Submitted: January 16, 2019
from United States District Court for the Northern District
of Iowa - Sioux City
GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
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.
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
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."
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).
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).
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.
Myers's past injuries do not grant her standing because
she fails to demonstrate how her proposed relief redresses
them. An injunction is inherently 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)).
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
redressed by a declaratory judgment because no "present
right" related to those dogs is at stake.
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 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 ...