IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60616

CARLOS E. MOORE, 

 Plaintiff - Appellant

v.

GOVERNOR DEWEY PHILLIP BRYANT, In his Official Capacity, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

The upper, left-hand corner of the Mississippi state flag depicts the 

Confederate battle flag. Plaintiff-Appellant, an African-American, Mississippi 

lawyer, sued Defendant-Appellee, the Governor of Mississippi, claiming that 

the Mississippi flag violates his rights under the Equal Protection Clause of 

the Constitution. The district court sua sponte ordered the parties to brief 

standing and the political question doctrine. In response, Defendant moved to 

dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff 

responded and additionally submitted a sworn declaration in support of his 

standing. Thereafter, Plaintiff moved to amend, seeking to file a Fourth 

Amended Complaint asserting an equal protection claim on behalf of his 

United States Court of Appeals

Fifth Circuit

FILED

March 31, 2017

Lyle W. Cayce

Clerk

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daughter. The district court held a hearing on the motion to dismiss. At the 

hearing, the parties agreed that Plaintiff could testify about his alleged injuries 

and that his testimony would be accepted as true for the purposes of the motion 

to dismiss. The district court dismissed for lack of standing and denied the 

motion to amend because any amendment would be futile. We AFFIRM.1

I

This Court reviews a dismissal for lack of standing de novo. Little v. 

KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). “It is well settled in this circuit 

that ‘[t]he district court . . . has the power to dismiss [pursuant to Rule 12(b)(1)] 

on any one of three separate bases: (1) the complaint alone; (2) the complaint 

supplemented by undisputed facts evidenced in the record; or (3) the complaint 

supplemented by undisputed facts plus the court’s resolution of disputed 

facts.’” Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) 

(quoting Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th 

Cir.1989)). 2 In this case, the district court decided the motion to dismiss based 

on undisputed facts, “[t]herefore, our review is limited to determining whether 

the district court’s application of the law is correct and . . . whether those facts 

are indeed undisputed.” Id.

The requirement that a litigant have standing derives from Article III of 

the Constitution, which confines federal courts to “adjudicating actual ‘cases’ 

and ‘controversies.’” Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002)

(quoting U.S. Const. art. III, § 2, cl. 1). “[T]he irreducible constitutional 

minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560 (1992). “First, the plaintiff must have suffered an injury in fact—

 

1 Plaintiff raised additional standing theories before the district court including a 

Thirteenth Amendment claim and a claim that the Mississippi flag incited racial violence. 

He has abandoned those theories here. 

2 Dismissals for lack of Constitutional standing are granted pursuant to Rule 12(b)(1). 

See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011).

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an invasion of a legally protected interest which is (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or hypothetical[.]” 

Id. at 560 (internal quotation marks and citations omitted). “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.” Id. (internal quotation marks and citations 

omitted). “Third, it must be likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” Id. at 561 (internal quotation 

marks and citation omitted).

II

The district court found that Plaintiff failed adequately to plead injury 

in fact, the first element of standing. On appeal, Plaintiff puts forward three

injury-in-fact theories. We find each unavailing.

1. Stigmatic Injury

Plaintiff first alleges that he is unavoidably exposed to the state flag and 

that the flag’s message is “painful, threatening, and offensive” to him, makes 

him “feel like a second-class citizen,” and causes him both physical and 

emotional injuries.” At its core, Plaintiff’s injury theory is that the Mississippi 

state flag stigmatizes him. 

Stigmatic injury “accords a basis for standing only to ‘those persons who 

are personally denied equal treatment’ by the challenged discriminatory 

conduct[.]” Allen v. Wright, 468 U.S. 737, 755 (1984) (quoting Heckler v. 

Mathews, 465 U.S. 728, 739–40 (1984)), abrogated in part on other grounds by

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

Accordingly, to plead stigmatic-injury standing, Plaintiff must plead that he 

was personally subjected to discriminatory treatment. See Carroll v. 

Nakatani, 342 F.3d 934, 946 (9th Cir. 2003) (“Being subjected to a racial 

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classification differs materially from having personally been denied equal 

treatment . . . . [Plaintiff] does not cite, and we do not find, any authority 

supporting the proposition that racial classification alone amounts to a 

showing of individualized harm.”); see also Miller v. Albright, 523 U.S. 420, 451 

(1998) (O’Connor, J., concurring); Binno v. Am. Bar Assoc., 826 F.3d 338, 351 

(6th Cir. 2016); Rainbow/PUSH Coal. v. F.C.C., 396 F.3d 1235, 1241 n.6 (D.C. 

Cir. 2005); Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 

(10th Cir. 1996); Kurtz v. Baker, 829 F.2d 1133, 1141 (D.C. Cir. 1987). He has 

not done so and thus, fails to plead injury.

Plaintiff resists this conclusion in three ways. First, drawing on 

Establishment Clause cases, which were not presented to the district court, 

Plaintiff argues that exposure to unavoidable and deleterious Government 

speech is sufficient to confer standing. Second, Plaintiff argues that Allen is 

factually inapplicable. Third, Plaintiff argues that if Allen applies, then 

symbolic, government, hate speech will be insulated from review. We disagree 

with each argument.

First, the Establishment Clause case law, though vital for its purpose 

and settled as doctrine, is inapplicable. In an Establishment Clause case, a 

plaintiff adequately alleges standing by alleging direct and unwelcome 

exposure to a religious display. See Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 

494, 497 (5th Cir. 2007) (en banc) (“The question is whether there is proof in 

the record that Doe or his sons were exposed to, and may thus claim to have 

been injured by, invocations given at any Tangipahoa Parish School Board 

meeting.”); Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991); see also 

Catholic League for Religious & Civil Rights v. City & Cty. of S.F., 624 F.3d 

1043, 1072–73 (9th Cir. 2010) (en banc) (Graber, J., concurring in part, 

dissenting in part) (collecting cases). But Allen and its progeny make clear 

that those same types of injuries are not a basis for standing under the Equal 

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Protection Clause—that is, exposure to a discriminatory message, without a 

corresponding denial of equal treatment, is insufficient to plead injury in an 

equal protection case. Allen, 468 U.S. at 755. Indeed, other courts have 

rejected attempts to cross-pollinate Equal Protection Clause standing 

jurisprudence with Establishment Clause cases. See, e.g., Nat’l Ass’n for the 

Advancement of Colored People v. Horne, 626 F. App’x 200, 201 (9th Cir. 2015) 

(unpublished) (“Plaintiffs have not alleged that their members were personally 

denied equal treatment under Allen, as stigmatic injury caused by being a 

target of official discrimination is not itself a personal denial of equal 

treatment.”).3

Plaintiff argues that the test for Equal Protection Clause standing must 

mirror the test for Establishment Clause standing because there is no 

“hierarchy of constitutional values” warranting a “sliding scale of standing.” 

True enough, but standing “often turns on the nature and source of the claim 

asserted.” Warth v. Seldin, 422 U.S. 490, 500 (1975). The reason that Equal 

Protection and Establishment Clause cases call for different injury-in-fact 

analyses is that the injuries protected against under the Clauses are different.

The Establishment Clause prohibits the Government from endorsing a 

religion, and thus directly regulates Government speech if that speech 

endorses religion. See Pleasant Grove City v. Summum, 555 U.S. 460, 468 

(2009) (“[G]overnment speech must comport with the Establishment Clause.”).

Accordingly, Establishment Clause injury can occur when a person encounters 

the Government’s endorsement of religion. See Murray, 947 F.2d at 151. The 

 

3 In Horne, the plaintiffs argued that Establishment Clause cases were relevant to 

show standing. See Br. for Appellants, Nat’l Ass’n for the Advancement of Colored People v. 

Horne, at 23 n.5, 626 F. App’x 200 (9th Cir. 2015) (No. 13-17247), 2014 WL 1153838 (arguing 

that Establishment Clause cases could demonstrate stigmatic injury standing in an equal 

protection case). Nonetheless, without citation to Establishment Clause cases, the Ninth 

Circuit straightforwardly applied Allen.

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same is not true under the Equal Protection Clause: the gravamen of an equal 

protection claim is differential governmental treatment, not differential

governmental messaging. See Ne. Fla. Chapter of Associated Gen. Contractors 

of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“When the government 

erects a barrier that makes it more difficult for members of one group to obtain 

a benefit than it is for members of another group, a member of the former group 

seeking to challenge the barrier need not allege that he would have obtained 

the benefit but for the barrier in order to establish standing. The ‘injury in 

fact’ in an equal protection case of this variety is the denial of equal treatment 

resulting from the imposition of the barrier, not the ultimate inability to obtain 

the benefit.”); Allen, 468 U.S. at 757 n.22 (“The stigmatic injury thus requires 

identification of some concrete interest with respect to which respondents are 

personally subject to discriminatory treatment. That interest must 

independently satisfy the causation requirement of standing doctrine.”);

Bowlby v. City of Aberdeen, 681 F.3d 215, 227 (5th Cir. 2012) (noting that an 

equal protection claim requires proof of unequal treatment).

Second, Plaintiff argues that Allen is inapplicable. On Plaintiff’s 

reading, Allen does not apply because “the allegation here is that the State has 

itself acted with a discriminatory purpose in the design of its state flag, that 

Plaintiff is unavoidably, and frequently, and personally exposed to the state’s 

demeaning and discriminatory message, and that it has impacted him 

personally in a variety of ways.” However, Plaintiff’s reading does not comport 

with Allen’s text or its subsequent interpretation. Allen held that when

plaintiffs ground their equal protection injuries in stigmatic harm, they only 

have standing if they also allege discriminatory treatment. Allen, 468 U.S. at 

755. That Plaintiff alleges that he personally and deeply feels the impact of 

Mississippi’s state flag, however sincere those allegations are, is irrelevant to 

Allen’s standing analysis unless Plaintiff alleges discriminatory treatment. 

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See, e.g., Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 822 (7th 

Cir. 2014) (holding that the Allen inquiry is unchanged when plaintiffs claimed 

to be part of small group facing discrimination); In re U.S. Catholic Conference, 

885 F.2d 1020, 1026 (2d Cir. 1989) (finding that under Allen clergy do not have 

special standing status based on the sincerity of their beliefs); Mehdi v. U.S. 

Postal Serv., 988 F. Supp. 721, 731 (S.D.N.Y. 1997) (“Plaintiffs in this case have 

not alleged a personal denial of equal treatment, and thus any claim that the 

Postal Service has denied the plaintiffs equal protection by refusing to put up 

the Muslim Crescent and Star must be dismissed for want of standing.”).

Third, Plaintiff contends that if he does not have standing to challenge 

Mississippi’s flag then no plaintiff would ever have standing to challenge 

discriminatory government speech. Preliminarily, in cases where the 

Government engages in discriminatory speech, that speech likely will be 

coupled with discriminatory treatment.4 See, e.g., Allen, 468 U.S. at 755 

(distinguishing Heckler because there the stigmatic speech was coupled with 

discriminatory treatment). In any event, “[t]he assumption that if [Plaintiff 

has] no standing to sue, no one would have standing, is not a reason to find 

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

Church & State, Inc., 454 U.S. 464, 489 (1982) (quoting Schlesinger v. 

Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)).

2. Hostile Workplace and Physical Injury

Plaintiff next argues, in an analogy not presented to the district court,

that he has standing because he encounters the flag in his work as a prosecutor 

and “[i]t is well established that the presence of a Confederate flag even in a 

place of private employment, and even less than continuously, can create or 

 

4 Moreover, discriminatory government speech would certainly be useful in proving a 

discriminatory treatment claim, because it loudly speaks to discriminatory purpose.

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contribute to an actionable ‘hostile work environment.’” He also contends that,

as a result of his exposure to the Mississippi flag, he suffers various physical 

injuries.

Both arguments suffer the same defect as Plaintiff’s stigmatic-injury 

claim. Plaintiff’s exposure to the Mississippi flag in courtrooms where he 

practices and his alleged physical injuries resulting from that exposure 

demonstrate that he strongly feels the stigmatic harm flowing from the flag. 

Allen recognized that “[t]here can be no doubt that [stigma] is one of the most 

serious consequences of discriminatory government action . . . .” Allen, 468 

U.S. at 755. Nonetheless, Allen found that stigma alone was insufficient to 

satisfy the injury-in-fact requirement. Id. Accordingly, under Allen and its 

progeny, stigmatic injury does not transform into injury in fact just because 

the source of the stigmatic injury is frequently confronted or the stigmatic 

harm is strongly, sincerely, and severely felt. See, e.g., Newdow v. Lefevre, 598 

F.3d 638, 643 (9th Cir. 2010) (applying Allen even when the Plaintiff argued 

that he personally suffered harm as a result of the Government’s stigmatizing 

speech); Harris v. United States, 447 F. Supp. 2d 208, 212 (D. Conn. 2005) 

(“However, it is not the seriousness of the harm but its generality that 

determines whether a federal court is the proper forum for addressing it.”). 

Moreover, analogizing Plaintiff’s equal protection claim to a hostile work 

environment claim fails for the same reason that the Establishment Clause 

analogy fails: under Title VII, 42 U.S.C. § 2000e et seq., exposure to a hostile 

work environment alone is the injury; under the Equal Protection Clause it is 

not. Compare Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (noting that 

Title VII “is not limited to economic or tangible discrimination . . . [but also] 

includes requiring people to work in a discriminatorily hostile or abusive 

environment” (internal quotation marks and citations omitted)), with Allen,

468 U.S. at 755 (equal protection standing requires more than stigma alone). 

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Accordingly, we conclude that Plaintiff’s hostile workplace and physical injury 

theories are insufficient to plead injury in fact.

3. Harm to Plaintiff’s Daughter

Last, Plaintiff alleges in his proposed Fourth Amended Complaint that 

his daughter is harmed by two Mississippi statutes, which require her to be 

exposed to the Mississippi flag in school. Section 37-13-5 requires that the 

Mississippi flag be flown in close proximity to all public schools and that “there 

shall be given a course of study concerning . . . the flag of the State of 

Mississippi. The course of study shall include the history of [the] flag and what 

[it] represent[s] and the proper respect therefor.” Miss. Code § 37-13-5(1), (3). 

Section 37-13-7 requires that “[t]he pledge of allegiance to the Mississippi flag 

shall be taught in the public schools of this state[.]” Miss. Code § 37-13-7(2). 

Plaintiff does not allege that either statute has yet violated his daughter’s 

rights; instead, he claims that when she begins school she will “be forced to 

learn, adopt, utter or communicate speech which she finds objectionable” in 

violation of the First Amendment. 

The district court rejected this standing theory. It reasoned that Section 

37-13-5 does not facially violate the Constitution because it merely requires 

“children to be taught about the history of the Mississippi flag” and that 

Section 37-13-7 does not facially violate the Constitution because it “does not 

require any student to recite the Mississippi pledge.” Finding that Plaintiff 

failed to plead that either statute clearly risked violating his daughter’s 

constitutional rights, the district court concluded that Plaintiff could not show 

injury. We agree.

The district court properly construed both Mississippi statutes. As 

always, statutory interpretation begins “with the plain language and structure 

of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 350 F.3d 482, 486 

(5th Cir. 2003). Section 37-13-5 requires that Mississippi students be “given 

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a course of study” concerning the Mississippi flag and be taught “proper 

respect” for the flag. Miss. Code § 37-13-5(3). Plaintiff argues that the statute 

mandates that his daughter be taught to “respect” the flag “no matter its 

origins, no matter the malicious intent of the State in adopting it, and no 

matter the destructive and demoralizing impact on young minds.” We do not 

agree that the statute requires so much. Instead, the statute demands that 

children be taught “proper respect” for the flag. “Proper” means “correct” or 

“marked by suitability, rightness, or appropriateness.” Merriam-Webster’s 

Collegiate Dictionary 932 (10th ed. 2002). The words “correct” or “suitable”

imply neither a positive nor a negative level of respect; under a plain reading 

of the statute all that is required to be taught is the history of the flag and the

respect that it is due, whatever that may be. Likewise, Section 37-13-7 does 

not require that students pledge allegiance to the Mississippi flag. Instead, 

the statute only requires that the Mississippi pledge be taught in public 

schools, without mandating that schools teach a particular viewpoint about the 

pledge. See Miss. Code § 37-13-7(2). Accordingly, neither statute requires 

anything more than that students be taught about the flag and the pledge. The 

statutes do not facially violate the Constitution. See, e.g., Freiler v. 

Tangipahoa Par. Bd. of Educ., 185 F.3d 337, 342 (5th Cir. 1999) (absent 

constitutional violation, states “have the right to prescribe the academic 

curricula of their public school systems”).

Because neither statute compels the violation of Plaintiff’s daughter’s 

rights, Plaintiff’s claim boils down to an assertion that Mississippi could, but 

need not, apply its law in an unconstitutional way. This assertion is too 

speculative to support standing. See, e.g., Henderson, 287 F.3d at 380 (finding 

that plaintiffs did not have standing to bring a facial challenge when plaintiffs’ 

alleged injury was that a newly created state council might violate the 

Establishment Clause).

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III

We agree with the district court that Plaintiff failed adequately to plead 

injury in fact and therefore failed to establish standing. See Okpalobi v. Foster, 

244 F.3d 405, 425 (5th Cir. 2001) (en banc) (“If any one of these three 

elements . . . is absent, plaintiffs have no standing in federal court[.]”). 

Accordingly, we need not reach causation, redressability, or the political 

question doctrine. 

AFFIRMED.

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