United States Court of Appeals

For the Eighth Circuit

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No. 13-1485

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Melvin Wallace; Shirley Hardt; Lewis Simpson; William Cobb; Erica

Davis-Holder; Rotem Cohen; Julian Wagner; Rose Wagner; Erin Stilwell; Maria

Eugenia Saenz Valiente; Adam Burnham, individually and on behalf of all others

similarly situated

lllllllllllllllllllll Plaintiffs - Appellants

v.

ConAgra Foods, Inc., doing business as Hebrew National, a Delaware corporation

lllllllllllllllllllll Defendant - Appellee

____________

 Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: December 19, 2013

 Filed: April 4, 2014

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Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

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RILEY, Chief Judge.

Melvin Wallace and several other named consumers(collectively, consumers)

claim some Hebrew National beef products are not, as the label reads, “100%

kosher.” Seeking to represent a class consisting of all Hebrew National buyers in the
United States over a multi-year period, the consumerssued Hebrew National’s parent

corporation, ConAgra Foods, Inc. (ConAgra), in Minnesota state court, alleging

numerous violations ofstate law. As their purchase and consumption of the Hebrew 1

National brand products was not motivated by faith, the consumers do not assert any

personalreligious injury. Instead, the consumers aver ConAgra’s representations that

kosher is the “New Organic,” a promise of food purity amid other products full of

artificial ingredients, led them to pay an unjustified premium for Hebrew National’s 

ostensibly kosher beef.

ConAgra firstremoved to federal court, invoking the Class Action Fairness Act

of 2005 (CAFA), 28 U.S.C. § 1453, then moved to dismiss under Federal Rule of

Civil Procedure 12(b)(1) and (6), contending the consumers lacked Article III

standing and the district court lacked jurisdiction to address religious questions

underlying the consumers’ claims. Without addressing standing, the district court

decided the First Amendment prohibits the courts from adjudicating the consumers’

legal claims and, without noting 28 U.S.C. § 1447(c), dismissed the case with

prejudice. The consumers appeal. Because the consumerslack traditional Article III

standing to pursue this case, we vacate the district court’s judgment, reverse the

prejudicial dismissal, and instruct the district court to remand this case to state court

as required by 28 U.S.C. § 1447(c).

I. BACKGROUND

A. Factual Allegations

The consumers premise their suit on the following allegations, which we accept

as true at this juncture. ConAgra manufactures Hebrew National meat products

(notably hot dogs) using beef slaughtered by AER Services, Inc. (AER). The

The consumers assert counts for negligence; violation of the Nebraska 1

Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. § 87-301 et seq.; violation

of the Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1601 et seq.;

violation of multiple other state consumer protection laws; and breach of contract.

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slaughtering takes place in the facilities of another entity, American Foods Group,

LLC (AFG), which sells meat classified as kosher to ConAgra and sells any

remaining meat to third parties. AER employs the religiousslaughterers who perform

the “shechitah” (i.e., the ritual slashing of the cow’s throat) along with the other

individuals responsible for marking particular meat as kosher. One such individual

is supposed to inspect the freshly slaughtered carcass while another examines the

lungs for signs of injury. If a lung cannot hold air because, for example, there is a

small perforation, the meat should be deemed non-kosher. A third party kosher

certification entity named Triangle K, Inc., nominally monitors whether AER, AFG,

and ConAgra comply with the kosher rules. Triangle K is a for-profit New York

company owned and run by Ayreh Ralbag, an orthodox rabbi.

ConAgra promotesthese kosher requirements as a reason to purchase Hebrew

National products, which cost more than similar non-kosher competitors. As

American consumers sought purer foods prepared in accordance with strict safety

standards, the kosher food industry expanded by catering to non-religious consumers. 

Like the consumers bringing this case, an increasing number of Americans chose to

pay more for Hebrew National’s supposedly kosher products based on ConAgra’s

representations that the kosher label was a guarantee of quality and superior taste. 

Each Hebrew National package says the contents are “Made With Premium

Cuts of 100% Kosher Beef.” ConAgra says Hebrew National “answer[s] to a higher

authority” and sells only products that “meet a higher standard.” ConAgra reported

“[t]he Kosher trend is . . . gaining momentum as more people come to understand the

quality connection associated with the Kosher seal – which certifies both high-quality

ingredients and processes that meet strict Kosher standards.” Hebrew National’s

director of marketing declared “[f]oods like Hebrew National’s 100 percent kosher

beef franks give parents quality assurance and purity of ingredients they can trust.”

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Yet, according to the consumers, “manufacturing quotas—not kosher

rules—are the deciding factor as to whether any batch of meat harvested at the AFG

slaughterhouses is ultimately designated as kosher or non-kosher.” Employees face

such pressure to meet a quota of approximately 70% for kosher meat that “the kosher

inspection process becomes defective and unreliable” and some “meatfromcows that

should not qualify for kosher certification ends up being marked kosher and used in

Hebrew National products.”

B. Procedural History

This case began as a state class action filed in Minnesota state court. ConAgra

removed to federal court in the District of Minnesota, then moved for dismissal

pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Although ConAgra

itself first invoked federal jurisdiction, ConAgra submitted that the federal district

court lacked subject matter jurisdiction because (1) the consumers’ claims were

“barred” by the First Amendment, and (2) the consumers lacked Article III standing. 

The district court granted ConAgra’s motion under Rule 12(b)(1), reasoning the First

Amendment stripped the federal courts of subject matter jurisdiction over the

consumers’ state law claims. The district court believed that “the determination of

whether a product is in fact ‘kosher[]’ [is] intrinsically religious in nature,” so

adjudicating this case “would necessarily intrude upon rabbinical religious

autonomy.” Finding “it lack[ed] the requisite subject matter jurisdiction to preside

over th[e] dispute,” the district court dismissed the case with prejudice. The

consumers now appeal.

II. DISCUSSION

It is a foundational principle in our legal system, enunciated by Justice

Brandeis in a familiar concurrence, that courts must make every effort to avoid

deciding novel constitutional questions. See Ashwander v. TVA, 297 U.S. 288, 345-

47 (1936) (Brandeis, J., concurring). “It is not the habit of the court to decide

questions of a constitutional nature unless absolutely necessary to a decision of the

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case.” Burton v. United States, 196 U.S. 283, 295 (1905) (emphasis added). A

corollary to Burton’s cardinal rule isthat if a case may be resolved on easy and settled

constitutional grounds, the court should do so instead of deciding the case on difficult

and novel constitutional grounds. See, e.g., Ashwander, 297 U.S. at 346 (Brandeis,

J., concurring). “[C]ourtsshould think hard, and then think hard again, before turning

small cases into large ones.” Camreta v. Greene, 563 U.S. ___, ___, 131 S. Ct. 2020,

2032 (2011). Rather than rushing to decide a difficult First Amendment question of

first impression in this circuit, we begin with “the threshold jurisdictional question:

whether” the consumers “ha[ve] standing to sue.” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 102 (1998).

A. Article III Standing

Considering the question de novo, see, e.g., Red River Freethinkers v. City of

Fargo, 679 F.3d 1015, 1022 (8th Cir. 2012), we conclude the consumers lack

traditional Article III standing.

1. Economic Injury in Fact

ConAgra initially argues the consumers lack Article III standing because they

suffered no “concrete and particularized injury.” According to ConAgra, the

consumers’ failure to allege “that they keep kosher” is fatal to their case. The

consumers retort that the factual injury they allege was pecuniary, not religious: they

claim to have “paid a premium price for a deceptively marketed product that failed

to meet the manufacturer’s guarantee.” On this point, ConAgra’s argument is little

more than a dispute over how best to read the consumers’ complaint in the light most

favorable to the consumers. If the consumers’ complaint is accepted as true, the

consumers may have paid too much for Hebrew National products based on

ConAgra’s misleading representations. When the alleged harm is “economic,” “the

‘injury in fact’ question isstraightforward.” Hein v. Freedom From Religion Found.,

Inc., 551 U.S. 587, 642 (2007) (Souter, J., dissenting); accord, e.g., Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000) (holding

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plaintiffs had standing because their “economic interests” were “directly affected”);

Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin Cnty., 115 F.3d 1372, 1379 (8th

Cir. 1997) (concluding even “indirect” financial harm“constitutes an injury in fact”). 

The consumers’ alleged economic harm—even if only a few pennies each—is a

concrete, non-speculative injury. ConAgra’s argument on this point must fail.

2. Particularized, Actual Injury in Fact

Yet ConAgra has another standing challenge—this one well founded. 

ConAgra argues that even if the consumers would have overpaid if the Hebrew

National products they bought were not actually kosher, the consumers “have not

alleged that the products they each purchased were defective.” ConAgra analogizes

this to a product defect case in which some products are admittedly defective, but

most are not. The consumers’ allegations do not establish that all or even most

Hebrew National products were not kosher, which means the particular packages of

processed beef they purchased may have been—and indeed more than likely

were—prepared in accordance with minimum kosher standards.

Article III requires “an injury [to] be concrete, particularized, and actual or

imminent.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. ___, ___, 130 S. Ct.

2743, 2752 (2010) (emphasis added). An alleged injury cannot be “too speculative

for Article III purposes.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2

(1992). If there is no “actual” harm, then there must at least be an “imminent” harm. 

Id. As the Supreme Court emphasized just last year, “mere speculation” that injury

did or might occur “cannot satisfy the requirement that any injury in fact must be

fairly traceable to” the alleged source. Clapper v. Amnesty Int’l USA, 568 U.S. ___,

___, 133 S. Ct. 1138, 1148 (2013).

The consumers’ allegations fail to show that any of the particular packages of

Hebrew National beef they personally purchased contained non-kosher beef. The

consumersfrankly admit that “it isimpossible for any reasonable consumer to detect”

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whether purportedly kosher meat is non-kosher. Instead, the consumers pin their

Article III hopes on the allegation that they “paid a premium price for the Hebrew

National products purchased believing them to be 100% strictly kosher, when they

weren’t.” The consumers maintain this general allegation, that the non-kosher status

ofsome packages of beef tainted all Hebrew National’s products, means they “are not

required to allege the specific products or packagesthatfailed to meet the represented

standard.” (Emphasis added). 

The consumers’ argument is inconsistent with Article III. The Supreme Court

has made it clear that standing must be particularized, meaning the alleged “injury

must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560

n.1 (emphasis added). In the context of defective products, “it ‘is not enough’ for a

plaintiff ‘to allege that a product line contains a defect or that a product is at risk for

manifesting this defect; rather, the plaintiffs must allege that their product actually

exhibited the alleged defect.’” In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d

604, 616 (8th Cir. 2011) (emphasis added) (quoting O’Neil v. Simplicity, Inc., 574

F.3d 501, 503 (8th Cir. 2009)).

Without any particularized reason to think the consumers’ own packages of

Hebrew National beef actuallyexhibited the alleged non-kosher defect, the consumers

lack Article III standing to sue ConAgra. Accepting the consumers’ various

allegations, it remains entirely possible, maybe probable, that the packages of beef

they personally purchased and consumed met the “strict” standards advertised by

ConAgra. Even supposing the 70% kosher quota meant some beef was improperly

certified as kosher, the consumers give no reason to think all the beef marked as

kosher under the quota did not meet kosher standards. As we cannot discern from the

complaint how many packages were tainted with non-kosher beef, it is unclear

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whether even a bare majority of Hebrew National packages were not kosher. Which 2

means, it is pure speculation to say the particular packages sold to the consumers

were tainted by non-kosher beef, while it is quite plausible ConAgra sold the

consumers exactly what was promised: a higher quality, kosher meat product. Time

and again the Supreme Court has reminded lower courts that speculation and

conjecture are not injuries cognizable under Article III. See, e.g., Clapper, 568 U.S.

at ___, 133 S. Ct. at 1148.

3. Injury in Law

The consumers’ effort to distinguish their case from a mine-run product

liability case is unconvincing: “‘Ah, but this is not a products-liability case!’ So

plaintiffs respond.” In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1016 (7th Cir.

2002). The consumers “describe the injury as financial rather than physical and seek

to move the suit out of the tort domain and into that of contract (the [product] was not

the flawless one described and thus is not merchantable, a warranty theory) and

consumer fraud (on the theory that selling” beef products that might not be kosher,

“and thus worth less than represented, is fraudulent).” Id. at 1017. Article III cannot

be so easily fooled.

Viewing the consumers’ argument most charitably, the argument proceeds in

three steps. First, multiple states have created causes of action that do not require a

particularized showing of individual injury to recover. Second, Congress extended

federal jurisdiction to these causes of action under CAFA. Third, CAFA’s extension

of federal jurisdiction to these state causes of action means the consumers need only

For example, even if only half of all cows processed by AER and AFG met 2

kosher standards (meaning 20% of all cows were marked improperly) five out of

every seven cows marked as kosher would still be kosher. For most of the beef

labeled as kosher not to be kosher, in fact, one would have to assume fewer than 35%

of all cows processed by AER and AFG met kosher requirements—an assumption for

which there is no basis in the complaint.

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show a bare statutory violation—injury in law rather than an injury in fact—to satisfy

Article III. Assuming the first step is correct (an assumption we make to avoid

unnecessary analysis ofstate law), we are not convinced by the consumers’ argument

at the other two steps. 

To interpret CAFA as a congressional attempt to extend federal jurisdiction to

casesinvolving no injury in fact would force usto presume—without any basis in the

statutory text,see 28 U.S.C. § 1453, and in contradiction to long-settled constitutional

precedent, see, e.g., Lujan, 504 U.S. at 560—that Congress intended to stretch, if not

breach, the constitutional limits on federal jurisdiction. We never assume the

people’s elected representatives would so casually disregard the Constitution they

have sworn to uphold. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.

& Constr. Trades Council, 485 U.S. 568, 575 (1988). To the contrary, recognizing

that “Congress is predominantly a lawyer’s body,” we “assume that our elected

representatives . . . know the law.” Albernaz v. United States, 450 U.S. 333, 341

(1981) (omission in original) (internal quotations omitted). Our “respect for

Congress” also leads usto “assume [Congress] legislatesin the light of constitutional

limits.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). For these reasons, “[w]ithout the

‘clearest indication’ that Congress intended to enact a constitutionally suspect

statute,” Union Pac. R.R. v. DHS, 738 F.3d 885, 893 (8th Cir. 2013) (quoting NLRB

v. Drivers Local 639, 362 U.S. 274, 284 (1960)), we “construe the statute to avoid

[constitutional] problems,” De Bartolo, 485 U.S. at 575.

The consumers’jurisdictional theory presents a serious constitutional problem. 

Article III, to be sure, vests Congress with significant authority over federal

jurisdiction. Congress can “elevat[e] to the status of legally cognizable injuries

concrete, de facto”—i.e., factual—“injuriesthat were previously inadequate in law,”

Lujan, 504 U.S. at 578, which means “[t]he actual or threatened injury required by

Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of

which creates standing,’” Warth v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda

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R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)). But Congress’ ability to do so

remainsfirmly circumscribed by Article III itself. See, e.g., Ass’n of Data Processing

Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154 (1970). As the Supreme Court said in

Lujan, “‘[Statutory] broadening [of] the categories of injury that may be alleged in

support of standing is a different matter from abandoning the requirement that the

party seeking review must himself have suffered an injury.’” 504 U.S. at 578

(alterations in original) (emphasis added) (quoting Sierra Club v. Morton, 405 U.S.

727, 738 (1972)).

“[T]he requirement of injury in fact is a hard floor of Article III jurisdiction

that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497

(2009) (emphasis added). Rather than confronting the difficult constitutional

question whether Congress can drill through this hard floor of injury in fact by

creating an injury in law (i.e., a statutory cause of action requiring no showing the

plaintiff was personally and actually harmed), “we follow ‘the traditional rule’ and

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‘independently inquire whether there is another interpretation, not raising . . . serious

constitutional concerns, that may fairly be ascribed to [the statute].’” Union Pac., 738

F.3d at 893 (alteration and omission in original) (quoting DeBartolo, 485 U.S. at

577). 

Congress clearly incorporated Article III’s traditional limits into CAFA. In

drafting the Act, Congress was not required to restate existing standing law, nor to

specify that Article III limited CAFA’s reach, because “Congress legislates against

This constitutional question recently reached the Supreme Court without 3

yielding an answer. See First Am. Fin. v. Edwards, 567 U.S. ___, ___, 132 S. Ct.

2536, 2536-37 (2012) (per curiam) (dismissing the writ of certiorari asimprovidently

granted).

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the background of . . . standing.” Bennett v. Spear, 520 U.S. 154, 163 (1997).

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Congress passed CAFA to “restore the intent of the framers of the United States

Constitution by providing for Federal court consideration of interstate cases of

national importance under diversity jurisdiction.” CAFA, Pub. L. No. 109–2,

§ 2(b)(2), 119 Stat. 4, 5 (2005) (emphasis added). This stated purpose is wholly

inconsistent with the notion Congress wished to reject Article III’s historic injury in

fact requirement. CAFA’s repeated reference to “cases” must be read to incorporate

the Supreme Court’s well-known explication of that word’s constitutional meaning. 

See, e.g., Lujan, 504 U.S. at 560. We therefore hold CAFA does not purport to

extend federal jurisdiction to state claims—if any exist—permitting recovery for bare

statutory violations without any evidence the plaintiffs personally suffered a real,

non-speculative injury in fact.

Not only have the consumers failed to provide any basis to think the particular

packages they purchased were tainted, they affirmatively allege they could not

possibly tell if the packages were not kosher. Because the consumers suffered no

“particularized[] and actual” injury, Monsanto, 561 U.S. at ___, 130 S. Ct. at 2752,

we are bound to conclude the consumers lack traditional Article III standing and

CAFA does not extend federal jurisdiction to this case. See Clapper, 568 U.S. at ___,

133 S. Ct. at 1148; Zurn, 644 F.3d at 616.

B. Remedy

By a different route, we have reached the same conclusion asthe district court:

the federal courts lack jurisdiction over this case. But this does not mean the district

court was correct in dismissing the case with prejudice. When it becomes clear a case

originally filed in federal court does not belong there because the plaintiffs lack

WhileBennett expressly addressed prudentialstanding, the point is evenmore

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applicable here, for unlike prudential standing, Article III standing cannot be

“negated” by Congress, “expressly” or otherwise. Bennett, 520 U.S. at 163;see, e.g.,

Camp, 397 U.S. at 154.

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Article III standing, generally the appropriate remedy isto dismiss without prejudice. 

See, e.g., Constitution Party of S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011). 

If, on the other hand, the case did not originate in federal court but was

removed there by the defendants, the federal court must remand the case to the state

court from whence it came. “If at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be remanded.” 28

U.S.C. § 1447(c) (emphasis added); see also 28 U.S.C. § 1453(c)(1) (specifying that,

with one inapplicable exception, § 1447 “shall apply to any removal of a case under

this section” (emphasis added)). These words, “on their face, give . . . no discretion

to dismiss rather than remand an action.” Int’l Primate Prot. League v. Adm’rs of

Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (omission in original) (internal quotation

omitted)(reversing and remanding “with instructionsthat the case be remanded to the

[state court]”); see also, e.g., McGee v. Solicitor Gen. of Richmond Cnty., Ga., 727

F.3d 1322, 1326 (11th Cir. 2013). Because this case began in the First Judicial

District Court, Dakota County, Minnesota, that is where this case must return.

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III. CONCLUSION

We vacate the district court’s judgment, reverse the district court’s dismissal

with prejudice, and remand to the district court with instructions to return this case

to the Minnesota state court for lack of federal jurisdiction.

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Even if the district court were right that the First Amendment stripped the

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federal courts of jurisdiction over this case, remand would still be the correct remedy

because § 1447(c) plainly applies to any lack of “subject matter jurisdiction,” not

merely one predicated on missing Article III standing.

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