ALMEIDA et al v. CONFORTI et al
OPINION. Signed by Judge Kevin McNulty on 2/14/17. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ISRAEL ALMEIDA and MICHAEL
Civ. No. 16-3411 (KM) (JBC)
THE HON. N. PETER CONFORTI, in his
Official Capacity as Judge of the
Superior Court of Sussex County;
SHAINA BRENNER, in her Official
Capacity as Sussex County Prosecutor;
CHIEF ERIC DANIELSON, in his
Official Capacity as Chief of Police of
Andover Township; THE HON.
CARMEN H. ALVAREZ, in her Official
Capacity as Judge of Superior Court of
New Jersey, Appellate Division; and
THE HON. MARIE P. SIMONELLI in her
Official Capacity as Superior Court of
New Jersey, Appellate Division;
MICHAEL S. RICHARDS in his Official
Capacity as Chief of Police Newton,
New Jersey; ROBERT LOUGY, in his
Official Capacity as Acting Attorney
General of New Jersey; SUSSEX
COUNTY, New Jersey; and JOHN DOES
KEVIN MCNULTY, U.S.D.J.:
Israel Albert Almeida (“Almeida”) and Michael R. Tumminelli
(“Tumminelli”) each submitted an application for a permit to carry a handgun.
On June 13, 2016, Plaintiffs filed a verified complaint in this Court seeking
declaratory and injunctive relief, alleging that the denials of their permit
applications violated their Second Amendment and Due Process rights. (ECF
no. 1, cited as “Compi.”)’ Named as defendants are Sussex County and certain
local police chiefs, county officials, and state judges in their official capacities.
Now before the Court are motions to dismiss the Complaint for lack of
jurisdiction and failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6), as well as a motion for a preliminary injunction. Key to the resolution
of these motions are two facts: first, that Almeida’s permit was granted upon
reapplication, and second, that Tumminelli abandoned his application at the
state-court stage. I dismiss the claims for lack of subject matter jurisdiction,
because Almeida asserts a claim that is moot, while Tumminelli lacks standing
and asserts a claim that is not ripe for decision on constitutional and
A. Procedures and Standards for Issuing Permits to Carry
This case concerns Plaintiffs’ applications to obtain a permit to carry a
handgun (“carry permit”) pursuant to N.J. Stat. Ann. § 2C:58-4. A valid carry
Record items cited repeatedly will be abbreviated as follows:
“Def. Mot.” = Brief on behalf of State Defendants Conforti, Brenner, Alvarez,
Simonelli, and Porrino (Pled as Lougy) in Support of their Motion
to Dismiss the Verified Complaint for Declaratory and Injunctive
Relief, and in Opposition to Plaintiffs’ Motion for Preliminary
Injunctive Relief (ECF no. 34)
“P1. Opp.” = Plaintiffs’ Combined Brief in Response to Defendants’ Motion to
Dismiss and Reply to Defendants’ Opposition to Plaintiffs’ Motion
for Preliminary Injunction (ECF no. 41)
The Clerk entered default against Sussex County on August 23, 2016.
The carry permit is distinct from a permit to purchase a handgun or obtain a
firearms purchaser identification card (“FPIC”). “No person of good character and good
repute in the community in which he lives, and who is not subject to any of the
disabilities set forth in this section or other sections of this chapter, shall be denied a
permit to purchase a handgun or a firearms purchaser identification card, except as
hereinafter set forth.” N.J. Stat. Ann. § 2C:58-3(c). A police chief or superintendent is
empowered to issue a purchase permit or FPIC. N.J. Stat. Ann. 2C:58-3(d). The
permit authorizes its legal holder to carry a handgun throughout New
subject to statutory exceptions. Id. § 2C:58-4(a). The carry permit expires
more than two years after its issuance, at which time the permit holder
apply for a renewal. Id.
Section 2C:58-4(b)—(e) prescribes the procedures and standards
governing application for, and issuance of, carry permits. Id. Generally,
Jersey residents must first submit any application for a carry permit
renewal thereof to the local police chief. See id. The police chief must
conduct a background investigation of the applicant and gather inform
the handgun(s) the applicant intends to carry. Id. The police chief will
the application only if (1) the applicant is not subject to any statutory
that precludes issuance of a handgun purchase permit; (2) the applica
“thoroughly familiar with the safe handling and use of handguns”;
and (3) the
applicant “has a justifiable need to carry a handgun.” Id. (emphasis
The Superior Court, however, is the actual issuing authority; the police
chief’s approval or disapproval is a required but merely preliminary
2C:58-4(d)—(e). If the police chief approves the application, “the applica
forthwith present it to the Superior Court of the county in which the
resides.” Id. § 2C:58-4(d). The Superior Court will then issue the
but only if, it is satisfied that the applicant is a person of good charac
meets the same three criteria that the police chief was required to
requirements for a carry permit, as set forth in text, are more stringe
nt, and the police
chief’s approval is merely preliminary to the Superior Court’s decisio
n to issue or deny
a carry permit.
An applicant who (1) is employed by an armored car company, (2) does
reside in New Jersey, or (3) resides in a New Jersey municipality lacking
a police chief
must instead submit the application to the New Jersey State Police superin
N.J. Stat. Ann. § 2C:58-4.
I note that the corresponding regulations do not clearly require the applica
present the application to the Superior Court: “If the application is approv
ed, by the
chief of police.
it shall be forwarded to the Superior Court of the county where the
applicant resides.” N.J. Admin. Code § 13:54-2.5.
If the police chief disapproves the application, the applicant “may request a
hearing in the Superior Court.
by filing a written request for such a hearing
within 30 days of the denial.” Id.
§ 2C:58-4(e). In either case, there is no
required fee unless and until a permit is issued. See id. § 2C:58-4(d)--(e).
The Superior Court is an independent decision maker. Irrespective of the
police chief’s approval or disapproval, the Court has complete discretion to
deny or grant the application and issue the permit (with or without
restrictions). See id.; see also In re Dubinsky, No. A-4443-13T3, 2016 WL
805998, at *2 (N.J. Super. Ct. App. Div. Mar. 2, 2016) (rejecting argument that
Superior Court erred by failing to afford deference to police chief’s approval of
carry permit application) (citing In re Pantano, 429 N.J. Super. 478, 485, 60
A.3d 507, 511 (App. Div. 2013)).
B. Almeida’s Carry Permit Applications
According to the Complaint, Israel Almeida first applied to the then-Chief
of Police for Andover Township, Achille Taglialatela, for a New Jersey Handgun
Permit on June 12, 2013. Chief Taglialatela disapproved Almeida’s application
on October 24, 2013, citing a lack of justifiable need. (Compi.
¶ 56) Almeida
then appealed the denial to the Superior Court of New Jersey, Law Division,
Criminal Part, Sussex County.
On June 18, 2014, defendant Judge Conforti held a hearing at which
defendant Assistant Prosecutor Shaina Brenner represented the State, and
Evan F. Nappen, Esq., represented Almeida. On July 30, 2014, Judge Conforti
issued an order denying Almeida’s request for a carry permit. Almeida then
appealed the order to the Appellate Division, where defendants Judge Carmen
Alvarez and Judge Marie Simonelli affirmed the denial on October 28, 2015. In
reAlmeida, No. A-5505-13T1, 2015 WL 6473282, at *1 (N.J. Super. Ct. App.
Div. Oct. 28, 2015).
Thereafter, Almeida allegedly “suffered numerous other credible threats
of violence against his person, including death [threats].” (Compi.
¶ 70) The
parties agree that sometime in mid-2016, subsequent to the events described
in the Complaint, Almeida reapplied for a carry permit. (See Def. Mot. 6; icL Ex.
A) Andover Township Police Chief Eric Danielson approved Almeida’s new
application on July 25, 2016, and Judge Conforti, without requiring a hearing,
granted Almeida a carry permit on August 2, 2016. (Def. Mot. Ex. A; P1. Opp. 1,
C. Tumminelli’s Carry Permit Application
According to the Complaint, Michael Tumminelli applied for a carry
permit in April 2015. (Compi.
100) On May 7, 2015, the Newton Chief of
Police, defendant Michael S. Richards, denied Tumminelli’s application for a
carry permit, citing a failure to demonstrate a justifiable need. (Id.; id. Ex. 11)
The May 7, 2015 denial letter informs Tumminelli that he may, within 30 days,
request a hearing in the Superior Court pursuant to N.J. Admin. Code
2.8. (Id. Ex. 11) Ultimately, “Tumminelli was not issued a permit to carry.”
Tumminelli concedes, however, that there is a little more to the story.
Tumminelli initially requested a Superior Court hearing, but he then withdrew
his appeal on August 31, 2015, before the Superior Court determined whether
to issue or deny him a permit. In a letter to Judge Conforti, Tumminelli wrote:
“As of 31 August 2015 I regret to inform the Sussex County Superior Court
that I am withdrawing my appeal of Denial of New Jersey Permit to Carry a
Handgun. I will not seek further efforts in this matter effective immediately.”
(Def. Mot. Ex. B) On September 23, 2015, Judge Conforti dismissed
Tumminelli’s appeal without prejudice in light of Tumminelli’s withdrawal
letter. (Id.) Tumminelli now concedes that he withdrew his appeal to the
Superior Court. (P1. Opp. 2)
D. The Present Litigation
On June 13, 2016, Plaintiffs filed a seven-count Complaint seeking
declaratory and injunctive relief for alleged violations of their Second
Amendment and Due Process rights arising from the denial of their carry
permit applications. Plaintiffs allege that Defendants violated their Second
Amendment rights by denying them carry permits (1) because the statutory
“justifiable need” standard is impermissibly restrictive (Count VII); (2) because
Sussex County’s requirement that a carry permit applicant show a “substantial
threat of serious bodily harm” is impermissibly restrictive (Count VI); and (3)
because Plaintiffs in fact meet the definition of “justifiable need” as defined in
N.J. Admin. Code
13:54-2.4(d)(1) (Count I). Relatedly, Plaintiffs assert that
they were injured by “ultra vires” interpretations of “justifiable need” as set
forth in N.J. Admin. Code
13:54-2.4(d)(1) and as applied by Sussex County
and the Superior Court (Counts III, IV, and V). Finally, Plaintiffs contend that
Defendants violated their Due Process rights by operating the carry permit
application and issuance system so that permits will not issue even to
applicants demonstrating a justifiable need (Count II)
Plaintiffs acknowledge that the Third Circuit’s decision in Drake v. Filko, 724
F.3d 426 (3d Cir. 2013) (holding that the “justifiable need” standard is constitutional),
cert. denied, Drake v. Jerejian, 134 S. Ct. 2134 (2014), precludes this argument.
However, Plaintiffs seek to preserve a facial challenge for appellate review, including en
banc appellate review. (P1. Opp. 5; see also Compi. ¶ 135)
At Almeida’s hearing, Judge Conforti stated that “The question here is, is there
a substantial threat of serious bodily harm [and] the carrying of a handgun is
necessary to reduce the threat of.
unjustifiable serious bodily harm.”
(Compi. Ex. 7 at 33:16—20)
“Justifiable need” is “[t]he urgent necessity for self-protection, as evidenced by
specific threats or previous attacks which demonstrate a special danger to the
applicant’s life that cannot be avoided by means other than by issuance of a permit to
carry a handgun.” N.J. Admin. Code § 13:54-2.4(d)(1).
Although Count II is titled “Procedural Due Processes Violation,” Plaintiffs’ brief
clarifies that Plaintiffs actually intended to assert a claim for a substantive due process
violation. Relying heavily on a case with a lengthy discussion of substantive due
process, Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 792 (2d Cir. 2007),
Defendants misconstrue Plaintiffs Due Process argument. Mr.
Tumminelli does not contend that New Jersey does not have enough
procedure within its court system to appeal an erroneous denial of a
firearm carry permit. Rather, Mr. Tumminelli argues that Defendants
handgun carry policies violate Due Process because its handgun carry
policies are ultra vires.
(P1. Opp. 15—19) Thus, the counts related to Defendants’ alleged ultra vires
interpretations of “justifiable need” and their violation of Plaintiffs’ due process rights
On July 7, 2016, Plaintiffs filed a motion for a preliminary injunction.
(ECF no. 10) On August 18, 2016, defendant Michael S. Richards filed an
omnibus motion to dismiss the complaint for failure to state a claim against
him pursuant to Fed. R. Civ. P. 12(b)(6), and also filed a brief in opposition to
Plaintiffs’ preliminary injunction motion. (ECF no. 27) The following day, on
August 19, 2016, defendants Judge Carmen H. Alvarez, Shaina Brenner, Judge
N. Peter Conforti, State Attorney General Christopher S. Porrino, and Judge
Marie P. Simonelli filed a motion to dismiss the action under Fed. R. Civ. P.
12(b)(l) for lack of jurisdiction and under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim, and also opposed the motion for a preliminary injunction. (ECF
no. 34) The plaintiffs’ motion for a preliminary injunction and the defendants’
two motions to dismiss are now before the Court.
A. Fed. R. Civ. P. 12(b)(1)
The Court’s subject matter jurisdiction is considered pursuant to Fed. R.
Civ. P. 12(b)(1). Rule 12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore’s Federal Practice
§ 12.30 (3d ed. 2007); Mortensen v. First Fed.
turn out to be claims for Second Amendment violations based on a substantive due
The government has the right to put in place laws regarding the issuance
of handgun permit assuming that procedure complies with the Second
Amendment. Now that those laws are in place Defendants are bound to
follow those laws. Defendants are acting outside of the scope of the laws
promulgated by the New Jersey legislature and this violates Due Process.
Mr. Tumminelli has a protected liberty interest in his firearm permit
because the Second Amendment right applies outside the home.
Defendants’ conduct is ultra vires. The government can have no interest
in acting outside of the scope of its own law, and as such, Defendantsl’]
conduct violates Plaintiffs’ Due Process rights.
(P1. Opp. 19)
The Complaint was actually filed against Porrino’s predecessor in office, Robert
Lougy. Because the action is brought against this defendant in his official capacity,
Porrino’s substitution is automatic. See Fed. R. Civ. P. 25(d).
Say. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977). A facial challenge asserts
that the complaint does not allege sufficient grounds to establish subject
matter jurisdiction. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438
(D.N.J. 1999). A court considering a facial challenge assumes that the
allegations in the complaint are true, and may dismiss the complaint only if it
nevertheless appears that the plaintiff will not be able to assert a colorable
claim of subject matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester
Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438.
A factual challenge, however, attacks subject matter jurisdiction by
challenging the truth (or completeness) of the jurisdictional allegations set forth
in the complaint. Mortensen, 549 F.2d at 891. The factual nature of the attack
permits the Court to consider evidence extrinsic to the pleadings. Gould Elecs.
Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified on
other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003). Thus a
factual jurisdictional challenge may not go forward unless and until the
plaintiff’s allegations have been controverted. Mortensen, 549 F.2d at 891 n.
[I}n reviewing a factual attack, “the court must permit the plaintiff
to respond with rebuttal evidence in support of jurisdiction, and
the court then decides the jurisdictional issue by weighing the
evidence. If there is a dispute of a material fact, the court must
conduct a plenary hearing on the contested issues prior to
Lincoln Ben. Lfe Co. v. AEILfe, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (quoting
McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006)
Here, Defendants’ jurisdictional arguments are treated as factual attacks
because they assert that the Complaint’s allegations impacting subject matter
jurisdiction are incomplete and rely on materials extrinsic to the Complaint.
(Def. Mot. Ex. A; id Ex. B) Although the Third Circuit has “repeatedly cautioned
against allowing a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction to be turned into an attack on the merits,” Davis v. Wells Fargo,
824 F.3d 333, 348 (3d Cir. 2016), there is no risk of that transformation here
because the jurisdictional challenge does not “attack facts at the core of the
merits.” See id. Instead, Defendants assert extrinsic facts that supplement,
rather than contradict, the facts alleged in the Complaint. Indeed, the Plaintiffs
concede the relevant supplementary facts. At the heart of the dispute is
Defendants’ legal conclusion that those facts preclude this Court’s exercise of
subject matter jurisdiction.
B. Fed. R. Civ. P. 12(b)(6) and Motion for Preliminary
Because I ultimately agree with Defendants that this Court lacks subject
matter jurisdiction, I do not reach the issues of the sufficiency of the pleadings
or the merits of Plaintiffs’ motion for a preliminary injunction.
Almeida and Tumminelli do not assert claims for damages. Critically,
they do not facially challenge New Jersey’s requirement of a carry permit; while
preserving the issue, they acknowledge that Third Circuit precedent forecloses
such a challenge. See Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (holding that
the “justifiable need” standard is constitutional), cert. denied sub nom. Drake v.
Jerejian, 134 S. Ct. 2134 (2014); P1. Opp. 5; Compi.
135) Rather, they seek
injunctive and declaratory relief with respect to the denial, or claimed denial, of
their own applications for carry permits. As to these claims, the Court lacks
subject matter jurisdiction: Almeida asserts a claim that is moot, while
Tumminelli lacks standing and asserts a claim that is not ripe for decision.
A. Lack of Jurisdiction over Almeida’s Claims: Mootness
Defendants contend that Almeida’s claims for declaratory and injunctive
relief are moot because, on August 2, 2016 (less than two months after this
action’s commencement), Judge Conforti granted Almeida’s resubmitted
application for a permit to carry. Consequently, say Defendants, this Court
lacks jurisdiction over Almeida’s claims. (Def. Br. 11)
It is axiomatic that Article III of the Constitution limits the jurisdiction of
federal courts to “cases” and “controversies,” requiring “an actual controversy
be extant at all stages of review, not merely at the time the complaint is
filed.” Arizonans for Official English u. Arizona, 520 U.S. 43, 67, 117 S. Ct. 1055
(1997). “If an intervening circumstance deprives the plaintiff of a ‘personal
stake in the outcome of the lawsuit,’ at any point during litigation, the action
can no longer proceed and must be dismissed as moot.” Genesis Healthcare
Corp. v. Symczyk,
133 S. Ct. 1523, 1528 (2013) (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 477—78, 110 S. Ct. 1249 (1990)). In
order for a claim to be moot, however, it must be “impossible for a court to
grant any effectual relief.” Knox v. Serv. Employees, 567 U.S. 298, 132 S. Ct.
2277, 2287, 183 L. Ed. 2d 281 (2012); see also Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 698—699 (3d Cir. 1996) (“If developments occur during the
course of adjudication that.
prevent a court from being able to grant the
requested relief, the case must be dismissed as moot.”). Where a party
maintains “a concrete interest, however small, in the outcome of the litigation,
the case is not moot.” Chafin v. Chafin,
133 S. Ct. 1017, 1023
Almeida first argues that his claims are not moot because his case “turns
on whether his constitutional rights were violated in the past.” (P1. Opp. 5)
But a plaintiff cannot avoid mootness merely by alleging that Defendants
wronged him. Rather, the proper inquiry is whether it is possible any longer for
“a court to grant any effectual relief’ for those alleged wrongs. See Serv.
Employees, 132 S. Ct. at 2287; Blanciak, 77 F.3d at 698—699. I find it
impossible to grant Almeida any of the relief he requests in this case.
See also P1. Opp. 1 (“While the preliminary injunction for Almeida is most likely
mooted since he received his permit, Almeida has separate and distinct injury for
violation of his due process rights and standing to continue as a Plaintiff in this
Almeida requests both injunctive and declaratory relief.’ (Compi., Prayer
for Relief, at 21—23) In particular, he seeks an injunction “directing
Danielson to approve [his] application” for a permit to carry and injunctions
permanently restraining Defendants from applying the “justifiable need”
standard as defined in the New Jersey Administrative Code to deny or limit
carry permit applications.’ (Id. at 22) Almeida also seeks declaratory
judgments that (1) the New Jersey statutes and regulations restricting the
approval of permits to carry a handgun are unconstitutional as applied to him,
and (2) that he has a right to carry “a handgun of [his] choosing for selfdefense.” (Id. at 21—22) These requested remedies are useless now that Almeida
has his permit.
First, this Court cannot fashion any effective injunctive relief because
Chief Danielson has already approved Almeida’s handgun permit application.
In other words, no injunction can provide to Almeida any meaningful relief
because he has already obtained the permit he desired. Second, “in the context
of an action for declaratory relief, a plaintiff must be seeking more than a
retrospective opinion that he was wrongly harmed by the defendant.” Mollett v.
Leicth, 511 F. App’x 172, 174 (3d Cir. 2013) (quoting Jordan v. Sosa, 654 F.3d
1012, 1025 (10th Cir. 2011)). This is “because [the purpose of] a declaratory
judgment is to declare the rights of litigants” going forward. Sherard v. Berks
Cty., 576 F. App’x 66, 69-70 (3d Cir. 2014) (quoting CMR D.N. Corp. & Marina
Plaintiffs also request attorney’s fees and costs pursuant to 42 U.S.C. § 1988,
but an “interest in attorney’s fees is, of course, insufficient to create an Article III case
or controversy where none exists on the merits of the underlying claim.
reasonable caution is needed to be sure that mooted litigation is not pressed forward,
and unnecessary judicial pronouncements on even constitutional issues obtained,
solely in order to obtain reimbursement of sunk costs.” Lewis v. Cont’l Bank Corp., 494
U.S. 472, 480, 110 S. Ct. 1249, 1255 (1990).
The remaining injunctive relief sought pertains to Plaintiffs’ facial challenge to
N.J. Stat. Ann. § 2C:58-4. However, Plaintiffs have conceded that their facial challenge
is precluded by Drake u. Filko, 724 F.3d 426, 440 (3d Cir. 2013) (upholding
constitutionality of New Jersey Handgun Permit Law’s requirement that an applicant
for a public-carry permit must demonstrate a “justifiable need”).
Towers Ltd. v. City of Phila., 703 F.3d 612, 628 (3d Cir. 2013)). “[IJt is ‘by
definition prospective in nature.’ It does not serve a purpose where the
complained-of situation has changed.” Id. Here, Almeida’s “situation has
changed”—he has been granted a permit. Thus, a declaratory judgment that
the earlier denial was unconstitutional or that Almeida is currently entitled to a
carry permit would serve no meaningful purpose.
Almeida makes a second argument, apparently invoking a venerable but
narrow exception to this rule for conditions “capable of repetition, yet evading
review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279,
55 L. Ed. 310 (1911). That exception has two prerequisites: “(1) the challenged
action was in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there [is] a reasonable likelihood that the same complaining
party would be subjected to the same action again.” Abdul—Akbar v. Watson, 4
F.3d 195, 206 (3d Cir. 1993) (quoting Weinstein v. Bradford, 423 U.S. 147, 96
S. Ct. 347, 46 L. Ed. 2d 350 (1975); see also City of Los Angeles v. Lyons, 461
U.S. 95, 109, 103 S. Ct. 1660, 1669 (1983) (citizen subjected to police
chokehold lacks standing to assert claim for injunctive and declaratory relief,
absent evidence that he will again be subjected to the practice); Ghana v. N.J.
State Parole Bd., 2011 WL 3608633 at *5 (D.N.J. Aug. 15, 2011) (Simandle,
Here, Almeida argues that there is no “guarantee that the Defendants
will apply the correct standard in less than two years when Almeida must
renew his permit to carry.” (P1. Opp. 7) This contention does not satisfy the
requirement that Almeida demonstrate a “reasonable likelihood” that he will
improperly be denied a permit in the future; lack of a “guarantee” that an event
will not occur hardly amounts to a reasonable likelihood that the event will
occur. Speculation that two years hence Defendants may improperly decline to
renew Almeida’s permit is insufficient to overcome the mootness doctrine.
Accordingly, I must grant Defendants’ motion to dismiss for lack of
jurisdiction as to Almeida’s claims. Thus, Judge Conforti, Judge Alvarez, Judge
Simonelli, and Assistant Prosecutor Brenner, who have been named as
defendants only by virtue of the denial of Almeida’s first carry permit
application, are dismissed from the case. Because I have already dismissed
Almeida’s claims based on mootness, I do not reach Defendants’ arguments
that several additional doctrines, including res judicata and the Rooker
Feldman doctrine, preclude Almeida’s claims.
B. Tumminelli’s Claims: Article III Standing, Constitutional
and Prudential Ripeness
Defendants argue that Tumminelli lacks standing to sue because he has
not suffered an injury-in-fact and, relatedly, that the alleged wrongful denial of
a carry permit cannot be ripe for review unless and until “the issuing Superior
Court judge has denied [Tumminelli’s] application for a permit to carry.”
Further, say Defendants, Tumminelli’s lack of a carry permit is not fairly
traceable to Defendants’ actions but rather to his own withdrawal of his
application. (Def. Mot. 19—23)
A plaintiff must establish his standing to sue under Article III of the
United States Constitution, which limits the jurisdiction of federal courts to
“Cases” and “Controversies.” This “constitutional standing” has three essential
elements, of which the first two are: (1) “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”; and (2) “there must be a causal connection between the injury
and the conduct complained of—the injury has to be ‘fairly.
the challenged action of the defendant, and not.
the result [of] the
independent action of some third party not before the court.”’ Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560—561, 112 S. Ct. 2130 (1992) (internal
citations omitted). At the pleading stage, general factual allegations will suffice
to discharge the plaintiff’s burden. Id. at 561.
Ripeness is a related “justiciability doctrine designed ‘to prevent the
courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and also to
protect the agencies from judicial interference until an administrative decision
has been formalized and its effects felt in a concrete way by the challenging
parties.”’ Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807—08, 123
S. Ct. 2026, 2030 (2003) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136,
148—149, 87 S. Ct. 1507 (1967)). Where, as here, state administrative actions
are involved, ripeness doctrine also serves to protect federalism principles. See
Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 247, 73 S. Ct. 236, 242,
(1952) (“Anticipatory judgment by a federal court to frustrate action by a state
agency is even less tolerable to our federalism.”).
“Under the ripeness doctrine, federal courts ‘will not decide a case where
the claim involves contingent future events that may not occur as anticipated,
or indeed may not occur at all.”’ Jumara v. State Farm Ins. Co., 55 F.3d 873,
883 (3d Cir. 1995) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.
568, 580—8 1, 105 S. Ct. 3325, 3333 (1985)). This doctrine derives “both from
Article III limitations on judicial power and from prudential reasons for refusing
to exercise jurisdiction.” Id. at 880. When the plaintiff, as here, seeks
prospective relief, “the constitutional component of the ripeness inquiry” may
“coincide squarely with standing’s injury in fact prong.” Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000).’4
Injury-in-Fact and Constitutional Ripeness
Tumminelli has not satisfied the standing requirement of injury-in-fact.
Although he alleges that he was injured by the wrongful denial of a carry
permit, extrinsic evidence demonstrates that the State’s permit-issuing
See also N.Y. Shzping Ass’n, Inc. v. Waterfront Comm’n of N.Y. Harbor, 460 F.
Appx 187, 189 n.2 (3d Cir. 2012) (“[T]he constitutional requirement for ripeness is
injury in fact.”) (citing Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 81,
98 S. Ct. 2620 (1978)); Elenci v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006) (“[I]n
cases involving pre-enforcement review, the standing and ripeness inquiries may tend
because claims for pre-enforcement review involve the possibility of
wholly prospective future injury, not a prayer for relief from damages already
authority—the Superior Court—never denied him a permit. In fact, Tumminelli
now concedes that he withdrew his application before the Superior Court could
rule on it. (P1. Opp. 2; see also Def. Mot. Ex. B) Thus, he never got to the point
in the administrative process at which he could be denied (or granted) a permit.
Tumminelli counters that he nevertheless has alleged an injury-in-fact
because his application was disapproved “by Chief Richards who acts as the
gatekeeper for the permitting process.” (P1.
2) This formulation appears to
recast the injury alleged in the Complaint. The Complaint alleges that “[d]espite
already being ‘deemed’ to have demonstrated justifiable need.
was not issued a permit to carry,” in violation of his Second Amendment rights.
¶ 106) (emphasis added) In the Complaint, then, the alleged injury is
not the preliminary disapproval of the application by a police official; it is the
non-issuance of the permit by the body which possesses issuing authority. The
injury claimed in the Complaint is simply absent from the facts.
I do consider the revised version of Tumminelli’s injury as articulated in
his brief. No facts are set forth, however, to establish that Chief Richards’s
denial of approval inflicted a sufficiently concrete injury-in-fact upon
Tumminelli’s Second Amendment rights. Neither the brief nor the Complaint
itself adequately articulates the legal or practical effect of a police chief’s
disapproval upon the Superior Court’s independent decision to issue or deny a
permit. If the police chief’s disapproval were shown (or at least plausibly
alleged) to make the Court’s approval of the application less likely, that might
constitute a risk of harm sufficient to satisfy the concreteness requirement. See
generally Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (citing Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138 (2013)).15 On that charitable assumption, I
take the analysis one step further.
The Complaint does state that, “if the police official has disapproved the
application, then it will proceed no further unless the applicant requests consideration
from an appropriate Superior Court judge.” (Compl. ¶ 8) What the Complaint leaves
out, however, is that if the police official has approved the application, it will likewise
proceed no further without Superior Court involvement. Because the applicant may
Even if the police chief’s disapproval gave rise to a constitutional injuryin-fact, I would still be required to consider the prudential component of the
ripeness doctrine. A court considering the prudential ripeness doctrine in the
context of an administrative decision examines: (1) “the fitness of the issues for
judicial decision” and (2) “the hardship to the parties of withholding court
consideration.” N.Y. Shzping Ass’n, Inc. v. Waterfront Comm’n of N. Y. Ha rhor
460 F. App’x 187, 189 (3d Cir. 2012) (quoting Ohio Forestry Ass’n, Inc. v. Sierra
Club, 523 U.S. 726, 730, 733, 118 5. Ct. 1665 (1998)). Applying those
prudential factors, I find Tumminelli’s claims nonjusticiable.
Fitness for Judicial Review
The New Jersey legislature has assigned the administration of carry
permit laws and regulations to police officials and Superior Court judges, who
sit in an administrative, not judicial, capacity.’ As to this process, then, the
prudential ripeness inquiry is the same as it would be in relation to an ordinary
agency decision. “Whether a question is fit for judicial review depends upon
request consideration by the Superior Court judge at no cost, and the Superior Court
judge considers the application de novo, the difference between police chief approval or
disapproval is most likely negligible.
Tumminelli’s argument is not frivolous, however. Although no injury-in-fact is
properly pled, it is possible to construct an argument that a police official’s wrongful
denial of approval could injure plaintiff by making court approval less likely. A person
denied approval by the police chief may be “aggrieved,” and the procedure for
requesting a Superior Court hearing is within a section titled “Appeals from denial of
applications.” N.J. Stat. Ann. § 2C:58-4(e). Nevertheless, the lack of evidence of any
legal disadvantage flowing from a police chief’s disapproval, and the de minimis
inconvenience of requesting a court hearing (court involvement being required in
either case), casts doubt on the proposition that the police chief’s disapproval causes a
In its capacity as the “issuing authority,” the Superior Court performs
“functions which [a]re clearly nonjudicial in nature.” Siccardi v. State, 59 N.J. 545,
553, 284 A.2d 533, 538 (1971); see also In re Preis, 118 N.J. 564, 569, 573 A.2d 148,
151(1990) (“the Legislature has reposed what is essentially an executive function in
the judicial branch”).
factors such as whether the agency action is final; whether the issue presented
for decision is one of law which requires no additional factual development; and
whether further administrative action is needed to clarify the agency’s position,
for example, when the challenged prescription is discretionary so that it is
unclear if, when or how the agency will employ it.” Nextel Commc’ns of Mid-AtL,
Inc. v. City of Margate, 305 F.3d 188, 193 (3d Cir. 2002) (quoting Felmeister v.
Office of Attorney Ethics, 856 F.2d 529, 535—36 (3d Cir. 1988)).
The issues Tumminelli presents are not fit for judicial review.
First, the administrative action at issue here was not a final
determination. Only the Superior Court has the authority to issue carry
permits. As a matter of law, Chief Richards’s denial of approval was not a final
determination. Tumminelli had the right to request a hearing in the Superior
Court; indeed, even with police chief approval, he had to go to Superior Court
to obtain a permit. Tumminelli initially applied to the Superior Court, but then
withdrew his application before the Court could make a determination. This
“absence of administrative finality” alone is enough to establish that a “dispute
is not yet sufficiently fit for judicial review.” See Kushi v. Romberger 543 F.
App’x 197, 201 (3d Cir. 2013) (case for declaratory and injunctive relief was
unripe where plaintiff’s initial application for an amended birth certificate was
denied without prejudice and plaintiff reapplied but then withdrew application
when additional information was requested) (citing Univ. of Med. and Dentistry
of N.J. v. Corrigan, 347 F.3d 57, 69 (3d Cir. 2003)).’7
Fifth Amendment takings cases are also instructive. I am cognizant that the
ripeness inquiry has been further refined in that specialized context, see Williamson
County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S. Ct.
3108 (1985), and that those cases should therefore be applied here with great care. It
is suggestive, however, that in several of them, a plaintiff’s withdrawal of an
application in advance of a final administrative decision precluded a finding of
ripeness. See, e.g., Zilber v. Town of Moraga, 692 F. Supp. 1195, 1199 (N.D. Cal. 1988)
(applying precedent holding that, “since the [plaintiffs] had withdrawn their
application prior to a final decision, the application was not meaningful, the case was
not ripe, and the futility exception did not apply”); Sartori v. United States, 67 Fed. Cl.
263, 269, 2005 WL 1983751 (2005) (discussing ripeness doctrine and takings cases,
including one where “plaintiff applied for a permit, [but] withdrew the application
Similarly, to the extent that Tumminelli alleges that Chief Richards’s
disapproval increased the likelihood that the Superior Court would deny him a
carry permit, such a claim is not yet ripe. It remains contingent on the
Superior Court’s future decision. See Doe v. Virginia Dep ‘t of State Police, 713
F.3d 745, 758—59 (4th Cir. 2013) (“Where an injury is contingent upon a
decision to be made by a third party that has not yet acted, it is not ripe as the
subject of decision in a federal court.”) (citing Franks v. Ross, 313 F.3d 184,
195 (4th Cir. 2002) (where county’s and state agency’s “interwoven”
participation in a permitting process was “properly viewed as two parts of a
single process,” controversy was not ripe until the completion of the final step
of the process)).
Second, it is of course conceded that the Complaint presents to this
Court many legal issues—such as whether Defendants correctly interpreted the
statutory “justifiable need” standard. But those legal issues are preceded by
factual issues best decided by the Superior Court. These include a question as
to what level of danger Tumminelli faces, as well as the mixed question of law
and fact as to whether Tumminelli’s need for self-protection meets the
“justifiable need” standard as defined in N.J. Admin. Code
Third, as another district court in this Circuit has observed, the ripeness
requirement contains “the ‘usually unspoken element’ of the preservation of
judicial resources.” Comite de Apoyo A Los Trabajadores Agricolas v. Perez, 46
F. Supp. 3d 550, 563 (E.D. Pa. 2014). To put it another way, “Article III courts
should not make decisions unless they have to.” Id. (citing Nat’l Treasury Emp.
Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996)). By withdrawing
his application, Tumminelli destroyed the possibility that the Superior Court
might grant his application and resolve the issue without expenditure of federal
judicial resources. It would run contrary to good judicial administration to
before the agency had a chance to make a final decision regarding it” and the court
held that plaintiffs taking claims were not ripe because “there was no final decision by
the Corps regarding the land—only ‘preliminary decisionmaking”).
permit Tumminelli to force the issue by simply refusing to pursue the usual
procedures for obtaining a permit. He is not only crying before he is hurt; he
has needlessly summoned a federal ambulance.
Finally, Tumminelli is not so much asking this Court to review a state
administrative decision as asking it to usurp the Superior Court’s role. He is in
effect rewriting the procedure to say that an applicant, after receiving the police
chief’s decision, may then go to either federal or state court, at his option. He is
inviting a system whereby either participant in an ongoing state administrative
process may quit when it senses that its opponent is ahead on points, and go
to federal court. That is not this Court’s proper role in our federal system.
Federal declaratory judgments and injunctions have their place, but they are
not intended to supplant State administrative schemes in routine cases,
particularly where the challenged rulings are preliminary or tentative. See Pub.
Serv. Comm’n of Utah, supra.
For all of these reasons, Tumminelli’s claims do not satisfy the ripeness
requirement of being fit for judicial review.
Hardship to the Parties
This Court’s finding that Tumminelli’s claims are not ripe will not cause
him significant hardship. “[T]o be sufficient to overcome prudential interests in
deferral,” a party’s “hardship must be both immediate and significant.”’ Nextel,
305 F.3d at 194 (quoting Felmeister, 856 F.2d at 537). The hardship to
Tumminelli—his continued lack of a carry permit—involves no immediate
change in his current circumstances. Further, the hardship Tumminelli will
incur by this Court’s dismissal without prejudice of his claims is not
significant; Tumminelli, like his co-plaintiff, Almeida, can easily reapply for a
carry permit. Further, I note that Tumminelli withdrew his carry permit
application on August 31, 2015, but did not file suit until June 13, 2016,
nearly ten months later. The claim of urgency therefore rings hollow.
Any hardship that Tumminelli may sustain does not outweigh the factors
working in favor of deferral of this case until it is sufficiently ripe for
Tumminelli argues that waiting for a Superior Court decision would have
been futile. The Third Circuit has “recognized futility as an exception to
ripeness.” Chassen v. Fid. Nat’l Fin., Inc., 836 F.3d 291, 296 (3d Cir. 2016)
(citing Sammon v. N. J. Bd. of Med. Examiners, 66 F.3d 639, 641 (3d Cir. 1995)
(engaging in a “futile gesture to establish ripeness” would be unnecessary)).
Tumminelli contends that denial was a foregone conclusion, citing the
supposedly paltry number of permits New Jersey issues each year. (P1. Opp.
12) I do not find that argument persuasive. This Court will not presume,
without evidence, that the State courts are not proceeding in good faith to
process such applications. Without more information about the total number of
applications and the reasons for rejections, Tumminelli’s futility argument
remains speculative. Indeed, the only concrete information before the Court is
that Almeida, Tumminelli’s co-plaintiff, was granted a carry permit upon
reapplication. This suggests that the permit application process is not a futile
There is another obvious deficiency in Tumminelli’s claim of standing: he
fails to establish that the alleged violation of his Second Amendment rights is
“fairly traceable” to Defendants’ conduct. Whether or not Chief Richards
preliminarily approved the application, Tumminelli could have obtained a carry
permit only if the Superior Court was independently satisfied that he met the
Assume, for example, that the Chief was mistaken, and that Tumminelli
met all of the carry permit qualifications. It was Tumminelli’s own conduct—the
withdrawal of his application prior to a Superior Court determination—that
ensured he could not be issued a permit. Even if I assume, without evidence,
that Chief Richards’s disapproval increased the likelihood of Tumminelli’s being
denied a permit, it was Tumminelli’s withdrawal of his application that made
denial a certainty. Therefore, Tumminelli’s alleged injury cannot be said to be
“fairly traceable” to Chief Richards’s objection to his application. Tumminelli
has not merely “contributed to his own injury”; rather, “the injury is so
completely due to [his] own fault as to break the causal chain.” See C. Wright,
& A. Miller, Federal Practice and Procedure: Jurisdiction
§ 3531.5 (3d ed.); see
also Parvati Corp. v. City of Oak Forest, ill., 630 F.3d 512 (7th Cir. 2010) (injury
did not suffice to supply standing where it was not fairly traceable to
defendants’ conduct because the injury was “brought on by” plaintiff’s prior
Tumminelli seems to imply that the Superior Court did in fact deny his
application on the merits, noting that Judge Conforti’s “Order styles the
dismissal as an ‘Order Denying Applicant a Permit to Carry.”’ (P1. Opp. 2, 12)
The order’s title does not trump its substance. The order clearly explains that
Judge Conforti dismissed Tumminelli’s appeal without prejudice, at
Tumminelli’s request. For this independent reason, then—Tumminelli’s
withdrawal of his application—he lacks standing to complain.
For the foregoing reasons, the Complaint is DISMISSED WITHOUT
PREJUDICE as to all Defendants for lack of subject matter jurisdiction, and
Plaintiffs’ motion for a preliminary injunction is DENIED as moot.
An appropriate Order follows.
Dated: February 14, 2017
KEVIN MCNULTY, U.S. .J.
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