            Case: 16-14963   Date Filed: 05/09/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-14963
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 9:16-cv-80087-DMM

LARRY E. KLAYMAN,

                                                             Plaintiff-Appellant,

                                   versus

PRESIDENT OF THE UNITED STATES OF AMERICA,
DEPUTY DIRECTOR,
Deputy Director of the U.S. Department of Justice,
Head of the Bureau of Alcohol, Tobacco and Firearms,
U.S. ATTORNEY GENERAL,
UNITED STATES OF AMERICA,
c/o U.S. Department of Justice Attn: Attorney General
Loretta Lynch 950 Pennsylvania Avenue, NW Washington, DC 20530,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (May 9, 2017)
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Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

       Larry Klayman, an attorney proceeding pro se, appeals the district court’s

dismissal of his complaint challenging two executive orders issued by then-

President Barack Obama regarding gun violence. Klayman asserted that these

executive orders illegally changed that law by requiring the: (1) Bureau of Alcohol,

Tobacco, and Firearms (“ATF”) to broaden the definition of a firearms “dealer”

under 18 U.S.C. § 921 to treat almost anyone who bought or sold a firearm as a

dealer (“ATF Guidance”); and (2) Social Security Administration (“SSA”) to

report all persons receiving disability payments, or those with mental health issues

but were never formally adjudicated as mentally incompetent, for inclusion in the

National Criminal Background Check System (“NICS”) (“SSA Announcement”).

The district court dismissed Klayman’s complaint for lack of standing. On appeal,

Klayman argues his complaint alleged facts sufficient to establishing standing to

challenge both the ATF Guidance and the SSA Announcement. Even if the

Defendants’ executive orders created new law, Klayman lacks standing because he

failed to allege he suffered an injury in fact or faces substantial risk of incurring

harm. Accordingly, we affirm. 1

1
  We review de novo a district court’s order dismissing a complaint for lack of standing.
Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm’n, 226 F.3d 1226, 1228 (11th
Cir. 2000). We may affirm the judgment of the district court on any ground that finds support in
the record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). The complaint
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       Standing is a threshold jurisdictional question we address prior to, and

independent of, the merits of a party’s claim. DiMaio v. Democratic Nat’l Comm.,

520 F.3d 1299, 1301 (11th Cir. 2008). The party invoking federal jurisdiction

bears the burden of proving the essential elements of standing. Id. At the pleading

stage, general factual allegations of injury may suffice. Id.

       To satisfy Article III’s case or controversy requirement, a plaintiff must

demonstrate: (1) he suffered injury in fact that is (a) concrete and particularized

and (b) actual or imminent; (2) that the injury is fairly traceable to the actions of

the defendant; and (3) that a favorable decision will likely redress the injury.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-

81 (2000). An “injury-in-fact” requires an invasion of a legally protected interest.

Hollywood Mobile Estates, Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1265

(11th Cir. 2011). An allegation of future injury may suffice if the threatened injury

is substantially certain to occur. Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334, 2341 (2014). However, a plaintiff lacks standing if the complaint merely

sets forth facts from which courts could imagine an injury. DiMaio, 520 F.3d at

1301. We will not speculate concerning the existence of standing; if the plaintiff




is construed in the light most favorable to the plaintiff, and we accept as true the plaintiff’s well
pleaded facts, even if disputed. S & Davis Int’l., Inc. v. Yemen, 218 F.3d 1292, 1298 (11th Cir.
2000).
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fails to meet his burden, we cannot create jurisdiction by embellishing a deficient

allegation of injury. Id.

       Under 18 U.S.C. § 922, it is unlawful for a person to deal in firearms unless

he or she is a licensed dealer. 18 U.S.C. § 922(a)(1)(A). Federal law defines a

dealer as any person: (1) engaged in the business of selling firearms at wholesale

or retail; (2) engaged in the business of repairing firearms or of making or fitting

special barrels, stocks, or trigger mechanisms to firearms; or (3) who is a pawn

broker. 18 U.S.C. § 921(a)(11). A person “engaged in the business” of selling

firearms “deal[s] in firearms as a regular course of trade or business with the

principal objective of livelihood,” but not one who “makes occasional sales,

exchanges, or purchases” of firearms for “personal collections or for a hobby, or

who sells all or part of his personal collections of firearms.” 18 U.S.C. §

922(a)(21)(C). Federal law makes it unlawful for any person previously

adjudicated as a mental defective2 or committed to a mental institution to possess

or receive a firearm in interstate or foreign commerce. Id. § 922(g)(4).

       The district court did not err in dismissing Klayman’s complaint because

Klayman lacked standing to challenge the ATF Guidance. Klayman failed to

allege he engaged in conduct that could reasonably require a federal firearms

2
  “[A]djudicated as a mental defective” constitutes a determination by a court, board,
commission, or other lawful authority that a person, as a result of marked subnormal intelligence,
or mental illness, incompetency, condition or disease: (1) is a danger to himself or others; or (2)
lacks the mental capacity to contract or to manage his own affairs. 28 C.F.R. § 478.11.
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license. Klayman did not allege any past harm stemming from the ATF Guidance,

and he never alleged he would repetitively buy and sell firearms for the principal

motive of making a profit. Rather, his complaint indicated he owned guns for their

collectable value and self-defense. Klayman only contends that he may engage in

future conduct by selling a firearm without a license and never indicates concrete

plans to do so; thus, Klayman’s conduct falls outside of that regulated by the ATF

Guidance. See 18 U.S.C. § 922(a)(21)(C). He also ignores other the factors

necessary for prosecution cited in the ATF Guidance. Moreover, Klayman failed

to allege any risk of future harm traceable to the ATF Guidance itself, as opposed

to the preexisting federal laws it describes. See Friends of the Earth, Inc., 528 U.S.

at 180-81. Because Klayman cannot demonstrate he previously suffered an injury

in fact or faces a substantial risk of incurring future harm from the ATF Guidance,

he lacks standing. See id.

      Furthermore, Klayman failed to demonstrate that he suffered any past or

imminent future injury stemming from the SSA Announcement. As an initial

matter, Klayman conceded that the SSA Announcement only indicated that the

SSA would begin the rulemaking process. However, even if this process resulted

in a rule that precluded a new subset of individuals from legally purchasing

firearms, he never alleged that he suffered from a mental health condition or that

he receives—or is imminently likely to receive—SSA disability benefits.


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Moreover, despite Klayman’s contention that he could be classified as having a

mental health condition, nothing in the record indicates he faces such a risk.

Klayman asserts that some world governments suppressed opposing political

opinions by labeling dissidents as possessing mental health issues; however, it is

insufficient that he set forth facts from which we could imagine an injury sufficient

to satisfy standing requirements because we will not speculate concerning the

existence of standing. See DiMaio, 520 F.3d at 1301. Consequently, because

Klayman cannot demonstrate that he previously suffered an injury in fact or faces a

substantial risk of incurring future harm from the SSA Announcement, he lacks

standing.

      AFFIRMED.




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