                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0590n.06

                                            No. 12-1110                                      FILED
                                                                                         Jun 21, 2013
                           UNITED STATES COURT OF APPEALS                           DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


WILLIAM LANGFAN,                                       )        ON APPEAL FROM THE UNITED
                                                       )        STATES DISTRICT COURT FOR
       Plaintiff-Appellant,                            )        THE WESTERN DISTRICT OF
                                                       )        MICHIGAN
v.                                                     )
                                                       )
THE GOODYEAR TIRE & RUBBER CO.;                        )        OPINION
FRANK BALLO; DAVID O’DONNELL,                          )
                                                       )
       Defendants-Appellees.                           )
                                                       )


Before: NORRIS, GIBBONS, and DONALD, Circuit Judges.


       BERNICE BOUIE DONALD, Circuit Judge. This appeal arises from a suit by a

commercial property owner alleging procedural due process violations resulting from the Michigan

Department of Environmental Quality’s decision to issue a No Further Action letter to the lessee of

his property. The district court dismissed the case because the plaintiff failed to specify a protected

property interest at stake; in addition, the court determined that there was no discernible deprivation

arising from the issuance of the letter. That determination on the merits, however, was improper

because the trial court lacked jurisdiction. We conclude that the plaintiff did not have standing to

prosecute his claims. Therefore, we VACATE the decision of the district court below and

REMAND with instruction to dismiss this case for lack of subject-matter jurisdiction.
No. 12-1110
Langfan v. The Goodyear Tire & Rubber Co.

                                                 I.

       William Langfan owns commercial property in Benton Township, Michigan. From 1987 to

2010, Goodyear leased space on this property for the purpose of operating an auto service center.

When Langfan attempted to sell the property in 2004, an investigation revealed that the property was

contaminated with various hazardous substances. Goodyear, as the operator of the premises, took

responsibility for the contamination and began conducting response activities pursuant to Part 201

of Michigan’s Natural Resources and Environmental Protection Act (MNREPA). Because of the

extant contamination, the property was considered a “facility” for purposes of Part 201 of the

MNREPA.       During this time, the department now known as the Michigan Department of

Environmental Quality (MDEQ) oversaw Goodyear’s remedial efforts.

       In 2008, Langfan filed a state court suit against Goodyear seeking damages under Goodyear’s

lease obligations for undue waste, failure to return the property in substantially the same condition

as when it was first leased, and indemnification of the cost of the response activities shouldered by

Langfan. Langfan’s MNREPA claims were dismissed in 2011; a bench trial took place on the

remaining claims. According to representations at oral argument, Langfan ultimately prevailed.

       In light of consultant data finding reduced levels of contamination, Goodyear approached

Frank Ballo of MDEQ about the possibility of obtaining a No Further Action (NFA) letter with

respect to the Benton Township property.

       In 2009, Goodyear formally applied for an NFA letter. An NFA letter serves as a statement

by MDEQ that, “based on information provided by a responsible party, a particular [s]ite has been

adequately remediated under [MNREPA], and that no further remedial action is presently required.”

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Langfan v. The Goodyear Tire & Rubber Co.

No statute specifically governed the process of issuing NFA letters; “their issuance was a

discretionary practice of the MDEQ.”

       On January 26, 2010, MDEQ issued the requested letter. It read, in pertinent part:

       Based upon the information and representations in the Summary Report and other
       submittals, the Goodyear Auto Service Center #6145, 1925 Pipestone Road, Benton
       Harbor, Berrien County, Michigan, has been addressed and does not require further
       remediation.

       The [MDEQ] has not made a determination regarding full compliance with the Part
       201 Administrative Rules effective December 21, 2002. The [MDEQ] expresses no
       opinion as to contaminants beyond those identified and remediated as part of the
       representations submitted.

Langfan did not receive notice as to whether MDEQ was considering issuance of such a letter.

       Upon learning of the letter’s existence, Langfan wrote to Ballo and David O’Donnell, Ballo’s

supervisor, asking if the letter “constitute[d] an administrative action of any type whatsoever

concerning the Property.” In addition, he inquired as to whether the letter had “any legally binding,

or any legally substantive [e]ffect whatsoever on [his] legal rights under any Michigan Law

whatsoever concerning the contamination.” O’Donnell, the district supervisor, responded by

explaining:

       This determination by [MDEQ did] not constitute an administrative action or legally
       binding effect matter under Part 201 or the Part 201 Rules, nor [did] it constitute a
       final agency decision under Part 11, General Appellate Rights and Public Access to
       Government, of the NREPA. Instead, it represents [MDEQ’s] technical
       determination that documentation in its file indicates response activities conducted
       by Goodyear at the Property have been sufficient and the [MDEQ] is not requesting
       additional remediation activities at the facility.




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No. 12-1110
Langfan v. The Goodyear Tire & Rubber Co.

Unsatisfied with O’Donnell’s response and armed with his own consultant reports, Langfan

requested that MDEQ rescind the NFA letter. O’Donnell declined. Goodyear used the letter to

defend itself in Langfan’s state court action.

        After the rejection and during the pendency of the bench trial in state court, Langfan

attempted to amend his state court complaint to challenge the NFA letter on due process grounds.

The trial court denied the motion to amend. Langfan then filed suit in district court under 42 U.S.C.

§ 1983, alleging that Ballo and O’Donnell deprived Langfan of his due process rights by failing to

provide notice and an opportunity for a hearing regarding the issuance of the NFA letter. In addition,

he alleged that Goodyear’s use of the letter in state court constituted abuse of process.

        The district court dismissed all of Langfan’s claims. With respect to Langfan’s due process

allegations, the court concluded that Langfan failed to show that “MDEQ deprived [Langfan] of any

constitutionally protected property right by issuing the NFA.” The district court noted that “[t]he

NFA did not cause the petroleum contamination, and thus did not cause any encumbrance on

[Langfan’s] title.” The court also concluded that dismissal of the abuse of process claim was

warranted because “MDEQ’s consideration and issuance of an NFA is not ‘legal process,’ and thus

not subject to an abuse of process tort.” The use of the NFA letter in state court litigation, the district

court observed, was “nothing more than zealous advocacy.” This appeal timely followed.

                                                    II.

        Standing is a “bedrock requirement” of federal jurisdiction. Valley Forge Christian Coll. v.

Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). Therefore, we are



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Langfan v. The Goodyear Tire & Rubber Co.

obligated to address a party’s lack of standing even if the parties fail to raise the issue on their own.

See Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 983 (6th Cir. 2012).

        The modern standing doctrine requires three things of a plaintiff: (1) an injury-in-fact that

is “concrete and particularized,” and “actual or imminent, not ‘conjectural or hypothetical,’” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); (2) a fair amount of traceability between that

injury and the “challenged action of the defendant”; and (3) a likelihood, as opposed to mere

speculation, that “the injury will be redressed by a favorable decision,” see Friends of the Earth, Inc.

v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000).

        Here, Langfan has asserted two injuries-in-fact—an impairment to his title resulting from the

contamination of his land, as well as the undesirable “facility” designation under MNREPA. He has

also identified an agency action that he feels is responsible—MDEQ’s issuance of the NFA letter.

What is missing, however, is “sufficient factual matter” that establishes a causal link between the

two. See Glenn v. Holder, 690 F.3d 417, 420 (6th Cir. 2012) (internal quotation marks and citation

omitted). Even if MDEQ declined to issue the letter, Langfan’s title would have been just as

impaired and his property would still be a “facility” under MNREPA. In other words, nothing would

have changed. The NFA letter was akin to a status update, indicating that the agency would not be

taking an affirmative action against Goodyear at that time. Because Langfan has not factually

demonstrated a causal link between the alleged injuries and the challenged act of issuing the NFA

letter, his claims lack the traceability and redressability that Article III demands.

        Langfan also suggests that the NFA letter caused an injury because Goodyear used the letter

to defend itself in the state-court suit. Such an assertion cannot be the basis for Article III standing.

                                                  -5-
No. 12-1110
Langfan v. The Goodyear Tire & Rubber Co.

The “considerable cost” Langfan expended to rebut the effect of the NFA letter in prosecuting his

state-court claims is irrelevant for jurisdictional purposes—the injury must be “independent of the

costs of litigation.” See Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc., 210 F.

App’x 469, 475 (6th Cir. 2006). In short, he has failed to satisfy the “irreducible constitutional

minimum of standing.” See Lujan, 504 U.S. at 560.

                                                  III.

        As Langfan lacks standing, we cannot reach the merits of his claims. We also have no need

to consider whether the district court erred by failing to convert the motion that disposed of this case,

as the proper course of action was to dismiss this case sua sponte for lack of jurisdiction pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Apple v. Glenn, 183 F.3d 477, 479 (6th

Cir. 1999); cf. Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008). We therefore

VACATE the district court’s opinion and order of January 3, 2012, and REMAND with instruction

to dismiss for lack of subject-matter jurisdiction.




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