Austin Burdick v. Anthony Kennedy, et al

Filing

Opinion issued by court as to Appellant Austin Burdick. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17564

Date Filed: 07/28/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17564
Non-Argument Calendar
________________________
D.C. Docket No. 2:16-cv-00313-MHH
AUSTIN BURDICK,
Plaintiff-Appellant,
versus
JUSTICE ANTHONY M. KENNEDY,
an individual,
JUSTICE STEPHEN G. BREYER,
an individual,
JUSTICE RUTH BADER GINSBURG,
an individual,
JUSTICE SONIA SOTOMAYOR,
an individual,
JUSTICE ELENA KAGAN,
an individual, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 28, 2017)

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Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Attorney Austin Burdick appeals the district court’s dismissal of his pro se
Fifth Amendment Bivens 1 action and claims for breach of contract and breach of
fiduciary duty.

He filed this suit against Supreme Court Justices Anthony

Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena
Kagan, five United States Supreme Court Justices who Burdick claims have issued
a judicial decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), in violation of
their oath of office and to the detriment of the plaintiff. On appeal, Burdick first
argues that the district court erred by sua sponte dismissing his claims for lack of
standing. He claims that he suffered a concrete injury when the Justices “rendered
the Constitution a nullity” in Obergefell, preventing him from making certain
arguments to “protect his clients’ constitutional rights” and depriving him of his
interest in his law license. In the alternative, Burdick argues that the district court
erred by dismissing his claims on the independent grounds of judicial immunity
and failure to state a plausible claim. After thorough review, we affirm.
We review de novo a dismissal for lack of standing. Scott v. Taylor, 470
F.3d 1014, 1017 (11th Cir. 2006).

We review factual findings underlying a

standing determination for clear error. Am. Civil Liberties Union of Fla., Inc. v.
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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971).
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Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1195 (11th Cir. 2009). Although a
complaint need not set forth detailed factual allegations, the plaintiff must allege
sufficient facts to render a claim “plausible on its face.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A complaint does not “suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
The party invoking federal jurisdiction bears the burden of establishing
standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The “irreducible
constitutional minimum of standing” comprises three elements: injury-in-fact,
causation, and redressability. Id. at 560–61. “At the pleading stage, general
factual allegations of injury resulting from the defendant’s conduct may suffice
. . . . ” Id. at 561. To establish injury-in-fact, a plaintiff must show that he
“suffered an invasion of a legally protected interest that is concrete and
particularized and actual or imminent, not conjectural or hypothetical.” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quotations omitted). For an injury to
be “concrete,” it must be “real, and not abstract.” Id. (quotations omitted). For an
injury to be “imminent,” “the anticipated injury [must] occur with[in] some fixed
period of time in the future.” Am. Civil Liberties Union of Fla., 557 F.3d at 1193
(quotations omitted, second alteration in original). A “legally cognizable injury
requires infringement of an interest protected by statute or otherwise.” Primera
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Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d 1295, 1304
(11th Cir. 2006) (quotation and alteration omitted). “That interest must consist of
obtaining compensation for, or preventing, the violation of a legally protected
right.” Id. (quotation omitted). Indeed, standing requires “personal injury suffered
by [a party] as a consequence of the alleged constitutional error, other than the
psychological consequence presumably produced by observation of conduct with
which one disagrees.”

Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 486 (1982) (quotation and
citation omitted). “[S]tanding is not measured by the intensity of the litigant’s
interest or the fervor of his advocacy.” Id.
Here, the district court correctly concluded that Burdick has not articulated
an injury-in-fact sufficient for standing. Burdick, a lawyer practicing law primarily
in the Northern District of Alabama, claimed in his complaint that his practice of
law is primarily focused on the protection of basic constitutional rights of United
States citizens. He alleged that through the majority opinion in Obergefell v.
Hodges, 135 S. Ct. 2584 (2015), the five United States Supreme Court justices
named in the complaint “rendered the Constitution a nullity, [and] deprived [him]
of a property right interest in his law license.” He has said little else to explain the
effect of the ruling on his interests. At a hearing before the district court, Burdick
argued that his law license has “been severely crippled” by the decision, he “can’t
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use [his law license] for its full intended purpose[,]” and he would enjoy legal
practice less because he could no longer argue that “the 14th Amendment protects
[his] clients against state action . . . .” On appeal, Burdick reiterates that he
suffered a concrete injury because the Justices “rendered the Constitution a nullity”
in Obergefell by preventing him from making certain arguments to “protect his
clients’ constitutional rights” and therefore depriving him of his “property right
interest in his law license[,]” “all income that he would have received had the
Constitution not been destroyed[,]” and the enjoyment he derives “from utilizing
his law license . . . [to] protect[] the constitutional rights of [his] clients.”
Burdick has not said nearly enough to state an injury resulting from the
Obergefell decision. In Obergefell, 135 S. Ct. 2584, the Supreme Court held that
same-sex couples may exercise the fundamental right to marry in all states. With
nothing more to go on than these bald allegations, we are left entirely to guess
what his clients’ interests are, and how they will be implicated by the decision in
Obergefell. All he tells us is his clients have constitutional rights that have been
“destroyed” by Obergefell. On this record, we cannot say that the district court
erred -- much less “belittle[d]” Burdick’s claim -- by concluding that Burdick’s
general proposition that he anticipates he will lose arguments that are based on
legal theories that the Supreme Court rejected in Obergefell does not implicate a
“legally protected interest.”

Indeed, at the hearing before the district court,
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Burdick acknowledged that he has not lost his law license, and his participation
throughout this case has revealed that he is still able to practice law and make
arguments in the federal courts. His only complaint, it seems, is that the arguments
he makes on behalf of his clients will not be successful in light of Obergefell. But
because there is no constitutional provision, statute, or other authority to suggest
that a court must accept a party’s arguments, a lawyer has no legally protected
interest in winning those arguments. Cf. United States v. S. Fla. Water Mgmt.
Dist., 922 F.2d 704, 711 (11th Cir. 1991) (noting in Rule 24 intervention context
that, if a railroad defendant is “free to suspend its service,” the economic interest of
the intervenor factory relying on the railroad would not be “legally protectable”);
cf. also Hensley v. Eckerhart, 461 U.S. 424, 449 (1983) (Brennan, J., concurring in
part and dissenting in part) (“[A]ttorneys can never be 100% certain they will win
even the best case.”). Without any legally protected interest in winning his legal
arguments, Burdick has failed to identify an injury-in-fact.
And even if Burdick had a legally protected interest in winning his
constitutional arguments -- and plainly he did not -- the district court did not err in
concluding that Burdick’s allegations are “vague,” “abstract assertion[s]” that
were insufficient to establish a concrete injury. Burdick’s complaint identifies no
specific legal argument he has lost or will imminently lose as a result of
Obergefell. Nor does it identify any factual basis for his allegation that Obergefell
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will cause him to lose income.

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Burdick’s abstract allegations simply do not

demonstrate any actual or imminent concrete injury. See Elend v. Basham, 471
F.3d 1199, 1206–09 (11th Cir. 2006) (holding that, without details about when,
where, and how future protests would occur, general allegations regarding secret
service’s policy of restricting protestors to protest zones and plaintiffs’ intent to
attend future protests were insufficient to demonstrate an imminent, concrete
injury); see also City of Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983)
(holding that plaintiff lacked standing where alleged threat from police chokehold
was conditional).

Accordingly, the district court did not err by dismissing

Burdick’s claims for lack of standing.
Because we affirm the district court’s dismissal for lack of a justiciable case
or controversy, we have no occasion to address the district court’s other grounds
for dismissal.
AFFIRMED.

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