Von Kerssenbrock-Praschma v. Saunders

United States Court of Appeals
for the eighth circuit
___________

No. 96-2277
___________

Justus Graf Von Kerssenbrock- *
Praschma, a citizen of Germany, *
*
Appellant, *
* Appeal from the United
States
v. * District Court for the
* Western District of
Missouri.
John Saunders, Director of the *
Missouri Department of *
Agriculture; Jeremiah W. Nixon, *
Attorney General of the State of*
Missouri, *
*
Appellees. *
___________

Submitted: April 14, 1997
Filed: August 1, 1997
___________

Before FAGG, MAGILL, and BEAM, Circuit Judges.
___________

MAGILL, Circuit Judge.

Justus Graf Von Kerssenbrock-Praschma appeals both the
district court's(1) dismissal of his Just Compensation Clause
claim
for lack of subject matter jurisdiction and the district
court's
grant of summary judgment against Praschma on his Equal
 (1) The Honorable Scott O. Wright, United States District
Judge
for the Western District of Missouri.
 Protection Clause claim. He sought to enjoin Missouri
enforcement
of an anti-alien farmland transfer statute relating to the
transfer
of farmland to his two sons who live in Germany. On appeal,
Praschma argues that: (1) the enforcement of sections 442.560
through 442.592 of the Missouri Revised Statutes (the Missouri
statute), Mo. Rev. Stat. §§ 442.560-442.592 (1987 & Supp.
1989),
would violate the Treaty of Friendship, Commerce and Navigation
between the United States and the Federal Republic of Germany
(FCN
Treaty), 7 U.S.T. 1839 (1956); (2) the enforcement of the
Missouri
statute would violate equal protection; and (3) the district
court
has subject matter jurisdiction to hear Praschma's takings
claim
even though Praschma has not yet attempted to obtain just
compensation through state procedures. We affirm.

I.

In a prior appeal, this Court summarized the background of
this case as follows:

Praschma is a sixty-six-year-old German citizen. In
the spring and summer of 1978, he obtained fee simple
absolute title in two tracts of Missouri farmland
totalling approximately 1100 acres. Praschma has
indicated that he wishes to "devise, deed, transfer or
otherwise dispose of" the two tracts of farmland to Georg
and Justus, his two sons, who are also aliens. Neither
son is a plaintiff in this action. Praschma has executed
a will that leaves the farmland to his son Georg, and he
has indicated that he wishes to transfer one farm to each
of his sons by deed.

Mo. Rev. Stat. § 442.571(1) (1986) prevents
acquisition of agricultural land by aliens. The statute
applies to any transfer by Praschma to his sons, but does
not apply to Praschma's holding of the land because the
statute became effective after Praschma acquired his land
and contains a grandfather clause exempting lands held by
aliens before the effective date of the statute. Mo.
Rev. Stat. §§ 442.576(1) (1986), 442.586 (1986 & Supp.
1994). Mo. Rev. Stat. § 442.576 provides the means for
enforcing the scheme. Upon learning of a violation, the
attorney general is instructed to obtain a court order
requiring the alien owner to
-2-
 divest himself of the land. If the alien does not comply
with the order within two years, the land is sold at
public sale.

Praschma brought an action for injunctive relief,
arguing that Missouri's statutory scheme is
unconstitutional on its face and as applied because it
violates (among other things) the Takings Clause of the
Fifth Amendment, the Ex Post Facto Clause, and the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment. The district court dismissed the action
because it found that Praschma lacked standing, and
Praschma timely appealed.

Von Kerssenbrock-Praschma v. Saunders, 48 F.3d 323, 324-25 (8th
Cir. 1995). This Court reversed the district court's dismissal
and
remanded, holding that Praschma had suffered injury in fact
and,
thus, had standing. Id. at 325-26.

Upon remand, the district court granted a motion to
dismiss
Praschma's due process, just compensation, and state law
claims.
In dismissing the takings claim, the district court held that
it
lacked jurisdiction over the claim because Praschma "has made
no
attempt to avail himself of the many adequate remedies that
might
be afforded him in the state courts of Missouri . . . ." Order
(Feb. 16, 1996) at 11, reprinted in J.A. at 59.

The district court then called for motions for summary
judgment on Praschma's remaining equal protection and ex post
facto
claims. On April 17, 1996, the district court granted summary
judgment in favor of the state officials. In granting summary
judgment on the equal protection claim, the court held that the
Missouri statute was rationally related to a legitimate state
interest and that Praschma had failed to provide evidence of
invidious discrimination. Praschma appeals.
-3-
 II.

Praschma first argues that enforc ement of the Missouri
statute would violate the FCN Treaty. We decline to consider
this
argument for the first time on appeal.

The general rule is that "[n]ormally, a party may not
raise an
issue for the first time on appeal as a basis for reversal."
Seniority Research Group v. Chrysler Motor Corp., 976 F.2d
1185,
1187 (8th Cir. 1992) (citing cases); see also Singleton v.
Wulff,
428 U.S. 106, 120 (1976) ("It is the general rule, of course,
that
a federal appellate court does not consider an issue not passed
upon below."); Moad v. Arkansas State Police Dep't, 111 F.3d
585,
587 (8th Cir. 1997) ("We have examined the record carefully and
we
find no evidence that this issue was ever raised in the
district
court . . . . We therefore decline to consider the issue . . .
.");
Kosulandich v. Survival Tech., Inc., 997 F.2d 431, 433 (8th
Cir.
1993) ("Notwithstanding the dubious validity of these claims,
we
will not address them head-on for the first time on appeal.").

As this Court has stated:

The rationale for the rule is twofold. First, the record
on appeal generally would not contain the findings
necessary to an evaluation of the validity of an
appellant's arguments. Second, there is an inherent
injustice in allowing an appellant to raise an issue for
the first time on appeal. A litigant should not be
surprised on appeal by a final decision there of issues
upon which they had no opportunity to introduce evidence.
A contrary rule could encourage a party to "sandbag" at
the district court level, only then to play his "ace in
the hole" before the appellate court.

Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir. 1986)
(citations omitted); see also Singleton, 428 U.S. at 120.
-4-
 In this case, our consideration of the FCN Treaty issue
would
implicate both of these rationale. First, we are not satisfied
that the record on appeal contains all of the findings
necessary
for a full evaluation of Praschma's argument. See Stafford,
790
F.2d at 706. Specifically, were Praschma to prevail in arguing
that the Missouri statute conflicts with the FCN Treaty,
unresolved
factual issues would remain regarding whether the FCN Treaty
even
applies to the anticipated transfer of Praschma's Missouri
agricultural land to his sons. For example, the state
officials
argue that the evidence may establish that the transfer is not
related to the conduct of Praschma's commercial enterprise and
therefore not within the scope of the FCN Treaty's provisions.
Although we acknowledge our ability to consider the purely
legal
question of whether the Missouri statute is in conflict with
the
FCN Treaty, we decline to make such a pronouncement in a
factual
vacuum.

Second, we are particularly mindful of the "inherent
injustice" in allowing Praschma to raise the FCN Treaty issue
for
the first time on appeal. See id. The state officials should
not
be surprised by a decision based on the FCN Treaty when they
had no
opportunity to introduce evidence on that issue. See id. Our
consideration of the FCN Treaty issue would ratify Praschma's
decision to "'sandbag'" before the district court, and to "play
his
'ace in the hole'" before this Court. See id.

However, the general rule against consideration of an
issue
not passed upon below is not absolute. As the Supreme Court
has
stated:

The matter of what questions may be taken up and resolved
for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on
the facts of individual cases. We announce no general
rule. Certainly there are circumstances in which a
federal appellate court is justified in resolving an
issue not passed on below, as where the proper resolution
is beyond any doubt or where injustice might otherwise
result.

-5-
 Singleton, 428 U.S. at 121 (quotations and citations omitted);
see
also Seniority Research Group, 976 F.2d at 1187 ("There are
exceptions, as where the obvious result of following the rule
would
be a plain miscarriage of justice or would be inconsistent with
substantial justice.").

This is not a case where either "the proper resolution is
beyond any doubt" or "where injustice might otherwise result."
Singleton, 428 U.S. at 121 (quotation omitted). Although we
believe treaty interpretation is of great importance, we cannot
say
that injustice will result if we fail to accept Praschma's
invitation to interpret the FCN Treaty in this context. But
cf.
Fortino v. Quasar Co., 950 F.2d 389, 391 (7th Cir. 1991)
(considering for the first time on appeal defendant's position
that
treaty provides, not a defense, but rather "essential
background").

Therefore, because Praschma did not argue to the district
court that the enforcement of the Missouri statute would
violate
the FCN Treaty, we will not consider that issue on appeal.(2)

(2) The state officials further argue that Praschma cannot
raise
the FCN Treaty issue on appeal because one of Praschma's
interrogatory answers expressly disavowed his reliance on any
treaty. The relevant question and answer are as follows:

INTERROGATORY NO. 14: If you contend that any
treaty or agreement between the United States of America
and the government of any other nation are superior to or
pre-empt or invalidate _ _ 442.591 through 445.591, RSMo,
state the name of each other nation and of each treaty or
agreement.

ANSWER: Objection. Work Product. I am personally
aware of no such treaty at this time.

Answers To Def.'s First Set Of Interrogs. To Pl. at 7,
reprinted in
J.A. at 392.

Although Praschma presented no argument to the district
court
that the Missouri

-6-
 III.

Praschma next argues that the Missouri statute denies him
"equal protection of the laws." U.S. Const. amend. XIV, § 1.
In
evaluating whether a statute violates equal protection, the
Supreme
Court has set forth various standards, including both a strict
scrutiny and a rational basis test. See Graham v. Richardson,
403
U.S. 365, 376 (1971) (applying strict scrutiny test which
requires
that the statute be "necessary to promote a compelling
governmental
interest"); City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 446 (1985) (applying rational basis test which
requires
that the statute be "rationally related to a legitimate
governmental purpose"). Praschma asserts both that: (1) the
constitutionality of the Missouri statute must be subjected to
the
strict scrutiny test and (2) the Missouri statute fails both
the
strict scrutiny test and the rational basis test. We decline
to
address Praschma's first assertion and disagree with his
second.

In granting the state official's motion for summary
judgment,
the district court held that "[t]he goals and concerns
articulated
by the legislation's proponents provide

statute violates any treaty, we do not believe
that his interrogatory answer waived such an argument. See Eli
Lilly & Co. v. Staats, 574 F.2d 904, 910 (7th Cir. 1978)
("Although
[defendant's] Answer to plaintiff's Interrogatory 10 denied
that 31
U.S.C. §§ 53 and 67 were the basis for his 'claim of right to
have
access to and examine' plaintiff's books and records, the
answer
did not constitute an abandonment of reliance on those
provisions
. . . .); Guilfoyle v. Accounting Management Service, Inc., No.
84
C 10913, 1986 WL 5640, at *1 (N.D. Ill. May 7, 1986) ("The
plaintiff submitted an interrogatory to the defendant seeking
the
identity of any clients the defendant would assert were
produced by
Accounting Management Service for the plaintiff, and the
defendant
responded that he lacked knowledge as to what Accounting
Management
Service did. Contrary to plaintiff's assertion, this
interrogatory
answer does not constitute a waiver of any right to claim a
deduction for income, but the answer did convey to the
plaintiff
that the defendant had no information on the amount of
plaintiff's
income.").

-7-
 a rational basis for this statute." Order (Apr. 17, 1996) at
6,
reprinted in J.A. at 479. Before reaching this conclusion, the
district court first determined that the rational basis test
was
the proper test to apply in analyzing the constitutionality of
the
Missouri statute. In making this determination, the district
court
noted that Praschma did "not dispute [the state official]'s
contention that the rational basis test should be applied in
this
instance." Id. at 3, reprinted in J.A. at 476 (citing Pl.'s
Opp'n
at 5).
It is on appeal to this Court that Praschma for the first
time
argues that the Missouri statute is subject to the strict
scrutiny
analysis. Compare Appellant's Br. at 28 ("Because the Missouri
statute creates a classification based on alienage, its
constitutionality must be reviewed under strict scrutiny."
(quotations, alteration, and footnote omitted)), and id. at 29
("Strict scrutiny also is mandated in this case because the
Missouri statute interferes with a fundamental right."), with
Compl. at 5, reprinted in J.A. at 27 ("The Statutes have taken
a
fundamental right to transfer the farms without any rational
basis." (emphasis added)), and Pl.'s Mot. for Summ. J. at 1,
reprinted in J.A. at 74 ("Plaintiff [Praschma] has been treated
unequally without any rational basis." (emphasis added)), and
Pl.'s
Opp'n at 3 ("The record in support of Mr. [Praschma's] Summary
Judgment shows there can be absolutely no rational basis to
treat
Mr. [Praschma] so shabbily (and unconstitutionally)." (emphasis
added)).
Because the district court did not pass upon this issue,
we
will not consider it on appeal. See Singleton, 428 U.S. at
120;
Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 734 (8th Cir.
1993) ("While complaints are to be liberally construed, an
attempt
to amend one's pleadings in an appellate brief comes too late."
(quotation omitted)); cf. United States v. Frame, 885 F.2d
1119,
1138 n.14 (3d Cir. 1989) ("[The defendant] never argued that
strict
scrutiny was appropriate under the equal protection analysis
either
 in his answer and counterclaim, his motions before the district
court, his briefs to this court, or during oral argument.
Thus,
neither the government nor the district court had the
opportunity
to consider either whether strict scrutiny would be applicable
to
[defendant]'s claim, or whether the Act would pass
constitutional
muster under this

-8-
 more exacting standard of review. Accordingly, we decline to
address this issue in this appeal.").

Furthermore, we believe that the Missouri statute is
rationally related to a legitimate governmental purpose. The
state
officials argue that the statute serves Missouri's interests
by:
(1) protecting the state's food supply; (2) preserving the
family
farm system; (3) slowing the rising cost of agricultural land;
and
(4) mirroring restrictions on American's ability to acquire
European and Japanese land. Because there is a rational
relationship between the disparate treatment of nonresident
aliens
and these legitimate governmental purposes, the Missouri
statute
does not violate Praschma's right to equal protection.(3) Cf.
MSM
Farms, Inc. v. Spire, 927 F.2d 330, 332-34 (8th Cir. 1991)
(holding
that state constitutional provision prohibiting nonfamily farm
corporations from owning and operating Nebraska farm and ranch
land
does not violate equal protection because retaining and
promoting
family farm operations in Nebraska were legitimate state
interests
and voters reasonably could have believed that

(3) Praschma also argues that because two Missouri counties
are
excluded from the statute's restrictions, the statute fails the
 rational basis test. We disagree.

Equal protection does not apply to legislative
distinctions
between political subdivisions. See McGowan v. Maryland, 366
U.S.
420, 427 (1961) ("[W]e have held that the Equal Protection
Clause
relates to equality between persons as such, rather than
between
areas and that territorial uniformity is not a constitutional
prerequisite. . . . [W]e have noted that the prescription of
different substantive offenses in different counties is
generally
a matter for legislative discretion."); Reeder v. Kansas City
Bd.
of Police Comm'rs, 796 F.2d 1050, 1053 (8th Cir. 1986) ("[T]he
Supreme Court has long held that when the state chooses to
regulate
differentially, with the laws falling unequally on different
geographic areas of the state, the Equal Protection Clause is
not
violated so long as there is no underlying discrimination
against
particular persons or groups. The Equal Protection Clause
protects
people, not places. So long as all persons within the
jurisdictional reach of the statute are equally affected by the
law, it matters not that those outside the territorial reach of
the
law are free to behave differently." (citations omitted)).

-9-
 enacting the initiative would promote family farm operations);
Lehndorff Geneva, Inc. v. Warren, 246 N.W.2d 815, 825 (Wis.
1976)
(holding that a Wisconsin statute making it unlawful for a
nonresident alien to acquire or own more than 640 acres of land
in
Wisconsin does not violate the Equal Protection Clause of the
United States Constitution because "[l]imiting the benefits of
land
ownership to those who share in the responsibilities and
interests
of residency is not an unreasonable exercise of legislative
choice").

IV.

Praschma also argues that the district court erred in
dismissing his takings claim for lack of subject matter
jurisdiction.(4) We disagree.

(4) The state officials argue that this Court lacks
jurisdiction
over Praschma's just compensation claim because the order
dismissing that claim is not referred to in the notice of
appeal.
We disagree.

This Court has stated the governing rules as follows:

The requirement of Federal Rule of Appellate Procedure
3(c) that a notice of appeal "designate the judgment,
order, or part thereof appealed from" is a jurisdictional
prerequisite of the appellate court. . . . The Eighth
Circuit traditionally construes notices of appeal
liberally, but the intent to appeal the judgment in
question must be apparent and there must be no prejudice
to the adverse party.

Burgess v. Suzuki Motor Co., Ltd., 71 F.3d 304, 306-07 (8th
Cir.
1995).

Here, Praschma's intent to appeal is apparent from the
interrelationship between the two district court orders and the
fact that Praschma's Appeal Information Form indicates he will
argue "constitutional reasons, primarily equal protection of
laws."
Appellant's Form A (Appeal Information Form), reprinted in
 Appellees' Br. Addendum at 6. Moreover, the state officials
fully
argue the takings issue in their brief and do not allege they
have
been prejudiced in any way. Consequently, we will address

-10-
 The general rule is that a plaintiff must seek
compensation
through state procedures before filing a federal takings claim
against a state.(5) See Williamson County Reg'l Planning
Comm'n v.
Hamilton Bank, 473 U.S. 172, 195 (1985) ("[I]f a State provides
an
adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation Clause
until it has used the procedure and been denied just
compensation.").(6) The rationale underlying the Williamson
requirement is that "a property owner has not suffered a
violation
of the Just Compensation Clause until the owner has
unsuccessfully
attempted to obtain just compensation through the procedures
provided by the State . . . ." Id. Under this
 Praschma's takings claim.

(5) Missouri law allows for a property owner to seek
compensation
through an inverse condemnation proceeding. See generally Mo.
Rev.
Stat. Const. Art. I, § 26 (1986 & Supp. 1989) ("That private
property shall not be taken or damaged for public use without
just
compensation."); Tierney v. Planned Indus. Expansion Auth. of
Kansas City, 742 S.W.2d 146, 155 (Mo. 1987) (holding that
inverse
condemnation action "may be maintained in spite of sovereign
immunity to fulfill the [Missouri state] constitutional command
that property not be taken without just compensation"); Zumalt
v.
Boone County, 921 S.W.2d 12, 15 (Mo. Ct. App. 1996) ("To state
a
claim for inverse condemnation, a plaintiff must allege his
property was taken or damaged by the state for public use
without
just compensation. The landowner does not have to show an
actual
physical taking of property, but must plead and prove an
invasion
or an appropriation of some valuable property right which the
landowner has to the legal and proper use of his property which
invasion or appropriation directly and specially affects the
landowner to his injury." (quotations and alternations
omitted)).
(6) Similarly, a plaintiff bringing suit against the United
States, rather than an individual state, must seek compensation
through federal procedures before filing a federal takings
claim.
See Williamson, 473 U.S. at 195 ("[W]e have held that taking
claims
against the Federal Government are premature until the property
owner has availed itself of the process provided by the Tucker
Act,
28 U.S.C. § 1491."). The procedure for seeking compensation
from
the United States is to file a claim in the United States Court
of
Federal Claims. See 28 U.S.C. § 1491 (1994 & Supp. I 1995).
-11-
 standard, the Missouri statute has not violated Praschma's
right to
just compensation because Praschma has not sought compensation
from
the state.

Praschma counters that this requirement only applies to
federal suits seeking damages, not to suits, such as his,
seeking
only injunctive relief. Praschma finds support for this
proposition by drawing an inference from Hodel v. Irving, 481
U.S.
704 (1987), aff'g sub nom. Irving v. Clark, 758 F.2d 1260 (8th
Cir.
1985). In Irving, the plaintiffs argued that a federal statute
seized property without just compensation and sought both
injunctive and declaratory relief. Irving, 758 F.2d at 1262.
The
district court found the statute constitutional. Id. at 1261.
This Court reversed, holding that "the statute is in violation
of
the fifth amendment." Id. at 1269. In Hodel, the Supreme
Court
upheld this Court's reversal of the district court. Hodel, 481
U.S. at 718. The Supreme Court held that the statute effected
a
taking without just compensation. Id. at 712-18. However,
neither
this Court's nor the Supreme Court's opinions addressed whether
jurisdiction was lacking because the plaintiffs failed to avail
themselves of the process for compensation provided by the
Tucker
Act. Because neither court sua sponte found jurisdiction
lacking,
Praschma asserts that the courts tacitly acknowledged that the
Williamson requirement did not apply because the plaintiffs
were
not seeking money damages. We disagree.

First, as neither court directly addressed the question,
we do
not believe the negative inference Praschma draws for the Hodel
opinions establishes the proposition that the Williamson
requirement only applies to federal suits seeking damages.
Second,
we note that the plaintiffs in Hodel were challenging a
federal,
rather than a state statute.
Praschma also relies on Dodd v. Hood River County, 59 F.3d
852
(9th Cir. 1995). However, Dodd merely stands for the
proposition
 that a federal takings claim against a state can be brought in
the
district court and need not first be presented in state court.
Id.
at 860-61. Dodd says nothing about whether state law remedies
must
first be pursued prior to asserting a federal claim for
equitable
relief in federal court.

-12-
 Thus, Dodd is distinguishable in that Praschma does not lack
jurisdiction because he has failed to pursue a federal takings
claim in state court, but rather because he has failed to
pursue
the State of Missouri's procedures for compensation.

Finally, Praschma cites Hornell Brewing Co., Inc. v.
Brady,
819 F. Supp. 1227, 1244 (E.D.N.Y. 1993), in which the district
court found that, where the plaintiff was seeking a declaratory
judgment rather than damages, the court had jurisdiction to
decide
the takings claim, even though the plaintiff had not sought
relief
pursuant to the Tucker Act.

We do not find Praschma's use of authority persuasive, and
therefore we hold that the Williamson requirement applies
equally
to takings claims for damages and equitable relief brought
against
the states.

In reaching this conclusion, we find particularly
persuasive
a similar holding of the Eleventh Circuit:

[T]he only federal constitutional ground supporting the
district court's injunction is [plaintiff]'s Fifth
Amendment takings claim. That claim, however, is not
ripe. See Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108, 3116,
87 L.Ed.2d 126 (1985). A Takings Clause claim does not
become ripe unless the state provides no remedy to
compensate the landowner for the taking. A property
owner cannot claim a violation of the Clause unless the
state provides the landowner no procedure (such as an
action for inverse condemnation) for obtaining just
compensation. Williamson, 473 U.S. at 195, 105 S.Ct. at
3121.

Bickerstaff Clay Prods. Co., Inc. v. Harris County, 89 F.3d
1481,
1490-91 (11th Cir. 1996) (emphasis added).
-13-
 We also find support for our conclusion from the D.C.
Circuit's opinion in Transohio Sav. Bank v. Director, Office of
Thrift Supervision, 967 F.2d 598 (D.C. Cir. 1992). In
Transohio,
the court addressed the question of whether the Williamson
requirement blocked district court jurisdiction over a takings
claim for injunctive relief against the Federal Government. In
dicta, the Transohio court concluded that there was a limit
upon
the district court's jurisdiction and that "the district court
should accept jurisdiction over takings claims for injunctive
relief in the few cases where a Claims Court remedy is so
inadequate that the plaintiff would not be justly compensated."
Id. at 613 (quotations omitted). In the context of a claim for
injunctive relief against a state, we hold that the district
court's jurisdiction is similarly limited. We expressly leave
undecided the question, not argued in this appeal, of whether
the
district court would have jurisdiction over a takings claim for
injunctive relief where the state remedy is "so inadequate that
the
plaintiff would not be justly compensated." See id.
(quotations
omitted).

Thus, the district court properly found that it did not
have
jurisdiction over Praschma's takings claim.

V.

Accordingly, the judgment of the district court is
affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-14-