Case: 24-50513 Document: 76-1 Page: 1 Date Filed: 05/01/2025
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
May 1, 2025
No. 24-50513 Lyle W. Cayce
____________ Clerk
DigitalDesk, Incorporated; R. Greg Gomm,
Plaintiffs—Appellants,
versus
Bexar County, Texas, By and through its agent the Bexar County District
Attorney’s Office; LiftFund, Incorporated,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:23-CV-886
______________________________
Before Elrod, Chief Judge, and Higginbotham and Ramirez,
Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
The Plaintiffs’ complaint and its cited documents collectively allege
that Bexar County and LiftFund Inc. 1 funded and operated the Bexar County
Small Business Assistance Program (the “Program”) to provide grants to
small businesses impacted by the COVID-19 pandemic. The methodology
used to score grant applications, its Scoring Methodology, granted additional
_____________________
1
LiftFund is a non-profit corporation that provides business loans.
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No. 24-50513
points to “Women Owned” and “Minority Owned” businesses, and
Defendants funded applicants with higher scores before funding applicants
with lower scores. As there were more applications than available funds
under the Program, those with lower scores would not receive funds. The
Scoring Methodology was approved by Bexar County and implemented by
LiftFund.
Plaintiffs Greg Gomm and his software company DigitalDesk applied
for a grant through the Program, declaring that Gomm was a white, nonHispanic male. Gomm was eventually notified by LiftFund that “[t]he grant
application review process was completed using the [Scoring Methodology]”
and that “all grant funds have been allocated and your business will be unable
to receive funding from this program.”
Gomm and his company then sued Defendants in federal court,
alleging that implementation of the racial and sex preferences manifested by
the utilization of the Scoring Methodology violated the Equal Protection
Clause of the Fourteenth Amendment and
, 1983, and
1985, and requested compensatory and punitive damages. 2
Defendants moved to dismiss for lack of jurisdiction under FED. R.
CIV. P. 12(b)(1), arguing that Gomm and his company were ineligible for a
grant because they failed to follow the Program’s application instructions
requiring submission of a filed business tax return for 2020, were injured by
_____________________
2
While Gomm also requested an injunction and declaratory relief, his initial brief
did not challenge the district court’s holding that he lacked standing to request prospective
relief, waiving any argument regarding the district court’s ruling on those remedies. See,
e.g. CenturyTel of Chatham, LLC v. Sprint Commc’ns Co., L.P.,
(5th Cir.
2017). Waiver cannot be remedied by arguments made in a reply brief. See, e.g. Haywood v.
Tribeca Lending Corp.,
307 F. App’x 869
, 871 n. 2 (5th Cir. 2009).
2
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No. 24-50513
their failure to follow instructions and not by illegal discrimination, and hence
lacked standing.
The district court dismissed the case, finding that Gomm and his
company were denied a grant solely for failing to follow the application
instructions and that race and sex were not factors in the denial. It concluded
that they did not prove injury, lack standing, and could not prove subjectmatter jurisdiction by a preponderance of the evidence.
Gomm and his company appealed, alleging injury inflicted by the
Scoring Methodology, both a stigmatizing and an opportunity injury because
they were able and ready to apply but faced a discriminatory barrier, and
that—at a minimum—they should be permitted to engage in limited
jurisdictional discovery to prove their standing to bring this suit.
I.
Gomm asserts that discovery could find proof that he was injured by
Defendants’ illegal racial and sexual discrimination in the application
process. Magistrate Judge Farrer understood the importance of discovery in
proving Gomm’s injury and explicitly asked if jurisdictional discovery was
needed. Gomm’s counsel responded by saying “you certainly do raise some
good points” and his co-counsel noted that he “would tend to think that
allowing jurisdictional discovery would be appropriate.” But Gomm did not
request discovery.
Gomm now asserts that he is entitled to at least jurisdictional
discovery. The central flaw in this argument is that—despite Judge Farrer’s
prompting—Gomm failed to request discovery before the district court. 3
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3
While Gomm did move to lift a stay and allow jurisdictional discovery, they failed
to object to or appeal Judge Farrer’s denial of that motion. And even though Judge Farrer
3
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No. 24-50513
The proper time to request discovery is not now, on appeal, but when the
Defendants filed their motion to dismiss 18 months ago. 4 Gomm did not and
now cannot provide evidence of discriminatory treatment and injury.
Gomm and his company were ineligible for a grant by virtue of their
failure to submit a filed 2020 business return, 5 and their failure to request
discovery foreclosed a contrary finding. The complaint must be dismissed.
II.
For the reasons stated above, we AFFIRM the district court’s
dismissal of this case.
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stated that he would revisit lifting the stay should Gomm file the discovery requests for his
evaluation, Gomm never did so.
4
See U.S. ex rel. Osheroff v. Humana Inc.,
(11th Cir. 2015) (finding
that a relator’s failure to request discovery or an evidentiary hearing forfeited his argument
that the district court should not have ruled on the defendants’ 12(b)(1) challenge without
first allowing discovery and/or holding an evidentiary hearing).
5
The complaint does not allege that Gomm was ineligible for a grant. To the
contrary, it states that “[i]n all respects, Plaintiffs submitted a complete application
demonstrating eligibility for a grant under the program.” But that assertion is contradicted
by the Application, which shows that “Applicants without filed 2019 and 2020 business
returns are not eligible” and that Gomm did not submit a filed 2020 business return.
4
