FILED
NOT FOR PUBLICATION JUN 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
DSE GROUP, LLC; et al., No. 08-15111
Plaintiffs - Appellants, D.C. No. CV-05-02233-MEA
v.
MEMORANDUM *
ELAINE RICHARDSON, Commissioner
Arizona Department of Real Estate; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Marµ E. Aspey, United States Magistrate Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: B. FLETCHER, CLIFTON and BEA, Circuit Judges.
Plaintiffs-Appellants ('Plaintiffs') are seven owners of land in Arizona who
appeal the district court's final order granting summary judgment in favor of the
Defendants-Appellees--the Commissioner of the Arizona Department of Real
Estate, the Arizona Department of Real Estate (the 'Department'), and the State of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Arizona (collectively 'Defendants'). Plaintiffs contend Defendants prohibited
them from selling or developing their respective properties, which are all located in
an area commonly µnown as Greer Ranch. Plaintiffs raised four claims under 28
U.S.C. y 1983 for violations of their constitutional rights to: (1) procedural due
process, (2) equal protection of the laws, (3) substantive due process, and
(4) freedom from governmental taµings of their property without just
compensation. We affirm.
As a threshold matter, we must decide whether Plaintiffs have standing to
sue the Defendants.1 Plaintiffs bear the burden of proof to show standing. Bennett
v. Spear,
(1997). Plaintiffs offered evidence that they are
injured because they are not able to build improvements upon their lands. That
injury is directly caused by Maricopa County, which refuses to issue building
permits to Plaintiffs because of a Final Order from the Arizona Department of Real
Estate. The Final Order designates Greer Ranch an illegal subdivision and
prohibits RTD Holdings, the owner of the subdivision, from selling parcels of
Greer Ranch without first complying with Arizona laws governing subdivisions.
For Plaintiffs to have standing, their injury must be 'fairly traceable' to
1
Neither party raised this issue; however, we have a duty to ensure that
jurisdiction exists. See D'Lil v. Best W. Encina Lodge & Suites,
(9th Cir. 2008).
2
Defendants' actions. Id. at 162. Plaintiffs could satisfy that requirement by
proving Maricopa County's decision to refuse Plaintiffs' building permits was
coerced or determined by the Arizona Department of Real Estate's Final Order.
See id. at 169. Plaintiffs could prove, for example, that Maricopa County is bound
by Arizona law to deny building permits to property owners on land the Arizona
Department of Real Estate determines is an illegal subdivision. Here, Plaintiffs
have not adduced evidence that Maricopa County was coerced by Defendants or
that its decision was legally determined by Defendants. To the contrary, it appears
Plaintiffs injury is 'the result of the independent action of some third party not
before the court.' Id.; see A.R.S. y 11-808(B) (requiring Maricopa County zoning
inspector to deny building permits when proposed construction violates zoning
laws); A.R.S. y 11-806.01 (delegating power of zoning subdivisions to the
Maricopa County Board of Supervisors).
Indeed, Maricopa County could grant building permits to Plaintiffs despite
the Arizona Department of Real Estate's Final Order. After all, the purpose of
having the Arizona Department of Real Estate issue public reports for subdivided
lands is to protect unwary buyers of land they later discover is uninhabitable, while
the purpose of issuing building permits is to protect the builders and the builders'
neighbors from nuisances and dangerous construction. These distinct purposes
3
suggest the Arizona Department of Real Estate's decisions do not determine
Maricopa County's decisions to issue building permits.
To the extent Plaintiffs might have a claim against Maricopa County for
incorrectly adopting the Department's finding, they have not alleged it here. Nor
have they made Maricopa County a party. Indeed, it is difficult to see what
Plaintiffs could complain of in Maricopa County's adoption of Defendants'
subdivision finding, given that Plaintiffs even now do not contest that Greer Ranch
meets the definition of a subdivision.
In a separate cease and desist order, the Department did temporarily prohibit
Plaintiffs from selling their land. At the time of this appeal, however, all Plaintiffs
have been released from that order. Plaintiffs have made no identifiable and
separate claim for damages arising from the temporary cease and desist order.
Plaintiffs have not alleged an injury that is fairly traceable to Defendants.
Therefore, we hold Plaintiffs lacµ standing.
DISMISSED.
4
FILED
No. 08-15111, DSE Group, LLC, et al. v. Elaine Richardson, Commissioner 04 2010
JUN
Arizona Department of Real Estate; et al. MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
CLIFTON, Circuit Judge, concurring in the judgment:
I share the substantive conclusion of the majority. I disagree only in that I
would not express that conclusion in terms of standing and jurisdiction. In
practical terms, I view this as a disposition on the merits. The district court granted
summary judgment, and I would simply affirm that summary judgment based on
reasoning essentially similar to that laid out in the memorandum disposition.
Neither the district court nor the parties talµed about standing, and I do not thinµ
we need to, either.
Plaintiffs here are surely 'aggrieved parties.' Their problem is that they do
not have a valid cause of action against these defendants. To say that as a result
they lacµ standing amounts to holding that a court lacµs jurisdiction because a
plaintiff does not have a meritorous claim. I acµnowledge that the terms
'standing' and 'jurisdiction' are often used to express conclusions that are at root
more substantive, but I fear that continuing down that path will result in those
terms entirely losing their more unique and useful meanings.
