United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3677
___________
City of Kansas City, Missouri, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Yarco Company, Inc., and Churchill *
Properties, L.P., *
*
Defendants-Appellees. *
___________
Submitted: September 22, 2010
Filed: November 8, 2010
___________
Before LOKEN, HANSEN, and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
The City of Kansas City, Missouri, sued Yarco Company, Inc., and Churchill
Properties, L.P. (together “Yarco”), under federal, state, and local law, claiming that
Yarco maintained a discriminatory curfew at an apartment complex. The district court
granted judgment on the pleadings to Yarco. This court vacates and remands.
Yarco runs an apartment complex in Kansas City. Its lease agreement said,
“CURFEW time for everyone under the age of 18 will be 8:30 p.m. nightly.” The
City filed a complaint with the Department of Housing and Urban Development
(“HUD”) alleging that the curfew discriminated against “families with children under
the age of eighteen,” in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §§
3601-31. Under its agreement with the City, HUD forwarded the complaint to the
City for investigation.
After Yarco opted for judicial proceedings, the City sued in state court, alleging
violation of the FHA.1 The City also joined claims under the Missouri Human Rights
Act, RSMo ch. 213, and the City’s anti-discrimination law, Kansas City, Mo. Code
of Ordinances ch. 38. Yarco removed the case to the District Court for the Western
District of Missouri on federal question grounds. Finding that the City could not
make a plausible showing of discriminatory intent, the district court granted Yarco’s
Motion for Judgment on the Pleadings. The City appeals.
Federal courts have an independent duty to determine subject matter
jurisdiction, even where the matter is raised for the first time on appeal and on the
court’s own motion. United States v. Hays, 515 U.S. 737, 742 (1995). “Standing is
a ‘threshold inquiry’ and ‘jurisdictional prerequisite that must be resolved before
reaching the merits of a suit.’” Medalie v. Bayer Corp., 510 F.3d 828, 829 (8th Cir.
2007), quoting City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007).
1
The state court petition does not say whether the City sues under 42 U.S.C. §
3612 or 42 U.S.C. § 3613. The City seems to characterize this as a public
enforcement action, apparently invoking section 3612.
-2-
Here, Kansas City alleges no injury to itself. Rather, its initial and proposed
pleadings state that “families with children and children under the age of 18 years of
age are aggrieved.” Though the burden of showing injury at the pleading stage is low,
the pleader must say something. Young America Corp. v. Affiliated Computer Servs.
(ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005). See also Ashcroft v. Iqbal, ___ U.S.
___, 129 S. Ct. 1937, 1949 (2009) (requiring enough factual matter to create a
plausible inference of entitlement to relief). The City is silent about harm to its
particular interests.
The City instead claims something akin to a sovereign interest in enforcing the
FHA. The United States suffers injury in fact when its laws are violated. Vermont
Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771
(2000). Assignees of the federal government may base standing on the government’s
injury. Id. at 773-74.2 While the FHA allows referral of administrative complaints
to state and local agencies, see 42 U.S.C. § 3610(f), it does not assign a claim. Where
a respondent like Yarco elects a judicial determination, the FHA authorizes suit only
by the Attorney General. 42 U.S.C. § 3612(o).3
2
Vermont Agency involved alleged injury to the federal government’s sovereign
and proprietary interests. Vermont Agency, 529 U.S. at 771. “The Court made no
distinction between the two” for standing and assignability purposes. Stauffer v.
Brooks Bros., Inc., 619 F.3d 1321, 1326 (Fed. Cir. 2010). In this case, if sovereign
injury were not assignable, then the City would lack standing for that reason.
3
By contrast, the qui tam statute at issue in Vermont Agency provides that “[a]
person may bring a civil action . . . for the person and for the United States
Government.” 31 U.S.C. § 3730(b)(1).
-3-
Given the absence of standing on the FHA claim, the state and local claims
cannot proceed in federal court. Supplemental jurisdiction requires at least one claim
within the district court’s original jurisdiction. United Mine Workers of America v.
Gibbs, 383 U.S. 715, 725 (1966) (pendent jurisdiction); MCI Telecommc’ns Corp.
v. Teleconcepts, Inc., 71 F.3d 1086, 1102 (3d Cir. 1995) (applying rule in context of
contemporary supplemental jurisdiction statute). This case was removed solely on
federal question grounds, and there appears to be no other basis for federal jurisdiction
over the state and local claims.
This entire case must return to state court, including the FHA claim. 28 U.S.C.
§ 1447(c) (“If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”) (emphasis added). See
generally Int’l Primate Protection League v. Adm’rs of Tulane Educ. Fund, 500
U.S. 72, 88-89 (1991), discussing with approval Maine Ass’n of Interdependent
Neighborhoods v. Comm’r, Maine Dep’t of Human Servs., 876 F.2d 1051 (1st Cir.
1989). The Missouri courts may have to rule on federal questions that federal courts
presently lack power to address, but “the state courts are not bound by the limitations
of a case or controversy or other federal rules of justiciability even when they address
issues of federal law.” ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (citations
omitted).
* * * * * * *
The judgment is vacated, and the case remanded to the district court for further
remand to state court.
______________________________
-4-