United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50315

____________

Haseeb Abdullah, 

Plaintiff—Appellant,

versus

Ken Paxton; Glenn Hegar, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:20-CV-1245

______________________________

Before Richman, Chief Judge, and Haynes and Graves, Circuit 

Judges.

Per Curiam:

In this case, Haseeb Abdullah challenges the constitutionality of 

Texas Government Code § 808. He contends that § 808’s divestment 

requirement violates the First Amendment and the Due Process Clause. The 

district court concluded that Abdullah lacked standing and dismissed his 

claims. For the reasons discussed below, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

April 11, 2023

Lyle W. Cayce

Clerk

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I. Factual Background

Abdullah is a former State of Texas employee and a current Travis 

County employee. By virtue of these employments, Abdullah has 

contributed to (and is therefore a beneficiary of) two relevant retirement

plans. The first is a defined-benefit plan maintained by the Texas Employee 

Retirement System (“ERS”), and the second is a defined-benefit plan 

administered by the Texas County and District Retirement System 

(“TCDRS”). ERS and TCDRS (together, the “Systems”) collect employee 

contributions in a fund and manage the fund’s investment to increase its

overall value. At retirement, Abdullah will be eligible to receive fixed 

monthly payments. The payment amount will be calculated based on a 

number of standard factors.1

 Notably, however, the amount will be

independent of the market performance of the overall fund and any individual 

investment decisions made by the Systems. 

Because the Systems are public entities, their investments are subject 

to the oversight of the Texas Legislature. See, e.g., Tex. Gov’t Code

§§ 802.203(a), 811.003, 801.107. In 2017, the Texas Legislature enacted

Texas Government Code § 808, which is a prohibition on investment in 

companies that boycott the country of Israel or otherwise engage in the “BDS 

movement.”2 Under § 808, the Texas Comptroller is required to maintain a 

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1 The ERS plan payments are calculated based on, inter alia, an employee’s start 

date, years of service, and salary; the TCDRS plan payments are based on overall member 

contributions, a guaranteed seven percent interest rate (compounded annually), and other 

factors not relevant here.

2 The “BDS movement” is a pro-Palestinian movement that “seeks to put 

economic pressure on Israel” to substantially improve its treatment of Palestinians. Amawi 

v. Paxton, 956 F.3d 816, 819–20 & n.1 (5th Cir. 2020). “BDS” refers to the actions that the 

movement’s participants engage in, including boycotts, divestments, and sanctions. In an 

effort to curtail participation in the BDS movement, many states have enacted “anti-BDS 

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list of companies that boycott Israel and provide that list to the Systems. 

Tex. Gov’t Code § 808.051. The Systems are then directed to “sell, 

redeem, divest, or withdraw all publicly traded securities of the [listed] 

company.” Id. § 808.053(d). If the Systems fail to comply, the Texas 

Attorney General is authorized to bring an enforcement action. Id. 

§ 808.102. 

Relevant here, Abdullah sued the Texas Comptroller and the Texas 

Attorney General (collectively, “Defendants”) in federal court. He sought

a declaratory judgment that § 808’s divestment requirement violates (1) the 

Freedom of Speech Clause; (2) the Establishment Clause; and (3) the Due 

Process Clause. Defendants moved to dismiss under Federal Rules of Civil 

Procedure 12(b)(1) and (6). The district court concluded that Abdullah 

lacked Article III standing and dismissed his claims. Abdullah timely 

appealed. 

II. Jurisdiction & Standard of Review

We have appellate jurisdiction under 28 U.S.C. § 1291.3

 We review 

a district court’s dismissal for lack of standing de novo. Air Evac EMS, Inc. 

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laws.” Abdullah allegesin various claimsthat § 808 is one such lawand is unconstitutional.

But—given our decision on standing—we do not reach the merits of those claims.

3 Defendants urge that we lack appellate jurisdiction. In doing so, they observe that 

(1) Abdullah originally also named two individual directors as defendants; (2) he later 

moved to voluntarily dismiss the directors; and (3) the district court thereby dismissed the 

directors, without prejudice. Because the directors were dismissed without prejudice, 

Defendants contend that the order appealed from here is not “final” under § 1291 since it 

technically did not resolve all claims against all parties. See Williams v. Seidenbach, 958 F.3d 

341, 343 (5th Cir. 2020) (en banc).

We disagree. Though a voluntary dismissal could preclude our review in some 

situations, that is not the case here. Abdullah concedesthat his claims against the directors

were barred by sovereign immunity—a jurisdictional defect. Under our precedent, 

dismissals based on jurisdictional issues must, by their very nature, be without prejudice. 

See, e.g., Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996). But, regardless of how 

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v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 513 (5th Cir. 2017). 

In doing so, we apply the same standard as the district court—accepting all 

well-pleaded factual allegations in the complaint as true and viewing them in 

the light most favorable to the plaintiff. Lane v. Halliburton, 529 F.3d 548, 

557 (5th Cir. 2008).

III. Discussion

We agree with the district court that Abdullah lacks standing to pursue 

his claims. Article III grants jurisdiction to federal courts only over actions 

involving an “actual case or controversy.” City of Los Angeles v. Lyons, 461 

U.S. 95, 101 (1983). Accordingly, Abdullah bears the burden of establishing 

the three “familiar elements of standing.” Shrimpers & Fishermen of RGV v. 

Tex. Comm’n on Env’t Quality, 968 F.3d 419, 424 (5th Cir. 2020) (per 

curiam). To do so, he must demonstrate that he has suffered “(1) an injury

in fact, (2)that is fairly traceable” to the Defendants’ actions, (3) that is likely 

to be redressed by a favorable outcome. Id.; see also Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560–61 (1992). All three elements are “an indispensable part 

of [Abdullah’s] case.” Lujan, 504 U.S. at 561. 

Our analysis begins and ends with the first element: injury in fact. To 

satisfy this requirement, Abdullah must plead that “he has sustained or is 

immediately in danger of sustaining some direct injury.” City of Los Angeles, 

461 U.S. at 101 (internal quotation marks and citation omitted). That injury

needs to be “concrete and particularized,” as well as “actual or imminent.” 

K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010) (quotation omitted). 

Importantly, it cannot be speculative, conjectural, or hypothetical. Clapper 

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it was titled, the order in this circumstance was analogous to a dismissal with prejudice. In

other words, Abdullah cannot re-plead his claims against the directors—they are plainly 

precluded by the jurisdictional bar. Thus, the district court’s order was sufficiently final, 

and our appellate jurisdiction is sound.

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v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Allegations of only a 

“possible” future injury similarly will not suffice. Id.; see also Shrimpers, 968 

F.3d at 424. Abdullah alleges he has incurred two types of injuries in 

connection with § 808’s divestment requirement: (1) a threat of a future 

economic loss and (2) several constitutional violations. We address both in 

turn, but neither proves successful. 

A. Threat of Future Economic Injury

First, Abdullah claims he satisfied the injury-in-fact requirement 

because he has alleged there is a realistic risk that § 808 will cause him to 

suffer future economic harm. At the outset, we note that Abdullah concedes 

that he has not currently sustained any monetary injury—he has not pleaded

that he is eligible for retirement, that he currently qualifies for any payments 

from the Systems, or, most importantly, that those payments have been 

reduced as a result of the divestment requirement.

Rather, Abdullah’s purported injury rests on an entirely forwardlooking theory. He avers that the Systems—as managers of his vested 

financial benefits—are required to base their divestment decisions on the 

dictates of § 808, rather than pure free market considerations. He contends

that these constraints on the Systems’ discretion will have an adverse effect 

on the fund’s overall financial health, reducing his future pension benefits. 

Per Abdullah, this threat of diminished future payments is sufficient to 

establish the injury-in-fact requirement.

We disagree. At the outset, we observe that the divestment 

requirement is not absolute. Rather, the Texas Legislature notably built 

safeguards into § 808 providing several relevant exceptions. For example, 

under § 808.005, the Systems do not have to comply if they conclude that 

divesting “would be inconsistent with [their] fiduciary responsibilit[ies]” or 

would conflict with “other duties imposed by law.” Similarly, 

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§ 808.056(a)(1) permits investment in listed companies if the Systems 

determine that divesting will cause them to “suffer a loss in the hypothetical 

value of all assets under management.” Finally, under § 808.056(a)(2), the 

Systems are exempted from compliance if the relevant portfolios utilize “a 

benchmark-aware strategy,” that “would be subject to an aggregate expected 

deviation from its benchmark as a result of having to divest.” 

 With those exceptions in mind, we turn to Abdullah’s allegations 

here. We conclude that his alleged injury is—at most—speculative; he has

wholly failed to allege that any risk of economic harm is “certainly

impending.” See Clapper, 568 U.S. at 409 (emphasis in original) (quotation 

omitted). Abdullah’s future benefits do not hinge on market performance; at 

retirement, he will receive payments from two separate defined-benefit 

plans. As the Supreme Court has observed, defined-benefit plans—by their 

very nature—do not fluctuate based on the value of the overall fund. See 

Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020) (observing that 

payments under such plans do not fluctuate based on any “good or bad” 

investment or divestment decisions). The defined-benefit plans Abdullah is 

enrolled in are no different—as noted above, his payments are fixed, and 

calculation of those payments is based on entirely independent factors. 

Because Abdullah cannot show how any investment or divestment 

decisions will affect his future payments, he cannot show that he has suffered 

an injury. Id. at 1619. Put plainly, because “the outcome of this suit [will] 

not affect [his] future benefit payments,” he lacks any concrete stake in this 

lawsuit. Id.

The only way Abdullah could demonstrate he will “actually” suffer 

future economic harm is if he plausibly alleged that, as a result of § 808’s 

constraints, the Systems will not be able to pay out his benefits at all when he 

reaches retirement. See id. at 1621. Abdullah tries his hand at this argument, 

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urging that the Systems are underfunded, so there is a credible threat the fund 

will fail. But we are unconvinced—this theory is simply too speculative (and 

also ignores Texas’s ability to obtain funds by taxes, fees, assessments, etc.). 

In sum, we are unconvinced by Abdullah’s argument that this injury 

is “certainly impending”—rather, it’s a speculative view of the distant 

future, at best. Prestage Farms, Inc. v. Bd. of Superiors of Noxubee Cnty., 205 

F.3d 265, 268 (5th Cir. 2000). Accordingly, the threat of “future injury 

under these circumstances is too conjectural and hypothetical to provide 

Article III standing.” Id.

B. Constitutional Injuries

Abdullah alternatively asserts that § 808 inflicts several constitutional 

injuries sufficient for Article III standing. We recognize that violations of 

constitutional rights may of course, in some instances, satisfy the injury-infact requirement. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 

(2021). But the Supreme Court has long rejected the argument that a “claim 

that the Constitution has been violated” is enough on its own “to confer 

standing.” See Valley Forge Christian Coll. v. Ams. United for Separation of 

Church & State, Inc., 454 U.S. 464, 485 (1982). Rather, Abdullah must still 

establish a violation of his own personal rights. See id. at 474–75; see also 

Barber v. Bryant, 860 F.3d 345, 352–53 (5th Cir. 2017) (“The Establishment 

Clause is no exception to the requirement of standing,” and a plaintiff still 

“must allege a personal violation of rights.”). 

Abdullah has failed to allege facts demonstrating that § 808 causes him 

an injury by violating his own personal Fourteenth or First Amendment 

rights. As to the former, in order to assert a due process claim, Abdullah

must allege that he will suffer an injury to a vested property interest. See 

Bryan v. City of Madison, 213 F.3d 267, 274–75 (5th Cir. 2000); Blackburn v. 

City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995). He certainly has a property 

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interest in his future payments from the Systems. Hughes Aircraft Co. v. 

Jacobson, 525 U.S. 432, 439–40 (1999); see also Thole, 140 S. Ct. at 1620. 

However, for the reasons discussed above, Abdullah has failed to plead that 

§ 808 poses any credible threat to those payments. Therefore, his due 

process claim does not provide an independent basis for standing.

As to the latter—the First Amendment claims—Abdullah does not 

allege that § 808 infringes on his ability to speak. Nor does he allege that 

§ 808 infringes on his own religious beliefs. He cannot assert arguments 

based only on other’s rights (such as the companies that are on the 

divestment list). See Lujan, 504 U.S. at 563 (“[T]he party seeking review” 

must “be himself among the injured.” (quotation omitted)). Abdullah 

“must assert his own legal rights and interests, and cannot rest his claim to 

relief on the legal rights or interests of third parties.” Valley Forge, 454 U.S. 

at 474 (emphasis added) (quotation omitted). He has failed to do so here. 

In sum, we conclude Abdullah’s constitutional claims do not establish 

injury in fact as required for Article III standing.

4

IV. Conclusion

For the reasons discussed above, we AFFIRM the district court’s 

dismissal of Abdullah’s claims.

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4 Defendants also urge that sovereign immunity bars Abdullah’s claims. Because 

we conclude Abdullah lacks standing, we need not reach that issue. Sinochem Int’l Co. v. 

Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (recognizing that while 

“jurisdictional questions ordinarily must precede merits determinations[,] . . . there is no 

mandatory sequencing of jurisdictional issues” (internal quotation marks and citation 

omitted)).

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