United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2010 Decided April 15, 2011
No. 10-5062
STEPHEN DEARTH AND SECOND AMENDMENT FOUNDATION,
INC.,
APPELLANTS
v.
ERIC H. HOLDER, JR.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00587)
Alan Gura argued the cause for appellants. With him on
the briefs were Thomas M. Huff and Candice N. Hance.
Anisha S. Dasgupta, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
were Ronald C. Machen, Jr., U.S. Attorney, and Mark B.
Stern and Michael S. Raab, Attorneys. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Before: GINSBURG, HENDERSON and KAVANAUGH,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Plaintiffs Stephen Dearth and
the Second Amendment Foundation, Inc. (SAF), seeking
declaratory and injunctive relief, claim that portions of 18
U.S.C. § 922 and related regulations are unconstitutional
because they prevent Dearth from purchasing a firearm. The
district court dismissed the suit for lack of standing. Because
we conclude Dearth does have standing, we reverse the
judgment of the district court and remand the case to the
district court for further proceedings.
I. Background
The plaintiffs challenge 18 U.S.C. §§ 922(a)(9) and
(b)(3) and implementing regulations promulgated by the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
which together make it impossible for a person who lives
outside the United States lawfully to purchase a firearm in the
United States. Section 922(a)(9) makes it unlawful for “any
person ... who does not reside in any State to receive any
firearms unless such receipt is for lawful sporting purposes.”
Accord 27 C.F.R. § 478.29a. Section 922(b)(3) prohibits the
sale or delivery of a firearm by a licensed dealer to “any
person who the licensee knows or has reasonable cause to
believe does not reside in ... the State in which the licensee’s
place of business is located,” except this prohibition does “not
apply to the loan or rental of a firearm ... for temporary use
for lawful sporting purposes.” * In order to ensure
compliance, the ATF requires the seller to obtain from the
purchaser a completed form (Form 4473) listing certain
personal information. See 27 C.F.R. §§ 478.124(a), (c)(1).
*
Section 922(b)(3) contains another exception not relevant here.
3
Question 13 on Form 4473 asks for the purchaser’s state of
residence. See id. § 478.124(c)(1). *
Dearth is an American citizen who resides in Canada and
no longer maintains a residence in the United States. In 2006
and again in 2007 Dearth attempted to purchase a firearm in
the United States. On both occasions, he “could not provide a
response to Question 13” on account of his residing in
Canada; therefore “the transaction was terminated.” Compl.
¶¶ 22–23. Dearth alleges he still intends, if he may do so
lawfully, to purchase firearms in the United States for the
purposes of sporting and self-defense, and to store those
firearms with his relatives in Ohio.
Dearth and the SAF, a non-profit organization that
promotes the Second Amendment right to keep and bear arms,
filed the present action in the district court, which
subsequently granted the Government’s motion to dismiss for
lack of standing. It held the merchants’ refusals to sell
firearms to Dearth did not support his standing to sue under
the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202.
Hodgkins v. Holder, 677 F. Supp. 2d 202, 204 (2010). Nor,
according to the district court, did Dearth have “pre-
enforcement” standing on the ground that the Government
had “personally threatened” him with prosecution. Id. at 204–
05 (quoting Seegars v. Gonzalez, 396 F.3d 1248, 1251 (D.C.
Cir. 2005)). The district court also rejected the SAF’s claim
to organizational and representational standing. Id. at 206.
*
Form 4473 can be viewed at
http://www.atf.gov/forms/download/atf-f-4473.pdf. According to
27 C.F.R. § 478.11, “An individual resides in a State if he or she is
present in a State with the intention of making a home in that
State.”
4
II. Analysis
In considering de novo whether Dearth has standing, we
assume the factual “allegations of the complaint relevant to
standing are true.” Young Am.’s Found. v. Gates, 573 F.3d
797, 799 (D.C. Cir. 2009). Dearth’s burden is to show he
suffers an “injury in fact” that is both “concrete and
particularized” and either “actual or imminent.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotation marks and citations omitted). That injury must be
both “fairly ... trace[able] to the challenged action of the
defendant” and redressable by the court. Id. at 560–61
(internal quotation marks and citation omitted). The
Government disputes only whether Dearth has suffered a
cognizable injury, as the requirements of traceability and
redressability are clearly met.
In a case of this sort, where the plaintiffs seek declaratory
and injunctive relief, past injuries alone are insufficient to
establish standing. Rather, Dearth must show he is suffering
an ongoing injury or faces an immediate threat of injury. See
Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); O’Shea v.
Littleton, 414 U.S. 488, 495–96 (1974). Dearth argues he
suffers continuing, adverse effects sufficient to support
standing because the Government denied and continues to
deny him the ability to purchase a firearm; he notes we held a
similar injury sufficient for standing in Parker v. District of
Columbia, 478 F.3d 370, 376 (2007), aff’d sub nom. District
of Columbia v. Heller, 554 U.S. 570 (2008). More
specifically, he argues the Government denied him the ability
to buy a firearm by requiring, via Question 13 on Form 4473,
that he reside in a state as a condition of making such a
purchase.
5
We agree with Dearth that the Government has denied
him the ability to purchase a firearm and he thereby suffers an
ongoing injury. Dearth’s injury is indeed like that of the
plaintiff in Parker, who had standing to challenge the District
of Columbia’s ban on handguns because he had been “denied
a registration certificate to own a handgun.” 478 F.3d at 376.
As we there stated, “a license or permit denial pursuant to a
state or federal administrative scheme” that can “trench upon
constitutionally protected interests” gives rise to “an Article
III injury”; “the formal process of application and denial,
however routine,” suffices to show a cognizable injury. Id.
The Government nonetheless argues Parker does not
control both because here it did not affirmatively deny
Dearth’s application to purchase a firearm and because Dearth
does not claim he has a right to be issued a “permit” or
“license” by the Government. As to the first distinction, we
hold the Government cannot so easily avoid suit when it has
erected a regulatory scheme that precludes Dearth from
truthfully completing the application form the Government
requires for the purchase of a firearm. Like the plaintiff in
Parker, Dearth twice attempted to go through the “formal
process” of applying to purchase a firearm and each time
failed because of the laws and regulations he now challenges.
As for its second effort to distinguish Parker, the
Government places undue weight upon our statement there
that the plaintiff was “asserting a right to a registration
certificate, the denial of which [was] his distinct injury.” 478
F.3d at 376. More fundamentally, as we explained, the
plaintiffs there were “claim[ing] a right to possess ...
‘functional firearms[]’ ... for self-defense in the home.” Id. at
374. That is, the right to possess, not the right to a permit or
license, was the substance of their claim. One of those
plaintiffs had standing because, rather than alleging merely an
6
intent to violate the District’s gun laws, he had “invoked his
rights under the Second Amendment to challenge the statutory
classifications used to bar his ownership of a handgun.” Id. at
376. Just so with Dearth, who raises a constitutional
challenge to the regulatory and “statutory classifications” that
bar him from acquiring a firearm. Id. That the regulatory
regime does not provide for the Government’s issuance of a
permit or license is of no moment; the challenged provisions
have similarly thwarted Dearth’s best efforts to acquire a
firearm.
The Government also argues Dearth cannot show he
suffers either the “continuing, present adverse effects,” Lujan,
504 U.S. at 564 (internal quotation marks and citation
omitted), or the “sufficient likelihood of future injury,” Haase
v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987), necessary to
support standing because he is not currently in the United
States and because he has no concrete plan to visit the United
States. Accordingly, the Government maintains Dearth has
failed to show he will be injured anytime “soon.” Lujan, 504
U.S. at 564 n.2. Not so.
In Lujan, the case upon which the Government relies for
this point, various environmental organizations challenged a
regulation that limited application of a section of the
Endangered Species Act to the United States and the high
seas. Id. at 557–59. The organizations presented evidence
that two of their members who had in the past traveled abroad
to visit the habitats of endangered species intended to do so
again, but the Court held their prospective injury was
insufficiently “actual or imminent.” Id. at 563–64. As the
Government here emphasizes, the Court said “‘some day’
intentions — without any description of concrete plans, or
indeed even any specification of when the some day will be”
— were “simply not enough” to survive a summary judgment
7
motion. Id. at 564 (one member “confessed that she had no
current plans” to return); see also Haase, 835 F.2d at 911 (no
standing to challenge policy applicable to travelers entering
the United States from Nicaragua when the plaintiff did no
more than “assert generally that he might one day return to
Nicaragua”).
Dearth alleges in his complaint he “has many friends and
relatives” in the United States “whom he intends to continue
visiting on a regular basis.” Dearth also states directly that he
“intends to purchase firearms within the United States, which
he would store securely at his relatives’ home in Mount
Vernon, Ohio,” allegations that, when tested by a motion to
dismiss, we presume to “embrace those specific facts that are
necessary to support the claim.” Lujan, 504 U.S. at 561
(internal quotation marks and citation omitted). Dearth,
moreover, is not alleging merely an “injury at some indefinite
future time,” id. at 565 n.2; he claims he presently suffers a
cognizable injury to his constitutional rights because the
federal regulatory scheme thwarts his continuing desire to
purchase a firearm. Parker, 478 F.3d at 376.
The Government objects that it remains speculative
whether Dearth will again come up against the statutes and
regulations he is challenging, citing Golden v. Zwickler, 394
U.S. 103 (1969). In that case the Court held the plaintiff
lacked standing to challenge the constitutionality of a New
York law that prohibited the distribution of anonymous
literature concerning an election campaign. Id. at 109–10.
The plaintiff alleged he had before and intended again to
distribute such literature criticizing a particular Congressman
during an upcoming election. Because the Congressman had
by then left the House of Representatives to begin a 14-year
term as a state court judge, it was “most unlikely that [he]
would again be a candidate for Congress.” Id. at 109 & n.4.
8
As it was therefore “wholly conjectural that another occasion
might arise when [the plaintiff] might be prosecuted for
distributing the handbills,” the Court concluded the plaintiff
had failed to show “sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.” Id. at 108–
09 (internal quotation marks and citation omitted).
In this case, there is no similar contingency that makes
Dearth’s injury conjectural; indeed his injury is present and
continuing. In light of Dearth’s stated intent to return
regularly to the United States, only to face a set of laws that
undoubtedly prohibit him from purchasing a firearm, we
conclude his injury is sufficiently real and immediate to
support his standing to challenge those laws. *
III. Conclusion
For the foregoing reasons, the order of the district court
dismissing this case for lack of standing is reversed and the
matter is remanded to the district court for further
proceedings.
So ordered.
*
Accordingly, we need not consider whether Dearth has pre-
enforcement standing. Nor, because the SAF raises no issue not
also raised by Dearth, need we decide whether it has standing.
Environmental Action, Inc. v. FERC, 939 F.2d 1057, 1061 n.∗
(D.C. Cir. 1991).