    17-1427-cv
    Robinson v. Sessions

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 18th day of January, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             PETER W. HALL,
                                     Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    William Robinson, Stephen J.
    Aldstadt, David Bardascini, Michael
    Carpinelli, George Curbelo, Jr.,
    Wayne Denn, William R. Fox, Sr., Don
    Hey, Garry Edward Hoffman, Raymond
    Kosorek, Michael R. Kubow, Thomas J.
    Lorey, Thomas A. Marotta, Michael
    Mastrogiovanni, Kenneth E. Mathison,
    Terrence J. McCulley, Jim Nowotny,
    John E. Prendergast, Harold W.
    Schroeder, Edward J. Stokes, John W.
    Wallace, Leslie H. Wilson,
    Christopher S. Zaleski, Mattie D.
    Zarpentine, Tim Flaherty, Doug
    Negley, Jacob Palmateer, Shooters
    Committee for Political Education,
    New York Revolution, Gun Rights
    Across America – New York, NY2A.org,
                                              1
Fulton County-NY Oath Keepers, and
all those other individuals who are
similarly situated,
         Plaintiffs-Appellants,

Larry Pratt, Gun Owners of America,
Inc.,
         Plaintiffs,

         -v.-                              17-1427-cv

Jefferson B. Sessions III, ATTORNEY
GENERAL OF THE UNITED STATES, in his
official and individual capacities,
Andrew McCabe, ACTING DIRECTOR OF THE
FEDERAL BUREAU OF INVESTIGATIONS, in
his official and individual
capacities, Christopher M. Piehota,
DIRECTOR OF THE TERRORIST SCREENING
CENTER, in his official and individual
capacities, Byron Todd Jones, ACTING
DIRECTOR OF THE BUREAU OF ALCOHOL,
TOBACCO, FIREARMS AND EXPLOSIVES, in
his official and individual
capacities,
         Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - -X

FOR APPELLANT:             PALOMA A. CAPANNA, Esq., Webster,
                           New York.

FOR APPELLEES:             PATRICK G. NEMEROFF for Chad A.
                           Readler, Acting Assistant
                           Attorney General (Michael S.
                           Raab, Attorneys, Appellate Staff
                           Civil Division, on the brief),
                           Washington, D.C.




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     Appeal from a judgment of the United States District
Court for the Western District of New York (Geraci, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     William Robinson and his co-plaintiffs appeal from the
judgment of the United States District Court for the
Western District of New York dismissing their claim that
various United States law enforcement agencies jeopardize
the constitutional rights of prospective American gun
owners by mishandling their personal information in the
course of conducting routine background checks. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     The appellants are a collection of individuals and
organizations committed to Second Amendment advocacy. They
allege that the Government violates First, Second, Fourth,
Fifth, and Fourteenth Amendment protections, along with the
Administrative Procedure Act, 5 U.S.C. § 705, when the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
subjects potential firearm purchasers to background checks
that cross-reference their personal information with the
Terrorist Screening Database (“TSDB”), a master watchlist
of individuals known or suspected of having terrorist ties.
They frame the alleged screening practices as an unlawful
expansion of The Brady Handgun Violence Prevention Act (the
“Brady Act”), Pub. L. No. 103-159, 107 Stat. 1536 (1993),
which created the National Instant Criminal Background
Check System (“NICS Background Check”) to prevent the
transfer of firearms to individuals barred from firearm
possession by federal or state law. 18 U.S.C. §§
922(t),(g),(n).

     All persons attempting to purchase firearms must
undergo an NICS Background Check. See 18 U.S.C. §§ 922(t),
923(a). As part of that procedure, prospective customers
must complete a firearms transaction record known as the
ATF Form 4473, which elicits personal information and
propounds questions to certify that the customer is
qualified to possess a firearm under the enumerated Brady
Act factors. 27 C.F.R. § 478.124; 28 C.F.R. § 25.7(a); 18
                             3
U.S.C. § 922(g)(1)-(9),(n) (setting forth ten conditions
that render an individual ineligible to purchase a
firearm). The Form 4473 information is then compared
against databases from multiple agencies, including the
Federal Bureau of Investigation’s National Crime
Information Center (“NCIC”). See 28 C.F.R. §
25.6(c)(1)(iii). Since 2004, the NCIC has incorporated
data from the TSDB.1 See J. App’x at 271-72. When the
background check produces a “match” with any NCIC records,
including those that may also reside in the TSDB, the
application is delayed while NICS agents research the
transaction to determine whether the individual would be
prohibited by law from receiving or possessing a firearm.
See 28 C.F.R. § 25.6(c)(1)(iv)(B). If the agent confirms
that the customer fits one of the disqualifying conditions
spelled out in 18 U.S.C. §§ 922(g),(n), the application is
denied; if no prohibiting information is discovered (or
three business days go by without a response), the sale
proceeds. Id. § 25.6(c)(1)(iv)(B)-(C).

     Appellants allege that this so-called “NICS-to-TSDB
connection” procedure exceeds the agency’s statutory
authority and “amounts to domestic spying.” Appellant’s
Br. at 25. The individual appellants allege that the
defendants’ conduct caused them to suffer a particularized
constitutional deprivation because they each provided
information on Form 4473s in the course of routine firearm
purchases and would like to continue making such purchases
in the future. The appellants do not allege, however, that
they were denied firearms or they suffered delay in
purchase; they do not claim to be listed in the TSDB; nor
do they contend that any of their information has been
compiled or retained beyond the screening period in
violation of law. See 18 U.S.C. § 922(t)(2)(C); 28 CFR §
25.9(b)(1). The district court therefore concluded that
“Plaintiffs fail to demonstrate that they have been, or
will be, personally injured by the challenged conduct” and


1The Brady Act provides that “the Attorney General may
secure directly from any department or agency of the United
States such information on persons for whom receipt of a
firearm would violate [18 U.S.C. §§ 922(t),(n)] or State
law.” Pub. L. No. 103-159, § 103(e)(1).
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dismissed the complaint for lack of standing. Robinson v.
Sessions, 260 F. Supp. 3d 264, 274 (W.D.N.Y. 2017).

     “The existence of standing is a question of law that we
review de novo.” Shain v. Ellison, 356 F.3d 211, 214 (2d
Cir. 2004). To have standing, a party must allege “such a
personal stake in the outcome of the controversy as to
ensure that the dispute sought to be adjudicated will be
presented in an adversary context and in a form
historically viewed as capable of judicial resolution.”
Sierra Club v. Morton, 405 U.S. 727, 732 (1972) (internal
citation and quotation marks omitted). The “irreducible
constitutional minimum of standing” requires that “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.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (internal citations and quotation marks
omitted). The “injury in fact” standing requirement
“applies with special force” where, as here, “a plaintiff
files suit to require an executive agency to ‘follow the
law’; at that point, the citizen must prove that he ‘has
sustained or is immediately in danger of sustaining a
direct injury as a result of that [challenged] action and
it is not sufficient that he has merely a general interest
common to all members of the public.’” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1552 (2016) (quoting Ex parte
Levitt, 302 U.S. 633, 634 (1937) (per curiam)); see also
Summers v. Earth Island Inst., 555 U.S. 488, 490, 496-97
(2009) (requiring a “concrete interest” affected by the
challenged conduct for standing to vindicate a procedural
right).

     The appellants fail to identify a direct injury in fact
that they have sustained or will sustain as a result of the
alleged Government conduct. They discuss at length why (in
their view) the inclusion of TSDB data in the NICS
Background Check is unauthorized, wrong, and even
unconstitutional. But we do not “entertain citizen suits
to vindicate the public’s nonconcrete interest in the
proper administration of the laws.” Lujan, 504 U.S. at 581
(Kennedy, J. concurring); accord Spokeo, 136 S. Ct. at 1549
(“Article III standing requires a concrete injury even in
the context of a statutory violation.”). The appellants do
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not explain how they themselves have been subjected to any
harm by the challenged conduct, such as the deprivation of
a Second Amendment right to bear arms or a Fourth Amendment
protection against unreasonable searches or breach of
privacy.2 See Clapper v. Amnesty Int’l USA, 568 U.S. 398,
411 (2013)(holding that plaintiffs unable to allege that
their communications were actually monitored under
challenged statute lacked standing); see also Am. Civil
Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 665-66,
673 (6th Cir. 2007)(opinion of Batchelder, J.).3
2 For the same reason, we reject the appellants’ assertion
that they will suffer a cognizable injury in fact because
NICS forces them to “choose” between their Second and First
or Fourth Amendment rights. This is, in effect, an
argument that the appellants are at risk of suffering the
same constitutional harms alleged here in the future.
Since the appellants fail to demonstrate that they have
been or will imminently be subject to the challenged
conduct, their unsubstantiated fears of a speculative harm
or a ‘chill’ on Second Amendment activity are insufficient
to confer standing. See Clapper v. Amnesty Int'l USA, 568
U.S. 398, 416 (2013); Laird v. Tatum, 408 U.S. 1, 13-14
(1972) (“Allegations of a subjective ‘chill’ are not an
adequate substitute for a claim of specific present
objective harm or a threat of specific future harm.”).
3 Appellants argue that they have been suffering injury

because the Government has exceeded its statutory authority
and incorporated the TSDB into the NICS Background Check.
In appellants’ view, comparing their Form 4473 information
against a database incorporating the TSDB—standing alone—is
a cognizable injury. Appellants’ theory of harm, however,
is incongruous. The Brady Act provides the Government with
the authority to access any search criteria that will
enable it to determine whether a prospective purchaser is
prohibited by the Gun Control Act from purchasing a
firearm. See Brady Act, Pub. L. No. 103-159, § 103(e)(1),
107 Stat. 1536, 1542 (1993). Incorporating the TSDB into
the NICS Background Check protocol is merely one method
that the Government may use to determine whether a
prospective purchaser possesses a disqualifying attribute.
Appellants therefore fail to identify how the Government’s
search procedure causes them injury. See Bauer v. Veneman,
352 F.3d 625, 636-37 (2d Cir. 2003) (“While the standard
                             6
     There is no evidence that any of these appellants were
unable to purchase a firearm, were delayed in purchasing a
firearm, or were listed on the TSDB such that their
information was allegedly compromised.4 At most, the
complaint articulates “a highly attenuated chain of
possibilities” that could, in combination with a number of
unpled facts, perpetrate the alleged constitutional harm.
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 410 (2013); see
also Summers, 555 U.S. at 495-96. The standing of the
appellants cannot be inferred from the speculative theory
that were they to appear on the TSDB, their Form 4473
information might cross-reference to a file on the NCIC,
which could result in a delay or denial in their
transaction. See Clapper, 568 U.S. at 413-14 (declining to
endorse a standing theory requiring a chain of
speculation).

     The appellants also argue that they are harmed by the
perceived stigma of the association of gun owners with
terrorists. They posit that the inclusion of a TSDB file
in one of the databases cross-referenced by the NICS
Background Check amounts to labeling all gun owners as
terrorists, and thereby creates a direct reputational
injury. See Allen v. Wright, 468 U.S. 737, 754-55 (1984)
(stating that injury premised on stigma “accords a basis
for standing only to those persons who are personally
denied equal treatment by the challenged discriminatory
conduct”), abrogated in part on other grounds by Lexmark
Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377 (2014).



for reviewing standing at the pleading stage is lenient, a
plaintiff cannot rely solely on conclusory allegations of
injury or ask the court to draw unwarranted inferences in
order to find standing.”).
4 The individual appellants are joined by several non-profit

corporations and unincorporated associations. Since the
organizational appellants’ standing can only be sustained
as an extension of the standing of individual members,
their claims must also fail. See Sierra Club, 405 U.S. at
733-34.
                             7
     As the Government points out, this argument is facially
incoherent as it suggests that the (unchallenged) criminal
background checks done under the Brady Act brand all gun
owners as felons or sexual miscreants. More importantly, a
valid theory of stigmatizing injury rests on discriminatory
conduct within a defined class of persons, not an “abstract
stigmatic injury” affecting all gun owners. In re U.S.
Catholic Conference (USCC), 885 F.2d 1020, 1025 (2d Cir.
1989) (quoting Allen, 468 U.S. at 755-56). Like the
plaintiff clergy in In re U.S. Catholic Conference, the
appellants’ “self-perceived ‘stigma’ does not amount to a
particularized injury in fact” because they “have neither
been personally denied equal treatment under the law nor in
any way prosecuted by” any government agency. Id. at 1026.

     For the foregoing reasons, and finding no merit in
Robinson’s other arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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