FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS June 19, 2017
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 BOARD OF EDUCATION FOR THE
 GALLUP-MCKINLEY COUNTY
 SCHOOLS,

              Plaintiff - Appellant,

 v.                                                     No. 16-2011
                                            (D.C. No. 1:15-CV-00604-KG-WPL)
 HENRY HENDERSON; ELEANOR                                (D. N.M.)
 SHIRLEY; FORMER MEMBERS OF
 THE NAVAJO NATION SUPREME
 COURT; RICHIE NEZ; CASEY
 WATCHMAN; BEN SMITH; BLAINE
 WILSON; FORMER MEMBERS OF
 THE NAVAJO NATION LABOR
 COMMISSION; EUGENE KIRK;
 REYNOLD R. LEE; FORMER
 MEMBERS OF THE OFFICE OF
 NAVAJO LABOR RELATIONS;
 JOHN AND JANE DOES,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      A school district won an employment suit before the Navajo Nation

Supreme Court. But in ruling in the school district’s favor, the Navajo Nation

Supreme Court found it had subject-matter jurisdiction over the dispute. The

school district disagreed that the Navajo courts had jurisdiction, so it brought this

suit in federal court. The school district asked the court to declare that

jurisdiction was improper, and to enjoin Navajo courts and agencies from

exercising jurisdiction over it in the future. Finding no injury in the school

district’s legal victory, the district court dismissed the suit for lack of standing.

      We agree and AFFIRM the district court. The Navajo Nation Supreme

Court did not injure the school district merely by asserting jurisdiction, since the

school district won the lawsuit below. Any future assertion of jurisdiction over

the school district is merely conjectural. Without an injury, the school district has

no standing to pursue these claims.

                                  I. Background

      Gallup-McKinley County Schools hired Henry Henderson as the principal

of Navajo Pine High School under a one-year contract. Henderson is a member of

the Navajo Nation, and Navajo Pine High School is located inside the Navajo

Nation. Nine months into the job, Henderson resigned after the school district

told him it would not renew his contract for the following year.

      Henderson later filed a charge with the Office of Navajo Labor Relations,

claiming the school district violated the Navajo Preference in Employment Act.

                                          -2-
But the Office of Navajo Labor Relations found Henderson’s charge was

untimely.

      Henderson then filed a complaint with the Navajo Nation Labor

Commission. At the Labor Commission, the school district moved to dismiss the

complaint on three grounds. First, the Navajo Nation lacked jurisdiction.

Second, Henderson’s charge was untimely under the Navajo Preference in

Employment Act. Third, the school district had not taken any adverse action

against Henderson, since he had resigned from his job. The Labor Commission

dismissed the complaint on the third ground—that Henderson affirmatively

resigned his employment—without reaching the other two grounds.

      Henderson then appealed to the Navajo Nation Supreme Court. In

response, the school district made the same three arguments it made before the

Labor Commission. And the school district won again before the Navajo Nation

Supreme Court.

      In its ruling, the Navajo Nation Supreme Court found that it had subject-

matter jurisdiction over the school district. The court cited previous cases finding

the Navajo Nation had jurisdiction over New Mexico school districts located

within the Navajo Nation. It also cited a case holding the Labor Commission has

subject-matter jurisdiction when non-Navajo employers challenge the Navajo

Preference in Employment Act. The court reasoned the Navajo Nation’s authority




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to exclude non-Indian entities from trust land included the power to regulate

them—even state officials acting under state law.

      But the Navajo Nation Supreme Court concluded Henderson’s charge was

untimely under the Navajo Preference in Employment Act. That defect, it found,

deprived the Labor Commission of jurisdiction. The court affirmed the Labor

Commission’s dismissal on that alternate ground.

      The school district’s dissatisfaction with the way it won is the basis of this

appeal. The school district moved to federal court, filing a complaint seeking two

forms of relief. 1 First, it sought a declaratory judgment that the Navajo Nation

lacks jurisdiction over the school district’s employment decisions and practices.

Second, it sought injunctive relief barring further prosecution of any matters

before Navajo agencies or courts because of their lack of jurisdiction. The

Navajo Nation moved to dismiss the action for lack of subject-matter jurisdiction.

      In a well reasoned opinion, the district court dismissed the action without

prejudice, and denied a motion to amend. 2



      1
       The named appellees include former members of the Office of Navajo
Labor Relations, the Navajo Nation Labor Commission, and the Navajo Nation
Supreme Court. For brevity’s sake we refer to the appellees collectively as the
Navajo Nation.
      2
         The school district moved to amend its complaint in an attempt to cure its
defects. The amendment would have included allegations that the Office of
Navajo Labor Relations was asserting jurisdiction over the school district in
another matter. It would have joined another school district as a plaintiff, which
also had been subject to Navajo jurisdiction over its employment decisions.

                                         -4-
                                   II. Analysis

      Article III of the Constitution confines us to adjudicating actual cases and

controversies. We therefore cannot issue opinions unless the parties have

standing. The Supreme Court has explained that

      the irreducible constitutional minimum of standing contains three
      elements. First, the plaintiff must have suffered an injury in fact—an
      invasion of a legally protected interest which is (a) concrete and
      particularized, and (b) actual or imminent, not conjectural or
      hypothetical. Second, there must be a causal connection between the
      injury and the conduct complained of—the injury has to be fairly
      traceable to the challenged action of the defendant, and not the result
      of the independent action of some third party not before the court.
      Third, it must be likely, as opposed to merely speculative, that the
      injury will be redressed by a favorable decision.

Lujan v. Defs. of Wildlife, 

, 560–61 (1992) (citations and punctuation

omitted) (alterations incorporated). The burden of establishing these elements

falls on the party invoking federal jurisdiction. 

      We review a district court’s dismissal for lack of subject-matter jurisdiction

de novo. Grynberg v. Kinder Morgan Energy Partners, L.P., 

, 905

(10th Cir. 2015), cert. denied, 

(2016). We also review questions

of standing de novo. Nova Health Sys. v. Gandy, 

, 1154 (10th Cir.

2005). “Although we generally review for abuse of discretion a district court’s

denial of leave to amend a complaint, when this ‘denial is based on a

determination that amendment would be futile, our review for abuse of discretion

includes de novo review of the legal basis for the finding of futility.’” Cohen v.


                                         -5-
Longshore, 

, 1314 (10th Cir. 2010) (quoting Miller ex rel. S.M. v.

Bd. of Educ. of Albuquerque Pub. Schs., 

, 1250 (10th Cir. 2009)).

      As the district court reasoned, the school district has not suffered a

cognizable injury. To reiterate, an injury giving rise to standing must be [1] an

invasion of a legally protected interest that is [2] concrete and particularized and

[3] actual or imminent. Accord, e.g., Arizona State Legislature v. Arizona

Independent Redistricting Comm’n, 

, 2663 (2015); Raines v. Byrd,

, 818–819 (1997). “‘Allegations of possible future injury’ do not

satisfy the injury in fact requirement.” Initiative & Referendum Inst. v. Walker,

, 1087 (10th Cir. 2006) (en banc) (quoting Whitmore v. Arkansas,

, 158 (1990)).

      The school district does not explain what legally protected interest was

invaded when the Navajo Nation asserted jurisdiction over it. Nor does it cite any

cases where the reviewing court found standing for victorious litigants

challenging the jurisdiction of the court before which they won. Even if Navajo

jurisdiction is improper—a question we do not address today—there is no

guarantee it will be exercised over the school district in the future. In fact,

inherent in the notion of “injury” is the idea that the plaintiff is, or will be, worse

off as a result of the complained-of conduct. Case law supporting the school

district’s theory is thin, because successful litigants do not generally initiate suit

in federal court over their victories. But cf. Simon v. E. Kentucky Welfare Rights

                                           -6-
Org., 

, 39 (1976) (“The necessity that the plaintiff who seeks to

invoke judicial power stand to profit in some personal interest remains an Art. III

requirement.”).

      We agree with the district court that the Navajo Nation Supreme Court’s

assertion of jurisdiction did not injure the school district. The school district won

the lawsuit below. That victory terminated the legal controversy. The school

district has not explained what legally protected interest was harmed by the legal

victory. And the “conjectural” and “hypothetical” possibility that Navajo courts

will assert jurisdiction over the school district in the future cannot give rise to

standing. We are thus without power to grant the school district’s request for

injunctive relief. We cannot decide the merits of the dispute absent any injury.

      The school district’s request for a declaratory judgment does not change

this calculus. The Federal Declaratory Judgment Act provides that federal courts

may “declare the rights and other legal relations of any interested party seeking

such declaration”— only “[i]n a case of actual controversy within its

jurisdiction.” 28 U.S.C. § 2201 (emphasis added). As the Supreme Court has

explained, “[t]he Declaratory Judgment Act . . . in its limitation to ‘cases of

actual controversy,’ manifestly has regard to the constitutional provision and is

operative only in respect to controversies which are such in the constitutional

sense.” Aetna Life Ins. Co. v. Haworth, 

, 239–40 (1937) (quoting the

Federal Declaratory Judgment Act of 1934, 48 Stat. 955). “Basically, the

                                          -7-
question in each case is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 

, 273 (1941); accord MedImmune, Inc. v. Genentech, Inc., 

,

127 (2007).

      That standard is not met here: there is no “substantial controversy . . . of

sufficient immediacy and reality” to warrant a court issuing a declaratory

judgment. The school district will suffer no legal or financial penalty from the

dismissal of its suit. Its legal victory will stand, and it will be where it was

before Henderson sought recourse in the Navajo legal system. And if the school

district thinks it is improperly subjected to Navajo jurisdiction in the future, it can

pursue its legal remedies then.

      Finally, the school district appeals the district court’s denial of its motion

to amend the complaint. Leave to amend “shall be freely given when justice so

requires.” Fed. R. Civ. P. 15(a). “If the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of relief, he ought to be afforded an

opportunity to test his claim on the merits.” Foman v. Davis, 

, 182

(1962). But where the proposed amendment would be futile, the court need not

grant the leave sought. 

district court denied the plaintiffs’ motion to amend the complaint on

the basis that Rule 15(a) “does not allow a party without standing to amend a

complaint to add new plaintiffs and claims,” citing cases from other circuits.

App. 147. We understand this reasoning as amounting to a denial on grounds of

futility: no amendment the school district could make under Rule 15 would have

created standing here. 3 We need not decide today, without the benefit of briefing

on this point, whether there are any conceivable circumstances where Rule 15

would allow a party without standing to amend a complaint to add new plaintiffs

and claims. Here, the underlying facts were not a proper subject of relief,

because the school district lacked standing. The proposed amendment could not

have converted the school district’s claim into a viable one: it would not have

changed the fact that the school district suffered no cognizable injury. And that

made the proposed amendment futile.

      In sum, the district court therefore did not abuse its discretion in denying

the motion to amend.

                                III. Conclusion




      3
         Even if our reasoning does not accord precisely with that of the district
court, we may affirm on any basis supported by the record. See, e.g., Richison v.
Ernest Grp., Inc., 

, 1130 (10th Cir. 2011). Despite any analytical
differences, however, we are satisfied the district court did not abuse its
discretion in rejecting the proposed amendment.

                                         -9-
      We therefore AFFIRM the district court’s dismissal of this action and

denial of the school district’s motion to amend.

                                       ENTERED FOR THE COURT


                                       Timothy M. Tymkovich
                                       Chief Judge




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