LA Fair Housing Action v. Azalea Garden ( 2023 )

Case: 22-30609 Document: 00516895627 Page: 1 Date Filed: 09/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 14, 2023
No. 22-30609 Lyle W. Cayce
____________ Clerk
Louisiana Fair Housing Action Center, Incorporated,
Plaintiff—Appellee,
versus
Azalea Garden Properties, L.L.C.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:22-CV-74
______________________________
Before Elrod, Ho, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Louisiana Fair Housing Action Center (LaFHAC) sued Azalea
Garden Properties, LLC (Azalea Garden), alleging that Azalea Garden
discriminated on the basis of race and disability at its apartment complex in
Jefferson, Louisiana, in violation of the Fair Housing Act (FHA). The
district court dismissed LaFHAC’s disability claim, but allowed its disparate
impact race claim to proceed, subject to one caveat: The district court
certified a permissive interlocutory appeal on the issue of whether the
“predictably will cause” standard for FHA disparate-impact claims remains
viable after Inclusive Communities Project Inc. v. Lincoln Property Co., 920 F.3d
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890 (5th Cir. 2019). Before reaching that question, however, we are duty-
bound to consider the threshold issue of jurisdiction, and specifically whether
LaFHAC has standing to bring the underlying claims. Concluding that it
does not, we remand with instruction to dismiss this action.
I.
LaFHAC “is a nonprofit entity with a mission to eradicate housing
discrimination in Louisiana.” 1 LaFHAC employs “testers” to ferret out
discrimination. Per LaFHAC, these testers “pose as prospective
residents . . . to obtain information” from “housing providers” “to
determine if the provider is discriminating in violation of the FHA.”
LaFHAC “tested” Azalea Garden’s complex in this way over several years
beginning in 2015.
In June 2015, the first LaFHAC tester (identified as “MW”) called
the complex “to inquire about units available for rent.” MW connected with
Heidi, an agent at the complex, and arranged to tour a model unit. After
Jordan, another Azalea Garden employee, showed MW the unit, MW asked
“how a seven-year-old misdemeanor would affect her odds of being approved
to rent” a unit at the complex. Unsure of the answer, Jordan deferred to
another Azalea Garden employee, Danielle, who told MW that such a
misdemeanor would affect her odds “[i]f it shows up.” During her visit, MW
received a copy of Azalea Garden’s rental application, which included a
written policy regarding the complex’s use of criminal background checks in
reviewing rental applications:
If the criminal background check reveals any of the following,
it will be grounds for rejecting an application: [a]ny
[m]isdemeanor conviction in the preceding five (5) years
_____________________
1
The facts and quotations in this section are drawn from LaFHAC’s complaint.
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including but not limited to a person or property misdemeanor;
[a]ny [f]elony convictions (with no time limit); . . . [a]ny drug
related convictions, including petty offenses; . . . [and] [a]ny of
the above related charges resulting in “Adjudication withheld”
and/or “deferred Adjudication.”
Over the next several years, four other LaFHAC testers contacted the
complex. Each tester inquired as to whether a criminal history would cause
an application to be declined. Heidi and other Azalea Garden agents
consistently responded that a past criminal history would cause the
automated computer system to reject an application and that the agents had
little discretion in the matter.
LaFHAC sued Azalea Garden, alleging housing discrimination under
a disparate impact theory. Per LaFHAC, despite Azalea Garden’s written
policy on past criminal history, Azalea Garden’s de facto policy is to deny all
applicants with any criminal history, regardless of any individualized
variables. LaFHAC alleges that this de facto policy has a disparate impact on
African Americans because, at the national, state, and local levels, African
Americans are more likely than whites to have a criminal record. Therefore,
African Americans are more likely to be denied housing under a policy that
automatically declines would-be renters with criminal records.
Azalea Garden moved to dismiss, asserting that the dispute was not
ripe and that LAFHAC had failed to allege a racial disparity that was caused
by Azalea Garden’s criminal-history policy. LaFHAC countered that Azalea
Garden’s employees should be expected to convey the complex’s criminal
history policy accurately and that the criminal history data included in its
complaint permitted a reasonable inference that Azalea Garden’s blanket ban
creates a racial disparity at the complex. LaFHAC maintained that it has
organizational standing to pursue its claims.
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The district court granted in part and denied in part Azalea Garden’s
motion to dismiss. The court determined that LaFHAC’s claims were ripe
and held that “the plaintiff ha[d] alleged a prima fac[i]e case of disparate
impact that includes a policy of the defendant that predictably will cause a
discriminatory effect.” La. Fair Hous. Action Ctr. v. Azalea Garden Props.,
LLC, No. CV 22-74, 2022 WL 1262642, at *6 (E.D. La. Apr. 28, 2022). The
court did not explicitly address LaFHAC’s standing.
Azalea Garden moved for reconsideration or, in the alternative, for
certification of a permissive interlocutory appeal under 28 U.S.C. § 1292(b).
The district court granted the alternative request, ruling that
the denial of the race-based disparate impact claim involves a
controlling question of law, i.e., whether the “predictably will
cause” standard survives the [Lincoln Property] decision, as to
which there is substantial ground for difference of opinion, and
that an immediate appeal from the order will materially
advance the ultimate termination of the litigation.
La. Fair Hous. Action Ctr. v. Azalea Garden Props., LLC, No. CV 22-74, 2022
WL 2165415, at *1 (E.D. La. June 9, 2022). We likewise granted leave to
appeal.
In this court, the parties and amici treat this case as a vehicle for us to
clarify the “robust causality” requirement for disparate impact claims under
the FHA. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project,
Inc., 576 U.S. 519, 540 (2015); see also Inclusive Cmtys. Project v. Lincoln Prop.
Co., 920 F.3d 890, 902 (5th Cir. 2019), reh’g en banc denied, 930 F.3d 660 (5th
Cir. 2019), cert. denied, 140 S. Ct. 2506 (2020). Indeed, the district court’s
certification focused on that issue. However, before considering the
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question, we must have jurisdiction to do so. 2 Because we conclude that
LaFHAC lacks standing to bring its claims, we may not reach the underlying
merits.
II.
We “review standing de novo.” Tex. State LULAC v. Elfant, 52 F.4th
248, 253 (5th Cir. 2022) (citation omitted). When reviewing standing “on
the basis of the pleadings, we must accept as true all material allegations of
the complaint and . . . construe the complaint in favor of the complaining
party.” Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d
547, 550 (5th Cir. 2010) (quotations and citations omitted). Still, the plaintiff
must “clearly . . . allege facts demonstrating each element” of standing.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quotations and citations
omitted).
III.
Organizations may sue both in their own right and on behalf of their
members, and often do. But because LaFHAC does not have members, 3 its
_____________________
2
Though the district court’s order did not explicitly analyze LaFHAC’s standing,
we must consider the question because “the requirement that a claimant have ‘standing is
an essential and unchanging part of the case-or-controversy requirement of Article III.’”
Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008) (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)); see also Servicios Azucareros de Venezuela, C.A. v. John Deere
Thibodeaux, Inc., 702 F.3d 794, 799 (5th Cir. 2012) (“Every federal appellate court has a
special obligation to satisfy itself not only of its own jurisdiction, but also that of the
[district] court[] in a cause under review, even [if] the parties are prepared to concede it.”
(citation and quotation marks omitted)).
3
If LaFHAC had members, it could have standing “[e]ven in the absence of injury
to itself[.]” Ass’n of Am. Physicians & Surgeons, 627 F.3d at 550 (quoting Warth v. Seldin,
422 U.S. 490, 511 (1975)). That is because LaFHAC could “have standing solely as the
representative of” any members who themselves suffered an injury and “have standing to
sue in their own right.” Id. (quoting both Warth, 422 U.S. at 511, and Hunt v. Wash. St.
Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
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claims here are grounded only on its alleged organizational standing. An
organization “can establish standing in its own name if it meets the same
standing test that applies to individuals.” OCA-Greater Houston v. Tex., 867
F.3d 604, 610 (5th Cir. 2017) (citation and quotation marks omitted). An
organization suing under the FHA must meet the familiar tripartite test
prescribed in Lujan:
First, the plaintiff must have suffered an “injury in fact”—an
invasion of a legally protected interest which is (a) concrete and
particularized; and (b) “actual or imminent, not ‘conjectural’
or ‘hypothetical.’” Second, there must be a causal connection
between the injury and the conduct complained of—the injury
has to be “fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action
of some third party not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
504 U.S. at 560–61 (citations and footnote omitted, alterations in original);
see La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 304 (5th Cir. 2000).
LaFHAC falters on the first prong, injury-in-fact, so we need not tarry on the
others.
An organization may establish a cognizable injury by showing that its
“ability to pursue its mission is ‘perceptibly impaired’ because it has
‘diverted significant resources to counteract the defendant’s conduct[.]’”
Tenth St. Residential Ass’n v. City of Dallas, 968 F.3d 492, 500 (5th Cir. 2020)
(quoting N.A.A.C.P. v. City of Kyle, 626 F.3d 233, 238 (5th Cir. 2010)).
However, not every diversion of resources rises to an injury sufficient to
confer standing. City of Kyle, 626 F.3d at 238. The organization’s
purportedly injurious counteractions must “‘differ from its routine []
activities.’” Tenth St. Residential Ass’n, 968 F.3d at 500 (alterations in
original) (quoting City of Kyle, 626 F.3d at 238). And expenses that are
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substantively related to future litigation do not suffice. OCA-Greater
Houston, 867 F.3d at 612.
In its complaint, LaFHAC pleads several distinct organizational
injuries, of a theme that LaFHAC was forced to divert resources to
counteract Azalea Garden’s alleged discriminatory rental policy. The alleged
diversions fall into three basic categories: (1) expenditures from its
investigation of the complex, (2) expenditures from “narrowly targeted”
“education and outreach activities,” and (3) the diversion of resources away
from other planned activities. None of the three suffices to establish an injury
to support LaFHAC’s organizational standing.
First, LaFHAC alleges that after its initial audit investigation, it
performed a “focused investigation of Azalea Garden[] to identify and
confirm Defendant’s discriminatory rental practices[, which] involved the
commitment of LaFHAC’s time and resources.” Per paragraph 70 of the
complaint, to facilitate that testing, “LaFHAC’s Coordinator of
Investigations and auxiliary staff created the testers’ rental profiles,
coordinated the tests, and analyzed and summarized the numerous calls and
site visits. LaFHAC further expended funds to compensate the testers for
the specific tests they undertook at Azalea Garden[].” Paragraph 71 alleges
that as a result, “LaFHAC diverted its investigative resources from other
investigative projects and activities in furtherance of its mission. The
diversion of resources occasioned by Defendant’s discriminatory conduct
impaired or impeded these projects and activities.”
This ground for standing quickly falls out of the mix. Any diversion
of resources caused by LaFHAC’s use of testers to investigate Azalea Garden
cannot be a cognizable injury. The investigation does not “differ from its
routine [] activities” in the slightest—using testers to investigate is its
routine activity. As LaFHAC explained in its complaint, “[t]o achieve [its]
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mission, LaFHAC engages in testing and other investigations of housing
discrimination. It employs ‘testers,’ . . . to obtain information about the
conduct of housing providers for the purposes of determining if housing
discrimination is taking place.” Thus, LaFHAC’s use of testers and the
expenses associated with its “investigations of housing discrimination” are
not, without more, cognizable injuries. See Tenth St. Residential Ass’n, 968
F.3d at 500 (citation omitted). Moreover, to the extent that LaFHAC’s
“focused investigation . . . to . . . confirm Defendant’s discriminatory rental
practices” was in preparation for this litigation, those expenses cannot
supply an injury for standing. OCA-Greater Houston, 867 F.3d at 611(discussing City of Kyle and noting “fundamental” principle that “no
plaintiff may claim as injury the expense of preparing for litigation”).
Second, LaFHAC alleges that it:
72. . . . also dedicated resources to counteracting the effects of
Defendant’s discrimination in the community. Such resource
expenditure included LaFHAC’s dedication of staff time and
organizational funds to engage in education and outreach
activities narrowly targeted to counteract the Defendant’s
specific discriminatory practices.
73. The education and outreach activities undertaken to
counter the specific discriminatory practices undertaken by
Defendant included the creation and geographically targeted
distribution of materials addressing race, color, and disability
discrimination, social media and website posts addressing race
and familial discrimination, working with community partners
to best reach the communities affected by the discrimination,
and participation in community events in the affected
community to provide education regarding fair housing rights.
These education and outreach efforts present a closer call but
ultimately prove insufficient to substantiate standing for similar reasons.
During oral argument, LaFHAC conceded that its “education and outreach
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staff” takes “appropriate counteraction” whenever LaFHAC determines
that a housing provider is engaging in discriminatory housing practices,
regardless of whether LaFHAC pursues legal action. 4 That concession
shows that LaFHAC’s “appropriate counteraction” efforts seemingly fall
squarely within its routine activities undertaken to fulfill its mission “to
eradicate housing discrimination in Louisiana”—LaFHAC has dedicated
“education and outreach staff” to carry out those efforts, after all. Even
without that concession though, LaFHAC has not pled facts sufficient to
show that its “ability to carry out its mission [was] ‘perceptibly impaired’
because it has ‘diverted significant resources’” to these education and
outreach efforts. Tenth St. Residential Ass’n, 968 F.3d at 500 (quoting City of
Kyle, 626 F.3d at 238). Of course, shifting resources to these efforts seems
less likely to give rise to injury without corresponding allegations of what
LaFHAC had to shift resources away from as a result.
So we turn to LaFHAC’s third alleged type of injury. LaFHAC
alleges that its counteractions of Azalea Garden’s policy required it to divert
resources “away from other planned projects and activities in furtherance of
its mission.” Paragraph 74 of the complaint details that “[t]hose planned
projects and activities included LaFHAC’s annual fair housing conference,
recruitment of sponsors for LaFHAC community events, fair housing
training events for landlords, and other projects and activities.” This alleged
injury comes closest to substantiating standing. But it still does not cross the
threshold.
Here, LaFHAC has plausibly alleged a diversion of resources, as it
shifted efforts away from planned projects like its annual conference toward
_____________________
4
Oral Argument at 22:20–23:05, LaFHAC v. Azalea Garden, LLC (No. 22-30609),
http://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings.
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counteracting Azalea Garden’s alleged discrimination. But “an organization
does not automatically suffer a cognizable injury in fact by diverting resources
in response to a defendant’s conduct.” El Paso Cnty. v. Trump, 982 F.3d 332,
343 (5th Cir. 2020). 5 Rather, the Article III injury comes when “that
diversion of resources . . . concretely and ‘perceptibly impair[s]’ the
[organization’s] ability to carry out its purpose.” City of Kyle, 626 F.3d at
239 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see
also El Paso Cnty., 982 F.3d at 343 (same); Tenth St. Residential Ass’n, 968
F.3d at 500 (same); OCA-Greater Houston, 867 F.3d at 612 (same). Put
differently, the “perceptible impair[ment]” to an organization’s ability to
carry out its mission, not the “drain on the organization’s resources,” is the
“concrete and demonstrable injury” for organizational standing. Havens,
455 U.S. at 379. LaFHAC fails to plead an injury because it fails to allege how
its diversion of resources impaired its ability to achieve its mission.
To be sure, LaFHAC points to three specific projects that were
affected by the alleged diversion: its “annual fair housing conference,
recruitment of sponsors for [its] community events, and fair housing training
events for landlords[.]” Though it has “identified . . . specific projects,”
LaFHAC fails to allege that it had to put those projects “on hold or otherwise
curtail [them] in order to respond” to Azalea Garden’s alleged
discriminatory practices. City of Kyle, 626 F.3d at 238.
LaFHAC conclusorily alleges that “[t]he diversion of resources
occasioned by Defendant’s discriminatory conduct impaired or impeded
these projects and activities.” But it nowhere explains how any of these
_____________________
5
At oral argument, LaFHAC seemed to indicate that the diversion of resources
alone constituted an injury. See Oral Argument at 19:36–20:51, LaFHAC v. Azalea Garden,
LLC (No. 22-30609), http://www.ca5.uscourts.gov/oral-argument-information/oral-
argument-records. Such an assertion is inconsistent with our precedent.
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activities were canceled, postponed, or “otherwise curtail[ed].” Id. Such a
threadbare allegation that the projects were “impaired” is insufficient for
injury, even at the motion to dismiss stage. See Ashcroft v. Iqbal, 556 U.S. 662,
678–81 (2009) (requiring more than “conclusory statements” or
“threadbare recitals of the elements” to survive a motion to dismiss).
Nor does LaFHAC explain how any curtailment of these projects
perceptibly impaired its ability to achieve its mission. On their face, the
efforts taken to counteract alleged discrimination at Azalea Garden would
appear to advance, rather than impair, LaFHAC’s mission of eradicating
housing discrimination. And as we have explained, those efforts likely fall
within the ambit of LaFHAC’s routine activities. Nothing in the complaint
permits an inference that the diversion impaired LaFHAC’s ability to
achieve its mission. Even “accept[ing] as true all material allegations of the
complaint and . . . constru[ing] the complaint in favor of” LaFHAC, Ass’n of
Am. Physicians & Surgeons, 627 F.3d at 550, we fail to see how LaFHAC has
carried its burden clearly to “allege facts demonstrating” that it suffered an
injury by virtue of its diversion of resources, Spokeo, 578 U.S. at 338.
In the district court, LaFHAC relied on OCA-Greater Houston in
asserting it had standing. But that case is distinguishable. In OCA-Greater
Houston, an organization whose mission was “voter outreach and civic
education” challenged a Texas law restricting English-limited voters’ use of
interpreters at the polls. 867 F.3d at 610. The challenged law forced OCA to
spend more time explaining the law in each conversation, voter by voter,
which “frustrate[d] and complicate[d] its routine community outreach
activities,” and reduced the number of people that it could speak to on a
given day. Id. (internal quotations omitted). Because OCA could “reach
fewer people in the same amount of time,” id., we found that “the Texas
statutes at issue ‘perceptibly impaired’ OCA’s ability” to achieve its mission
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of getting out the vote, id. at 612 (quoting Havens Realty, 455 U.S. at 379).
We held this to be an injury supporting Article III standing. Id.The same does not hold true here. LaFHAC fails to allege that its
activities in response to Azalea Garden’s alleged discrimination perceptibly
impaired its mission. That is the difference between today’s case and OCA-
Greater Houston: OCA’s diversion perceptibly impaired the effectiveness of
OCA’s efforts to further its mission because OCA was able to reach fewer
voters, while LaFHAC has not plausibly alleged that its diversion of
resources meant it could reach fewer people or otherwise be less successful
in achieving its mission.
Nor does Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982),
help LaFHAC. There, plaintiffs alleged that Havens Realty, the owner and
operator of two apartment complexes in Virginia, had engaged in illegal racial
steering by falsely denying availability of apartments to African American
rental applicants while giving contrary information to white applicants. Id. at
368. One of the plaintiffs (Housing Opportunities Made Equal (HOME)),
like LaFHAC, employed testers and alleged it had organizational standing to
sue Havens for violating the FHA. 6 Id. at 368–69. HOME alleged that its
efforts to promote equal access to housing through counseling and other
referral services were “perceptibly impaired” by the defendant’s
discriminatory steering practices. Id. at 379. The Supreme Court concluded
that this constituted a “concrete and demonstrable injury” sufficient for
Article III standing at the motion-to-dismiss stage. Id._____________________
6
Unlike LaFHAC, HOME was also a membership association with approximately
600 members. Id. at 368. In addition to grounding its claims on a theory of organizational
standing, HOME also sued on behalf of its members. Id. at 369. It later abandoned its
associational standing argument, so the Court decided only whether HOME had
organizational standing. Id. at 378.
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Key to the Court’s holding were the counseling and referral services
HOME offered to low-income rental applicants. HOME’s provision of those
services was perceptibly impaired by Havens’s discriminatory practices:
After all, HOME could not place African American clients into housing at
Havens’s complex when Havens was engaged in illegal racial steering.
Moreover, HOME plausibly was able to counsel and place fewer clients in
housing because of its diversion of resources to counteract the defendant’s
discriminatory practices. Accordingly, like OCA, HOME sufficiently alleged
impairment of its mission because it could assist fewer individuals. By
contrast—and to the extent that LaFHAC’s alleged activities countering
Azalea Garden’s alleged discrimination fall outside its routine mission at
all—LaFHAC alleges no “concrete and demonstrable” injury in terms of
fewer clients referred or prospective tenants reached. Havens Realty is thus
inapt to support LaFHAC’s standing in this case. 7
In sum, juxtaposing our precedent against LaFHAC’s allegations,
LaFHAC has failed to allege an Article III injury. We forecast no opinion as
to whether, should LaFHAC replead its claims anew, it can substantiate a
perceptible impairment to its ability to achieve its mission because of Azalea
Garden’s alleged discriminatory practices. Cf. Griener v. United States, 900
F.3d 700, 705 (5th Cir. 2018) (“[D]ismissal for want of jurisdiction” is
“without prejudice to the plaintiff’s claims.”) (citation omitted). We simply
hold that “diverting” resources from one core mission activity to another,
_____________________
7
The same is true of Inclusive Communities Project, Inc. v. Lincoln Property Co., 920
F.3d 890 (5th Cir. 2019). There, plaintiff Inclusive Communities Project, Inc. (ICP)
“provide[d] counseling, financial assistance, and other services to Black or African
American households participating in the [federal] Section 8 Housing Choice
Voucher . . . Program[.]” 920 F.3d at 895. Thus, ICP had standing to challenge Lincoln
Property’s alleged discrimination against voucher recipients because Lincoln Property’s
discrimination impaired ICP’s “ability to assist its voucher clients in obtaining
dwellings[.]” Id. at 896.
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i.e., prioritizing which “on-mission” projects, out of many potential
activities, an entity chooses to pursue, does not suffice—organizations daily
must choose which activities to fund, staff, and prioritize. Nor do conclusory
allegations that an organization’s diversion of resources “impaired or
impeded” some planned projects. To plead an Article III injury at the
motion-to-dismiss stage, an organization must go beyond the talismanic
words to allege facts showing its ability to achieve its mission was
“perceptibly impaired” such that it suffered a concrete and demonstrable
injury. 8
IV.
Because LaFHAC has not alleged a cognizable injury, it lacks standing
to bring the claims it alleges in this action. Therefore, the district court
lacked jurisdiction over this case, and we likewise cannot consider the district
court’s certified question. We therefore pretermit further discussion of the
issue presented and REMAND this case with instruction to DISMISS
LaFHAC’s claims without prejudice.
_____________________
8
To be clear, our holding does not diminish the ability of housing organizations to
bring suits under the FHA. To the contrary, we reaffirm that such organizations can
establish standing to sue where they have suffered an injury in fact. See Havens Realty, 455
U.S. at 379; see also OCA-Greater Houston, 867 F.3d at 612. Moreover, if they have
members, such organizations may also be able to sue on behalf of one or more members
who have suffered an injury. See supra n.3. And of course, such organizations may also
assist individual plaintiffs who themselves have standing in prosecuting such lawsuits.
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James C. Ho, Circuit Judge, concurring:
Based on how this case has been pleaded and presented to date, the
Louisiana Fair Housing Action Center lacks standing to sue. I write
separately to make two brief points.
I.
The majority goes out of its way to observe that the Center could
“replead its claims anew” in a manner that would “substantiate a perceptible
impairment to its ability to achieve its mission because of Azalea Garden’s
alleged discriminatory practices” and thereby establish standing. Ante, at 13.
See, e.g., Lopez v. Pompeo, 923 F.3d 444, 447 (5th Cir. 2019) (“A dismissal for
lack of jurisdiction . . . does not operate as an adjudication on the merits. The
dismissal permits a second action on the same claim that corrects the
deficiency found in the first action.”) (cleaned up); Hughes v. United States,
71 U.S. 232, 237 (1866) (“If the first suit was dismissed for . . . want of
jurisdiction . . . the judgment rendered will prove no bar to another suit.”).
I highlight this statement for a few reasons. To begin with, it reaffirms
that there’s nothing improper about a court making this observation. To the
contrary, it’s entirely consistent with the judicial function to provide
guidance to litigants on the proper scope and availability of judicial review.
See, e.g., Campaign Legal Ctr. v. Scott, 49 F.4th 931, 941 n.2 (5th Cir. 2022)
(Ho, J., concurring in the judgment) (citing California v. Texas, 141 S. Ct.
2104, 2135 n.9 (2021) (Alito, J., dissenting)).
Moreover, it’s an observation that may well benefit the Center. In
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court
found standing for an organization dedicated to promoting fair housing to
challenge a defendant’s allegedly discriminatory housing practices. But
that’s because the organization’s activities “included the operation of a
housing counseling service.” Id. at 368. And the organization alleged that
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the defendant’s discriminatory practices “impaired [its] ability to provide
counseling and referral services for low- and moderate-income home-
seekers.” Id. at 379. That’s “far more than simply a setback to the
organization’s abstract social interests.” Id. The alleged discrimination
harmed its ability to serve its clients—and thus inflicts “concrete and
demonstrable injury” on the organization. Id.That’s fundamentally different from the injuries alleged here. It’s a
basic tenet of our Article III jurisprudence that plaintiffs cannot assert
standing based on “self-inflicted” injury. See, e.g., Ctr. for Biological Diversity
v. EPA, 937 F.3d 533, 541 (5th Cir. 2019) (noting “the general rule that
‘standing cannot be conferred by a self-inflicted injury’”); Zimmerman v.
City of Austin, 881 F.3d 378, 389 (5th Cir. 2018) (“standing cannot be
conferred by a self-inflicted injury”); Ass’n of Cmty. Orgs. for Reform Now v.
Fowler, 178 F.3d 350, 358 (5th Cir. 1999) (“An organization cannot obtain
standing to sue in its own right as a result of self-inflicted injuries”). 1
So a plaintiff can’t establish standing simply by choosing to expend
resources in response to conduct it disagrees with, and calling that injury.
See, e.g., Fair Emp. Council of Greater Washington v. BMC Mtkg. Corp., 28 F.3d
1268, 1276 (D.C. Cir. 1994) (“The diversion of resources to testing might
well harm the [plaintiff’s] other programs, for money spent on testing is
money that is not spent on other things. But this particular harm is self-
_____________________
1
We’ve repeatedly adhered to this principle because the Supreme Court has told
us to. See, e.g., Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (per curiam) (“The
injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their
respective state legislatures. . . . No State can be heard to complain about damage inflicted
by its own hand.”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (“respondents
cannot manufacture standing merely by inflicting harm on themselves”) (citing Nat’l
Family Plan. and Reprod. Health Ass’n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (“We
have consistently held that self-inflicted harm doesn’t satisfy the basic requirements for
standing.”)).
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inflicted; it results not from any actions taken by [the defendant], but rather
from the [plaintiff’s] own budgetary choices.”).
It’s incumbent on courts, then, to police the line between actual injury
and self-inflicted injury—between bona fide harm and budgetary discretion.
The majority dutifully applies existing precedent to conclude that the
Center lacks standing. I agree.
I would conceptualize the analysis this way: Rather than focus on what
a plaintiff has done in response to a defendant’s conduct, we instead ask: Will
the plaintiff will be injured if it does nothing?
If the answer is yes, then the plaintiff has standing—and if the answer
is no, then it doesn’t. If someone punches you in the nose, you have standing
against your assailant, whether you end up going to the hospital or not. And
if someone else is punched in the nose, you don’t have standing just because
you chose to go to the hospital to show support for the victim.
So it’s not enough that a defendant’s discriminatory practices
motivates an organization to take action in response. After all, if the mere
voluntary diversion of resources was enough to establish standing, then any
public interest law firm would always have automatic standing to bring suit.
But we know that’s not right. See, e.g., OCA-Greater Houston v. Texas, 867
F.3d 604, 611 (5th Cir. 2017) (“no plaintiff may claim as injury the expense
of preparing for litigation”); Fair Emp. Council, 28 F.3d at 1277 (“By this
logic, the time and money that [a law firm] spend[s] in bringing suit against a
defendant would itself constitute a sufficient ‘injury in fact’, a circular
position that would effectively abolish the requirement altogether.”). You
might as well just allege injury to your social or political objectives—such as
your desire for a particular law to be obeyed. And we know that’s not right
either. “Article III requires more than a desire to vindicate value interests.”
Diamond v. Charles, 476 U.S. 54, 66 (1986).
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That’s the problem with the claim of standing here. The Center
alleges that Azalea Garden negatively impacted the causes it believes in, and
that in response, the Center chose to expend resources to counteract those
negative social effects. But harm to cause is not harm to plaintiff.
By contrast, if a defendant’s practices make it more difficult or costly
for an organization to conduct its operations, then the organization may well
have standing. See, e.g., Havens Realty, 455 U.S. at 379 (“If . . . [defendant’s]
steering practices have perceptibly impaired [plaintiff’s] ability to provide
counseling and referral services for low- and moderate-income homeseekers,
there can be no question that the organization has suffered injury in fact.”);
Fair Emp. Council, 28 F.3d at 1276 (finding standing where “[the
defendant’s] alleged pattern of discrimination . . . has made the [plaintiff’s
work] more difficult”).
The problem here is that the Center hasn’t alleged how anyone has
made it more difficult to conduct its operations. So it lacks standing. But
that would not prevent them from making such allegations in a future case.
II.
There’s another way the Center could cure its standing problems.
The Center has no members. Ante, at 5; id. at 5 n.3. But that wouldn’t
prevent it from joining other plaintiffs who are injured by the alleged
practices. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 264 n.9 (1977) (“Because of the presence of this plaintiff, we need
not consider whether the other individual and corporate plaintiffs have
standing to maintain the suit.”).
Any person denied housing for discriminatory reasons, for example,
would have standing. Id. at 264. In addition, any person already in the
neighborhood may be able to establish standing if the discrimination denies
him the opportunity to “liv[e] in an integrated community”—a concept the
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Court called “neighborhood” standing. Havens Realty, 455 U.S. at 375. In
Havens Realty, two individuals alleged that “the racial steering practices of
[the defendants] . . . deprived them of ‘the right to the important social,
professional, business and economic, political and aesthetic benefits of
interracial associations that arise from living in integrated communities free
from discriminatory housing practices.’” Id. at 376. The Court appeared to
credit this theory of standing, noting that even the defendants “do not
dispute that the loss of social, professional, and economic benefits resulting
from steering practices constitutes palpable injury.” Id. at 377. 2
_____________________
2
Although Havens Realty recognized this theory of standing, it didn’t credit the
plaintiffs’ specific claim of “aesthetic” injury. Compare id. at 376, with id. at 377. That’s
not surprising—established precedent recognizes aesthetic injury, but only in the context
of animals and the environment. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 562–63
(1992) (“[T]he desire to use or observe an animal species, even for purely esthetic
purposes, is undeniably a cognizable interest for purpose of standing.”).
So a plaintiff can claim aesthetic injury when it comes to biodiversity, but not racial
diversity. That’s presumably because, unlike humans, “animals lack standing to sue in
their own right.” Cass R. Sunstein, Standing for Animals (with Notes on Animal Rights), 47
UCLA L. Rev. 1333, 1335 (2000). See also Jeffrey M. Skopek, Aesthetic Injuries, Animal
Rights, and Anthropomorphism, 122 Harv. L. Rev. 1204, 1206 (2009) (same). As one
respected scholar has explained, “species, ecosystems, and embryos are not legal persons
who can suffer cognizable harm.” Heather Elliott, Standing Lessons: What We Can Learn
When Conservative Plaintiffs Lose Under Article III Standing Doctrine, 87 Ind. L.J. 552, 597
(2012). So “the environmental plaintiff or stem cell opponent [must] argue her own
standing.” Id. (Professor Elliott lists unborn human life alongside animal life because
environmental plaintiffs are “very similar” to pro-life plaintiffs. Id. at 584. See also id. at
585 (analogizing “environmental plaintiffs” to “pro-life litigants” “for purposes of
standing” and concluding that “it would not actually be very hard, legally, to recognize
embryos”); id. at 597 (“Just as the environmental plaintiffs sue to protect the endangered
species or the ecosystem, the stem cell opponents sue to protect embryos.”).)
Whether the doctrine of aesthetic injury makes any sense or not is, of course, an
entirely different question. We’re bound to apply Supreme Court precedent, principled or
not. But many scholars have complained that standing law generally—and aesthetic injury
in particular—is doctrinally incoherent. See, e.g., Erwin Chemerinsky, Federal
Jurisdiction 81 (8th ed. 2021) (“It is difficult to identify a principle that explains why
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***
This discussion of standing says nothing, of course, about how one
might view the underlying merits of this case. If the Center establishes
standing in a future case, a court may have to decide whether Federal law
forbids Azalea Garden from conducting criminal background checks,
considering that Federal law permits and even compels criminal background
checks in a variety of contexts. But that’s not before us today. I agree with
the majority that the Center has not alleged standing. Accordingly, I concur.
_____________________
aesthetic or economic injuries are sufficient for standing, but stigma or martial happiness
are not.”); Sunstein, 47 UCLA L. Rev. at 1334 n.1 (“there is an oddity, and perhaps a
pernicious one, in . . . distinguishing between human beings and animals”); Elliott, 87 Ind.
L.J. at 558 (“standing doctrine has been criticized extensively” as “incoherent,
manipulable, doctrinally confused, . . . one of the most amorphous concepts in the entire
domain of public law”) (quotations omitted); Rachel Bayefsky, Psychological Harm and
Constitutional Standing, 81 Brooklyn L. Rev. 1555, 1559 (2016); Skopek, 122 Harv.
L. Rev. at 1206–7, 1214–15.
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Jennifer Walker Elrod, Circuit Judge, dissenting:
“[A]n organization has standing to sue on its own behalf where it
devotes resources to counteract a defendant’s allegedly unlawful practices.”
Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 360 (5th Cir.
1999). Because the majority opinion departs from this straightforward and
binding formulation of organizational standing doctrine, I respectfully
dissent.
In my view, this appeal is controlled by the Supreme Court’s decision
in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In that case the Court
held that there could be “no question” that a housing nonprofit “suffered
injury in fact” if, “as broadly alleged, petitioners’ steering practices have
perceptibly impaired [the organization’s] ability to provide counseling and
referral services for low-and moderate-income homeseekers . . . .” Id. at 379.
It then deemed the following allegation sufficient to plead organizational
standing.
Plaintiff HOME has been frustrated by defendants’ racial
steering practices in its efforts to assist equal access to housing
through counseling and other referral services. Plaintiff
HOME has had to devote significant resources to identify and
counteract the defendant’s [sic] racially discriminatory steering
practices.
Id. (alteration in original) (quoting the complaint).
Compared to the general allegations in Havens Realty, which vaguely
referenced “counseling and other referral services,” Fair Housing’s
complaint is robust with detail. Fair Housing identifies specific initiatives
that have been impacted by Azalea Garden’s allegedly unlawful conduct:
LaFHAC has diverted its resources away from other planned
projects and activities in furtherance of its mission. Those
planned projects and activities included LaFHAC’s annual fair
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housing conference, recruitment of sponsors for LaFHAC
community events, fair housing training events for landlords,
and other projects and activities. The diversion of resources
occasioned by Defendant’s discriminatory conduct impaired
or impeded these projects and activities.
Fair Housing alleges that its annual conference, recruitment efforts, and
training programs have been “perceptibly impaired” by Azalea Garden. Id.That is “concrete and demonstrable injury to the organization’s activities.”
Id. There can, therefore, “be no question that the organization has suffered
injury in fact.” Id. Nor does it matter that Fair Housing could have chosen
not to divert its resources to address Azalea Garden’s alleged violations. One
does not lose standing simply because he could have chosen to take his stand
somewhere else. See id. at 379 n.20 (explaining that the fact that “the alleged
injury results from the organization’s noneconomic interest in encouraging
open housing does not effect the nature of the injury suffered, and does not
deprive the organization of standing” (citation omitted)); Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263 (1977) (contrasting an
“abstract concern about a problem of general interest” with a plaintiff’s
concrete actions in pursuit of that interest in the form of electing to build
affordable housing).
The majority opinion resists this conclusion, stating that Fair Housing
“nowhere explains how any of [its] activities were canceled, postponed, or
‘otherwise curtailed.’” Ante at 10–11 (quoting N.A.A.C.P. v. City of Kyle,
626 F.3d 233, 238 (5th Cir. 2010)) (alteration accepted). Therefore, the
majority opinion concludes, Fair Housing’s allegations are “insufficient for
injury.” Ante at 11. But if this were true of Fair Housing’s allegations here,
it was even more true of the vague allegations the plaintiff presented in
Havens Realty. The Supreme Court, though, thought otherwise. Fair
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Housing’s allegations are more than sufficient to support an injury under
Havens Realty.
Meanwhile, the majority opinion’s attempt to brush Havens Realty
aside on other grounds is not convincing. See ante at 13. The Supreme
Court’s broad holding in that case was not confined to situations where
impairment of an organization’s activities took the narrow form of “fewer
individuals” being assisted. 1 Rather, what mattered was simply that the
organization’s “ability” to conduct its other activities was impaired by the
“drain on the organization’s resources” caused by the defendants’ practices.
Havens Realty, 455 U.S. at 379. Fair Housing has alleged as much here.
If this case were to proceed, Fair Housing, like the plaintiff in Havens
Realty, would eventually be required to present evidence to “demonstrate at
trial that it has indeed suffered impairment in its role of facilitating open
housing.” Id. n.20. But we are not there yet. “At the pleading stage,
‘general factual allegations of injury resulting from the defendant’s conduct
may suffice [to show standing], for on a motion to dismiss we presume[e] that
general allegations embrace those specific facts that are necessary to support
the claim.’” Fowler, 178 F.3d at 357 (quoting Meadowbriar Home for Children,
Inc. v. Gunn, 81 F.3d 521, 529 (5th Cir. 1996)).
This would be a different case if Fair Housing were tightening its belt
only to afford the expenses attendant to this litigation. See OCA-Greater
Houston v. Texas, 867 F.3d 604, 611 (5th Cir. 2017) (reaffirming the
“fundamental” rule “that no plaintiff may claim as injury the expense of
_____________________
1
In any event, in the same way fewer individuals could be reached because of the
alleged impairment of HOME’s ability to conduct counseling and referral services, ante at
13, fewer individuals will be reached because of the alleged impairment of Fair Housing’s
ability to conduct conferences and landlord training events. The supposed distinction the
Majority is homing in on is therefore unclear.
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preparing for litigation”). But Fair Housing has not alleged its litigation
expenses as its injury. It has alleged diversion of resources from specified
projects to the expense of combatting the fallout from discrimination at
Azalea Garden. Specifically, to the expense required to send more testers to
Azalea Garden. This information gathering is necessary, they allege, to
develop more accurate information about Azalea Garden’s unwritten
policies; information that Fair Housing hopes will help those seeking housing
in Jefferson, Louisiana. That is precisely the sort of injury we have previously
found sufficient to create standing. See id. at 612 (holding that an
organization’s diversion of resources to counteract the effect of allegedly
unlawful practices created standing because those resources were spent “not
with a view toward litigation, but toward mitigating [the] real-world impact”
of those practices).
Although the majority opinion does not reach the traceability prong of
standing, see ante at 6, a brief discussion is warranted. This case does not
present the traceability problem that has featured in some of our precedents.
In Fowler, for example, we held that the plaintiff lacked organizational
standing with respect to certain claims because it failed to connect its
diversion of resources to particular unlawful acts of the defendant. 178 F.3d
at 359. For example, the plaintiff “failed to show that any of its purported
injuries relating to” the costs of monitoring Louisiana’s voter registration
procedures “were in any way caused by” the conduct the plaintiff was
challenging. Id. Such monitoring was “part of the normal, day-to-day
operations of the plaintiff.” Id. Similarly, in Texas State LULAC v. Elfant,
we held that the plaintiff organization “fail[ed] to link any diversion of
resources specifically” to the challenged election law because the plaintiff
repeatedly identified a tranche of new election laws—of which the challenged
law was only one—as the source of its injuries. 52 F.4th 248, 254 (5th Cir.
2022); see also id. (holding that “[a]n organizational plaintiff must show it
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diverted resources ‘as a direct result of’ the challenged law—not as a result
of the challenged law and others like it” (citation omitted)).
Traceability is not an issue for Fair Housing. Its complaint identifies
“counteraction efforts . . . made specifically in response to Defendant’s
conduct.” Cf. Fowler, 178 F.3d at 357 (explaining that, “[a]t the pleading
stage, ‘general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume[e] that general
allegations embrace those specific facts that are necessary to support the
claim.’” (quoting Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,
529 (5th Cir. 1996))).
* * *
To adequately plead organizational standing, a plaintiff organization
need only allege that it “has had to devote significant resources to identify
and counteract the defendant’s [sic] racially discriminatory steering
practices.” Havens Realty, 455 U.S. at 379 (alteration in original) (quoting
the complaint). Fair Housing did that, which perhaps explains why the
district court did not perceive a standing issue—and why, even now, Azalea
Garden does not dispute that Fair Housing has standing to bring this suit.
Yet we have poured out Fair Housing before it has even had the chance to
present evidence of its injury. 2
I respectfully dissent.
_____________________
2
The majority opinion suggests that Fair Housing may “replead its claims anew”
in a manner that would satisfy the requirements the majority opinion has imposed. Ante at
13. I agree. But I do not believe such an exercise to be necessary.
25