Kali Myers v. Sioux City, Iowa, City of , 920 F.3d 1158 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2138
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Jennifer Frost; Jane Doe
lllllllllllllllllllllPlaintiffs
Kali Myers
lllllllllllllllllllllPlaintiff - Appellant
v.
Sioux City, Iowa, City of; Robert Padmore, In his official capacity; Cindy Rarrat,
In her official capacity
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: January 16, 2019
Filed: April 9, 2019
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Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
Kali Myers sought declaratory and injunctive relief from a Sioux City, Iowa
ordinance banning certain dogs. The district court dismissed her claims for lack of
standing. We affirm.
Sioux City adopted an ordinance making it “unlawful for any person to own,
possess, keep, exercise control over, maintain, harbor, transport or sell within the City
of Sioux City, Iowa, any pit bull.” Sioux City, Ia., Code § 7.10.030 (2009). Myers
resided in Sioux City in 2015 and 2016 when the city enforced the pit bull ban against
her dogs Tink and Radar.
Myers, Jennifer Frost, and “Jane Doe” filed suit alleging that the pit bull ban
was unconstitutional. The parties stipulated to the dismissal of Frost and Doe when
they moved outside Sioux City and therefore “no longer reasonably anticipate[d] that
they or their dogs [would] face enforcement under the challenged ordinance.” Myers
continued as the plaintiff, seeking a declaration that the pit bull ban was facially
unconstitutional, an injunction against enforcing the pit bull ban in the future, costs
and attorneys’ fees based on 42 U.S.C § 1988, and “all such other and further relief
as this Court deems just and proper.”
In a deposition, Myers admitted that she does not currently own a dog because
she and her fiancé “work full time” and “don’t have time right now.” Myers then
stated in a declaration that she does not currently reside in Sioux City, Iowa, that she
intends to adopt a dog “in the near future,” and that “when [she] adopt[s] a dog, [she]
will likely also take it to Sioux City” to visit family, friends, and her veterinarian.
Based on these facts, the district court, sua sponte, dismissed all of Myers’s claims
due to lack of standing. We review dismissal on the grounds of standing de novo.
Wilkinson v. United States, 440 F.3d 970, 977 (8th Cir. 2006). “[F]actual
determinations relating to standing must be upheld on appeal unless they are clearly
erroneous.” Nor-W. Cable Commc’ns P’ship v. City of St. Paul, 924 F.2d 741, 746
(8th Cir. 1991).
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“Article III of the Constitution confines the judicial power of federal courts to
deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 570 U.S. 693,
704 (2013). Therefore, “any person invoking the power of a federal court must
demonstrate standing to do so.” Id. Standing must “persist throughout all stages of
litigation.” Id. at 705. To show standing, Myers must have suffered an injury in fact,
meaning “an invasion of a legally protected interest which is (a) concrete and
particularized, . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted).
That injury “has to be fairly trace[able] to the challenged action of the defendant.”
Id. (internal quotation marks omitted). And “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Id. at 561(internal quotation marks omitted). Myers “bears the burden of showing that [she]
has standing for each type of relief sought.” See Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009).
To the extent that Myers seeks “prospective relief against future conduct of
defendants who caused injury in the past”—the seizures of Tink and Radar—she must
show that she faces “a real and immediate threat that she would again suffer similar
injury in the future.” See Mosby v. Ligon, 418 F.3d 927, 933 (8th Cir. 2005). But
Myers does not own a dog and does not live in Sioux City. And her intention to
adopt a dog “in the near future” is uncertain as is her prediction that she will “likely”
take it into Sioux City. In short, the threat of future injury to Myers from the pit bull
ban is “conjectural or hypothetical” and therefore insufficient to confer standing. See
City of L.A. v. Lyons, 461 U.S. 95, 101-02 (1983). “Such ‘some day’
intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support a finding of the ‘actual
or imminent’ injury that our cases require.” Lujan, 504 U.S. at 564.
Moreover, Myers’s past injuries do not grant her standing because she fails to
demonstrate how her proposed relief redresses them. An injunction is inherently
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prospective and cannot redress past injuries. See Harmon v. City of Kansas City, Mo.,
197 F.3d 321, 327 (8th Cir. 1999) (“The mere fact that injurious activity took place
in the past does nothing to convey standing to seek injunctive relief against future
constitutional violations.”). Myers’s requested declaratory relief must involve “an
adjudication of present right upon established facts.” See Aetna Life Ins. Co. of
Hartford, Conn. v. Haworth, 300 U.S. 227, 242 (1937). Myers does not show how
the past seizure of Tink and Radar creates a “present right” let alone how her
requested facial invalidation of the pit bull ban would redress it. “In a case of this
sort, where the plaintiffs seek declaratory and injunctive relief, past injuries alone are
insufficient to establish standing. Rather, [the plaintiff] must show he is suffering an
ongoing injury or faces an immediate threat of injury.” Dearth v. Holder, 641 F.3d
499, 501 (D.C. Cir. 2011); see also Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006)
(“In the context of a declaratory judgment action, allegations of past injury alone are
not sufficient to confer standing. The plaintiff must allege and/or demonstrate actual
present harm or a significant possibility of future harm.” (internal quotation marks
omitted)).
Myers cites Mattis v. Schnarr, 502 F.2d 588, 595 (8th Cir. 1974), for the
proposition that a declaratory judgment alone can redress a past injury. But Schnarr
is no longer good law as to standing. We held that a father suffered an injury based
on the police killing of his son. Schnarr, 502 F.2d at 593. We further held that this
past injury could be redressed by a declaration that certain Missouri statutes, which
allowed some arrests through deadly means, were unconstitutional. Id. at 595.
Regardless of whether the first holding is still good law, the Supreme Court abrogated
the second, holding that the father’s past injury could not be redressed by a
declaratory judgment because no “present right” was at stake. Ashcroft v. Mattis, 431
U.S. 171, 172-73 (1977). Similarly, the past seizure of Tink and Radar cannot be
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redressed by a declaratory judgment because no “present right” related to those dogs
is at stake.1
Myers also argues that the district court erred in failing to grant her an
evidentiary hearing prior to ruling sua sponte on standing. We review a district
court’s failure to hold an evidentiary hearing on the issue of standing for abuse of
discretion. See United States v. 1998 BMW “I” Convertible Vin No.
WBABJ8324WEM 20855, 235 F.3d 397, 400 (8th Cir. 2000) (“As no statute or rule
prescribes a format for evidentiary hearings on jurisdiction, ‘any rational mode of
inquiry will do.’”); see also United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir.
2000) (“Defendants also appeal the district court’s refusal to hold an evidentiary
hearing on the issue of standing . . . . We review the district court’s action for abuse
of discretion.”) Myers alleges that “there were disputed factual issues and witness
1
In her reply brief, Myers argues that a declaratory judgment would redress her
past harm by opening up avenues of future litigation and encouraging public officials
to make policy changes. She also argues that her claim for costs, attorneys’ fees, and
“all such other and further relief as this Court deems just and proper” (which Myers
now argues could include “nominal or even unrequested compensatory damages”)
demonstrates her standing. “As a general rule, we will not consider arguments raised
for the first time in a reply brief.” Barham v. Reliance Standard Life Ins. Co., 441
F.3d 581, 584 (8th Cir. 2006). Even were we to consider these arguments, they do
not establish standing here. “We do not think that the boilerplate remedies language
quoted above, broad and non-specific as it is, comports with the constitutional
requirement of redressability . . . .” United Food & Commercial Workers Int’l Union,
Local 751 v. Brown Grp., Inc., 50 F.3d 1426, 1430 (8th Cir. 1995), rev’d on other
grounds, United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc.,
517 U.S. 544 (1996). Also, Myers “cannot base standing on a claim for attorneys’
fees” alone “[o]therwise the limitation of federal jurisdiction to cases and
controversies would be empty.” See Crabill v. Trans Union, L.L.C., 259 F.3d 662,
665 (7th Cir. 2001). Finally, possible future litigation or policy changes are too
speculative to involve “an adjudication of present right upon established facts.” See
Aetna Life, 300 U.S. at 242.
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credibility determinations to be resolved” like in 1998 BMW. But 1998 BMW was not
a “typical case” and saw “a warring paper record consisting of conflicting affidavit
and deposition transcripts.” 1998 BMW, 235 F.3d at 399-400. Here, the record is
clear. The district court did not question Myers’s credibility, though it did conclude
that her “argument [was] unconvincing” as to standing. Myers argues she should
have had the opportunity to provide additional detail about her intention to obtain a
pit bull. But additional details are not disputed facts. The district court did not abuse
its discretion in not holding an evidentiary hearing prior to its sua sponte ruling in
this case.
For all these reasons, we affirm.
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