National Shooting Sports Foundation Inc v. Malloy et al
RULING granting 16 Motion to Dismiss for Lack of Jurisdiction; granting 16 Motion to Dismiss. Signed by Judge Janet C. Hall on 12/2/2013. (Malone, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NATIONAL SHOOTING SPORTS
DANNEL MALLOY, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF
CONNECTICUT, et al.
CIVIL ACTION NO.
DECEMBER 2, 2013
RULING RE: DEFENDANTS’ MOTION TO DISMISS (Doc. No. 16)
Plaintiff National Shooting Sports Foundation (“NSSF”) brings this action against
several Connecticut state officials in their official capacities (collectively, the
“defendants”): Governor Dannel Malloy; Speaker of the House of Representatives J.
Brendan Sharkey; President Pro Tempore of the Senate Donald Williams, Jr.; Attorney
General George Jepsen; Chief State‟s Attorney Kevin Kane; and Commissioner of the
Department of Emergency Services and Public Protection Reuben Bradford. NSSF
seeks a declaration invalidating Senate Bill 1160 (“SB 1160”) as well as an injunction
barring the law‟s enforcement on the grounds (1) that SB 1160 was enacted in violation
of state law governing legislative process; (2) that it did not pass both houses, as
required by the Connecticut Constitution; and (3) that its enactment violated due
process, as guaranteed under the state as well as federal constitutions.
Defendants move to dismiss NSSF‟s Complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to
state a claim under Rule 12(b)(6). For the reasons stated below, defendants‟ Motion
(Doc. No. 16) is GRANTED.
NSSF is a national trade association based in Newtown, Connecticut. See
Compl. (Doc. No. 1) at ¶ 6. NSSF‟s membership includes over 200 members in
Connecticut, including both businesses and individuals whose respective commercial
interests and right to bear arms are allegedly adversely affected by SB 1160. Id. ¶¶ 7,
Signed into law by Governor Malloy on April 4, 2013, SB 1160 is part of state gun
control legislation enacted in the wake of the shootings at Sandy Hook Elementary
School in Newtown, Connecticut on December 14, 2012. See Defs.‟ Mem. in Supp. of
Mot. to Dismiss (“Defs.‟ Mem.”) (Doc. No. 16-1) at 2-5. In the instant action, NSSF does
not challenge the substance of SB 1160.
Rather, NSSF‟s Complaint alleges, in principal part, that Speaker Sharkey and
Senator Williams introduced SB 1160 through the emergency certification process
under section 2-26 of the Connecticut General Statutes, without proper certification. Id.
¶¶ 1, 34-38. The Complaint alleges, further, that Speaker Sharkey and Senator
Williams thereby circumvented the safeguards of the normal legislative process, id. ¶¶
2, 39; that, due to the improper certification, SB 1160 did not pass both houses before
purportedly being signed by Governor Malloy, id. ¶¶ 40-43; and that, despite the
allegedly invalid passage and signature into law of SB 1160, Governor Malloy and
others in the executive branch continue to enforce the law, id. ¶ 46.
Section 2-26 of the Connecticut General Statutes requires printing the bill in its
final form and making it available on the General Assembly‟s website at least two
legislative days prior to the law‟s final passage. See Conn. Gen. Stat. § 2-26. Section
2-26 permits these procedures to be bypassed only where both the president pro
tempore of the Senate and the speaker of the House of Representatives certify, “in
writing, the facts which in their opinion necessitate an immediate vote on such bill.” Id.
In the case of SB 1160, Speaker Sharkey and Senate President Pro Tempore Williams
certified the bill based on the following: “[I]n accordance with Rules 9 and 17 of the
Joint Rules of the 2013 Regular Session, to pass an act concerning gun violence
prevention and children‟s safety.” See Ex. A to Compl. Although NSSF concedes that
section 2-26 “contains no criteria for determining what facts are sufficient to necessitate
an immediate vote,” Compl. ¶ 28, NSSF alleges that emergency certification of SB 1160
was “facially defective and invalid” because the certification failed to supply any facts,
id. ¶ 35.
NSSF further alleges that, as a result of SB 1160‟s improper certification, citizens
of Connecticut were denied the opportunity to have their voice heard by the legislature
and incorporated into the final law. Id. ¶ 33. In the instant action, NSSF seeks,
therefore, not only to invalidate SB 1160, whose enforcement is alleged to injure NSSF
members, id. ¶¶ 9-10, but also to prevent unwarranted circumvention of the normal
legislative process and to vindicate Connecticut citizens‟ federal and state constitutional
rights, which rights “have been adversely affected and significantly restricted” by abuse
of the emergency certification procedure. Id. ¶ 4.
STANDARD OF REVIEW
Subject Matter Jurisdiction
A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) if the district court lacks the statutory or constitutional power to adjudicate the
case. Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008). Although the
court takes all facts alleged in the complaint as true, subject matter jurisdiction must be
shown affirmatively, and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting jurisdiction. Id. Hence, on a Rule 12(b)(1)
motion, unlike a Rule 12(b)(6) motion, the plaintiff bears the burden of proving by a
preponderance of the evidence that jurisdiction exists. Id. (citing Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)).
Failure to State a Claim
A case is properly dismissed under Rule 12(b)(6) if the Complaint fails to allege
facts sufficient “to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). As articulated by the Supreme Court in Iqbal and Twombly, the standard for
dismissal on a Rule 12(b)(6) motion reflects two working principles. See Pension Ben.
Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv.
Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013). First, the court‟s customary acceptance
of all allegations in a complaint does not apply to legal conclusions. See Iqbal, 556 U.S.
at 678. Hence, to survive a motion to dismiss, a complaint must provide more than
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Id. Second, assuming the truth of all well-pleaded factual
allegations, and drawing all reasonable inferences in the plaintiff‟s favor, the district
court must determine whether these allegations and inferences plausibly entitle the
plaintiff to relief—that is, whether the complaint shows “more than a sheer possibility
that a defendant has acted unlawfully.” Id. This second task is context-specific and
“requires the reviewing court to draw on its judicial experience and common sense.” Id.
NSSF‟s claims are in the nature of legislative due process. See Pl.‟s Opp‟n (Doc.
No. 24) at 7, 9. All four counts of NSSF‟s Complaint hinge on the alleged failure by
state officials to comply with the procedural requirements of section 2-26. The
defendants move to dismiss because, inter alia: (1) NSSF lacks standing to bring these
claims; (2) the state‟s Eleventh Amendment immunity from suit bars federal courts from
adjudicating these claims; and (3) the Complaint fails to plausibly state a claim for
violations of due process under the U.S. Constitution.
Where, as here, a motion to dismiss is made on the ground that the court lacks
subject matter jurisdiction as well as on other grounds, the court should consider the
Rule 12(b)(1) challenge first, since lack of subject matter jurisdiction may render the
other challenges moot. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d
674, 678 (2d Cir.1990); 5B Charles Alan Wright et al., Federal Practice and Procedure §
1350 (3d ed. 2013) (“[W]hen the motion [to dismiss] is based on more than one ground,
the cases are legion stating that the district court should consider the Rule 12(b)(1)
challenge first because if it must dismiss the complaint for lack of subject matter
jurisdiction, the accompanying defenses and objections become moot and do not need
to be determined by the judge.”). Because the court determines that NSSF lacks
standings to bring the present claims, the court declines to reach defendants‟ alternative
grounds for dismissal under the Eleventh Amendment and Rule 12(b)(6).
A plaintiff association, such as NSSF, has standing “to bring suit in its own name
on behalf of its members if: „(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.‟” Bldg. & Const. Trades Council of
Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 144 (2d Cir. 2006)
(quoting Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)).
Under the first prong of the analysis, an individual member of the plaintiff association
has standing to sue if: “(1) it has suffered an „injury in fact‟ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.” Id.
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S 555, 560-61 (1992))).
NSSF‟s Complaint founders on the threshold requirement under Lujan that its
members have suffered an injury in fact, that is, a “concrete and particularized” invasion
of some “legally protected interest.” 504 U.S. at 560. By NSSF‟s own characterization,
the present action seeks to vindicate the state and federal constitutional rights of all
Connecticut citizens, which rights allegedly “have been adversely affected and
significantly restricted by the passage of SB 1160 through an abuse of the „emergency
certification‟ procedure.” Compl. ¶ 4. At bottom, the rights asserted are to take part in
the legislative process and “to have the State Executive and Legislative branches act
only within the authority granted by the Connecticut Constitution and the limitations
imposed on them by statute.” Id. ¶¶ 32-33, 44.
These rights belonging to the public generally, however, do not confer standing
on members of the public to sue state officials for failure by the legislature to follow
proper legislative procedure. NSSF‟s Complaint does no more than state a “generally
available grievance about government,” which grievance is insufficient to support
standing under Lujan. 504 U.S. at 573-574. “We have consistently held that a plaintiff
raising only a generally available grievance about government—claiming only harm to
his and every citizen's interest in proper application of the Constitution and laws, and
seeking relief that no more directly and tangibly benefits him than it does the public at
large—does not state an Article III case or controversy.” Id.
NSSF‟s recourse to the alleged pecuniary injury to its members from the
enforcement of SB 1160 is also unavailing, because that injury is incidental to the
instant case. See Pl.‟s Opp‟n at 14 (“NSSF‟s claims are based upon the direct injury to
its members‟ businesses and livelihoods that resulted from the purported enactment of
SB 1160, which imposes numerous additional restrictions and requirements on the sale
of firearms and ammunition.”). Although pecuniary injury clearly suffices for standing in
general, there is no “logical nexus” between that injury and the claims asserted here.
Flast v. Cohen, 392 U.S. 83, 102 (1968) (“[I]n ruling on standing, it is both appropriate
and necessary to look to the substantive issues . . . to determine whether there is a
logical nexus between the status asserted and the claim sought to be adjudicated.”);
see Linda R.S. v. Richard D., 410 U.S. 614, 617-18 (1973) (“[A]ppellant has failed to
allege a sufficient nexus between her injury and the government action which she
attacks to justify judicial intervention.”).
NSSF would doubtless be content to have SB 1160 invalidated, and the state
barred from enforcing the law, on any ground. Such declaratory and injunctive relief
would also doubtless redress the claimed pecuniary injury. However, the commercial
interests allegedly invaded by the law‟s enforcement share no “logical nexus” with the
legislative due process claims asserted in this action and cannot be parlayed into
standing to assert those claims. Gun control legislation passed without the alleged
procedural defects would result in identical injuries.1 “Such inquiries into the nexus
between the status asserted by the litigant and the claim he presents are essential to
assure that he is a proper and appropriate party to invoke federal judicial power.” Flast,
392 U.S. at 102. Here, the claimed pecuniary injury makes NSSF a proper party to
challenge gun control legislation. That injury, however, does not make NSSF—or any
other member of the public aggrieved only incidentally by procedurally defective
legislation—into a proper party to challenge the defects in legislative process.
The legislative due process claims asserted in the present suit are, in fact,
classic instances of the sort of “generalized grievances” rejected by the Supreme Court
and this Circuit on numerous occasions. See, e.g., Lujan, 504 U.S. at 573-78
(reviewing such cases); In re U.S. Catholic Conference (USCC), 885 F.2d 1020, 1031
(2d Cir. 1989) (reviewing available theories of standing and their limitations).
In fact, as the defendants point out, many provisions of SB 1160 have been repealed and
replaced by subsequent non-emergency legislation (Senate Bill Number 1094), which Governor Malloy
signed into law on June 18, 2013, prior to the filing of the instant Complaint. See Def‟s Mem. at 5, 13, 1516 n.6. Not only did NSSF fail to mention the superseding legislation in its Complaint; NSSF has also
declined to identify which, if any, provisions of current law suffer from the alleged procedural defects. See
Pl.‟s Opp‟n at 13-14 n.8. Related threshold issues, such as redressability and mootness, are clearly
While the absence of that information raises other justiciability issues, the court views NSSF‟s
lack of standing as sufficient grounds for dismissal without addressing these alternative grounds.
Because the pecuniary injury asserted as the basis for NSSF‟s standing is
unrelated to the rights of democratic participation in the legislative process that NSSF
seeks to vindicate, the court lacks the authority to adjudicate the claims put forward in
this case. Accordingly, the case must be dismissed for lack of standing.2
For the reasons set forth above, the court GRANTS defendant‟s Motion to
Dismiss (Doc. No. 16). The Clerk is hereby directed to close this case. Based on
plaintiff‟s filings and answers to the court‟s questions at oral argument, the court
concludes that the plaintiff would be unable to replead to satisfy the standing
Dated at New Haven, Connecticut this 2nd day of December, 2013.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
In light of NSSF‟s lack of standing, the court need not—and does not—reach other grounds
offered by the defendants in their Motion. However, it bears emphasizing that, although the present
Ruling assumes a violation of section 2-26 could supply the basis for a due process claim, that
assumption is highly dubious. In Patterson v. Dempsey, 152 Conn. 431 (1965), the Connecticut Supreme
Court held that the General Assembly‟s passage of a law in violation of a statutory provision dictating
legislative process shall be deemed to suspend the contradictory statute. Id. at 439 (“The effect is really
that of repeal by implication. „When expressions of the legislative will are irreconcilable, the latest
prevails.‟” (quoting Moran v. Bens, 144 Conn. 27, 30 (1956))).
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