author: GRUENDER, Circuit Judge.

text:
    GREAT LAKES GAS TRANSMISSION LIMITED PARTNERSHIP, Plaintiff-Appellee v. ESSAR STEEL MINNESOTA LLC; Essar Steel Limited, formerly known as Essar Steel Holdings, Ltd.; Essar Steel India Limited, formerly known as Essar Steel Limited; Essar Global Fund Ltd., formerly known as Essar Global Limited, Defendants-Appellants
    No. 16-1101
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: December 5, 2016

      Counsel who presented argument on behalf of the appellant was Douglas H. Flaum, of New York, NY. The following attorney(s) appeared on the appellant brief; Nicole M. Moen, of Minneapolis, MN., Shahzeb Laid, of New York, NY., Spencer Bruck, of New York, NY., Amanda Pober, of New York, NY.
    Counsel who presented argument on behalf of the appellee was David W. Elrod, of Dallas, TX. The following attorney(s) appeared on the appellee brief; David T. Schultz, of Minneapolis, MN., Julian Cyril Zebot, of Minneapolis, MN., Worthy Walker, of Dallas, TX., Hayley Ellison, of Dallas, TX.
    Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
   GRUENDER, Circuit Judge.

Great Lakes Gas Transmission Limited Partnership (“Great Lakes”) brought suit against Essar Steel Minnesota, LLC and related entities (“ESML”) for breach of contract in federal court, asserting diversity jurisdiction. The parties later discovered that diversity jurisdiction did not exist, and ESML filed a motion to dismiss for lack of subject matter jurisdiction. The district court held that it had federal question jurisdiction and denied the motion. The case proceeded to trial, and judgment was entered for Great Lakes. For the reasons discussed below, we conclude that the district court lacked subject matter jurisdiction. Therefore, we vacate the judgment and remand with instructions to dismiss for lack of jurisdiction.

I.

Great Lakes operates a pipeline that transports natural gas from Canada to locations in Minnesota. ESML’s predecessor, Minnesota Steel Industries (“MSI”), sought to obtain gas for use at a steel production facility it planned to build in Nashwauk, Minnesota. Thus, on September 6, 2006, MSI and Great Lakes entered into a Transportation Service Agreement (“TSA”) for the transportation of gas to Nashwauk.

The TSA provided that Great Lakes would transport up to 55,000 dekatherms of gas per day from July 1, 2009 to March 31, 2024. In exchange for the transportation of natural gas, the TSA required MSI to pay Great Lakes its maximum reservation rates and charges on a monthly basis under the applicable rate schedule reflected in Great Lakes’s gas tariff (“Tariff’) on file with the Federal Energy Regulatory Commission (“FERC”). The TSA also incorporated by reference the terms of the Tariff, which included provisions such as a force majeure clause and a limitation of liability clause. Additionally, the TSA stated that any controversy arising under the agreement “shall be determined in accordance with the laws of the State of Michigan.”

On October 22, 2007, Essar Steel Holdings Ltd. acquired MSI, and &[SI subsequently changed its name to ESML. According to ESML, it was still in the process of obtaining financing to construct the planned Nashwauk 'facility when the 2008 financial crisis delayed construction of the facility. Thus, in early 2009, ESML communicated to Great Lakes that performance under the existing terms of the TSA was impractical and that it wished to modify the terms, including the commencement date. As of October 2009, the parties had not reached an agreement, and ESML had not made any of the monthly payments due beginning in August 2009. As a result, on October 29, 2009, Great Lakes brought suit against ESML in federal court.

Great Lakes’s first'amended complaint (“FAC”) pleaded a claim for breach of contract under a theory of anticipatory repudiation, and it requested relief in the form of all future pajments that would have been due under the TSA until its expiration in March 2024.- The FAC did not mention a cause of action based on federal law, and it included only a passing reference to the Tariff in the factual background section, stating that “MSI agreed to pay the rates indicated in the Contract, which include the maximum reservation rate for the Contract’s transportation path as reflected in Great Lakes’ FERC Gas Tariff, Second Revised Volume No. 1 (‘Tariff).” The FAC identified diversity jurisdiction as the only basis for subject matter jurisdiction.

Thus, the case proceeded under the assumption that diversity jurisdiction existed. On May 15, 2012, when ruling on a counterclaim by ESML, the district court applied Michigan law to determine that the force mqjeure clause did not apply to the unforeseen financial crisis. On March 19, 2013, the court again applied Michigan law to hold that ESML had committed an anticipatory repudiation of the TSA and to deny ESML’s affirmative defense based on the Tariffs limitation of liability clause. As a result, the court granted Great Lakes’s motion for partial summary judgment and held that Great Lakes was entitled to recover the entire payment stream due under the TSA. Because the parties agreed that damages needed to be reduced to net present value and that determining the particular discount rate to apply was a question of fact, a trial was scheduled to calculate damages.

Meanwhile, ESML filed a complaint with FERC on November 27, 2012, asking FERC to order Great Lakes “to negotiate in. good faith to resolve this dispute with ESML.” FERC found that it lacked exclusive jurisdiction because ESML was not challenging the reasonableness of the Tariffs rate, and FERC declined to exercise its primary jurisdiction. Thus, FERC dismissed the complaint.

On the eve of trial, ESML alerted the court that one of Great Lakes’s limited partners, TC PipeLines, LP, had hundreds or thousands of public unitholders whose citizenship destroyed diversity jurisdiction. Great Lakes had not previously disclosed their existence, and ESML noticed the inaccuracy in Great Lakes’s citizenship disclosure Ayhile preparing a trial brief. ESML moved to dismiss the case for lack of subject matter jurisdiction.

On May 4, 2015, the district court denied the motion to dismiss. The court agreed with ESML that diversity jurisdiction was not present. Nevertheless, the court held that federal question jurisdiction existed. The court did not base its decision on the proposition that federal law created the cause of action. In fact, it rejected the argument that the Natural Gas Act (“NGA”) creates an express cause of action for recovering payments due under a federal tariff, and it declined to rule on whether the NGA creates an implied cause of action. Rather, the court held that it had federal question jurisdiction “given the disputed and substantial federal issues at play.” Great Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn., LLC, 103 F.Supp.3d 1000, 1017-18 (D. Minn. 2015). The court also held that its jurisdiction over the claim was exclusive because of the NGA’s exclusive jurisdiction provision.

The case proceeded to trial, and Great Lakes received a judgment in the amount of $32,902,183. On appeal, ESML raises four arguments: (1) the district court lacked subject matter jurisdiction; (2) the district court erred in granting summary judgment on the anticipatory repudiation claim; (3) the district court erred in dismissing ESML’s affirmative defense based on the Tariffs limitation of liability- provision; and (4) the district court abused its discretion in excluding ESML’s expert witness on damages and in limiting ESML’s cross-examination of Great Lakes’s expert witness. We agree with ESML that the district court lacked subject matter jurisdiction, and thus we do not address ESML’s remaining arguments.

II.

“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, — U.S. —, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (citation and quotation marks omitted). “The existence of subject matter jurisdiction in federal court is a question of law subject to de novo review.” Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir. 1990). The parties agree that the only possible basis for subject matter jurisdiction is federal question jurisdiction, which grants federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331.

“[T]he question whether a claim ‘arises under’ federal law must be determined by reference to the ‘well-pleaded complaint.’” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 77 L.Ed,2d 420 (1983))-. The well-pleaded complaint rule “provides that federal jurisdiction exists only when a federal question is presented on the face-of the plaintiffs properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “Federal question jurisdiction exists if the well-pleaded complaint establishes- either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.” Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998) (citation and quotation marks omitted). Thus, we first address whether federal law creates the cause of action in this case, and we next address whether Great Lakes’s right to relief necessarily depends on resolution of a substantial question of federal law.

III.

“[T]he vast majority,, of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action.” Merrell Dow, 478 U.S. at 808, 106 S.Ct. 3229, Federal law may create a cause of action “either expressly or by implication.” Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). The

cause of action identified in the FAC is a breach of contract claim. For the reasons that follow, we conclude that federal law neither expressly nor implicitly created this cause of action.

A.

We agree with the district court that federal law does not create an express cause of action under which Great Lakes may sue for breach of contract. The Tariff was filed pursuant to the NGA,.and-nothing- in the NGA expressly creates a cause of action for breach of contract. Although Section 717u of the NGA provides that district courts have “exclusive jurisdiction of violations of [the NGA] or the rules, regulations, and orders thereunder,” 15 U.S.C. § 71-7u, the district court correctly ruled that this provision “does not create a cause of action, but merely states that federal district courts have exclusive jurisdiction over cases that otherwise arise under federal law or involve a substantial question of federal law.” Great Lakes, 103 F.Supp.3d at 1013. Indeed, “[e]xclusiveness is a consequence of having jurisdiction, not the generator of jurisdiction.” Pan Am. Petroleum Corp. v. Super. Ct. of Del., 366 U.S. 656, 664, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); see also Columbia Gas Transmission, LLC v. Singh, 707 F.3d 583, 591 (6th Cir. 2013) (“Section 717u provides for federal jurisdiction, but it does not create an action.”). Thus, the NGA does not create an express federal cause of action.

B.

The NGA also does not create an implied cause of action. In limited circumstances, courts may determine that “a private remedy is implicit in a statute not expressly providing one.” Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct, 2080, 45 L.Ed.2d 26 (1975). Before the district court, Great Lakes contended that Section 717c of the NGA creates an implied cause of action. Great Lakes argued that because Section 717c prohibits “undue preference or advantage,” Great Lakes must be able to sue to collect unpaid tariff payments from all of its shippers in order to avoid giving undue preference to shippers from whom it does not collect. See 15 U.S.C. § 717c(b). The district court declined to rule on whether the NGA creates an implied cause of action because it noted that the two relevant Supreme Court cases were “not particularly instructive.” Great Lakes, 103 F.Supp.3d at 1015, 1018. On appeal, Great Lakes contends that our recent decision in City of Osceola v. Entergy Arkansas, Inc., 791 F.3d 904 (8th Cir. 2015) establishes that “a suit to enforce an agreement incorporating a FERC-approved tariff arises under federal law.” However, Osceola and the two Supreme Court cases identified by the district court are distinguishable from the present case.

In Louisville & N. R. Co. v. Rice, a railroad sued a consignee to recover money “claimed to be due under tariffs approved and published as required by Interstate Commerce Act.” 247 U.S. 201, 201, 38 S.Ct. 429, 62 L.Ed. 1071 (1918). The Supreme Court recognized that the Interstate Commerce Act (“ICA”) expressly “requires carrier to collect and consignee to pay all lawful charges duly prescribed by the tariff in respect of every shipment.” Id. at 202, 38 S.Ct. 429. Thus, the Court held that federal jurisdiction existed because the “result of the action necessarily depended upon construction and effect of [the ICA].” Id. at 203, 38 S.Ct. 429. Likewise, in Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., the Court held that federal jurisdiction existed over a claim seeking “pay[ment] for transport services as required by petitioner’s tariff’ because the complaint specifically “alleged that the action arose under the Interstate Commerce Act.” 460 U.S. 533, 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983).

This case involves the NGA, not the ICA. Unlike the ICA, the NGA does not expressly require transporters to collect and shippers to pay all lawful charges from their shippers. Thus, the result of this action did not “necessarily depend[ ] upon construction” of the NGA. See Rice, 247 U.S. at 203, 38 S.Ct. 429. Moreover, the FAC did not “allege[] that the action arose under” the NGA. See Thurston, 460 U.S. at 533, 103 S.Ct. 1343. Indeed, aside from one brief reference to the Tariff, the FAC did not mention any federal law at all. Therefore, both Rice and Thurston are inapposite.

In Osceola, we addressed a claim brought to enforce a tariff filed under the Federal Power Act (“FPA”). 791 F.3d at 907. There, FERC required certain companies, including the defendant, Entergy, to make “bandwidth payments” to other companies. Id. at 906. After making these bandwidth payments, Entergy passed the costs on to its customers as “purchased energy.” Id. In a FERC compliance action, FERC determined that Entergy’s contract with one of its customers, Union Electric, did not permit Entergy to charge these payments to Union Electric as purchased energy. See id. Subsequently, another customer, the City of Osceola, sued Entergy in state court, seeking recovery of $4 million in bandwidth payments charged to Osceola. See id. at 907. Osceola’s complaint cited FERC decisions, asserted that those decisions governed the interpretation of Osceola’s contract with Entergy, and stated that Osceola “sought damages permissible under the Federal Power Act and FERC decisions.” Id. On appeal after removal to'federal court, we observed that this dispute centered on the interpretation of a “rate formula” contained within the agreement and approved by FERC. Id. at 908. Based on these facts, we concluded that removal was proper, noting that Osceola sought to enforce the tariff contained in the agreement and approved by FERC and that “a suit to enforce [filed tariffs] arises under federal law.” Id. at 907-08.

Unlike in Osceola, this claim was not brought to enforce the terms of a tariff as previously interpreted by FERC. This dispute did not “center[] on” an interpretation of a “FERC approved rate formula,” nor did the FAC seek “damages permissible under” the NGA or FERC decisions. See id. Rather, the FAC alleged a simple breach of contract claim. There was no indication that federal law created this cause of action or played any role in Great Lakes’s right to relief. Therefore, Osceola does not suggest that federal law necessarily creates an implied cause of action for breach of contract.

To determine whether the NGA creates such a cause of action, “the central inquiry remains whether .Congress, intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Several factors are relevant to this inquiry, including whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to' deny one” and whether the cause of action is “one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.” Cort, 422 U.S. at 78, 95 S.Ct. 2080. Other than the inferences that Great Lakes seeks to draw from Section 717c, there is no indication of legislative intent to create a federal cause of action displacing traditional state law breach of contract causes of action. Indeed, “all pronouncements by the Supreme Court have indicated that regulation of the natural gas industry was intended to be a cooperative operation between the state and federal governments.” City of New Orleans v. United Gas Pipe Line Co., 390 F.Supp. 861, 866 (E.D. La. 1974). Therefore, we find no implied federal cause of action for breach of contract in the NGA. Because federal law does not create the cause of action identified in the FAC, federal'question jurisdiction may not rest on this basis.

IV.

Even though federal law does not create the ’cause of action, federal question jurisdiction may exist if Great Lakes’s “state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any eongressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). This rule applies only to a “special and small category” of cases that present “a nearly pure issue of law, one that could be settled once and for all and thereafter would govern numerous ... cases.” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699-700, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (citation and quotation marks omitted).

For example, in Grable & Sons Metal Products, Inc. v. Dame Engineering & Manufacturing, the plaintiff brought a state law claim to quiet title in real property, claiming that the IRS failed to provide the plaintiff with the notice required by a federal statute. 545 U.S. at 310-11, 125 S.Ct. 2363. The Supreme Court noted that “the meaning of the federal statute is thus an essential element of [the] quiet title claim” and it “appears to be the only legal or factual issue contested in the case.” Id. at 315, 125 S.Ct. 2363. Thus, the Court held that “the meaning of the federal tax provision is an important issue of federal law that sensibly belongs in federal court.” Id. The Court emphasized the narrowness of its holding, stating that the exercise of federal jurisdiction would have only a “microscopic effect on the federal-state division of labor” because “it will be the rare state title case that raises a contested matter of federal law.” Id. In contrast, in Empire Healthckoice Assurance, Inc, v. McVeigh, the Court found that a dispute over the meaning of terms in a federal health insurance contract was “fact-bound and situation-specific” and could not “be squeezed into the slim category Grable exemplifies.” 547 U.S. at 701, 126 S.Ct. 2121.

Here, the district court held that it had federal question jurisdiction under the Grable rule. The court first recognized that “federal tariffs carry the same legal force as federal regulations, and are thus considered federal law.” Great Lakes, 103 F.Supp.3d at 1018 (citations omitted); see also MCI Telecomms. Corp. v. Garden State Inv. Corp., 981 F.2d 385, 387 (8th Cir. 1992) (explaining that “federal tariffs are the law, not mere contracts”). The court then held that the construction and application of this federal law was both “necessarily raised” and “actually disputed.” The court reasoned that, even if ESML had not raised the force majeure and limitation of liability clauses as affirmative defenses, the court would have needed to interpret those clauses when determining the merits of Great Lakes’s affirmative casé for damages. Great Lakes, 103 F.Supp.3d at 1021-24.

Assuming that .the district court correctly held that federal issues were “necessarily raised” and “actually disputed,” we do not agree with the district court that the third and fourth requirements of Grable are satisfied. See Grable, 545 U.S. at 314, 125 S.Ct. 2363. Specifically, we do not agree that the federal issues in this case are “substantial,” nor do we agree that federal courts can exercise federal question jurisdiction “without disturbing any congressionally approved balance of federal and state judicial responsibilities.” See id.

A.

The third requirement of Grable is hot met because the federal issues in this case are not substantial in the relevant sense. The district court held that the interpretation of these Tariff provisions was “significant to the federal system as a whole” based on the following logic:

Likely, many tariffs contain limited liability provisions that are similar, if not identical, to the provisions" at issue in this case. Therefore, in future NGA tariff violation cases, courts may look to the way in which this Court interpreted the Tariff provisions here, and applied those provisions to the particular facts of this case, in order to determine whether a defendant is liable for damages in a similar case.

Great Lakes, 103 F.Supp.3d at 1024-25 (citation omitted).

However, the district court did not interpret the force majeure or limitation of liability clauses in accordance with federal law. Rather, as required by the TSA, it interpreted the Tariff provisions in accordance.with Michigan law. As another court has recognized, there is little national interest in having a federal court interpret tariff provisions if it will merely apply state law:

Any interpretation by a federal court of the language of the tariffs will only speak to how those tariffs should be construed in this state. Accordingly, the reach of any such adjudication will not have federal reverberation. In addition, to the extent federal interests are implicated, the state court is quite competent to apply the language of the tariffs and is certainly well positioned to do so where, as here, the tariff language is to be construed in- accord with state law.

Pacific Gas & Elec. Co. v. Ariz. Elec. Power Coop., Inc., 479 F.Supp.2d 1113, 1123 (E.D. Cal. 2007). Thus, because the district court interpreted the force mcvj-eure and limitation of liability clauses in accordance with Michigan law, its interpretation of these provisions could not promote national uniformity.

In addition, FERC’s reasoning for declining primary jurisdiction in this case further suggests that any federal interest in national uniformity is not substantial:

[T]he Commission (1) has no special expertise in straight-forward contractual matters, (2) there is no need for uniformity of interpretation when dealing with a contract dispute over damages resulting from termination of an agreement, and (3) the issue of whether there has been an anticipatory repudiation of the TSA is not important in relation to the Commission’s regulatory responsibilities.

Essar Steel Minn., LLC v. Great Lakes Gas Transmission Ltd. P’ship, 2013 WL 1177519, at *4 (F.E.R.C. Mar. 21, 2013). FERC has expressed similar reasoning in other cases involving contracts filed with FERC and governed by state law. See Portland Gen. Elec. Co., 1995 WL 394547, at *4 (F.E.R.C. July 5, 1995) (“An interpretation of this language by Oregon courts, under Oregon law, even if different from that of other state courts’ interpretations of other contract default provisions, will not impinge significantly on the operations of public utilities across the Nation.”).

Certainly, whether FERC exercises its primary jurisdiction should not be conflated with whether federal question jurisdiction exists. However, we find FERC’s reasoning persuasive for finding that the federal interests here are not “substantial” within the meaning of Grable. This case presents no “serious federal interest in claiming the advantages thought to be inherent-in-a federal forum.” Grable, 545 U.S. at 313, 125 S.Ct. 2363. Indeed, this case is far more similar to the “fact-bound and situation-specific” dispute over the application of contract terms in Empire Healthchoice than it is to the interpretation of a federal statute posed in Grable. See Empire Healthchoice, 547 U.S. at 701, 126 S.Ct. 2121. Therefore, we conclude that ’the substantiality requirement of Grable is not satisfied here.

B.

Furthermore, we conclude that Grable’s fourth requirement also is not satisfied. Specifically, allowing federal courts to exercise exclusive jurisdiction over this type of claim would disturb a “congressionally approved balance of federal and state judicial responsibilities.” See Grable, 545 U.S. at 314, 125 S.Ct. 2363.

As the district court correctly determined, once a federal court determines that a claim “arises under” the NGA or any regulation thereunder — either because the NGA creates the cause of action or because the Grable test is satisfied — the exclusive jurisdiction clause of the NGA requires that the federal court retain exclusive jurisdiction of the claim. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, — U.S. —, 136 S.Ct. 1562, 1572, 194 L,Ed.2d 671 (2016) (“[A]n action ‘brought to enforce’ a duty or liability created by a federal statute is nothing more (and nothing less) than an action ‘arising under’ that law.”); 15 U.S.C. § 717u (granting federal courts exclusive jurisdiction over all claims “brought to enforce any liability or duty created by, or to enjoin any violation of, [the NGA] or any rule, regulation, or order thereunder”). Despite the fact that exercising federal question jurisdiction would inevitably result in exclusive jurisdiction, the district court concluded that resolving this issue in federal court would not disrupt the federal-state balance approved by Congress because “the language of the NGA does not evidence Congress’s intent to keep these types of cases out of federal court.” Great Lakes, 103 F.Supp.3d at 1025. Rather, the district court held that the presence of the exclusive jurisdiction clause was “evidence of the fact that Congress affirmatively sought to provide a federal forum for certain cases, such as this one.” Id.

On the contrary, the mere presence of the exclusive jurisdiction clause does not indicate that Congress intended to provide a federal forum for breach of contract cases. First, “the combination of no federal cause of action and no preemption of state remedies” serves as an “important clue” suggesting a congressionally approved balance disfavoring federal involvement. Grable, 545 U.S. at 318, 125 S.Ct. 2363. Second, the presence of the exclusive jurisdiction provision indicates that Congress did not intend this particular type of case to end up in federal court, because exclusive jurisdiction over breach of contract cases would result in the very disturbance that Grable warned against. Specifically, exclusive federal jurisdiction over these cases would preclude state courts from adjudicating contract disputes governed by their own state law. As the Supreme Court has emphasized, “when a statute mandates, rather than permits, federal jurisdiction — thus depriving state courts of all ability to adjudicate certain claims — our reluctance to endorse broad readings, if anything, grows stronger.” Manning, 136 S.Ct. at 1573 (citation and quotation marks omitted). Our reluctance is especially heightened in this case because “the .interpretation of a contract is ordinarily a matter of state law to which we defer.” DIRECTV, Inc. v. Imburgia, — U.S. —, 136 S.Ct. 463, 468, 193 L.Ed.2d 365 (2015) (citation omitted). Therefore, we decline to read broadly the NGA’s exclusive jurisdiction provision to evidence a congressional intent to provide an exclusively federal forum for traditional state law breach of contract claims.

Because the federal issues in this case are not substantial to the federal system as a whole and because the district court could not exercise federal question jurisdiction without disrupting the balance of state and federal responsibilities, we conclude that the district court lacked subject matter jurisdiction. Accordingly, we do not reach the remaining issues.

V.

We recognize that the district court and the parties expended significant time, effort, and expense before the issue of subject matter jurisdiction was raised. However, we have a duty to determine thé existence of subject matter jurisdiction at any time, even on appeal. See Arnold v. Wood, 238 F.3d 992, 994 (8th Cir. 2001). For the foregoing reasons, the judgment of the district court is vacated, and we remand with instructions to dismiss for lack of jurisdiction.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Pierre WATSON, Defendant-Appellant
    No. 16-1357
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: December 8, 2016
    Counsel who presented argument on behalf of the appellant was Talmage E. Newton, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Allison Hart Behrens, AUSA, of Saint Louis, MO. The following attorney also appeared on the appellee brief; John T. Bird, AUSA of Saint Louis, MO.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   RILEY, Chief Judge.

When Pierre Watson was sentenced for running away from a halfway house where he was serving federal time, see 18 U.S.C. § 751(a), he was also facing federal charges in a separate case based on allegations of fraud and identity theft. The district court sentenced Watson to a year and a half in prison for the escape — the middle of the uncontested advisory range under the United States Sentencing Guidelines — and specified that the sentence “shall run consecutively to any sentence that may be imposed if [Watson] should be convicted in the pending [fraud] case.” Watson did not object at the time, yet on appeal he argues the district court did not have authority to make, his sentence consecutive to another federal sentence that had not yet been imposed.

As Watson acknowledges, he forfeited his challenge by not raising it before the district court, so he can obtain relief only if the consecutive sentence was a plain error — meaning an error that is “clear or obvious under current law” — that affected his substantial rights. United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011); see also Fed. R. Crim. P. 52(b). Watson concedes neither the Supreme Court nor this court has previously resolved the issue presented in this case. He argues the answer is nonetheless clear based on dictum from the Supreme Court and decisions from other Courts of Appeals. We are not convinced.

The Supreme Court dictum comes from a footnote in Setser v. United States, concerning the similar, but distinct issue of whether a district court could make a federal sentence run consecutively to an anticipated state sentence. See Setser v. United States, 566 U.S. 231, 132 S.Ct. 1463, 1466, 182 L.Ed.2d 455 (2012). The Supreme Court held that because the statute governing concurrent and consecutive sentences, 18 U.S.C. § 3584(a), does not address cases where the other sentence has not yet been imposed, district courts retain their common-law “discretion to select whether the sentences they impose will run concurrently or consecutively with respect to [such] sentences.” Id. at 236, 132 S.Ct. at 1468-69 (“Section 3584 ... is framed not as a conferral of authority” — in which case the failure to mention this situation would mean no authority was conferred — “but as a limitation of authority that already exists.”). The footnote in question was prompted by the defendant raising the prospect that such reasoning would also seem to extend to cases like this one, where the anticipated sentence was federal (which he apparently assumed the Court would consider problematic), because “the text of § 3584(a) does not distinguish between state and federal sentences.” Id. at 241 n.4, 132 S.Ct. at 1471 n.4. As a counterpoint, the Court offered a plausible interpretation of the statute that would in fact support such a distinction:

It could be argued that § 3584(a) impliedly prohibits [a federal court making a sentence consecutive to an anticipated federal sentence] because it gives that decision to the federal court that sentences the defendant when the other sentence is “already” imposed — and does not speak (of course) to what a state court must do when a sentence has already been imposed.

Id.

That is the reading Watson now invokes to justify reaching the opposite outcome here than in Setser. But the Supreme Court’s suggestion- that drawing such a line could be textually defensible, by itself, is not nearly enough to satisfy us it is clear and obviously right. To the contrary, the footnote was the Court’s demonstration why it understood its decision in Setser was not dictating a clear answer to the question presented in Watson’s situation. See id. (“It suffices to -say, however, that this question [of an anticipated federal sentence] is not before us.”). Nor can we say, regardless of what the Court meant to leave open, the proposed interpretation is so compelling that, now when the issue has been articulated, reading § 3584(a) any other way would be clearly wrong. Watson’s theory is premised on the idea that § 3584(a) “gives” the concurrent-or-consecutive decision to the' second court to sentence a defendant, see Setser, 566 U.S. at 241 n.4, 132 S.Ct. at 1471 n.4, however, that is not the only way to read the relevant clause. Rather, it reasonably could be understood as simply clarifying both concurrent and consecutive sentences are permissible, without speaking to which court gets to choose between them. See 18 U.S.C. § 3584(a) (“if a term of imprisonment is imposed on a defendant who is already subject to an undischarged .term of imprisonment, the terms may run concurrently or consecutively”).

The other appellate decisions Watson cites are United States v. Almonte-Reyes, 814 F.3d 24 (1st Cir. 2016), United States v. Obey, 790 F.3d 545 (4th Cir. 2015), and United States v. Montes-Ruiz, 745 F.3d 1286 (9th Cir. 2014). All three ultimately adopted the position proposed in the Setser footnote. See Almonte-Reyes, 814 F.3d at 28-29; Obey, 790 F.3d at 549; Montes-Ruiz, 745 F.3d at 1292-93. None, however, treated it as obvious. Instead, they all saw fit to offer substantive analy-ses of the issue before reaching their conclusions. See Almonte-Reyes, 814 F.3d at 27-29; Obey, 790 F.3d at 548-50; Montes-Ruiz, 745 F.3d at 1290-93; see also Obey, 790 F.3d at 549-50 (deciding the issue but then denying relief on plain-error review); cf. Almonte-Reyes, 814 F.3d at 27 n.4 (declining- to apply the plain-error standard because the government did not ask for it). Two decisions based their holdings in large part on circuit precedent that had prohibited making a sentence concurrent or consecutive to any sentence that had not yet been imposed, state or federal. See Obey, 790 F.3d at 549 (citing United States v. Smith, 472 F.3d 222, 224, 226 (4th Cir. 2006)); Montes-Ruiz, 745 F.3d at 1290, 1292-93 (citing Taylor v. Sawyer, 284 F.3d 1143, 1148 (9th Cir. 2002)). Those prior decisions, the courts ruled, were only partly overruled by Setser and remained good law with respect to anticipated federal sentences. See Obey, 790 F.3d at 549; Montes-Ruiz, 745 F.3d at 1292-93.

We have no comparable precedent. Our closest case, although not controlling, at first glance points the opposite direction. See United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001) (holding the - district court had authority to make a sentence consecutive to an anticipated state sentence and, on its face, giving no reason to think a different rule would apply for federal sentences). We are not so thoroughly persuaded by the decisions of our sister circuits that we consider the point settled beyond debate. Like them, we think Setser left open the question of whether the district court could make Watson’s prison term for the escape consecutive to any sentence arising from the other federal charges pending against him. Because that means any error in this case is not plain, we affirm. We leave resolution of the issue for a case in which it is properly raised and preserved.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

      . We have jurisdiction of the appeal under 28 U.S.C. § 1291.

      . The relevant statutory language is:
      If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
      18 U.S.C. § 3584(a) (emphasis added).

      . Another court reached the same result— allowing federal district courts to make sentences concurrent or consecutive to anticipated state sentences but not to federal ones — in a case decided before Setser. See United States v. Quintana-Gomez, 521 F.3d 495, 497-98 (5th Cir. 2008). Because the reasoning in that decision differed from what the Supreme Court later adopted, see Setser, — U.S. at 235-43, 132 S.Ct. at 1468-72; Quintana-Gomez, 521 F.3d at 497-98, it reveals even less than the post-Setser cases about the current clarity of the law for our circuit.

      , For one thing, while it is. certainly true that " 'when it comes to sentencing, later is always better because the decisionmaker has more information,' ” as the most recent case emphasizes, see Almonte-Reyes, 814 F.3d at 29 (quoting Setser, 566 U.S. at 242, 132 S.Ct. at 1471), it is not obvious why that is not just a consideration for the district court when deciding whether to make a concurrent-or-consecutive determination with respect to an anticipated sentence, rather than a justification for taking away the first court’s discretion entirely. See Setser, 566 U.S. at 242 n.6, 132 S.Ct. at 1472 n.6 ("Of course, a district court should exercise the power to impose anticipatory consecutive (or concurrent) sentences intelligently, In some situations, a district court may have inadequate information and may forbear, but in other situations, that will not be the case.”). Importantly, the related concern that the first court will be unable to weigh the sentencing factors under 18 U.S.C. § 3553(a) without knowing for sure what else the defendant might be convicted of or what the second sentence might be, see Smith, 472 F.3d at 227, cited in Obey, 790 F.3d at 549, and Montes-Ruiz, 745 F.3d at 1292-93, closely resembles an argument the Supreme Court addressed and rejected in Setser. See Setser, 566 U.S. at 240, 132 S.Ct. at 1470 ("One cannot be sure that the sentence imposed is 'sufficient, but not greater than necessary,’ § 3553(a), the argument goes, if one does not know how long it will actually be. But the district judge faces the same uncertainty if the concurrent-vs.-consecutive decision is left for later resolution ...; he does not know, for example, whether the 5-year sentence he imposes will be an actual five years or will be simply swallowed within another sentence.”).


author: BENTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Juan L. LONG, Defendant-Appellant
    No. 16-1398
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: December 8, 2016

      Daniel P. Goldberg, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO (Laine Car-darella, Fed. Public Defender, William J. Raymond, Asst. Fed. Public Defender, Kansas City, MO, on the brief), for appellant.
    Justin G. Davids, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

In 2012, Juan L. Long pled guilty to being, a felon in possession of a firearm. He was sentenced to 30 months’ imprisonment and three years of supervised release. In 2016, the district court revoked his supervised release, imposing a sentence of 24 months followed by a year of supervised release.- Long appeals, asserting insufficiency of the evidence and an abuse of discretion in denying a continuance. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Long’s original conviction followed his arrest for driving while intoxicated. The district court varied below the guideline range because Long said he had changed and would not drive around with weapons while drinking. Conditions of supervised release included not possessing alcohol or firearms, unlawfully using controlled substances, or committing another crime.

Just over a month into Long’s supervised release, a police officer stopped a van registered to Long for multiple traffic violations. The driver initially gave the officer a false name. Long was the only passenger. The officer noticed an open can of beer “on the floor ,., toward the passenger side.”

After arresting the driver for giving a false name, the officer arrested Long for an open-container violation. The officer searched the vehicle, finding an additional open can of beer “directly next to the passenger seat on the left side of the seat” and a gun under the passenger seat. The passenger seat was enclosed on both sides. The gun was accessible only from behind the seat or from the front, where a piece of carpet hung down “like a curtain over the front of the seat.”

The district court held a revocation hearing to determine whether Long had violated the terms of supervised release by possessing alcohol and a firearm, and by using cocaine — for which he tested positive.

At the hearing, Long moved for a continuance because he had developed Methi-cillin-resistant Staphylococcus aureus and undergone emergency head surgery six weeks earlier. With his head still bandaged from the surgery, he testified that he was still having headaches and not getting pain medication. According to defense ■ counsel, Long was having difficulty thinking and had previously been planning to testify on the merits.

The district court denied the continuance and found that Long had violated the conditions of supervised release by possessing a firearm, possessing alcohol, and using cocaine. The most serious violation (grade B), combined with his criminal history, gave a guideline range of six-to-twelve months. The district court noted its previous leniency based on Long’s promise of change, and his similar conduct the month after release. The court sentenced him to the statutory maximum of 24 months, followed by a year of supervised release.

II.

A district court may “revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release.” United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2016). This court reviews for abuse of discretion a revocation of supervised release, and for clear error “subsidiary factfinding as to whether or not a violation occurred.” Id, A revocation is reversed only if this court has “a definite and firm conviction that the District Court was mistaken.” Id.

A.

Long disputes the sufficiency of the evidence that he possessed a firearm. In revocation proceedings, a court finds facts by a preponderance of the evidence. Id. A court need not apply the usual rules of evidence and may consider “material that would not be admissible in an adversary criminal trial.” United States v. Zentgraf, 20 F.3d 906, 909 (8th Cir. 1994), quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Under the terms of supervised release, Long was prohibited from possessing a firearm. A firearm may be possessed constructively, meaning an individual, “though lacking [] physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, — U.S. —, 135 S.Ct. 1780, 1784, 191 L.Ed.2d 874 (2015).

To constructively possess the gun, Long must have known it was located under his seat. He argues there was no evidence of his knowledge because a piece of carpet covered the area where the gun was located and the officer did not see him move.toward the area under his seat in order to conceal the gun. He contends that because the officer did not know the extent of the driver’s control of the van, Long jointly occupied the van, and thus “there must be some additional nexus linking the defendant to the contraband.” United States v. Wright, 739 F.3d 1160, 1168 (8th Cir. 2014).

Long invokes a Tenth Circuit case, holding, “Mere dominion or control over” a jointly occupied place is, by itself, “insufficient to establish constructive possession.” United States v. Mills, 29 F.3d 545, 550 (10th Cir. 1994). There, another individual concealed, her guns in a piece of furniture — owned by her — located in a jointly occupied area of the defendant’s house without his knowledge and contrary to his instructions. Id. at 546.

Here, Long’s asserted “mere presence as a passenger” was not the only evidence of Long’s knowledge. Long owned the van, and the gun was much more accessible to him than the driver. The district court was also aware, from its own prior sentencing, that, he had been caught drinking and driving with a gun.

Though' the officer noticed no furtive movement, this is at best neutral evidence of an absence of knowledge. The lack of furtive movement and the fabric obscuring the gun are consistent with an attempt to avoid being caught with the gun by hiding it and not calling attention to its location.

Since Long owned the vehicle, was sitting above the gun, and had a history of similar behavior, the district court did not clearly err in finding constructive possession of the’gun.

B.

Long believes that the denial of his motion for continuance prevented him from presenting an adequate defense., A district court has broad discretion on requests for continuances, which “generally are not favored and should be granted only when the party requesting one has shown a compelling reason.” United States v. Vesey, 330 F.3d 1070, 1072 (8th Cir. 2003). This court reverses a denial of continuance only if the district court abused its discretion and thé moving party was prejudiced. United States v. Farlee, 757 F.3d 810, 821 (8th Cir. 2014).

According to Long, because, he had emergency head surgery and was still suffering, headaches and effects on his cognitive abilities, he could not participate in his own defense or potentially testify. However, Long was able to understand and respond to the court’s questioning about his medical treatment. Long described the circumstances and timing of his surgery six weeks earlier. Asked whether the surgery affected his ability to think, he said he was having headaches and the prison would not supply pain medication. Though defense counsel asserted that Long’s headaches affected his ability to participate in his defense and testify, at no point did Long himself state that his headaches prevented him from adequately participating.

Long argues that the district court was predisposed to disbelieve him, citing as evidence the court’s description of the need to place Long under oath about the details of his medical treatment. Addressing the reliability of the medical information, the district court stated that it would take as true any facts that defense counsel, as an officer of the court, knew first-hand. However, the district court did not give the same credence to Long’s second-hand statements, giving unsworn information “the weight that it deserves.” This does not demonstrate a predisposition. In fact, immediately before Long was placed under oath, the district court stated: “I don’t know if I’m going to continue this.” Rather than close-mindedness, the district court’s comments demonstrate emphasis on the reliability of sworn testimony.

At the hearing, Long demonstrated an ability to understand and respond appropriately to the court’s questioning, and to articulate his medical issues, including the details and timing of his treatment. The district court did not question the facts of the treatment, but still did not “believe that you are suffering so much you can’t participate in this hearing.” Long fails to show he was unable to participate in his own defense and thus does not present a compelling reason for a continuance. Vesey, 330 F.3d at 1072. The district court did not abuse its discretion in denying the continuance.

* * * * * *

The judgment is affirmed.

      . The Honorable Greg Kays, Chief Judge, United States District Court for the Western District of Missouri.


author: SHEPHERD, Circuit Judge.

text:
    Shahryar GILANI, Plaintiff-Appellant v. Officer John D. MATTHEWS, in his individual capacity; Officer Francis D. Collins, in his individual capacity; Alvin Brooks, in his official capacity as President and a member of the Board of Police Commissioners; Michael Rader, in his official capacity as Vice President and a member of the Board of Police Commissioners; Angela Wasson-Hunt, in her official capacity as Treasurer and a member of the Board of Police Commissioners, Defendants-Appellees David Kenner, in his official capacity as Secretary-Attorney and a member of the Board of Police Commissioners, Defendant Sylvester “Sly” James, in his official capacity as a member of the Board of Police Commissioners; Mr. Darryl Forte, in his official capacity as Police Chief of the Kansas City, Missouri Police Department, Defendants-Appellees
    No. 16-1689
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: December 8, 2016

      Arthur A. Benson II, Arthur Benson & Associates, Kansas City, MO, :argued (Jamie Kathryn Landsford, on the brief), 'for appellant. , ‘
    Charles W. Adamson, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellees.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Shahryar Gilani brought an action pursuant to 42 U.S.C. § 1983 against Kansas City Police Department Officers John Matthews and Francis Collins, Police Chief Darryl Forte, and members of the Board of Police Commissioners of Kansas City, Missouri. Gilani contends Officers Matthews and Collins arrested him on account of his ethnicity, in violation of the Fourteenth Amendment’s Equal Protection Clause. He now appeals -the district court’s grant of summary judgment to the defendants based on qualified immunity. We affirm,

I. Background

A. Facts

Shortly before 1:00 a.m. on June 27, 2013, Kansas City Police dispatch received a suspicious person report in the area of East 70th Street and Cherry Street in Kansas City, Missouri. Dispatchers relayed the report to Officers Matthews and Collins, who were patrolling the area covering East 70th Street. The report stated that a white male, wearing all white clothing, had been walking between Oak and Holmes on 70th Street and was possibly “casing” the neighborhood. As the officers drove down 70th Street, they saw an individual, dressed in all white clothing and walking in the street. The individual was later identified as Shahryar Gilani. Gilani is of Turkish and Kurdish descent. As stated in Gilani’s own brief, “[h]is appearance is consistent with what would be considered stereotypical of a Middle Eastern adult male — he has a dark complexion, black hair, brown eyes, and a dark beard.” (Appellant Br. 1.) He is employed as a commodity futures trader.

While talking on his cellphone to a friend, Gilani was walking in the street. No sidewalk exists on the north side of the street. The south side of 70th Street does have a sidewalk, and Gilani had been walking: on it. There is a section of yard, however, where the sidewalk ends and does not begin again until the next house. When he reached this break in the sidewalk, Gilani began walking in the street. At that moment, Officers Matthews and Collins came upon the scene.

The officers drove their car toward Gila-ni and shined a spotlight on him. Gilani, not realizing it was a police car coming at him, continued walking and talking on his cellphone. The officers exited the vehicle and one of them called out to Gilani. Gilani did not appear to acknowledge the officers and kept walking. Officer Matthews then moved toward Gilani and shepherded him to the front of the police vehicle. Gilani continued his phone conversation until Officer Collins took the phone from him, and Officer Matthews then began patting down Gilani for weapons. No weapons were found. Officer Collins explained to Gilani that they stopped him because of a suspicious person report that matched Gilani’s description. Officer Collins also stated that Gilani had violated a city ordinance by walking in the street rather than on an available sidewalk. See Kansas City, Mo., Code of Ordinances § 70-786(a) (“Where a sidewalk is provided and its use is practicable, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway”).

Officer Matthews handcuffed Gilani as Gilani expressed disbelief that he had done anything wrong. Gilani protested that no sidewalk existed where he was walking, but Officer Collins insisted there was one. From where they each stood, a parked truck partially blocked the view of the stretch of yard without a sidewalk. Throughout the encounter with Gilani, neither of the officers walked to the south side of 70th Street to confirm whether a sidewalk actually existed where Gilani had been walking.

Shortly after handcuffing Gilani, Officer Collins asked Gilani for identification. Gila-ni stated that he did not have any identification on him. Collins then asked where Gilani lived. Gilani did not respond and questioned again why he had been detained. After further conversation, Gilani offered’ his name, address, and date of birth to Officer Matthews. The address he provided was a house located just up the street from where they were standing. Gi-lani also pointed to his BMW parked on the road. As Officer Matthews relayed this information to dispatch, he identified Gila-ni as a white male.

The computer searches run by police dispatch could not verify any of Gilani’s information. Officer Matthews asked for Gilani’s driver’s license. Gilani replied that it was not on him but rather in his house. Officer Matthews then asked for Gilani’s social security number. Gilani refused to provide it. The officers decided to call for police transport to take Gilani to a detention center for identification. While waiting for the police transport vehicle to arrive, Gilani provided his social security number and repeatedly asserted that he had done nothing wrong.. The officers continued to reject Gilani’s claim that no sidewalk existed along the street where he was walking. Again, neither officer walked the short distance to determine whether a sidewalk existed in the vicinity. Gilani also stated several times that his driver’s license was in his house and that he could get it. Officer Collins responded that “there was a point” earlier in the encounter when they might have allowed Gilani to go into the house to retrieve his license. Officer Collins indicated, however, that he and Officer Matthews were not willing to consider that course of action anymore.

When police transport arrived and as Gilani was being loaded into the vehicle, a woman in a black .dress was walking in 70th Street toward Officer Collins. Collins spoke with the woman, who informed Collins that she lived on the street. The police transport vehicle had blocked her access to the street, and she wanted to reach her house. Collins let her proceed without a citation and watched her walk to a nearby house. In his deposition testimony, Collins described the woman as a white female. Gilani has never located the woman nor has he positively identified her race or ethnicity.

Gilani spent approximately fourteen hours in police custody. He initially pled guilty to violating the city ordinance but later hired an attorney and the guilty plea was subsequently set aside and the charge dismissed.

B. Procedural History

Gilani brought suit under 42 U.S.C. § 1983 against Officers Matthews and Collins. Gilani made two claims against the officers. First, he alleged that they violated his Fourteenth Amendment rights by selectively enforcing the Kansas City ordinance against him due to his ethnicity. Second, he claimed that each officer failed to intervene when the other violated his Fourteenth Amendment rights. Gilani later amended his complaint, adding Police Chief Darryl Forte and members of the Board of Police Commissioners of Kansas City, Missouri as defendants. As to these new defendants, Gilani added a third claim under § 1983, alleging deprivations of constitutional rights resulting from official policies, procedures, practices, customs, and usages.

Following discovery, the defendants moved for summary judgment. The district court granted the motion as to all defendants. The court held that qualified immunity protected Officers Matthews and Collins. Without liability for their actions, the claims against Forte and members of the Board necessarily failed as well. See McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (“This circuit has consistently recognized a general rule that, in order for municipal liability to attach, individual liability first must be found on an underlying substantive claim.”). Gilani has appealed the district court’s grant of summary judgment on the claims of selective enforcement and failure to intervene against Officers Matthews and Collins'. He has not appealed judgment in favor of Forte and members of the Board.

II. Discussion

“We review .a district court’s qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to [Gilani] and drawing all reasonable inferences in [his] favor.” Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir. 2014) (quoting Shannon v. Koehler, 616 F.3d 855, 861-62 (8th Cir. 2010)). We will uphold a grant of summary judgment if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments” and “protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, — U.S. —, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). It shields officers from liability “unless [their] conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Shekleton v. Eichenberger, 677 F.3d 361, 365 (8th Cir. 2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). To evaluate a claim of qualified immunity, we engage in a two-pronged inquiry: “(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.” Id “[U]nder either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam).

We begin our analysis by determining whether Gilani has presented facts sufficient to show the violation of a constitutional right. “[T]he Constitution prohibits selective enforcement of the law based on considerations such as [ethnicity] ... [and] the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause....” Johnson v. Crooks, 326 F.3d 995, 999 (8th Cir. 2003) (quoting Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). A claim of selective enforcement in the context of this case requires proof that the officers exer-eised their discretion to enforce the traffic laws solely because of Gilani’s ethnicity. See United States v. Frazier, 408 F.3d 1102, 1108 (8th Cir. 2005). To succeed, Gilani “must show both that the enforcement had a discriminatory effect, and that the enforcement was motivated by a discriminatory purpose.” United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996).

A. Discriminatory Effect

To establish discriminatory effect, Gilani must show people of another ethnicity violated the law and the law was not enforced against them. Id. When the claim is selective enforcement of a traffic law, “the plaintiff must normally prove that similarly situated individuals were not stopped or arrested in order to show the requisite discriminatory effect and purpose.” Crooks, 326 F.3d at 1000, “[A] prima facie equal protection claim may also be proved by direct evidence of racial discrimination....” Id.

Gilani makes two arguments with respect to discriminatory effect.- First, he presents evidence of a white female who came, upon the scene of his arrest as he was being loaded into the police transport vehicle. Gilani argues that she was walking in the street, just as he had been, but that Officer Collins allowed her to continue walking down the street without issuing a citation, The only explanation for this disparate treatment, Gilani contends, was the difference in ethnicity between him and the woman.

Though Gilani has shown he and .the woman were similarly situated in one respect, he has failed to show that they were similarly situated “in .all relevant respects.” See Flowers v. City of Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009). That evening, police dispatch received a report that a suspicious person — a white male in all white clothing — was walking along 70th Street. The report was then conveyed to Officers Matthews and Collins. A short time later, as they drove along 70th Street, the officers saw an individual — Gilani—who perfectly matched the description of the suspicious person. His defensive behavior and refusal to, provide information reasonably fueled the officers’ suspicions. Unable to verify his identity, they detained Gilani and took him into custody until he could be positively identified. On the other hand, the unidentified woman was not seen walking in the street until long after the suspicious person report. Nor did the suspicious person report describe a white woman in a black dress. These circumstances show Gilani and the woman were not similarly situated in all relevant respects.

Gilani’s second argument for discriminatory effect is a statistical analysis of the incidents of arrest for violating § 70-786(a) of the Kansas City Code of Ordinances. Gilani’s statistics show that in 2014, black males accounted for 63% of arrests for violating the sidewalk ordinance. White females accounted for only 5% of arrests. Data from the Census Bureau reveals that the Kansas City population is approximately 59% white and 30% black. Taken together, these statistics purportedly show that a disproportionate number of black men are arrested for violating the sidewalk ordinance.

The statistics offered by Gilani are wholly unpersuasive. They, do not show that whites are violating the ordinance and escaping arrest at a disproportionate rate than blacks. See United States v. Armstrong, 517 U.S, 456, 470, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (rejecting a study that “failed to identify individuals who were not black and could have been prosecuted for the offenses ... but were not so prosecuted”). “Absent some evidence of racially disproportionate arrests compared to the actual incidence of violations by race, there is no basis for inferring racially selective law enforcement.” Bell, 86 F.3d at 823. Moreover, Gilani’s statistics do not address the frequency with which Officers Matthews and Collins detain or cite those of Middle Eastern descent for violating the sidewalk ordinance. How frequently the Department as a whole cites black males is simply beside the point. See Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012) (holding that “statistics demonstrating employer-wide discrimination are insufficient to establish which individual defendants engaged in purposeful discrimination”). Even if the statistics did specifically pertain to Officers Matthews and Collins, they in fact identified Gilani as a member of the purportedly preferred class — white. Gilani therefore has failed to establish discriminatory effect.

B. Discriminatory Purpose

“Proving discriminatory purpose is no simple task.” Villanueva v. City of Scottsbluff, 779 F.3d 507, 511 (8th Cir. 2015). Gilani must offer evidence that Officers Matthews and Collins enforced the Kansas City ordinance against him because of his ethnicity. See id.; Bell, 86 F.3d at 823. Although we must view the facts in the light most favorable to Gilani, we need not “accept unreasonable inferences or sheer speculation as fact.” Reed v. City of St. Charles, 561 F.3d 788, 791 (8th Cir. 2009) (quoting Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004)).

Gilani’s claim of selective enforcement relies primarily on two facts. First, he points out that neither officer ever checked to see if a sidewalk actually existed on the south side of 70th Street in the area of the stop. Gilani argues that if either of them had checked, they would have seen that there was no sidewalk, and therefore known that Gilani had not violated the city ordinance* Second, Gilani points-to the officers’ refusal to allow him to retrieve his license from his nearby house. Since part of the explanation offered by the officers for taking Gilani into custody was a lack of identification, according to Gilani,. simply allowing him to- get his license, or using his phone to,call his roommate in the house, would have verified his identity. Gilani also directs the court to additional aspects of the encounter — that the officers were ⅛-timidating and antagonistic toward Gilani, that they found him defensive and uncooperative merely because he continued to speak on his cellphone, and that he was handcuffed within seconds of the officers’ arrival.

Reduced to its essence, Gilani’s claim is that his citation and arrest were the result of an arbitrary and unreasonable exercise of enforcement discretion by Officers Matthews and Collins. That may well be true, but Gilani has not offered any evidence that his ethnicity played a role in the decision to cite and arrest him. Nor has he presented evidence showing that the officers’ behavior indicated a “clear pattern, unexplainable on grounds other than [ethnicity].” Friends of Lake View Sch. Dist. v. Beebe, 578 F.3d 753, 762 n.12 (8th Cir. 2009) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). Officers Matthews and Collins came upon Gilani while investigating a report of a suspicious person casing the neighborhood. Gilani matched the description. They then (mistakenly) observed him violating a city ordinance and cited him accordingly. Gilani can identify no statement made by the officers expressing a discriminatory intent or any animus based upon his ethnicity. In fact, the only mention of ethnicity occurred when Officer Matthews relayed information to police dispatch and identified Gilani as a white male.

Whether or not the officers acted unreasonably, Gilani offers insufficient evidence of discrimination to survive summary judgment. “Under our cases, [Gilani] ‘must identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden of proving the pertinent motive.’ ” Frazier, 408 F.3d at 1108 (quoting Johnson, 326 F.3d at 1000). Since no violation of a constitutional right occurred, the district court did not err in granting qualified immunity to Officers Matthews and Collins. We therefore need not address Gilani’s failure to intervene claim.

III. Conclusion

For the foregoing reasons, we affirm the opinion of the district court granting sum-maiy judgment based on qualified immunity.

      . The Honorable Greg Kays, Chief Judge, United States District Court for the Western District of Missouri. '


author: NOONAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe Arviso BENALLY, Defendant-Appellant.
    No. 14-10452
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 11, 2016, San Francisco, California
    Filed August 1, 2016
    Amended November 7, 2016

      Daniel L. Kaplan (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.
    Karla Delord (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.
    Before: DOROTHY W. NELSON, JOHN T. NOONAN, and DIARMUID F. O’SCANNLAIN, Circuit Judges.
   ORDER

The opinion filed on August 1, 2016 is amended as follows:

Replace the portion of the opinion that runs from the second paragraph of page 9 of the slip opinion (beginning <Leocal explicitly leaves open the question whether ... >) through the end of the penultimate paragraph on page 10 (which ends < ... and is no longer good law.>) with:

<After Leocal, we held that “neither recklessness nor gross negligence is a sufficient mens rea to establish that a convi,ction is for a crime of violence under § 16.” Femandez-Ruiz, 466 F.3d at 1130. This June, the Supreme Court suggested the opposite, and held that for purposes of a similar statute — 18 U.S.C. § 921(a)(33)(A) — reckless conduct indeed can constitute a crime of violence. See Voisine v. United States, 136 S.Ct. 2272, 2279-80, 2282 (2016). But we need not resolve any tension regarding the inclusion of reckless conduct in this case. The government concedes that § 1112, which 'requires a mental state of only gross negligence, prohibits conduct that cannot be a “crime of violence,” even after Voisine. Springfield’s opposing rule is clearly irreconcilable with the reasoning and the results of Leocal and Femandez-Ruiz and is no longer good law.>

With this amendment, the panel votes to deny the petition for rehearing.

No further petitions for rehearing will be entertained.

OPINION

NOONAN, Circuit Judge:

Joe Arviso Benally appeals a jury conviction for involuntary manslaughter under 18 U.S.C. §§ 1112 and 1163 and for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c). In a separate unpublished memorandum disposition, we address Benally’s challenge to the trial proceedings and sentence. In this opinion, we address whether involuntary manslaughter can be considered a “crime of violence” under § 924(c). We hold that involuntary manslaughter is not a “crime of violence” and reverse the § 924(c) count of conviction.

FACTS AND PROCEEDINGS

On January 17, 2013, Carlos Harvey was shot in the chest with Benally’s rifle, killing Harvey. Both Benally and Harvey lived on the same multi-house compound in a rural part of the Navajo Nation Indian Réservation in Oak Springs, Arizona. On April 30, 2013, a federal grand jury returned an indictment against Benally for the second-degree murder of Carlos Harvey and for using a firearm in connection with a “crime of violence.”

At trial, the government presented evidence that, after a day of drinking, Benally shot Harvey intentionally after an argument. Other government evidence indicated that the shooting was accidental and part of a drunken game. The jury did not convict Benally of second-degree murder, but of the lesser-included offense of involuntary manslaughter. The jury, instructed to find involuntary manslaughter to be a “crime of violence,” also convicted Benally of using a firearm in connection with a “crime of violence” under § 924(c). Benally appeals his conviction on both counts.

JURISDICTION

An “Indian” who commits murder or manslaughter in “Indian country” is subject to applicable federal criminal laws. 18 U.S.C. § 1153(a). The location of the shooting here, the Navajo Nation Indian Reservation, is “Indian country” for the purposes of § 1153.18 U.S.C. § 1151 (defining “Indian country” to include “all land within the limits of any Indian reservation under the jurisdiction of the United- States Government”). We have appellate jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Benally’s conviction under § 924(c) for use of a firearm requires a predicate “crime of violence.” To determine whether Benally’s conviction for involuntary manslaughter is a “crime of violence” we apply the “categorical approach” laid out' in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Amparo, 68 F.3d 1222, 1224-26 (9th Cir. 1995); see also United States v. Piccolo, 441 F.3d 1084, 1086-87 (9th Cir. 2006) (as amended) (applying the categorical approach to the definition of a “crime of violence” found in U.S.S.G. § 4B1.2). Under this approach, we do not look to the particular facts underlying .the conviction, but “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of’ a “crime of violence.” See Descamps v: United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (describing this approach under 18 U.S.C. § 924(e)). The defendant’s crime cannot categorically be a “crime of violence” if the statute of conviction punishes any conduct not encompassed by the statutory definition of a “crime of violence.” See id.; Piccolo, 441 F.3d at 1086-87; United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir. 2012) (“If the statute of conviction is over-broad ... it does not categorically constitute a crime of violence.”).

If the statute of conviction does not qualify as a categorical “crime of violence,” we sometimes then apply the modified categorical approach, which allows us to look to a narrow set of documents that are part of the record of conviction. See Descamps, 133 S.Ct. at 2281; Piccolo, 441 F.3d at 1090. Here, the government did not argue that the modified categorical approach applies and we need not address it. Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008) (“[W]here, as here, the government has not asked us to apply the modified categorical approach, we ‘consider only whether the categorical approach is satisfied.’ ” (quoting Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th Cir. 2008))).

Accordingly, we compare the elements of § 1112, the involuntary manslaughter statute, to the definition. of a “crime of violence” found in § 924(c)(3). We review de novo whether a criminal conviction is a “crime of violence” and whether a jury instruction misstated the elements of an offense. Covarrubias Teposte v. Holder, 632 F,3d 1049, 1052 (9th Cir. 2011) (as amended); Amparo, 68 F.3d at 1224.

A “crime of violence” is an offense that “(A) has as an element the use) attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3).

Involuntary manslaughter is the “unlawful killing of a human being without malice ... [i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” 18 U.S.C. § 1112(a). A conviction for involuntary manslaughter requires, at a minimum, a mental state of ‘“gross negligence,’ defined as a Vanton or reckless disregard for human life.’ ” United States v. Pineda-Doval, 614 F.3d 1019, 1038-39 (9th Cir. 2010) (quoting United States v. Crowe, 563 F.3d 969, 973 (9th Cir. 2009) (citation omitted)).

In United States v. Springfield, 829 F.2d 860 (9th Cir. 1987), we held that involuntary manslaughter under § 1112 is a “crime of violence” for the purposes of § 924(c)(3). Id. at 862-63. Although involuntary manslaughter does not contain a use-of-physical-force element under § 924(c)(3)(A), we held that it inherently involves a substantial risk that such force will be used under § 924(c)(3)(B) because death by involuntary manslaughter is “highly likely to be the result of violence.” Id. at 863. Therefore, we held that involuntary manslaughter “comes within the intent, if not the precise wording, of section 924(c)(3).” Id. Additionally, we noted that •involuntary manslaughter’s requisite mental state of “gross negligence” does not exclude it from being a “crime of violence” because “Congress did not intend to limit ‘crimes of violence’ to crimes of specific intent.” Id. at 863 n.1 (citing S. Rep. No. 307, 97th Cong., 1st Sess., 890-91 .(1982)). But see Park v. INS, 252 F.3d 1018, 1023 (9th Cir. 2001), overruled on other grounds by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc) (noting that the legislative history quoted did not correspond to § 924(c), but a separate provision that never became law).

Intervening Supreme Court and en banc Ninth Circuit decisions, namely, Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L,Ed.2d 271 (2004), and Fernandez-Ruiz v. Gonzales, 466 F.3d at 1124-32, bring Springfield’s, result into question. A three-judge panel’s holding is deemed “effectively overruled” if intervening higher authority has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).

Leocal and Fernandez-Ruiz discuss the mental state necessary to commit a “crime of violence.” These cases do not specifically address § 924(c)(3), but instead interpret the “crime of violence” definition found in a different statutory provision, 18 U.S.C. § 16. Regardless, because the wording of the two statutes is virtually identical, we interpret their plain language in the same manner. Cf. Park, 252 F.3d at 1022 (applying Springfield’s interpretation of § 924(c)(3) to a case involving § 16).

In Leocal, the Supreme Court parsed the phrase “use of force against the person or property of another” found in § 16(a) and (b). Leocal, 543 U.S. at 8-13, 125 S.Ct. 377. The Court, giving the language its ‘“ordinary or natural’ meaning,” determined that it “most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Id. at 9, 125 S.Ct. 377 (citations omitted). While theoretically one can use force accidentally, “it is much less natural to say that a person actively [uses] physical force against another person by accident.” Id.

The Court acknowledged that § 16(b) “sweeps more broadly than § 16(a)” by expanding the definition of “crime of violence” to include an offense carrying a “substantial risk that physical force against the person or property of another may be used in, the course of committing the offense.” Id. at 10,125 S.Ct. 377 (citing 18 U.S.C. § 16(b)). But because § 16(b) involves the same use-of-force-against-another formulation, the predicate crime must carry a risk of behavior involving more volition than “merely accidental or negligent conduct.” Id. at 10-11, 125 S.Ct. 377 (“The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime.”).

After Leocal, we held that “neither recklessness nor gross negligence is a sufficient mens rea to establish that a conviction is for a crime of violence under § 16.” Fernandez-Ruiz, 466 F.3d at 1130. This June, the Supreme Court suggested the opposite, and held that for purposes of a similar statute — 18 U.S.C. § 921(a)(33)(A) — reckless conduct indeed can constitute a crime of violence. See Voisine v. United States, — U.S. —, 136 S.Ct. 2272, 2279-80, 2282, 195 L.Ed.2d 736 (2016). But we need not resolve any tension regarding the inclusion of reckless conduct in this case. The government concedes that § 1112, which requires a mental state of only gross negligence, prohibits conduct that cannot be a “crime of violence,” even after Voisine. Springfield’s opposing rule is clearly irreconcilable with the reasoning and the results of Leocal and Fernandez-Ruiz and is no longer good law.

Benall/s § 924(c) count of conviction for using a firearm in connection with a “crime of violence” is

REVERSED.

      . Under § 16, the term "crime of violence” means "(a) an offense that has an element the use, attempted use, or threatened use of phys- . ical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16 (emphasis added). The only substantive change is the addition of the felony requirement in subsection (b), underlined above; it does not affect the operative language used to interpret the statute's requisite mental state.