Indian Oasis-Baboquivari Unified School District No. 40 v. Kirk

91 F.3d 1240

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 1996
• Docket: No. 93-16089
• Status: Published

Opinions

RYMER, Circuit Judge:

Two Arizona public school districts and several of their students brought suit in federal court against the Arizona Superintendent of Public Instruction and the county treasurers and school superintendents of Pima and Navajo Counties seeking declaratory and injunctive relief holding that AR.S. § 15-991.02, which requires county treasurers to remit a portion of a school district’s ending cash balance to a state fund used for equalization among rich and poor districts, violates the Federal Impact Ad Law, 20 U.S.C. §§ 236-244, and the Supremacy Clause in Article VI of the United States Constitution, by taking some of their federal Impact Ad funds.¹ The district court dismissed the complaint on the ground that the districts are political subdivisions of the State of Arizona that lack standing to sue the state in federal court, and the students failed to allege distinct injury that is not derivative of the injury alleged by the school districts. It gave the students leave to amend, but they elected to appeal instead. We agree that neither the school districts nor the students have standing to bring this suit, and we therefore affirm.

I

The Indian Oasis-Baboquivari and Whiter-iver Unified School Districts receive federal funds under the Impact Aid law. The federal law was enacted to compensate local school districts whose finances are impacted negatively by federal activities in the area. Among those eligible for Impact Aid are school districts, such as Indian Oasis and Whiteriver, serving pupils who live on Indian reservations.

Arizona had a complicated procedure for equalizing funding among its school districts. AR.S. § 15-991.02 was enacted in 1992 as a supplement to its equalization assistance legislation. It required county treasurers to remit a portion of the ending cash balance in the school districts’ maintenance and operation funds for use by the state for equalization assistance.

Both school districts and three of their students brought this suit to challenge the constitutionality of § 15-991.02. The complaint alleges that § 15-991.02 has the effect of taking a portion of the funds the districts got from the federal government pursuant to the federal Impact Aid Law because the state statute includes Impact Aid within the calculation of funds that must be remitted to the state for state equalization purposes. This, they contend, violates the federal statute and the Supremacy Clause, and will cause irreparable harm in that without those funds, the districts will have to curtail important programs and projects.

The state moved to dismiss the complaint for lack of standing. The district court held that under City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231 (9th Cir.), cert. denied, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502 (1980), the school districts, which are creatures of the Arizona constitution and state statutes, lack the independent identity necessary to confer standing to assert a claim against the state in federal court. It likewise found the students’ allegations of personalized injury deficient, and granted the state’s motion to dismiss with leave to amend.

II

A

Indian Oasis and Whiteriver acknowledge the general rule of political subdivision standing doctrine that prohibits a political subdivision from bringing suit against the state of which it is a part, but argue that we should recognize an exception to the rule for constitutional challenges under the Supremacy Clause. They submit that the rule itself stems from cases involving individual rights, such as due process or equal protection, and should not be applied to claims that a state law interferes with federal law. Otherwise, the districts contend, they are powerless to challenge the state’s violation of federal law in a federal court.

As the district court concluded, however, the districts’ argument is foreclosed by South Lake Tahoe, which is controlling authority in this circuit. In that case, the City of South Lake Tahoe alleged that land use regulations adopted by the California Tahoe Regional Planning Agency violated the Fifth and Fourteenth Amendments, and conflicted with the plans and ordinances of the Tahoe Regional Planning Agency, a bistate agency approved by Congress, in violation of the Supremacy Clause. We held that the City, as a political subdivision of the state, could not challenge the statutes of the state itself, or one of its other political subdivisions, on constitutional grounds. Accordingly, we concluded, the standing component of federal jurisdiction was lacking and the City’s claims, based on the Constitution, were properly dismissed.

Because a panel of this circuit may not overturn circuit precedent “unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions,” Clow v. United States Dept. of Housing & Urban Dev., 948 F.2d 614, 616 n. 2 (9th Cir.1991) (quoting United States v. Washington, 872 F.2d 874, 880 (9th Cir.1989)), we are not free to consider the school districts’ contention that decisions of other courts to the contrary are better reasoned. See, e.g., Rogers v. Brockette, 588 F.2d 1057 (5th Cir.) (recognizing school district’s standing to bring a Supremacy Clause challenge to a state law requiring school district to participate in a federally-subsidized school breakfast program), cert. denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35 (1979); San Diego Unified Port District v. Gianturco, 457 F.Supp. 283 (S.D.Cal.1978), aff'd on other grounds, 651 F.2d 1306 (9th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). Urging us to heed criticism of South Lake Tahoe by the California Supreme Court, see Star-Kist Foods, Inc. v. County of Los Angeles, 42 Cal.3d 1, 227 Cal.Rptr. 391, 719 P.2d 987 (1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 758 (1987), or by Justices White and Marshall dissenting from the Court’s failure to grant certiorari, South Lake Tahoe, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502, or from another panel, Gianturco, 651 F.2d at 1309 n. 7, is likewise unavailing. We must follow South Lake Tahoe — right or wrong— unless intervening authority undermines the decision.

B

Assuming that we do feel constrained by South Lake Tahoe, Indian Oasis and Whiteri-ver alternatively contend that it is no longer good law in light of Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 105 S.Ct. 695, 83 L.Ed.2d 635 (1985), and Washington v. Seattle School District, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982). Although neither opinion directly overrules South Lake Tahoe, the school districts contend that both necessarily undercut it because the Court reached the merits of a constitutional challenge by a political subdivision to state law and must thereby have implicitly decided that the subdivision had standing to pursue’ a constitutional claim against the state.

In Lead-Deadwood, the Supreme Court of South Dakota had sustained a state statute regulating distribution of funds that units of local government received from the federal government. The United States Supreme Court concluded that Congress intended local governments to have more discretion in spending federal aid than the State would allow them, and therefore held that the statute was invalid under the Supremacy Clause.

In Seattle School District, school districts disgruntled with an Initiative that would have prohibited busing for desegregation purposes, sought to prevent the state from enforcing it on the ground that to do so would offend the Equal Protection Clause of the Fourteenth Amendment. Holding that the Initiative violated the Constitution, the Court went on to consider the state’s argument that attorney’s fees should not have been awarded to the school districts because state-funded entities are not eligible to receive such awards from the state. Seattle School Dist., 458 U.S. at 487 n. 31, 102 S.Ct. at 3204 n. 31. The Court stated that “[t]he Districts are plainly parties covered by the language of the fees statutes,” id., and affirmed on this point.

We have no difficulty dismissing the impact of Lead-Deadwood, as the suit by a political subdivision in that case was brought and litigated in state court, and was decided before ASARCO, Inc. v. Kadish, 490 U.S. 605, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989), which clarified the effect of standing law on cases arising in state court. Seattle School District presents a closer question, because by affirming the award of attorney’s fees to the school district, the Court arguably addressed claims that would be barred by the standing rule of South Lake Tahoe.

It is well settled, however, that the exercise of jurisdiction in a case is not precedent for the existence of jurisdiction. In United States v. Los Angeles Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952), the Supreme Court stated with respect to the effect of an opinion where the merits were resolved — but where jurisdiction was not raised or addressed — on the determination of whether jurisdiction in fact exists when raised in a later case:

The effect of the omission was not there raised in briefs or argument nor discussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point. Even as to our own judicial power or jurisdiction, this Court has followed the lead of Mr. Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.

Id. (footnote omitted). We have similarly declined to give controlling weight to our own implicit holdings. See, e.g., Service Employ. Int'l Union Local 102 v. San Diego (SEIU), 35 F.3d 483, 489 (9th Cir.1994) (rejecting argument that we could not invalidate a regulatory salary test because it was inconsistent with other federal court decisions applying the test in the public sector because “[n]one of these cases considered or decided the validity of the regulation as applied to the public sector”); Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1289 (9th Cir.1985) (citing cases).

We see no reason why Tucker Truck should apply only when a court considers its own prior decisions, but not when an appellate court considers the decisions of the Supreme Court. Two circuits that have explicitly reached the question have so concluded. Grant v. Shalala, 989 F.2d 1332, 1341 (3d Cir.1993) (refusing to follow alleged implicit holding of Supreme Court case because in prior ease power of district court to make findings was not challenged); Cousins v. Secretary of the U.S. Dept. of Transp., 880 F.2d 603, 608 (1st Cir.1989) (en banc) (relying on Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925) for nonbinding nature of questions “which merely lurk in the record”).

Given the fact that we have explicit precedent on the point of political subdivision standing, and that the Supreme Court has never directly considered the issue, we cannot say that the weight of its implicit exercise of jurisdiction is sufficiently powerful to undermine the law by which we are bound.² We therefore remain obliged to follow South Lake Tahoe. So bound, we conclude that the school districts lack standing to bring this claim based on the Supremacy Clause in federal court, and that their action was properly dismissed.³

Ill

The students also fault the district court for dismissing their complaint, arguing that other federal courts have recognized that students have standing to challenge state laws that have an adverse effect on their education and that the allegations in their complaint suffice to show more than a generalized grievance. Before considering these arguments, however, we must first dispose of the state’s position that the students’ appeal is premature — and we therefore lack jurisdiction over it — because the district court’s order was not a final judgment dismissing the action. While the district court did dismiss the complaint without prejudice, and with leave to amend, the students decided not to take advantage of that opportunity. When a plaintiff chooses to stand on the pleadings, an otherwise unappealable order with leave to amend may be appealed. Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 471 n. 3 (9th Cir.1994); McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir.1992). But the students, and we, are stuck with what they actually alleged, not with what they possibly could have alleged had they actually filed an amended pleading.

The district court held, and we agree, that their allegations fall short of averring personalized injury to themselves from the state’s enforcing § 15-991.02. “[T]he ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 563, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992) (quoting Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972)). Defenders emphasizes that to have standing a plaintiff must have suffered a concrete and particularized injury; “particularized” means “that the injury must affect the plaintiff in a personal and individual way.” Id., 504 U.S. at 560 & n. 1, 112 S.Ct. at 2136 & n. 1; see also United States v. SCRAP, 412 U.S. 669, 689, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973) (pleading must allege specific and perceptible harm that distinguishes plaintiff from other citizens).

The complaint simply alleges that “Clifford Pablo Jr. is a student in Indian Oasis School district, David Parker and Nelson Lupe are students in Whiteriver School District.” It avers that “plaintiffs will be irreparably harmed if its funds are transferred to the Equalization Fund ...” because there is no mechanism for restoring these monies to the local district and the court would lose jurisdiction over a portion of the ease. However, “plaintiffs” in this sense must refer to the school district, as the students have no funds subject to transfer. The complaint further alleges that Whiteriver “and its students” will be irreparably harmed because the transfer of funds will jeopardize the continued receipt of federal funding, building plans and renovations to the Middle School, and capital outlay projects, forcing it to continue to work with inadequate facilities.

None of the three students has alleged a program that affects him as an individual that will be scaled back. Nor does the complaint even indicate if Lupe or Parker (who are students of Whiteriver) are of an age or live in an area where they could benefit from a new elementary school, or if either of them attends the Middle School where there is a chronic problem with the boiler that additional funds might fix. Indeed, the complaint fails to allege that these students are among the 92% of Whiteriver students who are eligible for and benefit from Impact Aid programs. Thus, the complaint affords no basis for presuming that these three students suffer particularized harm or distinct injury.

The difficulty is that we, like the district court, intuitively feel that students are in a position to suffer tangible injuries from a decrease in funding. The problem is that these students simply ride the districts’ coattails and aver no facts that suggest direct,, distinct and tangible injury to themselves. They chose not to try, and we therefore have no occasion to consider under what circumstances students might have standing.

AFFIRMED.

1 . The students’ claims are formally brought by their parents or guardians. We will refer to the State Superintendent, and the county treasurers and superintendents collectively as the "state.”

2 . This distinguishes our case from Board of Natural Resources v. Brown, 992 F.2d 937 (9th Cir.1993), where there was no Ninth Circuit precedent directly on point.

3 . We accordingly do not reach the state’s argument that the Impact Aid Act provides no private right of action and confers no right on political subdivisions to sue the state.