Case: 23-50257 Document: 00516998055 Page: 1 Date Filed: 12/12/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 12, 2023
No. 23-50257 Lyle W. Cayce
____________ Clerk
Stephen C. Lutostanski; Amanda Logan; Andria Dowie,
Plaintiffs—Appellants,
versus
Andrew Brown; Jeffrey W. Travillion, Sr.; Brigid Shea;
Ann Howard; Margaret Gomez; Rebecca Guerrero,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-1008
______________________________
Before Clement, Engelhardt, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
A group of pro se plaintiffs sued six Travis County, Texas officials over
alleged improprieties related to the administration of elections. The district
court dismissed the lawsuit for lack of standing, and the plaintiffs appealed.
We agree with the district court that the plaintiffs lacked standing, but we
hold that the proper remedy was remand, not dismissal.
Case: 23-50257 Document: 00516998055 Page: 2 Date Filed: 12/12/2023
No. 23-50257
I.
On August 1, 2022, Stephen Lutostanski, Amanda Logan, Andria
Dowie, and Christiana Keeler filed suit in Travis County district court. The
plaintiffs, who are all Travis County voters, named four defendants: the
current Travis County judge, a former county judge, the current county
clerk, and a former county clerk. The plaintiffs made several allegations
regarding the administration and validity of the November 2020 general
election. As relevant here, the plaintiffs alleged that the defendants used an
uncertified electronic voting system to conduct that election in Travis
County and, in so doing, violated several state and federal laws. The plaintiffs
sought injunctive and declaratory relief to prohibit electronic voting in Travis
County, require paper ballots, and unseal various records related to the 2020
general election.
Eight days later, and before any of the named defendants were served,
the plaintiffs filed an amended complaint. The amended complaint removed
one plaintiff (Keeler) and two defendants (the former Travis County judge
and clerk), and added four defendants (four current county commissioners),
for a total of three plaintiffs and six defendants. The amended complaint was
otherwise materially identical to the initial complaint.
The defendants removed the case to federal court, and moved to
dismiss the lawsuit under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Finding that the plaintiffs lacked Article III standing, the district
court dismissed the suit without prejudice. The plaintiffs timely appealed.
Our review is de novo. See T. B. ex rel. Bell v. Nw. Indep. Sch. Dist., 980 F.3d
1047, 1050 (5th Cir. 2020).
II.
Article III of the United States Constitution limits the “judicial
Power” to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1.
2
Case: 23-50257 Document: 00516998055 Page: 3 Date Filed: 12/12/2023
No. 23-50257
Because of that limitation, any plaintiff invoking the “judicial Power” must
establish the “irreducible constitutional minimum of standing.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). “[A] plaintiff must show (i) that
he suffered an injury in fact that is concrete, particularized, and actual or
imminent; (ii) that the injury was likely caused by the defendant; and (iii) that
the injury would likely be redressed by judicial relief.” TransUnion LLC v.
Ramirez,
141 S. Ct. 2190, 2203 (2021) (citing Lujan, 504 U.S. at 560–61).
Construed liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), the plaintiffs allege two injuries: (A) their votes were “illegalized”
by the defendants and not counted, and (B) their personal information was
unlawfully disclosed. Neither injury is sufficient for Article III standing.
A.
To begin, the plaintiffs allege that because the defendants used an
uncertified or unaccredited voting system to conduct the November 2020
election, their votes were invalidated (or “illegalized”) and not counted. See
Blue Br. 13, 20. But this argument fails for two reasons.
First, the asserted injury is not concrete for purposes of Article III
injury in fact. Concrete injuries include constitutional harms, traditional
tangible harms such as “physical” and “monetary” harms, and “various
intangible harms,” including “injuries with a close relationship to harms
traditionally recognized as providing a basis for lawsuits in American
courts.” See TransUnion, 141 S. Ct. at 2204 (citation omitted). In the context
of the right to vote, courts have found standing when voters were “denied
the right to cast a ballot” or when their votes were “mathematically diluted
by the method of election.” See Steven J. Mulroy, Baby & Bathwater:
Standing in Election Cases After 2020,
126 Dick. L. Rev. 9, 35–36 (2021)
(citing Harper v. Va. Bd. of Elections,
383 U.S. 663, 668–70 (1966), and Baker
3
Case: 23-50257 Document: 00516998055 Page: 4 Date Filed: 12/12/2023
No. 23-50257
v. Carr, 369 U.S. 186, 207–08 (1962)); see also Gill v. Whitford,
138 S. Ct. 1916,
1929–30 (2018).
Here, the plaintiffs seem to argue that their right to vote was denied
because the Travis County officials’ use of an uncertified voting system
invalidated their votes. But plaintiffs’ theory would apply equally to all voters
in Travis County. And plaintiffs do not allege that Travis County’s voting
system somehow invalidated their votes while counting more than 600,000
others. See Official Results: Summary Results Report Joint General and Special
Election November 3, 2020, Travis County Clerk (Nov. 12, 2020),
https://perma.cc/D2NC-5A88 (noting 612,696 cast votes).
Perhaps realizing this problem, the plaintiffs switch arguments in their
reply brief. Their alternative argument assumes that their votes were counted
but alleges that defendants acted unlawfully in counting votes cast through
the uncertified system. See Gray Br. 19 (discussing Tex. Elec. Code §
276.014). This alternative argument does not satisfy Article III’s injury in fact
requirement: “The only injury plaintiffs allege is that the law—specifically
[Texas election law]—has not been followed. This injury is precisely the kind
of undifferentiated, generalized grievance about the conduct of government
that we have refused to countenance in the past.” See Lance v. Coffman, 549
U.S. 437, 442 (2007).
Second, plaintiffs “invalidated votes” injury is not redressable. In
their amended complaint, plaintiffs asked for injunctive and declaratory relief
against the defendants’ use of Travis County’s uncertified voting system.
But, as the plaintiffs acknowledged in the same document, the voting system
in question was certified by the Texas Secretary of State on January 8, 2021.
See ROA.597–98. Without a showing that the risk of similar future harm is
“sufficiently imminent and substantial,” TransUnion, 141 S. Ct. at 2210, a
single instance of past harm cannot support a claim in federal court for
4
Case: 23-50257 Document: 00516998055 Page: 5 Date Filed: 12/12/2023
No. 23-50257
forward-looking injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95,
105, 111–12 (1983). And without an otherwise valid basis for federal
jurisdiction, the plaintiffs’ request for declaratory relief also fails. See
California v. Texas,
141 S. Ct. 2104, 2115–16 (2021).
B.
As a second theory of standing, the plaintiffs allege that the
defendants’ use of an uncertified voting system resulted in the unwanted
disclosure of their personal information. But the plaintiffs are not consistent
in describing this supposed injury: they allege that the defendants sold, Blue
Br. 13, compromised, Blue Br. 15, or released, Blue Br. at 21–22, their
personal information to “federal and third-party vendors,” ROA.1579–80, or
“other countries and third parties.” Blue Br. 13. And plaintiffs do not explain
what “personal information” is at issue, or why, how, when, or to whom it
was unlawfully released (or sold or compromised). Such a “speculative”
injury does not provide a basis for federal jurisdiction. Cf. Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 409 (2013).
III.
The plaintiffs argue that the district court should have remanded their
lawsuit to state court instead of dismissing without prejudice.
We agree. The jurisdictional statute governing removal provides: “If
at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c)
(emphasis added). “The statute declares that, where subject matter
jurisdiction is lacking, the removed case shall be remanded.” Int’l Primate
Prot. League v. Adm’rs of Tulane Educ. Fund,
500 U.S. 72, 89 (1991) (emphasis
in original) (citation and quotation marks omitted). “Moreover, § 1447(c)’s
text includes no exceptions.” Spivey v. Chitimacha Tribe of La.,
79 F.4th 444,
447 (5th Cir. 2023). In this case, the district court held (and we agree) that
5
Case: 23-50257 Document: 00516998055 Page: 6 Date Filed: 12/12/2023
No. 23-50257
the plaintiffs lacked Article III standing. A lack of standing is a lack of subject
matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
102–04 (1998). Under § 1447(c), the district court should have remanded the
case to state court. See Harrison v. Jefferson Par. Sch. Bd.,
78 F.4th 765, 774–
75 (5th Cir. 2023); Spivey, 79 F.4th at 447–49.
Now, the defendants appear to suggest that we should distinguish
between the plaintiffs’ federal and state law claims. The defendants contend
that the district court had “original subject-matter jurisdiction” over the
plaintiffs’ federal claims and thus “could not remand those claims to state
court.” Ibid. (citing Buchner v. F.D.I.C.,
981 F.2d 816, 819–20 (5th Cir.
1993)). That is incorrect for four reasons.
First, § 1447(c) requires the court to remand the “case,” not discrete
claims. Cf. Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 392 (1998) (“An
ordinary reading of the language [of § 1447(c)] indicates that the statute
refers to an instance in which a federal court ‘lacks subject matter
jurisdiction’ over a ‘case,’ and not simply over one claim within a case.”)
(citation omitted); see also 14C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3739, 761–64
(Rev. 4th ed.). Our court has repeatedly instructed district courts to remand
cases—even those that have state and federal claims—pursuant to § 1447(c).
See, e.g., Spivey, 79 F.4th at 445–46, 449; Harrison,
78 F.4th at 768, 774–75.
And we see no reason to depart from that precedent here. The “case” that
the defendants removed to the Western District of Texas contained federal
and state law claims. If § 1447(c) mandates the remand of that “case,” it
mandates the remand of all of the claims in that case.
Second, the defendants misunderstand the nature of federal court
jurisdiction. Yes, federal district courts have “original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”
6
Case: 23-50257 Document: 00516998055 Page: 7 Date Filed: 12/12/2023
No. 23-50257
28 U.S.C. § 1331; cf. U.S. Const, art. III, § 2, cl. 1. And the plaintiffs
brought several federal-question claims. But compliance with § 1331 is
necessary but not sufficient for federal subject matter jurisdiction. The
plaintiffs must also show that they have Article III standing. See Steel Co., 523
U.S. at 103–04. Because the plaintiffs lack standing, the district court lacks
subject matter jurisdiction under § 1447(c) to do anything but remand the
removed case (and with it, plaintiffs’ federal claims).
Third, there is nothing special about the plaintiffs’ federal law claims,
such as they cannot be adjudicated in state court. With some exceptions not
relevant here, state courts enjoy concurrent jurisdiction over federal claims.
See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (“[W]e have consistently held
that state courts have inherent authority, and are thus presumptively
competent, to adjudicate claims arising under the laws of the United
States.”); see also The Federalist No. 82 (Alexander Hamilton). And
because state courts are not bound by the standing requirements of Article
III, see ASARCO Inc. v. Kadish,
490 U.S. 605, 617 (1989), they may entertain
cases that cannot be brought in federal court. See TransUnion,
141 S. Ct. at
2224 n.9 (Thomas, J., dissenting).
Finally, defendants’ litigation conduct reveals their misunderstanding
about federal jurisdiction and our federal system. Plaintiffs sued in state
court—a choice that (as far as we know) plaintiffs had every right to make.
Defendants removed to federal court on the assurance that federal courts
would have the jurisdiction defendants invoked. Then, having invoked
federal jurisdiction, defendants turned around and sought a dismissal in
federal court on the grounds that the plaintiffs lacked standing. That is not
how the system works. Either the federal courts have subject matter
jurisdiction, and the plaintiffs’ claims can be adjudicated; or there is no
federal jurisdiction, and the suit must be remanded to state court. Federal
jurisdiction is not a game of whack-a-mole.
7
Case: 23-50257 Document: 00516998055 Page: 8 Date Filed: 12/12/2023
No. 23-50257
…
The district court’s order is VACATED, and the case is
REMANDED with instructions to remand to state court.
8
