph at issue here. Needless to say, we can’t do that.

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We conclude, therefore, that the plaintiffs have not established Article III

standing to pursue their First Amendment claim. Accordingly, we may not and do

not proceed to the merits. 11

IV

The plaintiffs separately (and summarily) assert a violation of their rights

under the Due Process Clause. The gist of their one-paragraph allegation is that

the City failed “to provide [them] and other like-minded Florida and American

citizens due process, including reasonable notice, an opportunity to be heard and a

hearing before a neutral arbiter, before removing the Historic Munn Park

Cenotaph.”

Once again, we conclude that we are precluded from reaching the merits.

The same standing deficiencies that sunk the plaintiffs’ First Amendment claim—

namely, that their alleged injuries are neither concrete nor particularized—doom

their due process claim as well. As already explained, the plaintiffs assert interests

in “preserv[ing] the history of the south,” “‘vindicat[ing] the cause’ for which the

Confederate Veteran fought,” “protect[ing] and preserv[ing] Memorials to

11 A brief procedural note: Because the district court rejected the plaintiffs’ First Amendment claim on the merits, it dismissed that claim with prejudice. That was error; the court should have dismissed the claim on standing—i.e., jurisdictional—grounds, and thus without prejudice. See Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (holding that the plaintiff lacked standing and remanding for reentry of dismissal order without prejudice in a case where a complaint was erroneously dismissed with prejudice).

25 Case: 19-10461 Date Filed: 06/22/2020 Page: 26 of 26

American veterans,” and “expressing their free speech[] from a Southern

perspective.” Those interests are simply too vague, inchoate, and undifferentiated

to implicate Article III. 12

V

We hold that the plaintiffs have not alleged a concrete, particularized injury

and that they therefore lack Article III standing. Accordingly, we lack jurisdiction

to consider the merits of their claims.

With respect to the plaintiffs’ First Amendment claim, we VACATE AND

REMAND with instructions that the district court should dismiss without

prejudice for lack of jurisdiction. We AFFIRM the district court’s without-

prejudice dismissal of the plaintiffs’ due process claim.

12 There are two loose ends, both of which pertain to Gardner’s alleged standing as a Lakeland taxpayer. First, as the district court explained, “[t]he Complaint alleges that the City is using private donations as well as revenue from the City’s red light camera program to fund the relocation of the [c]enotaph.” So, according to the plaintiffs’ own complaint, no tax money was actually used to relocate the monument. The plaintiffs separately asserted in their complaint that “Mayor Mutz reportedly used City Taxpayer funds to pay for the postage for a fundraising letter” aimed at raising private donations to move the cenotaph. They admit, though, that in response to a public-records request seeking information about these fundraising letters, the City clarified “that no public funds were used” to distribute them. Any attempt to establish taxpayer standing, therefore, is unavailing. In their brief to us, the plaintiffs separately (but relatedly?) contend that the government defendants “use[d] a subterfuge to prevent assertion of taxpayer standing.” We needn’t address this issue, as it wasn’t raised in the district court. See, e.g., Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that “[t]his Court has repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court” (internal quotation marks and citation omitted)).