Lowery v. Texas A&M

Case: 23-20481 Document: 68-1 Page: 1 Date Filed: 10/30/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED October 30, 2024 No. 23-20481 Lyle W. Cayce ____________ Clerk Richard Lowery, Plaintiff—Appellant, versus Texas A&M University; Annie S. McGowan; N. K. Anand; Mark A. Welsh, III, Interim President of Texas A&M University; Alan Sams, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CV-3091 ______________________________ Before Jones, Willett, and Engelhardt, Circuit Judges.

Per Curiam: * Professor Richard Lowery is tenured at the University of Texas at Austin. He filed this case against Texas A&M University and several of its administrators, alleging that applicants for professorships are discriminated Case: 23-20481 Document: 68-1 Page: 2 Date Filed: 10/30/2024

No. 23-20481 against on the bases of race and sex. Lowery appeals an order from the district court that dismissed his claims for a lack of standing. The district court held alternatively that intervening legal developments rendered his claims moot and unripe. We AFFIRM that Lowery lacks standing to bring his claims at this time.

Professor Lowery says that he is “able and ready” to apply for lateral positions at the University. But he never submitted an application to substantiate his interest. That fact is fatal in this case because there is little evidence that submitting a job application would be a futile gesture. See Carney v. Adams, 592 U.S. 53, 66 (2020) (quoting Teamsters v. United States, 431 U.S. 324, 365–66 (1977)) (noting for purposes of standing that an employment discrimination plaintiff need not translate his “desire for a job … into a formal application” if doing so would be a “futile gesture”). 1 Still, “[t]here is certainly time and place enough for Lowery to bring further action if Texas A&M continues what he believes to be unconstitutional hiring practices. And nothing here should be construed to preclude later action on future facts.” Lowery v. Texas A&M Univ., 696 F. Supp. 3d 272, 282 (S.D. Tex. 2023).

Lowery argues that he was entitled to jurisdictional discovery that the district court never granted. The only specifics that he expressed a desire to discover, however, pertained to issues of mootness. And those issues need Case: 23-20481 Document: 68-1 Page: 3 Date Filed: 10/30/2024

No. 23-20481 not be analyzed because his lack of standing resolves this litigation. For the foregoing reasons, the judgment of the district court is AFFIRMED.