United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-1681

___________

Jacqueline Gray; Windhover, Inc., *

*

Plaintiffs-Appellants, *

*

v. *

*

City of Valley Park, Missouri, *

*

Defendant-Appellee. * On Appeal from the United

____________ * States District Court for the

* Eastern District of Missouri.

Eagle Forum Education and Legal *

Defense Fund; Allied Educational *

Foundation; Brian Bilbray; Steve *

King; Lamar Smith; Washington *

Legal Foundation, *

*

Amici on behalf of Appellee. *

___________

Submitted: December 10, 2008

Filed: June 5, 2009 (Corrected: 06/11/2009)

___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.

___________

BEAM, Circuit Judge.

Jacqueline Gray and Windhover, Inc. (Appellants, collectively) challenge

ordinances enacted by the City of Valley Park, Missouri, (City) that address illegal
1

The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

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alien employment in the context of real estate occupation and leasing. Appellants

initially filed suit in state court against the City to invalidate the ordinances. The City

removed the case to federal court and the parties later filed cross motions for summary

judgment. The district court1

 granted judgment in favor of the City, denied

Appellants' motion and dismissed Appellants' Second Amended Complaint with

prejudice. Because Appellants have standing and we agree with the district court

regarding the absence of preclusion, we affirm.

I. BACKGROUND

Gray is the sole owner of Windhover, Inc., a corporation that owns rental units

in the City. Intermittently, Windhover hires individuals to work at miscellaneous

tasks and perform maintenance on this property. In September 2006, Gray and others

sued the City in state court seeking to enjoin the enforcement of an ordinance

(ordinance 1708, later repealed and amended by ordinance 1715), which concerned

the same general subject matter as the two ordinances challenged in this action. See

Reynolds v. City of Valley Park, No. 4:06CV01487, 2006 WL 3331082 (E.D. Mo.

2006) ("the Reynolds case"). The City removed the Reynolds case, but the district

court remanded, in part because it held there was no case or controversy under the

Federal Declaratory Judgment Act. Id. at *6. In February 2007, the City effectively

repealed both of the ordinances at issue in the Reynolds case and replaced them with

ordinance 1721 (involving the harboring of illegal aliens in rental units) and ordinance

1722 (involving the employment of unauthorized aliens). The Reynolds case

nonetheless proceeded in state court and on March 12, 2007–even after the City

repealed the two ordinances upon which the pending action was based, and the

plaintiffs declined the opportunity to amend the action to include ordinances 1721 and

1722–the state court permanently enjoined the enforcement of the two, then-repealed
2

In August 2007, the City enacted ordinance 1736, which amended the effective

date of ordinance 1722 but otherwise reenacted 1722 intact. Thus, for the sake of

clarity, throughout this opinion we refer to ordinance 1722 as the ordinance at issue.

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ordinances. The City appealed that order and the Missouri Court of Appeals

dismissed the case as moot because the enforcement provisions of the ordinances had

been repealed and substituted with new executory provisions–ordinances 1721 and

1722 (at issue in the instant appeal). Reynolds v. City of Valley Park, 254 S.W.3d

264, 266 (Mo. Ct. App. 2008). 

On March 14, 2007, Appellants initiated the instant action in state court,

challenging ordinances 1721 and 1722. Ordinance 1722, however, is the only

ordinance now at issue because the City repealed ordinance 1721 in July 2007, and

the parties stipulated to a voluntary dismissal of Appellants' related claims. The City

removed the case to federal district court. The district court retained the action,

holding that the new ordinance imposed immediate obligations on Appellants. 

Generally, ordinance 1722 prohibits all business entities in Valley Park from

knowingly employing unauthorized aliens.2

 The ordinance sets out a procedure for

lodging complaints against potential violators and requires, among other things, that

those business entities that apply for a business license sign an affidavit stating that

they do not knowingly employ any person who is an unlawful worker. 

Both parties filed motions for summary judgment with the district court. As a

result of these motions, the district court addressed issues of preclusion (based upon

the effect, if any, of the state court's March 12, 2007, injunction concerning

ordinances 1708 and 1715); preemption, or not, by federal immigration law;

Appellants' standing to assert an equal protection claim; the status of Appellants' due

process claim; and whether ordinance 1722 violates Missouri law. The district court

ruled in the City's favor, determining that (1) there was no issue preclusion arising
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from the state court's earlier decision regarding ordinances 1708 and 1715 because

ordinance 1722 was not identical; (2) federal law did not preempt ordinance 1722; (3)

Appellants lacked standing to pursue an equal protection claim; (4) ordinance 1722

does not violate the Due Process Clause; and (5) ordinance 1722 does not violate

Missouri law by exceeding the authority granted a fourth class city. 

Only two issues are before us today: (1) whether the district court lacked

jurisdiction over this matter and (2) whether this matter is precluded by the prior

Missouri state court order. 

II. DISCUSSION

In an unlikely turn of events, Appellants now claim that ordinance 1722 is not

enforceable against them at all (and was never enforceable) and as a result, the district

court had no subject matter jurisdiction–making the court's failure to remand a

jurisdictional defect. "'[I]f a plaintiff lacks standing, the district court has no subject

matter jurisdiction.'" Young America Corp. v. Affiliated Computer Services (ACS),

Inc., 424 F.3d 840, 843 (8th Cir. 2005) (quoting Faibisch v. Univ. of Minn., 304 F.3d

797, 801 (8th Cir. 2002)) (alteration in original). Appellants' current claim, contrary

to nearly every pleading filed by Appellants since the inception of this case in state

court, is that there is no actual or imminent injury-in-fact and thus no justiciable case

or controversy sufficient to satisfy federal standing requirements. To be sure, this

course of argument is unorthodox. It is with restraint that we do not point out the

numerous instances, in court pleadings and affidavits made under oath, where

Appellants claimed imminent harm, injury to property interests and other burdens of

enforcement and compliance arising from ordinance 1722. To be fair, at one point

Appellants did amend their argument in support of summary judgment and sought a

declaration that the ordinance did not apply to Windhover or Gray. That argument,

however, was not made in the context of a challenge to standing (although a ruling in

Appellants' favor on that issue would have put the issue of standing in play), but was
3

The City argues that Appellants' current change of course is a keen, brazen, and

strategic attempt by Appellants to covertly vacate the district court's decision on the

merits without having to address the merits on appeal, and in an effort to return to

state court with no preclusive federal opinion blocking their efforts. We caution that

if any of this so-called tactical scheming pours the foundation for the unnecessary

exertion of our judicial resources here, such abuse will not go unnoticed. This

admonition applies equally to the City, which likewise appears to have contradicted

itself on appeal in an attempt to gain an advantage. For example, we are dubious of

the City's professed disdain regarding Appellants' alleged "desperate" effort to find

some way of denying their own standing by "deceptively" inserting the word

"expressly" into ordinance 1722 as a qualifier to those business entities exempted–i.e.,

"any business entity that is [expressly] exempt by law." The City itself, in its Reply

Memorandum in Support of Defendant's Motion for Summary Judgment, stated that

the "business entity" contemplated by ordinance 1722 "is limited in Section 3 of the

ordinance to business entities that require a business license, unless expressly

exempted by law." Those who live in glass houses should not throw stones. 

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crafted to judicially solidify the then-uncertain interpretation of ordinance 1722 as it

applied to Appellants. But, that argument was merely a needle in the haystack of

Appellants' allegations of imminent harm to themselves and third parties that

dominated the proceedings below.3

 

A. Judicial Estoppel

The City argues that because Appellants' current stance regarding their lack of

standing is wholly at odds with the position they took before the district court,

Appellants should be judicially estopped from proceeding on this theory. The

doctrine of judicial estoppel provides that when "a party assumes a certain position in

a legal proceeding, and succeeds in maintaining that position, he may not thereafter,

simply because his interests have changed, assume a contrary position, especially if

it be to the prejudice of the party who has acquiesced in the position formerly taken

by him." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quotation omitted)

(holding that under the doctrine of judicial estoppel, New Hampshire was equitably
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barred from asserting, contrary to its position in prior litigation over the states' lobster

fishing rights, that the inland Piscataqua River boundary ran along the Maine shore);

In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999); Taylor v. Food World,

Inc., 133 F.3d 1419, 1422 (11th Cir. 1998); Lowery v. Stovall, 92 F.3d 219, 223 (4th

Cir. 1996); In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). This rule "generally

prevents a party from prevailing in one phase of a case on an argument and then

relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich,

530 U.S. 211, 227 n.8 (2000). The purpose of the doctrine is to protect the integrity

of the judicial process by prohibiting parties from deliberately changing positions

according to the exigencies of the moment. New Hampshire, 532 U.S. at 749-50;

Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 609 (8th Cir. 1993). 

While the circumstances under which judicial estoppel may appropriately be

invoked are not reducible to any general formulation, the Supreme Court has

identified several factors that typically inform the decision whether to apply the

doctrine in a particular case: (1) whether a party's later position is clearly inconsistent

with its earlier position; (2) whether the party has succeeded in persuading a court to

accept that party's earlier position, so that judicial acceptance of an inconsistent

position in a later proceeding would create the perception that either the first or the

second court was misled; and (3) whether the party seeking to assert an inconsistent

position would derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped. New Hampshire, 532 U.S. at 750-51. There is no

mechanical test, however, and ultimately, because the rule is intended to prevent

improper use of judicial machinery, the discretionary determination to apply the

doctrine of judicial estoppel is made on a case-by-case basis. Id. at 750 (stating that

judicial estoppel is an equitable doctrine invoked by a court at its discretion). 

The City's contention that we should apply judicial estoppel in this case is not

without force. Indeed, it would seem at first blush that this is just the sort of case to

which judicial estoppel must apply. However, we are sufficiently concerned about
4

Appellants claim that it was only after they received the City's stated

interpretation of ordinance 1722 in the City's Reply Memorandum in Support of [the

City's] Motion for Summary Judgment (discussing the ordinance in the context of

whether it covers casual domestic workers for purposes of the federal preemption

statute) that Appellants realized there was no threat of enforcement because they did

not have, nor did they plan to obtain, a business license. Judicial estoppel might be

inappropriate when a party's prior position was based on inadvertence or mistake.

New Hampshire, 532 U.S. at 753 (rejecting New Hampshire's mistake argument that

it had failed to do historic research earlier). To the extent we indulge Appellants'

newly-minted "understanding" (or prior, inadvertent misunderstanding) of the

ordinance in question, this too informs our determination not to apply judicial

estoppel. That said, Appellants' argument gives us pause to consider why they did not

amend their pleadings or otherwise pursue the instant argument before the district

court when they discovered the problem prior to the court's judgment on the pending

motions. Appellants assert that "it had by then [at the time the district court ruled on

Appellants' motion for summary judgment] become clear that the [Appellants] are not

required to have a business permit under Valley Park municipal law, had no intent of

applying for a business permit, and thus would not be required to sign an affidavit of

compliance." Appellants' Brief at 28 (emphasis added). If it was so clear that there

was no means by which the City could enforce ordinance 1722 against them, why

continue to pursue the claim?

5

The Federal Circuit Court of Appeals addressed the issue in Biomedical Patent

Management Corp. v. California Department of Health Services., 505 F.3d 1328, 1342

(Fed. Cir. 2007), cert. denied, 129 S. Ct. 895 (2009), but declined to apply the doctrine

because there was an intervening change of law justifying the party's change of

position regarding its immunity from suit. 

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applying judicial estoppel under the particular circumstances of this case that we

decline to do so.4

 In the end, we must have Article III jurisdiction to entertain any

claim even though the change in tactics in this case does seem to result in the sort of

extreme perversion of the judicial process that normally justifies the use of judicial

estoppel. Most critically, we have failed to find any precedent, and the City cites to

no authority, supporting the application of this doctrine in the face of an alleged

jurisdictional default.5

 Even if the parties wasted judicial resources up to this point
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and misled the courts on this issue in the process, we may not forge ahead on blind

principle without jurisdiction to do so. 

B. Jurisdiction

We recognize that "[a]ny party or the court may, at any time, raise the issue of

subject matter jurisdiction." GMAC Commercial Finance LLC v. Dillard Dep't

Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004). And, even if neither party had raised

the issue below, we are required to address it. Renne v. Geary, 501 U.S. 312 (1991)

(discussing justiciability and ripeness for the first time before the Supreme Court);

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). 

"Federal courts are not courts of general jurisdiction; they have only the power

that is authorized by Article III of the Constitution and the statutes enacted by

Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

541 (1986). "The limitations imposed by Article III are usually referred to as the 'case

or controversy' requirement." Schanou v. Lancaster County Sch. Dist. No. 160, 62

F.3d 1040, 1042 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430,

1435 (8th Cir. 1993) (en banc)); see also Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982) ("Article III

of the Constitution limits the 'judicial power' of the United States to the resolution of

'cases' and 'controversies.'"). This court defines "case or controversy" to require "a

definite and concrete controversy involving adverse legal interests at every stage in

the litigation." McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir.

1992). "Federal courts must always satisfy themselves that this requirement has been

met before reaching the merits of a case. Courts employ a number of doctrines to

determine justiciability such as standing, ripeness, and mootness." Schanou, 62 F.3d

at 1042. 
6

That Appellants' claim is not yet ripe might be another way of viewing

Appellants' argument but Appellants' claim is not that this ordinance has not yet been

enforced against them or that the threat of enforcement is not imminent, but rather that

this statute could never apply to them, thus concentrating this matter in "standing"

jurisprudence. See Johnson v. Missouri, 142 F.3d 1087, 1090 n.4 (8th Cir. 1998)

(noting that although "standing and ripeness are technically different doctrines, they

are closely related in that each focuses on 'whether the harm asserted has matured

sufficiently to warrant judicial intervention.'") (quoting Warth, 422 U.S. at 499 n.10).

7

Counsel clearly pointed out at oral argument that the "problem" in this case is

that there is now a judgment in place in the federal court that will affect what

Appellants can do in the state court. Yet, Appellants do not overtly challenge the

merits of this problematic district court opinion. 

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Article III standing represents "perhaps the most important" of all jurisdictional

requirements. FW/PBS, 493 U.S. at 231. This doctrine "requires federal courts to

satisfy themselves that the plaintiff has alleged such a personal stake in the outcome

of the controversy as to warrant [her] invocation of federal-court jurisdiction."

Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (internal quotations and

emphasis omitted). In the normal course, the plaintiff has the responsibility clearly

to allege facts demonstrating that she is a proper party to invoke judicial resolution of

the dispute and the exercise of the court's remedial powers. Warth v. Seldin, 422 U.S.

490, 518 (1975). This assures the existence of that measure of concrete adverseness

necessary to sharpen the presentation of issues necessary for the proper resolution of

the constitutional questions. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

This particular case is interesting because it is not the normal course of events

for the parties originally initiating the action to challenge their own standing on appeal

by claiming the very law they challenge is not enforceable against them.6

 In the

normal course of events, a simple dismissal would logically cure the current ailment.

Here, however, it is Appellants' desire to pursue their claims in Missouri state court,

where they started, and thus Appellants seek to shed themselves of this federal forum

and all of its ramifications.7

 It is customary that "the court must accept all factual
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allegations in the complaint as true and draw all inferences in the plaintiff's favor"

when making a determination on standing. Young America, 424 F.3d at 843. Given

the unique posture of this case, the nature of Appellants' allegations on appeal are

different from those alleged in their complaint. Were we to look only to Appellants'

complaint (a pleading that was never amended to reflect the current discussion) there

would be no controversy regarding Appellants' standing because it would surely exist.

As the case stands today, we review Appellants' complaint, along with ordinance

1722, all pleadings in this matter, and the parties' arguments on appeal in making our

jurisdictional decision. Warth, 422 U.S. at 517-18. 

To satisfy Article III's standing requirement, (1) there must be "injury in fact"

or the threat of "injury in fact" that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury must be fairly traceable to

defendant's challenged action; and (3) it must be likely (as opposed to merely

speculative) that a favorable judicial decision will prevent or redress the injury.

Summers, 129 S. Ct. at 1149; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 180-81 (2000). The standing "requirement assures that

'there is a real need to exercise the power of judicial review in order to protect the

interests of the complaining party.'" Summers, 129 S. Ct. at 1149 (quoting Schlesigner

v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974)). To determine

whether a pre-enforcement challenge such as this is justiciable requires us to take

these factors into consideration on a case-by-case basis. Regional Rail Reorganization

Act Cases, 419 U.S. 102, 143 n.29 (1974). 

Appellants now claim that ordinance 1722 is not enforceable against them

because (1) Appellants only hire independent contractors, (2) Appellants have no

business permit to lose in the event of non-compliance, and (3) any potential injuries,

assuming ordinance 1722 applied to Appellants, are not imminent and are speculative.
8

Appellants claim that ordinance 1722 is not enforceable against them because

it does not govern business entities who hire only independent contractors. Very

plainly, and under oath, Jacqueline Gray stated that she "intend[ed] in the near future

to hire an individual or contractor to paint the interior of one unit and another to

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Focusing properly and sequentially on the three requisites for standing, we find

"injury in fact" traceable to ordinance 1722 that could be redressed by a favorable

judicial decision. All parties acknowledge that Appellants have not yet been subjected

to enforcement under ordinance 1722. Pre-enforcement facial challenges may be

brought, however, in certain circumstances. Plaintiffs have standing to challenge the

facial validity of a regulation notwithstanding the pre-enforcement nature of a lawsuit,

where the impact of the regulation is direct and immediate and they allege an actual,

well-founded fear that the law will be enforced against them. Lake Carriers' Ass'n v.

MacMullan, 406 U.S. 498, 507 (1972); Abbott Labs. v. Gardner, 387 U.S. 136, 152

(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977);

Krantz v. City of Fort Smith, 160 F.3d 1214, 1218 (8th Cir. 1998). Only recently have

Appellants changed their tune to claim they no longer fear enforcement of ordinance

1722. Even so, the City argues that ordinance 1722 is enforceable against Appellants

and will be enforced against Appellants and, given the unique posture of this case, we

take that claim into consideration when deciding Appellants' stake in this litigation.

See Int'l Ass'n of Firefighters v. City of Ferguson, 283 F.3d 969, 973 (8th Cir. 2002)

(concluding that the threatened conduct against the claimant's husband should she

violate the challenged charter provision was sufficient to present a "case" or

"controversy"); Krantz, 160 F.3d at 1217 (assuming for the purposes of standing that

the City would enforce violations of the law in question because the City vigorously

defended the ordinance and never suggested that it would refrain from enforcement).

Now, turning to Appellants' specific claims as to why 1722 is not enforceable,

we easily dispose of the first. Appellants do hire individuals or contractors from time

to time to perform maintenance on the rental units and are likely to do so in the

future.8

 As such, we need neither speculate nor merely attempt to anticipate whether
replace carpeting." We take her at her word. Further, we are confused by Appellants'

claim that they "have no history of hiring Hispanic workers and have evidenced no

intent to do so in the future." Perhaps it is Appellants who are confused–ordinance

1722 addresses employment of illegal aliens, not Hispanics. (We further ponder why

Appellants have adopted such a hiring policy, but we digress.) If Appellants meant

to argue that they have not hired, and have no intent in the future to hire, illegal aliens,

then we are left wondering, again, why this case was initiated in state court in the

beginning, or at the very least, not dismissed in federal court long ago. 

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Appellants will fall within the purview of ordinance 1722 in that respect. O'Shea v.

Littleton, 414 U.S. 488, 497 (1974). 

Second, Appellants are clearly contemplated by the ordinance at issue as a

"business entity." That Appellants do not maintain a business license is immaterial.

The definition casts a wide net. "'Business entity' means any person or group of

persons performing or engaging in any activity, enterprise, profession, or occupation

for gain, benefit, advantage, or livelihood, whether for profit or not for profit."

Ordinance No. 1736 § 3A. "The term business entity shall include, but not be limited

to, self-employed individuals, partnerships, corporations, contractors, and

subcontractors." Id. at § 3A(1). Section 3A(2) further states that "[t]he term business

entity shall include any business entity that possesses a business license, any business

entity that is exempt by law from obtaining such a business license, and any business

entity that is operating unlawfully without such a business license." That Appellants

do not have a business license does not exempt them from this ordinance. Appellants

fall within the ordinance provisions and must, as law-abiding citizens, comply and

conform their conduct according to its directives. 

Third, this injury is not speculative in such a way as to defeat jurisdiction.

Where a plaintiff alleges an intention to engage in a course of conduct that is clearly

proscribed by statute, courts have found standing to challenge the statute, even absent

a specific threat of enforcement. Russell v. Burris, 146 F.3d 563, 566-67 (8th Cir.

1998); see also Lake Carriers', 406 U.S. at 507(determining that the mere obligation
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to install sewage storage devices placed upon the challenging party under a Michigan

statute, even without threat of enforcement, created a live controversy for purposes of

justiciability). "This court has also entertained constitutional challenges where the

statute clearly applies to the plaintiff, and the plaintiff has stated a desire not to

comply with its mandate." United Food & Commercial Workers Int'l Union, AFLCIO, CLC v. IBP, Inc., 857 F.2d 422, 428 (8th Cir. 1988); see also Pursley v. City of

Fayetteville, 820 F.2d 951, 953 (8th Cir. 1987); Blatnik Co. v. Ketola, 587 F.2d 379,

381 (8th Cir. 1978). And, as this court has previously noted, commentators agree with

this result: "'[w]here the enforcement of a regulatory statute would cause plaintiff to

sustain a direct injury, the action may properly be maintained, whether or not the

public officer has "threatened" suit; the presence of the statute is threat enough,' at

least where the challenged statute is not moribund." United Food, 857 F.2d at 428

(quoting 6A Moore's Federal Practice, ¶ 57.18[2] at 57-189 (2d ed. 1987)) (alteration

in original). Here, even though Appellants do not have a business license, they

admittedly will continue to maintain the rental property by hiring an "individual or

contractor" to do work. It is the hiring process that is affected. And, as noted above,

this affected process is fairly traceable to ordinance 1722. 

The City claims that injury-in-fact indeed exists. Despite Appellants' lack of

a business license and the professed denial of ever obtaining a business license in the

future, the City claims that no less than four other sanctions apply to business entities

that violate ordinance 1722, all directly traceable to ordinance 1722 itself: (1) a

violator of ordinance 1722 is compelled to take specific steps to correct the violation

and submit a sworn affidavit; (2) if in violation, Appellants can be required to enroll

in the E-Verify program; (3) a violation of ordinance 1722 exposes the violator to

potential penalties under federal law; and (4) Appellants would be barred from

expanding their business and opening an off-site leasing office. The City additionally

points out that Appellants will suffer economic injury, including the cost of

compliance (i.e., the cost of additional steps in hiring, etc.), and argues that merely

being subjected to the enforcement process is enough to confer standing. Only the
9

This appears to have been one of the bases on which Appellants challenged the

ordinance to begin with. The Amended Petition for Declaratory and Injunctive Relief

states: "Windhover is a 'business entity' as that term is defined in Valley Park

Ordinance 1722. Ordinance 1722 would require the Plaintiffs to investigate and

determine the immigration status of any person it hires or contracts to perform work

on its properties, and . . . Plaintiffs do not know how to determine a person's

immigration status." This same concern was expanded upon in Appellants' Second

Amended Complaint for Declaratory and Injunctive Relief. 

10If, as they claim, Appellants choose to stand in defiance of ordinance 1722,

they could, as the City noted at oral argument, be subject to Valley Park City Code §

100.110, entitled "General Penalty," which states that "[f]or all violations of this Code

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first of the City's enumerated "sanctions" has teeth, along with the City's more general

discussion of Appellants' injuries, as the second and third alleged sanctions apply after

the suspension of a license has occurred, which Appellants admittedly do not have,

and the fourth is too tenuous to entertain. 

As a business entity contemplated by ordinance 1722, Appellants are still

compelled to take specific steps to correct a violation, despite the absence of a threat

of license suspension. At the very least, as a business entity covered by the ordinance,

Appellants may not knowingly recruit, hire for employment, or continue to employ,

an unlawful worker to perform work within the City. Ordinance No. 1736 § 4A. And,

when a valid complaint is lodged, Appellants would be required to terminate a

violative employee and provide identity information to the Valley Park Code

Enforcement Office. Id. at §§ 4B, 5B. Further, Appellants could be asked to procure

further information from the federal government regarding the immigration status of

the involved employee. Id. at § 5B. Generally, Appellants must inevitably alter

current hiring practices to establish a procedure that assures compliance with

ordinance 1722.9

 This might entail a request for proof of status or conducting a

wholly independent verification of potential employees prior to hiring. This, on its

own, is injury-in-fact, traceable to ordinance 1722, that a favorable decision could

redress, sufficient to confer jurisdiction.10 
and all other ordinance violations, the penalty of which has not been established

elsewhere in this Code or by separate ordinance, the Municipal Judge may impose the

same penalty as is set by State Statute for the same offense or the following maximum

penalty, whichever is less: A fine of five hundred dollars ($500.00) and costs or ninety

(90) days' imprisonment, or both the fine and imprisonment." Post-argument,

Appellants argued that the City fundamentally changed its position on an issue not on

appeal (preemption), revealing for the first time that ordinance 1722 is enforceable by

the imposition of fines or imprisonment. Enforcement of 100.110, however, remedies

the act of defiance, not a violation of ordinance 1722, contrary to Appellants'

argument. Accordingly, we do not indulge Appellants' supplemental, and novel,

arguments regarding its application, as it is not central to the issue before us. 

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The latter discussion regarding the effect this ordinance certainly has on

Appellants' very way of recruiting and hiring also embraces the "prudential" concerns

that are juxtaposed with, and considered in addition to, the constitutional elements

already discussed. Valley Forge, 454 U.S. at 471. This action clearly falls "within the

zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751

(1984). The ordinance is directly targeted at business entities such as Appellants who

recruit and hire employees. And, Appellants are seeking redress of their own legal

rights and not the legal rights or interests of third parties. Warth, 422 U.S. at 499.

Appellants have an interest of their own to defend as set out above. And, finally, this

action presents more than "abstract questions of wide public significance which

amount to generalized grievances, pervasively shared and most appropriately

addressed in the representative branches." Valley Forge, 454 U.S. at 475 (internal

quotations omitted). Again, there is no doubt that Appellants fall within the purview

of ordinance 1722 and are immediately affected by its directives, as are all business

entities in the City. 

Accordingly, Appellants have standing and this matter is appropriately before

us for review.
11As part of this consideration, we reviewed Appellants' supplemental appendix

and hereby grant Appellants' pending motion to file that document. 

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C. Preclusion

Appellants alternatively argue that the district court should have given full faith

and credit to the state court's judgment and held that the penalty provision that appears

in ordinance 1722, which they claim is identical to the penalty provisions of

ordinances 1708 and 1715, is invalid under state law. We have considered Appellants'

remaining arguments and find them to be without merit.11

III. CONCLUSION

For the reasons stated herein, we affirm.

______________________________