UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARK C. HAIK, Plaintiff - Appellant,

v. SALT LAKE COUNTY BOARD OF HEALTH, Defendant - Appellee. No. 14-4074 (D.C. No. 2:13-CV-01051-TS) (D. Utah)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and MORITZ , Circuit Judges.
Mark C. Haik brought this action in st ate court, alleging that the Salt Lake County Board of Health (Board) violated his state and federal due process rights. The Board removed the case to federal court and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing th at Mr. Haik’s claims were barred by the doctrine of issue preclusion because he ha d twice previously litigated the underlying

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 12, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - dispute. Mr. Haik moved to remand to state court, cl aiming his complaint raised issues primarily of state law, but the dist rict court denied hi s motion and summarily dismissed the case. We now reverse. We conclude that Mr . Haik’s complaint fails to present a substantial question of fede ral law because his claims are devoid of merit and the dispositive issue has been prev iously decided by this court. We therefore vacate the district court’s dism issal on the merits and remand with instructions to remand this case to the state court for lack of federal subject-matter jurisdiction.
I Mr. Haik has had a long running water dispute with Salt Lake City, Utah (SLC) and the Town of A lta, Utah. In 1994, Mr. Haik and Raymond A. Haik purchased four lots in a subdivision above the Alta and Snowbird ski resorts. The Haiks sought to develop the property, but A lta denied them building permits because the appurtenant water rights were insuffici ent to meet the Board’s requirements of access to 400 gallons of water per day. Mr. Haik sought to have water service extended to the property, but under the te rms of an intergove rnmental water-supply agreement, Alta could not extend servi ce without the consent of SLC, and SLC declined consent. Consequently, Mr. Haik has been unable to develop his property. The dispute has twice come before this court. The Haiks’ first action, which was filed in state court in 1997, alleged (a mong other claims not relevant here) that Alta had taken and damaged the property by refusing to extend municipal services- 3 - and denying them a building pe rmit in violation of the Ut ah Constitution, Article I, Section 22. See Haik v. Town of Alta , 1999 WL 190717, at *1 (10th Cir. 1999) (unpublished) (“ Haik I ”). After Alta and SLC removed the case to federal court, the district court granted their motion for summary judgment. Id. at *1-2 & n.1. We affirmed, ruling that under the Utah Cons titution, the Haiks could not “maintain a taking claim because they did not have a protectable interest in property that was taken or damaged by Alta’s de nial of a building permit. Alta’s denial of a building permit was based on the health departme nt requirement of 400 gallons of water per day per unit, which the Haiks did not meet.” Id. at *7. In 2012, the Haiks initiate d a second suit in federal court based on new factual allegations that the State Engineer had approved SLC’s provision of water to the subdivision where the Haiks’ property was located. See Haik v. Salt Lake City Corp. , 567 F. App’x 621, 625-26 (10th Cir. 2014) (“ Haik II ”). In addition to other claims, the Haiks brought substantive and procedur al due process claims against SLC. Id. at 626. The district court dismissed t hose claims, “believ[i ng] that nothing of significance had changed since Haik I and that the majority of the Haiks’ claims had already been decided.” Id. Again we affirmed, expl aining that the due process claims were barred by the doctrine of is sue preclusion because the determinative issue—“whether the denial of the developm ent permits deprived [the Haiks] of a protected property interest”—was already re solved against them in the context of their taking claim in Haik I

. Id. at 628-29. We acknowle dged that the issue arose- 4 - within the context of differe nt claims against differen t parties: the taking claim alleged that Alta deprived them of the asserted interest by denying the building permits, while the due process claims allege d that SLC deprived them of the interest by interfering with the permitting process. Id. at 628. But we explained that “[t]he very same question remains: Do the Haiks have any protected inte rest in the building permits, or, to put a finer point on it, in the water on which t hose permits depend? We said ‘no’ before and are not inclined to give the Haiks a second opportunity to litigate this issue.” Id. at 628-29. Now in this third action, which was orig inally filed in state court, Mr. Haik repeats his allegation from Haik II that he reapplied for the necessary building and septic permits based on the State Engin eer’s approval of a diversion to the subdivision where his property is located. Aplt. App. at 16. He also alleged that the Utah Supreme Court adjudicated ot her water rights in his favor. See Haik v. Sandy City , 254 P.3d 171, 174, 180 (Utah 2011) (quieting title to a water right appurtenant to an adjacent lot in Mr. Ha ik and others). Additionally, Mr. Haik alleged that after conferring and meeting with the Salt Lake Valley Health Department, his applications for building permits were denied. Aplt. App. at 17, 25-26. As a result, he requested a hearing, which was schedul ed before hearing officer Langdon Owen. Id. at 26-29. Mr. Haik sought to disqualif y Owen due to an alle ged conflict involving Owen’s law partner, but Owen declined to recuse and ultimately ruled against Mr. Haik. Id. at 29, 45. This prompted Mr. Ha ik to seek further review by the- 5 - Board, which granted him ten minutes of oral argument but refused to accept any new evidence. Id. at 48. Mr. Haik objected, clai ming he was entitled to a “plenary hearing by the Board as provide d by Utah Code § 26A-1-121,” id. , but the Board denied plenary review in the exercise of its discretion and affirmed Owen’s adverse decision, id. at 50. Based on these allegations, Mr. Haik’s first claim, en titled, “Error of Law and Denial of Due Process,” alle ged violations of his due process rights under the Utah Constitution and the Fourteenth Amendmen t based on the denial of a “plenary hearing as authorized by Utah Code § 26A-1-121(2)(a).” Id. at 52. 1 His second claim, entitled, “Disqualified Hearing Offi cer,” alleged that Owe n should have been disqualified and the Board’s failure to provi de a qualified hearing officer violated his due process rights under the Utah Constitu tion and the Fourteenth Amendment. Id. at 53-54. Last, Mr. Haik’s third claim, entitl ed, “Arbitrary and Capricious and Contrary to Law,” id. at 55, alleged that the Board act ed arbitrarily and capriciously and contrary to the law by adopting Owen’ s decision and denying Mr. Haik “an evidentiary hearing and meaningf ul opportunity to be heard,” id. at 58.

1 Utah Code Ann. § 26A-1-121(2)(a) states: A person aggrieved by an action or in action of the local health department relating to the public health shall have an opportunity for a hearing with the local health officer or a designated representative of the local health department. The board shall grant a s ubsequent hearing to the person upon the person’s written request.- 6 - The district court summarily dismissed th ese claims on the merits, ruling that Mr. Haik’s claims failed “[f] or substantially the same re asons stated by” the courts that had previously consider ed this water dispute. Id. at 191. On appeal, Mr. Haik maintains that the district c ourt lacked jurisdiction to di smiss his claims because his complaint raises is sues primarily of state law. T hus, he contends that removal was improper and this case should be remanded to st ate court. We review the propriety of removal de novo, Lovell v. State Farm Mut. Auto. Ins. Co. , 466 F.3d 893, 897 (10th Cir. 2006), and agree that re moval was improper, though not because Mr. Haik’s construction of the complaint as primarily one of stat e law is persuasive, but because his federal claims are complete ly devoid of merit and foreclosed by our prior decisions.
II “A case originally filed in state court may be remove d to federal court if, but only if, federal subject-ma tter jurisdiction would exist over the claim.” Firstenberg v. City of Santa Fe , 696 F.3d 1018, 1023 (10th Cir. 2012) (internal quotation marks omitted). “The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presum ption against its existence.” Salzer v. SSM Health Care of Okla. Inc. , 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks omitted). To invoke subj ect-matter jurisdiction, a we ll-pleaded complaint must present a substantial federal claim. Hagans v. Lavine , 415 U.S. 528, 536-38 (1974). Federal courts lack subject-m atter jurisdiction “when the cl aim is so insubstantial,- 7 - implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to invol ve a federal controversy.” Steel Co. v. Citizens for a
Better Env’t , 523 U.S. 83, 89 (1998) (inter nal quotation marks omitted); see Harline
v. DEA , 148 F.3d 1199, 1203 (10th Cir. 1998) (“ A constitutional claim in this context is not colorable if it is im material and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous.” (ellipsis a nd internal quotation marks omitted)); accord Maroney v. Univ. Interscholastic League , 764 F.2d 403, 405 (5th Cir. 1985) (“Jurisdiction purporting to be premised on the presence of a federal question attaches only if the co mplaint itself states a substa ntial federal claim. Thus, we must dismiss for want of jurisdiction if the federal claim presented is frivolous or is foreclosed by prior authoritative decisions.” (citations omitted)). Contrary to Mr. Haik’s characterizations , his complaint plainly seeks to raise issues of federal law. Re moval was nevertheless imprope r, however, because none of his claims present a substantial question of federal law. Indeed, his claims all purport to challenge the Board’s alleged de privations of due pr ocess in denying his applications for building perm its and water service. But this court has twice already affirmed district court rulings that Mr . Haik does not have a protected property interest in those permits so as to support his due process claims. See Haik II , 567 F. App’x at 628-29; Haik I , 1999 WL 190717, at *7. The district court clearly recognized this because it su mmarily dismissed the claims “[f]or substantially the same reasons stated by” the c ourts that had previ ously considered Mr. Haik’s actions.- 8 - Aplt. App. at 191. Yet because the claims were so facially insubstantial as to preclude federal question jurisdiction, in light of the prior decisions of this court, the district court lacked subj ect-matter jurisdiction to re nder a merits dismissal under Rule 12(b)(6). See Muscogee (Creek) Nation v. Pruitt , 669 F.3d 1159, 1167-68 (10th Cir. 2012) (discussing th e different standards that a pply to a dismissal for lack of subject matter jurisdiction and a dismi ssal for failure to state a claim, which operates as a judgment on the merits). 2 Consequently, we vacat e the district court’s dismissal and remand with instructions to re mand this case to state court for lack of federal subject-matter jurisdiction. See Topeka Hous. Auth. v. Johnson , 404 F.3d 1245, 1247-48 (10th Cir. 2005) (“When the federa l court lacks subject-matter jurisdiction over a removed case, the court must remand the case to the state court.” (citing 28 U.S.C. § 1447(c))).
III The judgment of the district court is reversed and its di smissal is vacated. This case is remanded to the district court with in structions to remand to the state court for

2 Of course, “‘[j]urisdiction is not def eated by the possibility that the averments might fail to state a cause of action on which petitioners c ould actually recover.’” Pruitt , 669 F.3d at 1167 (ellipses omitted) (quoting Bell v. Hood , 327 U.S. 678, 682 (1946). But as the Court reiterated in Steel Company , there are exceptions when “the claim ‘clearly appears to be immaterial . . . or . . . wholly insubstantial and frivolous.’” 523 U.S. at 89 (quoting Bell , 327 U.S. at 682-83). Mr. Haik’s complaint falls within the scope of these exceptions.- 9 - lack of federal subject-matter jurisdiction. Mr. Haik’s motion to certify questions of state law to the Utah S upreme Court is denied. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge