LIEBERMAN v. MACMASTER et al
Filing
50
ORDER ON MOTION TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT mooting 26 Motion to Dismiss for Failure to State a Claim or in the Alternative, Motion for Summary Judgment; mooting 30 Cross Motion for Summary Judgment; denying 48 Second Motion to Amend Complaint By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
John D. Lieberman,
Plaintiff,
v.
Brian MacMaster, et al.,
Defendants.
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) Docket no. 1:12-cv-95-GZS
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ORDER ON MOTION TO DISMISS
AND MOTIONS FOR SUMMARY JUDGMENT
Before the Court are the Motion To Dismiss Or, In The Alternative, For Summary
Judgment And Incorporated Memorandum of Law (ECF No. 26) by Defendant Eric Holder
(“Def.’s Mot.”), Plaintiff’s Memorandum In Opposition To Defendant Holder’s Motion To
Dismiss And Plaintiff’s Cross Motion For Summary Judgment With Incorporated Memorandum
Of Law (ECF No. 30) (“Pl.’s Opp’n”) and Plaintiff’s Second Motion To Amend (ECF No. 48).
On August 1, 2013, the Court held oral argument on Defendant’s Motion and Plaintiff’s
Opposition.
Prior to oral argument, the Court alerted both sides regarding its concerns
surrounding subject matter jurisdiction and standing and invited supplemental briefing on those
issues. (See ECF No. 43.) Having fully considered the parties’ written and oral submissions, the
Court finds that it does not have jurisdiction to consider Plaintiff’s claim and that Plaintiff’s
Motion To Amend is futile. Accordingly, the Court DISMISSES this case.
I.
BACKGROUND
A.
The Assault And The Arraignment
In the fall of 1994, Plaintiff John Lieberman was involved in an assault on his then-wife.
(Am. Compl. (ECF No. 10) ¶ 8; Somerset Cnty. Sheriff’s Dep’t Report & Summons (ECF No.
26-1).) On November 30, 1994, he was arraigned on the assault charge at the Skowhegan
District Court in a mass arraignment before Judge Douglas Clapp. (Am. Compl. ¶ 9; Aff. Of
John D. Lieberman (ECF No. 31-1) (“Lieberman Aff.”) ¶ 10.) At the arraignment, Lieberman
was not represented by counsel and alleges that he was not advised of his right to counsel or his
right to request a jury trial. (Am. Compl. ¶ 9.)
Under Maine Rule of Criminal Procedure 22, Lieberman had to request a jury trial within
21 days of arraignment, or his right to a jury trial would be deemed waived. See Me. R. Crim. P.
22. Lieberman claims that he did not voluntarily waive his right to a jury trial on the assault
charge because he was never informed of his right and was unaware that he had the right to have
the case tried by a jury. (Am. Compl. ¶ 18.) Specifically, Lieberman asserts that at the mass
arraignment on November 30, he was never advised of his right to a jury trial. (Lieberman Aff.
¶¶ 8-14, 21.) On March 20, 1995, Lieberman pled guilty, with counsel,1 to the assault charge.
(Id.)
B.
The Maine Criminal Justice Academy And Subsequent Employment
In 2011, Lieberman graduated from the Maine Criminal Justice Academy (“MCJA”) and
received his certification from the MCJA to act as a reserve police officer in the State of Maine.2
1
At the arraignment, Lieberman’s case was set for trial on January 30, 1995. The trial was continued to March 20,
1995 because he had not yet retained an attorney as of late January. (Am. Compl. ¶¶ 9-10.) Lieberman did not
retain counsel until January 31, 1995, after the 21 day deadline for requesting a jury trial had passed. (Id. ¶ 12.)
2
The MCJA and its Board of Trustees provide certification for persons to act as law enforcement officers in Maine.
(Am. Compl. ¶ 2.)
2
(Am. Compl. ¶¶ 1, 15.) After completing the MCJA, Lieberman was hired by the Town of
Dexter Police Department to act as a reserve officer. (Id. ¶ 15.)
Later in 2011, Lieberman was informed that an anonymous caller had contacted the
Town of Dexter, suggesting that Lieberman was not permitted to possess a firearm and should
not be a police officer. (Id. ¶ 16.) As a result of this call, “an investigation was conducted and
the MCJA determined that Lieberman’s 1995 conviction disqualified Lieberman from possessing
a firearm under federal law because that conviction was considered by the MCJA to be a
‘misdemeanor crime of domestic violence’ under 18 U.S.C. § 922(g)(9).” (Id.) The MCJA told
Lieberman that he could not act in a law enforcement capacity in Maine other than to perform
administrative duties. (Id. ¶ 19.) According to Lieberman’s Amended Complaint, “[t]he basis of
[that] restriction was the inaccurate determination by the MCJA that Lieberman’s conviction
prohibited him from possessing a firearm.” (Id.)
To support his claim for relief, Lieberman also indicates that he “has the present intention
of purchasing and/or possessing firearms for use for self-defense in his own home, including a
long rifle and a handgun.” (Am. Compl. ¶ 21.)
II.
PROCEDURAL POSTURE
On March 20, 2012, Lieberman brought suit against Brian MacMaster, Chair of the
Board of Trustees of the MCJA and John Morris, Commissioner of the State of Maine
Department of Public Safety. (Compl. (ECF No. 1).) Lieberman amended his complaint on
August 23, 2012 to add Eric Holder, Attorney General of the United States, as a defendant. In
his Amended Complaint, Lieberman alleged that “Mr. MacMaster and the MCJA are presently
enforcing the restriction on Lieberman’s ability to act fully as a law enforcement officer in
Maine.” (Am. Compl. ¶ 2.) Lieberman further alleges that as Attorney General, “Mr. Holder is
3
presently enforcing unconstitutional laws, customs, practices and policies complained of [in the
Amended Complaint].” (Id. ¶ 4.)
In his Amended Complaint, Lieberman asserted three causes of action: (1) Lieberman
requested a declaratory judgment that “he is not prohibited from possessing a firearm by
operation of federal law because his prior conviction for assault was not a misdemeanor crime of
domestic violence as that term is defined in 18 U.S.C. § 922(g)(9) and § 921(a)(33).” (Am.
Compl. ¶ 24.) (2) Lieberman asserted a cause of action under 42 U.S.C. § 1983 that he is entitled
to possess a firearm pursuant to the Second Amendment of the United States Constitution and
that the restriction on his possession of a firearm violates his right to equal protection of the laws
under the Fourteenth Amendment. (Id. ¶¶ 25-26.) (3) Lieberman asserted a cause of action
under 42 U.S.C. § 1983 that the restriction on his ability to possess a firearm violated his rights
under the Second Amendment. (Id. ¶¶ 27-28.)
On February 15, 2013, Defendant Holder moved to dismiss the Amended Complaint for
failure to state a claim under Rule 12(b)(6) on all three counts, and alternatively moved for
summary judgment as to the first count. (See Def.’s Mot. at 1.) In his Opposition, Lieberman
did not contest the dismissal of the second and third counts of the Amended Complaint. (Pl.’s
Opp’n at 2.) Accordingly, the Court considers Counts II and III of the Amended Complaint
dismissed without objection. On March 28, 2013, Lieberman stipulated to the dismissal without
prejudice of Brian MacMaster and John Morris. (Stipulation Of Dismissal (ECF No. 33).)
Therefore, Defendant Holder is the only Defendant in this action, and Count I seeking a
declaratory judgment is the sole count before the Court.
On July 2, 2013, the Court issued a Notice Of Hearing and a Procedural Order indicating
that the Court would hold oral argument on August 1, 2013. (See ECF Nos. 43 & 44.) The
4
Court requested that the parties be prepared to discuss the issues of whether the Court has subject
matter jurisdiction over Count I and whether Lieberman has standing to pursue that claim against
Defendant Holder. The Court held oral argument on August 1, 2013. At oral argument,
Lieberman indicated that he would like leave to amend his Amended Complaint to reflect an
additional basis for the Court’s subject matter jurisdiction. Plaintiff’s Motion To Amend was
filed on August 13, 2013, nearly two weeks after oral argument. The Court now turns to the
issues presented by this case.
III.
DISCUSSION
A.
Subject Matter Jurisdiction
Lieberman’s sole remaining claim requests a declaratory judgment “that he is not
prohibited from possessing a firearm by operation of federal law because his prior conviction for
assault was not a misdemeanor crime of domestic violence as that term is defined in 18 U.S.C.
§ 922(g)(9) and § 921(a)(33).” (Am. Compl. ¶ 24.) Before the Court can consider the merits of
Lieberman’s claim, the Court must have subject matter jurisdiction over that claim. Fed. R. Civ.
P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); see also Florio v. Olson, 129 F.3d 678, 680 (1st Cir. 1997) (providing
that a court has “an obligation to inquire sua sponte into the subject matter jurisdiction of its
cases, and to proceed no further if such jurisdiction is lacking” (internal citations and quotations
omitted).) Lieberman asserts that the Court has subject matter jurisdiction over his case pursuant
to 28 U.S.C. §§ 2201, 2202 as well as 28 U.S.C. § 1331.3
3
In the Amended Complaint, Lieberman also supplies 28 U.S.C. § 1343 and 42 U.S.C. § 1983 as additional
grounds for the Court’s subject matter jurisdiction. 28 U.S.C. § 1343 does not apply because this case is not an
action for damages or “to redress the deprivation, under color of any State law . . . of any right, privilege or
immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United States.” Id. Next, 42 U.S.C. § 1983 does not provide a
cause of action against federal officers acting in their official capacities nor does it waive federal immunity. See
McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) (providing that “a section 1983 claim ordinarily will not
5
The Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, does not provide the Court with
subject matter jurisdiction. The Declaratory Judgment Act states that “[i]n a case of actual
controversy within its jurisdiction . . . any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. §
2201(a). The Act does not create an independent basis for subject matter jurisdiction for federal
courts; it provides a remedy for disputes that have federal jurisdiction. Franchise Tax Bd. of
State of Cal. v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 17 (1983),
superseded by statute as stated in Dep’t of Revenue of State of Iowa v. Inv. Finance Mgmt. Co.,
Inc., 831 F.2d 790 (8th Cir. 1987) (stating that “the Declaratory Judgment Act was intended to
affect only the remedies available in a federal district court, not the court's jurisdiction”). Thus, a
federal court must have an independent basis for federal jurisdiction that empowers it to issue a
declaratory judgment. Because the Declaratory Judgment Act does not provide a valid cause of
action or a basis for subject matter jurisdiction, the Court must look outside of the Declaratory
Judgment Act to determine whether it has subject matter jurisdiction.4 See id.
At oral argument and in Plaintiff’s Motion To Amend, Lieberman stated that the Court
has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and that the Amended Complaint
should be amended to reflect that basis for jurisdiction. The Court finds that even if the
lie against a federal actor”). Lieberman did not pursue these grounds for subject matter jurisdiction at oral
argument. In his Motion To Amend, Lieberman suggested that the Court would have jurisdiction under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). However, Bivens permits “a
suit for damages against federal officers in their individual capacities for alleged violations of the plaintiff's
constitutional rights.” Tapia-Tapia v. Potter, 322 F.3d 742, 746 (1st Cir. 2003) (“Bivens suits only can be brought
against federal officers in their individual capacities.”) Here, Lieberman asserts a claim against Defendant Holder in
his official capacity, and, therefore, Bivens is inapplicable.
4
Similarly, the Gun Control Act does not present a valid cause of action nor a basis for subject matter jurisdiction.
Woods v. City & County of Denver, 62 Fed. App’x 286, 289 (10th Cir. 2003) (stating that § 922 is not a
jurisdictional statute and does not provide a cause of action).
6
Amended Complaint were amended to reflect an assertion that the Court has jurisdiction under §
1331, the Court would reach the same result: that it lacks subject matter jurisdiction over
Lieberman’s sole claim.
Section 1331 gives federal district courts original jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
“Arising under” has been narrowly interpreted, and federal question jurisdiction will not lie
where the federal law comes into question only as a defense to an action. See Franchise Tax Bd.
of State of Cal., 463 U.S. at 10 (stating that “a federal court does not have original jurisdiction
over a case in which the complaint presents a state-law cause of action, but also asserts that
federal law deprives the defendant of a defense he may raise.”). To determine whether an action
for a declaratory judgment arises under federal law, courts look at the well-pleaded complaint
and determine whether there would be federal jurisdiction in a suit for coercive relief by either
party, separate from any anticipated or asserted defenses. See id.; see also Pub. Serv. Comm’n
of Utah v. Wycoff Co., Inc., 344 U.S. 237, 248 (1952) (“Where the complaint in an action for
declaratory judgment seeks in essence to assert a defense to an impending or threatened state
court action, it is the character of the threatened action, and not of the defense, which will
determine whether there is federal-question jurisdiction in the District Court.”).
In Woods v. City & County of Denver, Plaintiff Alex Woods, a former police officer for
the City and County of Denver, Colorado, was convicted by a jury of third-degree assault against
his girlfriend, a misdemeanor under Colorado law. 62 Fed. App’x at 287. The Civil Service
Commission determined that the assault, as a misdemeanor crime of domestic violence,
disqualified him from further employment with the police department. Id. at 287-88. Woods
then brought suit in federal court. His first cause of action against the City and County of
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Denver, the Commission, the United States, and the Bureau of Alcohol, Tobacco and Firearms
(“ATF”) sought a declaratory judgment that his assault conviction was not a misdemeanor crime
of domestic violence. Id. at 288. The district court issued a declaratory judgment finding that
the assault was not a misdemeanor crime of domestic violence and that the court had jurisdiction
because “to the extent Woods seeks construction of the statutory language itself, the court clearly
had jurisdiction pursuant to 28 U.S.C. § 1331.” Id. (internal punctuation omitted). The Tenth
Circuit disagreed on the grounds that “section 921(a)(33)(A)(ii) is not a jurisdictional statute, nor
does it create a federal cause of action.” Id. at 289. (internal punctuation omitted). Further, the
court held that “construction of a federal statute, standing alone, is not a ‘cause of action,’ nor
does it confer federal question jurisdiction.” Id. Therefore, the district court lacked subject
matter jurisdiction to construe the phrase “misdemeanor crime of domestic violence.” Id. at 290.
Applying the well-pleaded complaint rule here, Lieberman’s claim is essentially an
employment-related claim sounding in wrongful termination or perhaps breach of contract. A
suit for coercive relief by Lieberman would seek to establish that the change in his certification
and diminished employment responsibilities were wrongful actions. Whatever particular legal
theory Lieberman chose to pursue, the MCJA, who is no longer a party to this suit, would be the
proper defendant. Aside from his employment and certification dispute, Lieberman has not
alleged any other basis on which he could assert a claim for coercive relief. As in Woods, here
the Court is left with only a request to interpret the requirements for a misdemeanor crime of
domestic violence in the form of a declaratory judgment. See Woods, 62 Fed. App’x at 289.
While the resolution of Lieberman’s potential claim might involve construction of a federal
statute, “[t]he mere fact that a court necessarily must interpret federal law or federal regulations
to determine the merits of a claim is insufficient to confer federal jurisdiction.” J.A. Jones Const.
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Co. & Daidone Elec. of N.Y., Inc., a Joint Venture v. City of New York, 753 F. Supp. 497, 501
(S.D.N.Y. 1990) (citing Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813
(1986)); see also Gully v. First Nat’l Bank, 299 U.S. 109, 115 (1936) (“Not every question of
federal law emerging in a suit is proof that a federal law is the basis of the suit.”). Here, the
Court finds that the declaratory judgment pursued by Lieberman does not “arise under” federal
law. Instead, the Court is left with only a request for declaratory judgment, which is insufficient
to convey federal jurisdiction. See Woods, 62 F. App'x at 290.
Because the Court lacks subject matter jurisdiction over Lieberman’s sole remaining
claim against Defendant Holder, this case must be DISMISSED. Concluding that Lieberman’s
belated Motion To Amend is similarly deficient, the Court finds that Lieberman’s Motion To
Amend is futile and therefore DENIED.5 However, even if the Court had found that it had
jurisdiction, it would nonetheless dismiss this case because Lieberman lacks standing to sue
Defendant Holder for a declaratory judgment.
B.
Standing
Standing is a threshold issue in every federal case. See Pagan v. Calderon, 448 F.3d 16,
26 (1st Cir. 2006) (stating that “[a] federal court must satisfy itself as to its jurisdiction, including
a plaintiff's Article III standing to sue, before addressing his particular claims, regardless of
whether the litigants have raised the issue of standing.”). If a plaintiff lacks standing, then a
5
Federal Rule of Civil Procedure 15(a) requires that leave to amend pleadings be “freely given when justice so
requires.” Fed. R. Civ. P. 15(a). “While granting leave is a matter of the trial court’s informed discretion,” Swan v.
Sohio Oil Co., 766 F. Supp. 18, 20 (D. Me. 1991) (internal citation omitted), “the ordinary practice is to grant leave
to amend pleadings unless there is a compelling reason to the contrary.” Id. (citing Foman v. Davis, 371 U.S. 178,
182 (1962) (listing specific grounds upon which a court might refuse to grant leave to amend)). Indeed, “Rule 15(a)
reflects a liberal amendment policy,” and the district court therefore “enjoys significant latitude in deciding whether
to grant leave to amend.” U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009) (internal citation
omitted). Nonetheless, even a timely motion for leave to amend is properly denied when the proposed amendments
would be futile. See Foman, 371 U.S. at 182; Chiang v. Skeirik, 582 F.3d 238, 243-44 (1st Cir. 2009). Where an
amended complaint could not withstand a motion to dismiss, “then the motion to amend should be denied as futile.”
Shannon v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 35, 38 (D. Me. 1999) (citing Glassman v.
Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)).
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court lacks jurisdiction to decide a case.
To satisfy Article III’s standing requirements,
“Plaintiffs must show (1) that they have suffered an injury in fact, (2) that the injury is fairly
traceable to the defendant's allegedly unlawful actions, and (3) that it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Animal Welfare
Inst. v. Martin, 623 F.3d 19, 25 (1st Cir. 2010) (internal quotations omitted).
To satisfy the injury in fact requirement, Plaintiff must show that Defendant has invaded
“a legally protected interest that is ‘concrete and particularized.’” Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir. 2000) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)). Here, Lieberman presents two possible injuries. First, in
the Amended Complaint, Lieberman asserts that he “has the present intention of purchasing
and/or possessing firearms for use for self-defense in his own home, including a long rifle and a
handgun” (Am. Compl. ¶ 21) but that he is “fearful of exercising his lawful rights as a United
States citizen to possess a firearm” (Pl.’s Mem. Of Law Regarding Standing (ECF No. 45) at 3.)
because of the potential for prosecution. Second, Lieberman asserts that in the fall of 2011, he
“was instructed by the MCJA that he could no longer act as a law enforcement officer in Maine
in any capacity other than performing administrative duties,” and that he was therefore
“prohibited from performing all of the duties of a law enforcement officer in Maine” and that his
police officer certification was restricted. (Id. ¶ 19.)
First, the Court finds that Lieberman’s “present intention of purchasing or possessing” a
firearm and the fear of prosecution is not a sufficient injury in fact. In Babbitt v. United Farm
Workers National Union, the Supreme Court stated that “one does not have to await the
consummation of threatened injury to obtain preventive relief.
impending, that is enough.”
If the injury is certainly
442 U.S. 289, 298 (1979) (internal citations and quotations
10
omitted).
However, “persons having no fears of state prosecution except those that are
imaginary or speculative, are not to be accepted as appropriate plaintiffs.” Id. (internal citations
and quotations omitted). In Crooker v. Magaw, the District of Massachusetts found that a
convicted felon, who was prohibited from possessing firearms and ammunition under § 922,
lacked standing to pursue his claim for declaratory judgment against ATF that certain gun
cartridges and homemade ammunition qualified as “ammunition” under the Gun Control Act. 41
F. Supp. 2d 87, 92 (D. Mass. 1999). Plaintiff asserted that he had standing because he had been
prosecuted in the past for cases involving firearms, he would “without a doubt” face prosecution
“if he ma[de] a mistake about what he [could] lawfully possess.” Id. at 91. The court, however,
found plaintiff’s fear of prosecution insufficient to confer standing.
[P]laintiff’s fear that he may face prosecution if he possesses certain obsolete or
homemade cartridges is simply too speculative to confer standing. Although
plaintiff may be unsure as to whether he may lawfully possess particular obsolete
or homemade cartridges, he faces no credible threat of prosecution at this time.
Prosecution is not “certainly impending.”
Id. (citing Babbit, 442 U.S. at 298).
In Crooker, the court acknowledged that its decision placed plaintiff in an awkward
position of not knowing whether contemplated conduct might break the law. Nonetheless, the
court stated that “declaratory judgment actions cannot be used to obtain answers to hypothetical
questions.” Id. at 92. The court found standing lacking because “the plaintiff merely expresse[d]
a desire to take some action in the future and wishe[d] to know whether he [would] be breaking
the law.” Id.; see also National Rifle Association of America v. Magaw, 132 F.2d 272, 293 (6th
Cir. 1997) (finding that individual plaintiffs lacked standing because their mere “desire” and
“wish” to engage in possibly prohibited activities, possessing certain firearms, was insufficient to
confer standing).
11
Similarly, in Kegler v. U.S. Dep’t of Justice, plaintiff Christopher Kegler successfully
petitioned to have his record for simple assault and battery, a misdemeanor crime of domestic
violence under § 922(g), expunged under state law. 436 F. Supp. 2d 1204, 1206 (D. Wyo. 2006).
He then filed suit against the United States Department of Justice and ATF seeking a declaratory
judgment regarding the impact of his granted petition on his ability to possess a firearm. Id. at
1207. In considering whether Kegler had an injury in fact, the court found no credible threat of
prosecution where Kegler sought to obtain a firearm at some imprecise point in the future, but
feared that he would risk prosecution from doing so. Id. at 1218. The court noted that he had
not attempted to purchase a firearm, had not had a firearm confiscated, and had had no contact
from the defendants, let alone a threat of investigation, arrest or prosecution from those
defendants. Id. The court concluded that Kegler had not suffered an injury in fact and that the
mere existence of the statute as “an objectively justified fear of real consequences” insufficient to
confer standing. Id. (internal citations and quotations omitted).
Here, the Court finds that Lieberman’s first asserted injury, an intention to purchase a
firearm and a fear that the purchase may be blocked, is too speculative to qualify as an injury in
fact. As in Crooker and Kegler, Lieberman is not under any impending threat of prosecution or
investigation. He has not attempted to purchase a firearm and been denied.6 He has had no
6
The mere intent to purchase a firearm differentiates Lieberman’s case from those cited in Plaintiff’s Memorandum
Of Law Regarding Standing (ECF No. 45). In Schrader v. Holder, the court found that the plaintiff had standing
where in the year prior to filing suit, the plaintiff had attempted to purchase a firearm and been rejected because a
past conviction had deemed him ineligible as reported in the National Instant Criminal Background System
(“NICS”). 831 F. Supp. 2d 304, 308-09 (D.D.C. 2011). Further, the plaintiff in Schrader sued under 18 U.S.C.
§ 925(a) in an attempt to remove his disability from the NICS. Id. at 307. Similarly, in Kachalsky v. Cacace, a
group of plaintiffs challenged New York’s concealed weapons licensing scheme as unconstitutional. 817 F. Supp.
2d 235, 239 (S.D.N.Y. 2011). Each of the plaintiffs in that case had applied for and been denied a concealed
weapons license. Id. at 244-45. The court found that because plaintiffs had submitted to the challenged policy, they
had standing. Id. at 248-49; see also Young v. Hawaii, 911 F. Supp. 2d 972, 987 (D. Haw. 2012) (finding standing
where plaintiff challenged that Hawaii’s Firearm Carrying Laws violated his Second Amendment rights after
plaintiff was denied a license to carry a firearm); Dearth v. Holder, 641 F.3d 499, 502 (D.D.C. 2010) (finding
standing to challenge the constitutionality of § 922 where plaintiff had “twice attempted to go through the ‘formal
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contact with Defendant Holder. Instead, with regard to his first claimed injury, he seeks an
answer to a hypothetical question: if, at some point, he should choose to attempt to purchase a
firearm, whether that purchase would violate § 922. This Court is not empowered to provide an
answer to such a speculative question. Accordingly, the Court finds that his intent to purchase a
firearm is not a sufficient injury in fact.
Lieberman’s second claimed injury, the reduction in his responsibilities in his
employment as a result of the MCJA’s determination that he is a prohibited person, presents a
different inquiry. The claim of diminished employment responsibilities satisfies the requirement
that Lieberman have suffered an actual injury that is neither abstract nor speculative. See, e.g.,
Stehney v. Perry, 101 F.3d 925, 930 (3d Cir. 1996) (finding that a loss of employment was a
sufficient injury for purposes of Article III standing). While Lieberman’s employment-related
injury is a sufficient “injury in fact,” the Court finds that it fails the second requirement,
causation. The second prong of the standing inquiry considers whether “the injury is fairly
traceable to the defendant's allegedly unlawful actions.”
Martin, 623 F.3d at 25 (internal
punctuation omitted). The purpose of the second prong is to ensure that there is a “genuine
nexus between a plaintiff’s injury and a defendant’s alleged illegal conduct” and that plaintiff’s
injury is not caused by a third party, not presently before the Court. Gaston Copper Recycling
Corp., 204 F.3d at 161; see also Lujan, 504 U.S. at 560.
Defendant Holder, in his capacity as the Attorney General, has not taken or threatened
any action against Lieberman.
Instead, Lieberman’s reduction in his employment
responsibilities and the alteration in his certification is the result of the actions of the MCJA,
which is no longer a party to this lawsuit. Lieberman states in his Amended Complaint that “an
process’ of applying to purchase a firearm and each time failed because of the laws and regulations he now
challenges.”).
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investigation was conducted and the MCJA determined that Lieberman’s 1995 conviction
disqualified Lieberman from possessing a firearm under federal law because that conviction was
considered by the MCJA to be a ‘misdemeanor crime of domestic violence’ under 18 U.S.C.
§ 922(g)(9).” (Am. Compl. ¶ 16 (emphasis added).) Lieberman then goes on to assert that he
“was instructed by the MCJA that he could no longer act as a law enforcement officer in Maine”
and that “[t]he basis of this restriction was the inaccurate determination by the MCJA that
Lieberman’s conviction prohibited him from possessing a firearm.” (Id. ¶ 19 (emphasis added).)
Here, it is the independent action of a third party – the MCJA – that caused Lieberman’s asserted
injury. Lieberman has failed to connect his asserted injury to any action of Defendant Holder.
Therefore, the Court finds that Lieberman’s employment-related injury is not fairly traceable to
any action of Defendant Holder.
Further, this is not a case where Lieberman is challenging the constitutionality of
§ 922(g) and the United States or the Attorney General would be a proper defendant. As the
First Circuit has stated, “when a plaintiff seeks a declaration that a particular statute is
unconstitutional, the proper defendants are the government officials charged with administering
and enforcing it.” New Hampshire Right to Life PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996).
Lieberman’s quest for a declaratory judgment that § 922(g)(9) does not apply to him, without
challenging the constitutionality of the statute, distinguishes his case from cases brought by
similarly situated plaintiffs whose employment were negatively affected by the passage of § 922
and named the United States as defendant. See Nat'l Ass'n of Gov't Employees, Inc. v. Barrett,
968 F. Supp. 1564, 1570 (N.D. Ga. 1997) aff’d sub nom.; Hiley v. Barrett, 155 F.3d 1276 (11th
Cir. 1998) (finding that a deputy sheriff who was terminated after the passage of the Lautenberg
Amendment had standing to challenge the constitutionality of § 922(g) because his termination
14
was fairly traceable to the enactment of § 922(g)(9)); Fraternal Order of Police v. United States,
981 F. Supp. 1, 3 (D.D.C. 1997) rev’d, 152 F.3d 998 (D.C. Cir. 1998) on reh’g, 173 F.3d 898
(D.C. Cir. 1999) and aff’d, 173 F.3d 898 (D.C. Cir. 1999) (same); Gillespie v. City of
Indianapolis, 13 F. Supp. 2d 811, 818 (S.D. Ind. 1998) aff’d, 185 F.3d 693 (7th Cir. 1999)
(finding that a police officer’s impending termination was fairly traceable to the passage of the
Lautenberg Amendment and that the police officer accordingly had standing to challenge the
constitutionality of the statute).
Finally, the Court notes that even if it were to find that Lieberman’s injury were fairly
traceable to Defendant Holder’s actions, the Court would nonetheless find that Lieberman lacks
standing because the Court could not find it likely that Lieberman’s injury would be redressed by
a favorable decision from this Court. To satisfy the third prong, Lieberman must demonstrate
that it is “likely as opposed to merely speculative, that the injury will be redressed by a favorable
decision.”
Lujan, 504 U.S. at 561.
Here, if the Court issued a declaratory judgment in
Lieberman’s favor, there is nothing on the record to indicate that the MCJA would alter
Lieberman’s certification or the restrictions on his employment. Cf. Nat’l Ass’n of Gov’t
Employees, Inc. v. Barrett, 968 F. Supp. at 1570 (finding that a deputy sheriff who had been
terminated had standing to challenge the constitutionality of the Lautenberg Amendment where
the deputy sheriff’s former employer agreed to reinstate him to his prior position if he prevailed
on the merits of the suit). Indeed, it is possible that the MCJA would retain its determination that
the 1995 conviction disqualified Lieberman from acting as a police officer in the state of Maine.
Accordingly, it is only speculation that a favorable decision would redress Lieberman’s asserted
employment-related injury. Therefore, the Court finds that Lieberman lacks standing to pursue
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his declaratory judgment against Defendant Holder. For this alternative reason, Lieberman’s
claim for declaratory judgment is DISMISSED.
IV.
CONCLUSION
For the reasons explained herein, Lieberman’s Amended Complaint is
DISMISSED.
Defendant Eric Holder’s Motion To Dismiss Or, In The Alternative, For
Summary Judgment And Incorporated Memorandum Of Law (ECF No. 26) and Plaintiff’s
Memorandum In Opposition To Defendant Holder’s Motion To Dismiss And Plaintiff’s Cross
Motion For Summary Judgment With Incorporated Memorandum Of Law (ECF No. 30) are
MOOT. Plaintiff’s Second Motion To Amend (ECF No. 48) is hereby DENIED.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 21st day of August, 2013.
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