# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 14-2779

___________________________ Duit Construction Company Inc.

lllllllllllllllllllll Plaintiff - Appellee

v. Scott Bennett, Director of the Arka nsas State Highway & Transportation Department, et al.

lllllllllllllllllllll Defendants - Appellants

____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

____________ Submitted: April 14, 2015 Filed: August 6, 2015

____________ Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

____________ LOKEN, Circuit Judge. Duit Construction Company, an Oklahom a highway contractor, entered into contracts with the Arkansas State Highway and Transportation Department (ASHTD) to reconstruct and widen Interstate 30 between Little Rock and Benton. Duit encountered soil conditions that, it allege s, differed materially from information provided by the ASHTD during the bidding pr ocess. The ASHTD required expensiveand time-consuming “undercutting” to remedy the conditions. Duit’s claims for compensation were denied by the ASHTD and, after a hearing, by the Arkansas State Claims Commission, established by the stat e legislature to initially resolve claims against the State. Duit appealed to the General Assembly, as Arkansas law required. 1 The General Assembly affirmed the Claims Commission’s adverse decision.

Duit then commenced this 42 U.S.C. § 1983 action, suing officers of the ASHTD and the Arkansas State Highway Co mmission in their official capacities and seeking prospective injunctive relief unde r the exception to the State’s Eleventh Amendment immunity recognized in Ex parte Young , 209 U.S. 123 (1908). Duit’s lengthy complaint alleged ongoing violations of the Federal Aid Highway Act of 1956 (FAHA), 23 U.S.C. §§ 101 et seq. , and the Due Process and Equal Protection clauses of the Fourteenth Amendment. The compla int sought an injunction that would “enjoin Defendants from accepting federal aid in connection with construction projects until . . . they fully comply with the federally mandated differing siteclause” which, under the FAHA, must be included in all federal- aid highway construction contracts unless prohibited or otherwise provi ded for by state law. See 23 U.S.C. § 112(e); 23 C.F.R. § 635.109.

Defendants moved to dismiss. The district c ourt dismissed the FAHA claim because that statute is enforced excl usively “through oversight by an executive agency.” Endsley v. City of Chicago , 230 F.3d 276, 281 (7th Cir. 2000). It dismissed the due process claim because Duit’s interest in future highway contracts is not a

1 The Arkansas Constitution provides that th e “State of Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. V, § 20. The Constitution also provides that the “General Asse mbly shall . . . provide for the payment of all just and legal debts of the state.” Ark. Const. art. XVI, § 2. T hus, in Arkansas, the Arkansas State Claims Commission makes initial determinations concerning claims, subject to review by the General Assembly. See Fireman’s Ins. Co. v. Ark. State Claims Comm’n , 784 S.W.2d 771, 773-75 (Ark. 1990).
-2-protected property interest and because Duit’ s right to appeal claim denials to the Claims Commission and then to the Gene ral Assembly satisfies the Fourteenth Amendment requirement of procedural due process. However, the court denied defendants’ motion to dismiss the equal pr otection claim, concluding Duit sufficiently alleged that the Claims Commission ha s treated out-of-state-contractor Duit differently from similarly situated in-statecontractors in deciding whether to award relief, and “defendants ha ve not identified a rational reason for their conduct.” Defendants appeal the denial of Eleventh Am endment immunity as to this claim, an issue which may be raised by an interlocutory appeal. SeeP.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 141 (1993). We conclude that Duit lacks Article III standing to bring its equal protection claim and therefore the court erred in not dismissing this claim.

I.

“In Ex parte Young , 209 U.S. at 157, the Supreme C ourt held that the Eleventh Amendment does not bar a suit against a stat e official to enjoin enforcement of an allegedly unconstitutional statute, provided that ‘such officer [has] some connection with the enforcement of the act.’” Reprod. Health Servs. v. Nixon , 428 F.3d 1139, 1145 (8th Cir. 2005) (emphasis a dded). Absent that connection, the officer “is merely . . . a representative of the state,” and El eventh Amendment immunity applies. Ex parte Young , 209 U.S. at 157; see Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100-03 (1984). The district court in generally discussing Ex parte Young did not refer to this important limit on the extent of the Ex parte Young exception to the State’s Eleventh Amendment immunity. Onappeal, defendants argue that one reason the district court erred in applying the exception to Duit’s equal protection claim is that the Claims Commission made the allege dly discriminatory claims decisions, and the ASHTD and the Claims Commission “are two separateand distinct entities.” Duit’s response reflects a misunderstanding of the Ex parte Young exception -- “both

-3-[are] Arkansas state agencies,” Duit argues, “and this lawsu it, in all respects other than name, must be treated as a suit against the State of Arkansas.”

In addition to asserting a claim falling within the Ex parte Young exception to Eleventh Amendment immunity, Duit must a ssert an equal protection claim that “is the sort of Article III case or controvers y to which federal courts are limited.” Calderon v. Ashmus , 523 U.S. 740, 745 (1998) (quotation omitted). To establish Article III jurisdiction, Duit must demonstrate standing to assert this claim against these defendants. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352 (2006). “Standing requires (1) an injury that is concrete and particul arized and actual or imminent, not conjectural or hypothetical, (2) th at the injury be fairly traceable to the challenged action of the defendant, and (3) that it is likely, as opposed to merely speculative, that the injury will be redr essed by a favorable decision.” Turkish Coalition of Am., Inc. v. Bruininks , 678 F.3d 617, 621 (8th Cir. 2012) (quotations omitted).

Though they are distinct jurisdictional re quirements, “there is a common thread between Article III standing analysis and Ex parte Young analysis.” Cressman v. Thompson , 719 F.3d 1139, 1146 n.8 (10th Cir. 2013) . Because both are jurisdictional, neither must necessarily be addr essed before the other. See Okpalobi v. Foster , 244 F.3d 405, 424 n.33 (5th Cir. 2001) (en banc). The parties and the district court did not address Duit’s standing to sue, but standing is a jurisdictional issue that this court “is bound to ask and answer for itself, even whennot otherwise suggested.” Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94 (1998).

We take up the threshold issue of standi ng first because in our view it is clear from Duit’s complaint that it cannot satisfy the “fairly traceable” (causation) and redressability elements of standing with re spect to its equal protection claim. Put briefly, it has sued the wrong parties. Duit’s complaint alleged that the Claims Commission made a favorable ruling on “an almo st identical” claim by an in-state

-4-contractor “based, in part, upon the State of origin of the claimant and the size of the claim.”

As to causation, Duit failed to sue the Claims Commission or its members, and failed to allege that defendants -- Arkansas highway offi cials -- influenced, or had the authority and ability to influence, the Cl aims Commission’s adjudication of contractor claims against the State. “When the inju ry alleged is the result of actions by some third party, not the defendant[s], the plai ntiff cannot satisfy the causation element of the standing inquiry.” Miller v. Redwood Toxicology Lab., Inc. , 688 F.3d 928, 935 (8th Cir. 2012) (quotation omitted). This principle applies even when the defendants are state officials sued in their official capacity. SeeWinsness v. Yocom , 433 F.3d 727, 737 (10th Cir. 2006) (no standing where “defendants did not issue the [challenged] citation to [plaintiff] and are not responsible for maintaining any record of it”); Okpalobi , 244 F.3d at 426 (“plaintiff may not sue a state official who is without any power to enforce the complain ed-of statute”); 13A Charles Alan Wright, Arthur R. Miller & Edward H. Coope r, Federal Practice and Procedure § 3531.5, at 364-65 & nn.75 & 76 (3d ed. 2008).

As to redressability, because defenda nts have no control over the Claims Commission’s practices, they “have no powers to redress the injuries alleged,” that is, no power to correct the Cl aims Commission’s purported practice of favoring in-state contractor claimants. Okpalobi , 244 F.3d at 427. Thus, it is totally speculative whether the only relief requested in the complaint -- an injunction preventing the defendants from accepting federal highway aid -- would have any effect on the practices of the Claims Commission, a se parate Arkansas government entity. Mere speculation is insufficient to satisfy this element of standing. See id. at 426-27. For these reasons, Duit’s equal protection claim is not within the district court’s Article III jurisdiction and must be dismissed.

-5-II.

Though Duit’s brief argued at length that th e district court erred in dismissing its FAHA and due process claims, it did not cross appeal those rulings, nor did it urge us to decide those issues at this time. “Under [the Supreme Court’s] unwritten but longstanding [cross-appeal] rule, an appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw v. United States , 554 U.S. 237, 244-45 (2008). We consider this cross-appeal re quirement “non-jurisdictional.” Therefore,

we may consider additional issues if our ru ling on appeal requires a new trial and “injustice would result” by limiting the trial to certain issues. Gross v. FBL Fin. Servs., Inc. , 588 F.3d 614, 621 (8th Cir. 2009). But here, the issues not raised in defendants’ interlocutory appeal were the di strict court’s dismissal of other claims, which can be revisited on remand and appealed when a final or der is entered. In these circumstances, the “firmly entr enched” cross-appeal rule cl early trumps “the natural temptation to dispose of the related ques tions of jurisdiction and exhaustion at one blow.” El Paso Natural Gas Co. v. Neztsosie , 526 U.S. 473, 479-80 (1999). However, on remand, if the case proceeds as to Duit’s F AHA and due process claims, the district court should address whether Du it has Article III standi ng to assert those claims, and whether the Ex parte Young exception applies to th e claims against these defendants, before ente ring a final order.

The Order of the district court dated June 25, 2014, is reversedin part, and the case is remanded for further proceedings not inconsistent with this opinion.

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