von Kerssenbrock-Praschma v. Saunders

• Decision Date: 01 August 1997
• Docket Number: No. 96-2277,KERSSENBROCK-PRASCHMA,96-2277
• Parties: Justus Graf VON, a citizen of Germany, Appellant, v. John SAUNDERS, Director of the Missouri Department of Agriculture; Jeremiah W. Nixon, Attorney General of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 373

121 F.3d 373

Justus Graf VON KERSSENBROCK-PRASCHMA, a citizen of Germany, Appellant, v. John SAUNDERS, Director of the Missouri Department of Agriculture; Jeremiah W. Nixon, Attorney General of the State of Missouri, Appellees.

No. 96-2277.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1997.

Decided Aug. 1, 1997.

Charles N. Brower, Washington, DC, argued (Thomas Buergenthal, Christopher M. Curran and Anna Marie Christello Roop, on the brief), for Appellant.

Garh L. Gardner, Assistant Attorney General, Jefferson City, MO, argued, for Appellees.

Before FAGG, MAGILL, and BEAM, Circuit Judges.

MAGILL, Circuit Judge.

Justus Graf Von Kerssenbrock-Praschma appeals both the district court's ¹ dismissal of his Just Compensation Clause claim for lack of subject matter jurisdiction and the district court's grant of summary judgment against Praschma on his Equal Protection Clause claim. He sought to enjoin Missouri enforcement of an anti-alien farmland transfer statute relating to the transfer of farmland to his two sons who live in Germany. On appeal, Praschma argues that: (1) the enforcement of sections 442.560 through 442.592 of the Missouri Revised Statutes (the Missouri statute), Mo.Rev.Stat. §§ 442.560-442.592 (1987 & Supp.1989), would violate the Treaty of Friendship, Commerce and Navigation between the United States and the Federal Republic of Germany (FCN Treaty), 7 U.S.T. 1839 (1956); (2) the enforcement of the Missouri statute would violate equal protection; and (3) the district court has subject matter jurisdiction to hear Praschma's takings claim even though Praschma has not yet attempted to obtain just compensation through state procedures. We affirm.

I.

In a prior appeal, this Court summarized the background of this case as follows:

Praschma is a sixty-six-year-old German citizen. In the spring and summer of 1978, he obtained fee simple absolute title in two tracts of Missouri farmland totalling approximately 1100 acres. Praschma has indicated that he wishes to "devise, deed, transfer or otherwise dispose of" the two tracts of farmland to Georg and Justus, his two sons, who are also aliens. Neither son is a plaintiff in this action. Praschma has executed a will that leaves the farmland to his son Georg, and he has indicated that he wishes to transfer one farm to each of his sons by deed.

Mo.Rev.Stat. § 442.571(1) (1986) prevents acquisition of agricultural land by aliens. The statute applies to any transfer by Praschma to his sons, but does not apply to Praschma's holding of the land because the statute became effective after Praschma acquired his land and contains a grandfather clause exempting lands held by aliens before the effective date of the statute. Mo.Rev.Stat. §§ 442.576(1) (1986), 442.586 (1986 & Supp.1994). Mo.Rev.Stat. § 442.576 provides the means for enforcing the scheme. Upon learning of a violation, the attorney general is instructed to obtain a court order requiring the alien owner to divest himself of the land. If the alien does not comply with the order within two years, the land is sold at public sale.

Praschma brought an action for injunctive relief, arguing that Missouri's statutory scheme is unconstitutional on its face and as applied because it violates (among other things) the Takings Clause of the Fifth Amendment, the Ex Post Facto Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district court dismissed the action because it found that Praschma lacked standing, and Praschma timely appealed.

von Kerssenbrock-Praschma v. Saunders, 48 F.3d 323, 324-25 (8th Cir.1995). This Court reversed the district court's dismissal and remanded, holding that Praschma had suffered injury in fact and, thus, had standing. Id. at 325-26.

Upon remand, the district court granted a motion to dismiss Praschma's due process, just compensation, and state law claims. In dismissing the takings claim, the district court held that it lacked jurisdiction over the claim because Praschma "has made no attempt to avail himself of the many adequate remedies that might be afforded him in the state courts of Missouri...." Order (Feb. 16, 1996) at 11, reprinted in J.A. at 59.

The district court then called for motions for summary judgment on Praschma's remaining equal protection and ex post facto claims. On April 17, 1996, the district court granted summary judgment in favor of the state officials. In granting summary judgment on the equal protection claim, the court held that the Missouri statute was rationally related to a legitimate state interest and that Praschma had failed to provide evidence of invidious discrimination. Praschma appeals.

II.

Praschma first argues that enforcement of the Missouri statute would violate the FCN Treaty. We decline to consider this argument for the first time on appeal.

The general rule is that "[n]ormally, a party may not raise an issue for the first time on appeal as a basis for reversal." Seniority Research Group v. Chrysler Motor Corp., 976 F.2d 1185, 1187 (8th Cir.1992) (citing cases); see also Singleton v. Wulff 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."); Moad v. Arkansas State Police Dep't, 111 F.3d 585, 587 (8th Cir.1997) ("We have examined the record carefully and we find no evidence that this issue was ever raised in the district court.... We therefore decline to consider the issue...."); Kosulandich v. Survival Technology, Inc., 997 F.2d 431, 433 (8th Cir.1993) ("Notwithstanding the dubious validity of these claims, we will not address them head-on for the first time on appeal.").

As this Court has stated:

The rationale for the rule is twofold. First, the record on appeal generally would not contain the findings necessary to an evaluation of the validity of an appellant's arguments. Second, there is an inherent injustice in allowing an appellant to raise an issue for the first time on appeal. A litigant should not be surprised on appeal by a final decision there of issues upon which they had no opportunity to introduce evidence. A contrary rule could encourage a party to "sandbag" at the district court level, only then to play his "ace in the hole" before the appellate court.

Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.1986) (citations omitted); see also Singleton, 428 U.S. at 120, 96 S.Ct. at 2877.

In this case, our consideration of the FCN Treaty issue would implicate both of these rationale. First, we are not satisfied that the record on appeal contains all of the findings necessary for a full evaluation of Praschma's argument. See Stafford, 790 F.2d at 706. Specifically, were Praschma to prevail in arguing that the Missouri statute conflicts with the FCN Treaty, unresolved factual issues would remain regarding whether the FCN Treaty even applies to the anticipated transfer of Praschma's Missouri agricultural land to his sons. For example, the state officials argue that the evidence may establish that the transfer is not related to the conduct of Praschma's commercial enterprise and therefore not within the scope of the FCN Treaty's provisions. Although we acknowledge our ability to consider the purely legal question of whether the Missouri statute is in conflict with the FCN Treaty, we decline to make such a pronouncement in a factual vacuum.

Second, we are particularly mindful of the "inherent injustice" in allowing Praschma to raise the FCN Treaty issue for the first time on appeal. See id. The state officials should not be surprised by a decision based on the FCN Treaty when they had no opportunity to introduce evidence on that issue. See id. Our consideration of the FCN Treaty issue would ratify Praschma's decision to " 'sandbag' " before the district court, and to "play his 'ace in the hole' " before this Court. See id.

However, the general rule against consideration of an issue not passed upon below is not absolute. As the Supreme Court has stated:

The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt or where injustice might otherwise result.

Singleton, 428 U.S. at 121, 96 S.Ct. at 2877 (quotations and citations omitted); see also Seniority Research Group, 976 F.2d at 1187 ("There are exceptions, as where the obvious result of following the rule would be a plain miscarriage of justice or would be inconsistent with substantial justice.").

This is not a case where either "the proper resolution is beyond any doubt" or "where injustice might otherwise result." Singleton, 428 U.S. at 121, 96 S.Ct. at 2877 (quotation omitted). Although we believe treaty interpretation is of great importance, we cannot say that injustice will result if we fail to accept Praschma's invitation to interpret the FCN Treaty in this context. But cf. Fortino v. Quasar Co., 950 F.2d 389, 391 (7th Cir.1991) (considering for the first time on appeal defendant's position that treaty provides, not a defense, but rather "essential background").

Therefore, because Praschma did not argue to the district court that the enforcement of the Missouri statute would violate the FCN Treaty, we will not consider that issue on appeal. ²

III.

Praschma next argues that the Missouri statute denies him "equal protection of the laws." U.S. Const. amend. XIV, § 1. In evaluating whether a statute violates equal protection, the Supreme Court has set forth various standards, including both a strict scrutiny and a rational basis test. See Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971) ...