IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50710

DAVID MCMAHON; STEVEN LITTLEFIELD; TEXAS DIVISION, SONS OF 

CONFEDERATE VETERANS, INCORPORATED, 

 Plaintiffs - Appellants

v.

PRESIDENT GREGORY L. FENVES, In His Official Capacity as President 

of the University of Texas at Austin, 

 Defendant - Appellee

****************************************************************

Consolidated with 18-50800 

RICHARD BREWER; TEXAS DIVISION, SONS OF CONFEDERATE 

VETERANS, INCORPORATED, 

 Plaintiffs - Appellants 

v. 

RON NIRENBERG, Mayor of the City of San Antonio, In his Individual 

Capacity; ROBERTO TREVINO, San Antonio City Councilman in his 

Individual Capacity; WILLIAM SHAW, San Antonio City Councilman in his 

Individual Capacity; REBECCA VIAGRAN, San Antonio City Councilman in 

her Individual Capacity; REY SALDANA, San Antonio City Councilman in 

his Individual Capacity; SHIRLEY GONZALES, San Antonio City 

Councilman in her Individual Capacity; GREG BROCKHOUSE, San Antonio 

City Councilman in his Individual Capacity; ANA SANDOVAL, San Antonio 

City Councilman in her Individual Capacity; MANUEL PALAEZ, San 

Antonio City Councilman in his Individual Capacity; JOHN COURAGE, San 

Antonio City Councilman in his Individual Capacity; CLAYTON PERRY, San 

Antonio City Councilman in his Official Capacity; CITY OF SAN ANTONIO, 

 Defendants - Appellees

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2020

Lyle W. Cayce

Clerk

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Appeals from the United States District Court 

for the Western District of Texas

Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This consolidated case involves First Amendment and state-law 

challenges to the removal or relocation of Confederate monuments from a San 

Antonio park and on the University of Texas’s Austin campus. In the 

University case, David McMahon, Steven Littlefield, and the Texas Division of 

the Sons of Confederate Veterans sued the University of Texas to reverse its 

decision to relocate several Confederate statues. In the San Antonio case, 

Richard Brewer and the Texas Division of the Sons of Confederate Veterans

first moved to temporarily restrain the City of San Antonio from removing a 

Confederate monument and two cannons from a City park and then moved to 

compel their reinstallation. Both district courts dismissed Plaintiffs’ First 

Amendment claims for lack of standing and then declined to exercise 

supplemental jurisdiction over their state-law claims. Plaintiffs appealed. We 

affirm the district courts’ dismissals.

I.

In the early 1900s, Major George Littlefield, a Civil War veteran, 

donated funds to the University of Texas to build a “massive bronze arch over 

the south entrance to the campus,” a statue of President Woodrow Wilson, and

statues of five Confederate leaders: Jefferson Davis, Robert E. Lee, Albert 

Sidney Johnston, and John H. Reagan. The University placed the statues on 

its campus in the 1930s, but never built the arch.

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About a century later, University President Gregory Fenves had the 

statues relocated. Plaintiffs David McMahon, Steven Littlefield, and the Texas 

Division of the Sons of Confederate Veterans sued to enjoin the University—

first in state court and then in federal court in Austin—to reverse its decision 

to relocate the statues. See McMahon v. Fenves, 323 F. Supp. 3d 874 (W.D. Tex. 

2018). The Texas trial court dismissed the suit for lack of standing; the Texas 

court of appeals affirmed; the Texas Supreme Court denied review. See Bray v. 

Fenves, No. 06-15-00075-CV, 2016 WL 3083539 (Tex. App.—Texarkana Mar. 

24, 2016, pet. denied) (mem. op.).

Plaintiffs’ federal complaint alleges First Amendment and Texas 

Monument Protection Act violations and claims that the Board of Regents 

breached the bequest agreement and exceeded its authority over the 

University. The Sons of Confederate Veterans are a non-profit organization, 

and McMahon and Littlefield claim to be “descendant[s] of Confederate 

veterans,” with Littlefield a descendant of Major Littlefield. Fenves moved to 

dismiss for lack of subject-matter jurisdiction, arguing that Plaintiffs lacked 

standing because they did not suffer a concrete and particularized injury. The 

district court granted Fenves’s motion, holding that Plaintiffs’ familial ties to 

Confederate veterans did not mean that relocating Confederate statues, which 

allegedly silenced Plaintiffs’ political viewpoint, caused them a cognizable 

injury. McMahon, 323 F. Supp. 3d at 879–81. The court, citing Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 576 (1992), stated that “[o]ur system of 

governance assigns the vindication of value preferences to the democratic 

political process, not the judicial process.” Id. at 880. After the court dismissed

Plaintiffs’ First Amendment claim, it declined to exercise supplemental 

jurisdiction over their remaining state-law claims. Id. at 881–82.

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In the San Antonio case, the City Council gave the United Daughters of 

the Confederacy permission to erect a “Confederate Monument” in a City park 

in 1899. About ten years later, the City placed two cannons next to the 

monument. According to meeting minutes from the Albert Sidney Johnston 

Camp of the United Confederate Veterans, Congress donated the cannons “for 

the benefit of the Confederate Camp.”1

About a century later, the City Council passed an ordinance to remove 

the monument and cannons from the park. The Texas Division of the Sons of 

Confederate Veterans, this time with Richard Brewer, sued the City in federal 

court in San Antonio. See Brewer v. Nirenberg, No. SA:17-CV-837-DAE, 2018 

WL 8897851 (W.D. Tex. Sept. 17, 2018). They moved for a temporary 

restraining order to prevent the City from removing the monument and 

cannons. The district court denied the motion, but ordered the City to remove 

the monument “in such a manner as to preserve [its] integrity,” and further,

that it “be stored in a secure location in order to protect it from damage or from 

being defaced[,] pending resolution of this lawsuit.” Id. at *1. Plaintiffs then 

amended their complaint, adding as Defendants the City Councilmembers in 

their individual capacities and alleging claims for First Amendment and Texas 

Antiquities Code violations, for rendering impossible a charitable gift’s 

purpose, and for conversion. The City moved for summary judgment on all 

Plaintiffs’ claims, and the individual Defendants moved to dismiss.

The district court granted the City’s summary-judgment motion on 

Plaintiffs’ First Amendment claim, holding that Plaintiffs lacked standing 

because their alleged injuries were not particularized. Id. at *4. The San 

Antonio court followed the Austin court’s lead, stating that, though “Plaintiffs 

 

1 Presumably, “Confederate Camp” refers to the Albert Sidney Johnston Camp.

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are likely more deeply attached to the values embodied by the Monument than 

the average person walking through [the City park], . . . ‘their identities as 

descendants of Confederate veterans do not transform an abstract ideological 

interest in preserving the Confederate legacy into a particularized injury.’” Id.

(quoting McMahon, 323 F. Supp. 3d at 880).

Brewer, unlike the individual Plaintiffs in the University case, also

asserted standing as a municipal taxpayer. The court held that, because the 

monument was removed and the funds to do so were already expended, 

Brewer’s request to enjoin the removal and the expenditure was moot. Id. at 

*5. It also held that, because Brewer no longer sought an injunction and 

because taxpayers lack standing to sue for previously expended funds, he 

lacked taxpayer standing. Id. With all Plaintiffs’ federal claims dismissed, the 

court declined to exercise supplemental jurisdiction over Plaintiffs’ state-law 

claims and then denied the individual Defendants’ motion to dismiss as moot. 

Id. at *6.

Plaintiffs in both cases appealed, and the cases were consolidated.

II.

The issue before us is whether Plaintiffs have standing to bring their 

First Amendment claims.2 We review whether jurisdiction exists de novo. 

Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012). The 

party asserting jurisdiction has the burden of establishing it. Id. At the motionto-dismiss stage, this means “alleg[ing] a plausible set of facts establishing 

jurisdiction.” Id.; see FED. R. CIV. P. 12(b)(1).

 

2 Plaintiffs’ other claims arise under state law. Both district courts declined to 

exercise discretionary supplemental jurisdiction over these state-law claims after 

dismissing Plaintiffs’ free-speech claims. Plaintiffs do not challenge this holding on 

appeal. Thus, Plaintiffs have forfeited any argument that the district courts erred in 

not exercising jurisdiction over these claims.

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Plaintiffs argue that they have standing under Lujan to bring their freespeech claims. Brewer argued in his briefing that he has municipal-taxpayer 

standing to bring his free-speech claim, but abandoned this ground for 

standing at oral argument. We therefore do not address that issue. See, e.g., In 

re Thalheim, 853 F.2d 383, 386 (5th Cir. 1988) (“summarily affirm[ing]” the 

district court on a claim that appellant “expressly abandoned” at oral 

argument).

To establish standing, Plaintiffs must show that they have suffered an 

injury in fact: a personal injury that is traceable to the defendant’s alleged 

conduct and that is likely to be redressed by a favorable decision. Lujan, 504 

U.S. at 560–61. This injury must be both “concrete” and “particularized.” Id. at 

560. An injury is particularized if it “affect[s] the plaintiff in a personal and 

individual way.” Id. at 560 n.1. That is, the plaintiff must have “a direct stake 

in the outcome.” See Sierra Club v. Morton, 405 U.S. 727, 740 (1972). To satisfy 

this injury-in-fact test, Plaintiffs therefore must allege more than an injury to 

someone’s concrete, cognizable interest; they must “be [themselves] among the 

injured.” Id. at 734–35.

Plaintiffs argue that, because they have unique ties to these Confederate 

monuments and to the Confederacy, these monuments express Plaintiffs’ 

political viewpoint and, therefore, that Defendants’ removal or relocation of 

these monuments violated Plaintiffs’ First Amendment rights. That is, 

Plaintiffs claim to have standing because moving these monuments injured 

their free-speech rights. But even if Plaintiffs allege a concrete free-speech

interest—i.e., if moving these monuments even implicates the First 

Amendment—they fail to show that the violation of this interest is, in fact, an 

injury to their rights. This is because, though these ties might give Plaintiffs 

strong reasons to care about these monuments, Plaintiffs fail to explain how 

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these ties give Plaintiffs a First Amendment-based stake in the outcome of this 

litigation. They claim that these monuments are their speech, but fail to 

plausibly allege how these ties make that so.

The United Daughters of the Confederacy, Major Littlefield, and 

Congress donated these monuments or the funds to build them. Plaintiffs 

argue on appeal that these donors or the beneficiaries of these donations 

collaborated with the University or the City when erecting or placing them 

and, therefore, co-authored the political speech that the monuments express. 

But Plaintiffs never argue that they donated the monuments or the funds for 

building them or explain how they “co-authored” the monuments’ speech. So 

even if displaying these monuments was private speech, and even if moving 

them impermissibly abridged that speech, Plaintiffs have failed to plausibly 

show that these monuments are their speech.

To be clear, Plaintiffs do not assert these free-speech claims on another 

party’s behalf. If they did, prudential limitations on standing would likely bar 

their suit. See, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[A] plaintiff 

generally must assert his own legal rights and interests, and cannot rest his 

claim to relief on the legal rights or interests of third parties.”). Nor do they 

assert that they attempted to speak but that the University or the City 

thwarted that attempt. Cf., e.g., Rosenberger v. Rector & Visitors of Univ. of 

Va., 515 U.S. 819 (1995) (state university denied student group funding to

print student newspaper). Nor that they have been prevented from hearing 

speech. Cf., e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 

(1980) (“Free speech carries with it some freedom to listen.”). Instead, they 

insist that they suffered a particularized First Amendment injury because 

moving these monuments abridged their speech. But their position is based on 

a fundamental confusion about what makes an injury particularized.

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Plaintiffs state several reasons why they are particularly invested in 

these monuments. They feel strongly about the message these monuments 

supposedly convey about the Confederacy and the Civil War. They claim to be 

descendants of Confederate veterans, including one of the donors. They claim 

that these monuments were public charitable gifts and that Plaintiffs are 

among the intended beneficiaries. For example, they argue that the cannons 

were donated for the benefit of the United Confederate Veterans and that the 

Sons of Confederate Veterans, as the successor association to that group, is

now that gift’s intended beneficiary. Plaintiffs therefore care deeply about 

preserving monuments that convey a viewpoint that they support and that, 

they believe, their ancestors donated for their benefit. And Plaintiffs believe 

that these ties give them unique reasons for caring about these monuments, 

which means that their allegedly unconstitutional removal caused Plaintiffs a 

particularized injury—it is particular to them because only they have these 

alleged ties. But that is not how particularity works. Plaintiffs confuse having 

particular reasons for caring about these monuments with having a 

particularized injury.

Plaintiffs would of course prefer a world where the University and the 

City display Plaintiffs’ favored monuments. Plaintiffs provide reasons—

presumably strong ones—for why they are more attached to the monuments’ 

viewpoint than the general public is. But strong reasons are no better than 

weak ones at giving Plaintiffs a direct and personal stake in this litigation. To 

be sure, we do not doubt that Plaintiffs are offended by the removal of these 

monuments or that they feel this offense more acutely because of their familial 

ties. These ties, however, do not distinguish Plaintiffs from any other persons 

who might claim offense at the removal of these monuments. This is because

these ties affect only the magnitude of Plaintiffs’ indignation, not the nature of 

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their injury. For Plaintiffs, their injury is the pain of believing that a certain

expression of a viewpoint with which they agree has been unconstitutionally 

removed from public display. That is a generalized psychological injury, not a 

particularized free-speech one—it is felt by all who are offended by this 

removal. That Plaintiffs are more offended than someone who is likeminded 

yet lacks these ties does not make that generalized injury particularized. Nor 

does it morph these monuments into Plaintiffs’ own speech. Plaintiffs have 

shown only a rooting interest in the outcome of this litigation, not a direct and 

personal stake in it. They are in the same position as any enthusiastic 

onlooker.

Moreover, Plaintiffs’ contentions that they are the beneficiaries of these 

gifts or are the successors-in-interest to a beneficiary are red herrings. The 

standing this might confer is for their state-law claims—e.g., that the 

University breached a bequest agreement or that the City rendered a 

charitable gift impossible—not for their First Amendment claims. Thus, these 

facts are irrelevant to whether Plaintiffs have standing for their federal claims.

The fundamental and fatal flaw with Plaintiffs’ argument is that they 

conflate agreeing with speech with authoring speech. They claim that their 

speech has been abridged, yet conspicuously absent from their allegations is 

anything showing this to be true. Plaintiffs merely agree with the ideas that 

they feel these monuments express and sued in hopes of keeping them on 

display. They are undoubtedly passionate about these ideas and are upset that 

symbols of their values, like these monuments, have been removed from the 

public square. But what Plaintiffs seek is only to “vindicate their own value 

preferences,” not to redress a First Amendment injury particular to them. See 

Sierra Club, 405 U.S. at 740. Their passion, however sincere, does not place 

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them among the injured. Thus, Plaintiffs have not alleged a particularized 

injury.

III.

Because Plaintiffs have not alleged a particularized injury, they lack 

standing to bring their First Amendment claims. We AFFIRM the district 

courts’ judgments.

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