Cuti v. Barr

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANTHONY J. CUTI,

Plaintiff,

v.
Civil Action No. 19-cv-3455 (RDM)
MERRICK GARLAND, in his official
capacity as Attorney General of the United
States, et al.,

Defendants.

MEMORANDUM OPINION

This matter is before the Court on Plaintiff Anthony Cuti’s Motion for Summary

Judgment (Dkt. 33) and Defendants’ Cross-Motion for Summary Judgment (Dkt. 35). The

parties agree that the sole question at issue is “whether Cuti has sufficiently established Article

III standing.” Dkt. 33 at 1; see also Dkt. 35-1 at 3. For the reasons explained below, the Court

concludes that Plaintiff lacks Article III standing. The Court will, accordingly, DENY Plaintiff’s

Motion for Summary Judgment, GRANT Defendants’ Cross-Motion for Summary Judgment,

and DISMISS the case for lack of jurisdiction.

I. BACKGROUND

The Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (the “Act”), as

amended, prohibits “any person . . . who has been convicted in any court of[] a crime punishable

by imprisonment for a term exceeding one year” from “possess[ing] . . . any firearm or

ammunition,” 18 U.S.C. § 922(g)(1). Another provision of the Act makes it “unlawful for any

person to sell . . . any firearm or ammunition to any person” who “has been convicted in any

court of[] a crime punishable by imprisonment for a term exceeding one year.” Id. § 922(d)(1).

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The statute includes a carve-out from those prohibitions, however, for individuals convicted of

“certain commercial-type crimes.” S. Rep. No. 90-1097, at 112–13 (1968). Under that

provision—the “business practices exception”—“[t]he term ‘crime punishable by imprisonment

for a term exceeding one year’ does not include . . . any Federal or State offenses pertaining to

antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to

the regulation of business practices.” 18 U.S.C. § 921(a)(20)(A).

Plaintiff Anthony J. Cuti was convicted in 2010 of conspiracy to commit securities fraud

in violation of 18 U.S.C. § 371, securities fraud in violation of 15 U.S.C. § 78j(b), and making

false filings with the Securities and Exchange Commission in violation of 15 U.S.C. §§ 78m(a)

and 78o(d). Dkt. 33-1 at 1 (Pl. SUMF ¶ 1). He was sentenced to thirty-six months in prison, a

$5 million fine, and a period of supervised release. Id. (Pl. SUMF ¶ 2–3). He was released long

ago and is no longer on supervised release. Since then, he has not been charged with any other

crime. Id. (Pl. SUMF ¶ 4).

Plaintiff commenced this action in November 2019. See Dkt. 1. In his original

complaint, he alleged that he resides in the state of Florida and “desires to purchase and possess

firearms for the sport of target shooting but is prevented from doing so only by §§ 992(g)(1) and

(d)(1) and the implementing regulations promulgated and enforced by” the federal government.

Id. at 2–3 (Compl. ¶ 7). In response, the government moved to dismiss, arguing that Plaintiff

lacked standing because the state of Florida prohibits all persons “[c]onvicted of or found to have

committed” a federal felony from possessing firearms. Dkt. 10-1 at 7 (quoting Fla. Stat. Ann.

§ 790.23(1)(c)). As the government explained, “unlike federal law, there is no exception under

Florida law for felons convicted of offenses ‘pertaining to antitrust violations, unfair trade

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practices, restraints of trade, or other similar offenses relating to the regulation of business

practices.’” Id. (quoting 18 U.S.C. § 921(a)(20)(A)).

Plaintiff then filed an amended complaint on February 17, 2020, adding the allegation

that he “intends to travel to states where state law does not prohibit him from purchasing and/or

possessing firearms for the sport of target shooting.” Dkt. 11 at 3 (Am. Compl. ¶ 7). The

government again moved to dismiss, repeating its prior arguments and adding an argument

directed at Plaintiff’s new allegation. Dkt. 12-1. The government argued that the new allegation

failed for two reasons: “First, because Plaintiff does not allege that he has any concrete plans to

visit any particular state during any specified time period, he has at most pleaded a conjectural or

hypothetical future injury,” and, second, “because federal law not challenged by Plaintiff would

prohibit him from acquiring a firearm outside of his state of residence, he cannot satisfy the

traceability and redressability requirements of Article III standing.” Id. at 11. The Court agreed

that Plaintiff’s allegations respecting standing lacked sufficient detail and, accordingly,

dismissed the amended complaint without prejudice. Min. Order (March 25, 2021); Dkt. 18.

Plaintiff filed his second amended complaint, which is the operative complaint, on April

29, 2021. Dkt. 19. The government again moved to dismiss, but this time said nothing about

standing and, instead, focused its arguments on the sufficiency of Plaintiff’s claim on the merits.

Dkt. 23. The Court denied that motion for two reasons. First, notwithstanding the government’s

failure to address standing, the Court considered the question sua sponte, as it is required to do.

Dkt. 29 at 5–8. Applying the permissive motion-to-dismiss standard, the Court concluded that

Plaintiff had alleged enough—albeit just enough—to pass jurisdictional muster at that early stage

of the proceeding. The Court wrote:

For present purposes, those allegations at least “plausib[ly]” allege that Cuti has
standing to sue: Cuti has alleged facts sufficient to permit “the court to draw the

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 reasonable inference,” [Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)], that he has
suffered and will continue to suffer an injury-in-fact (his inability to rent or
borrow a firearm and corresponding inability to engage in a life-long avocation),
that was and will continue to be caused by the challenged government action
(the [Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)] allegedly
erroneous interpretation and enforcement of § 921(a)(20)(A)), and that is likely
redressable by a favorable ruling. At this stage of the proceeding, the Court need
not conclude that it is more likely than not that Cuti will carry his burden of
proving that he has standing; it is enough to conclude that his claim of standing
rises “above the speculative level,” [Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)], which it does.

Dkt. 29 at 8. But, of particular relevance here, the Court added:

At summary judgment, however, Cuti will face a far more demanding standard
and will “no longer” be able to “rest on such ‘mere allegations’” and merely
plausible inferences. [Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)]
(quoting Fed. R. Civ. P. 56(e)). At that stage, he will need to “‘set forth’ by
affidavit or other evidence ‘specific facts,’” supporting his claim to standing. Id.
(quoting Fed. R. Civ. P. 56(e)).

Id. at 8–9.

Second, the Court concluded that Plaintiff stated a claim on the merits. As the Court

explained, all three of Plaintiff’s offenses of conviction were pursuant to statutes that “have the

primary purpose of protecting consumers of securities from economic harm” and that “[e]ach

therefore ‘pertain[s] to antitrust violations, unfair trade practices, restraints of trade, or other

similar offenses relating to the regulation of business practices.’” Id. at 18 (quoting 18 U.S.C.

§ 921(a)(20)(A)). The Court was thus unpersuaded by the government’s contention that Plaintiff

had failed to allege facts sufficient to show that his convictions were subject to the business

practices exception, and, accordingly, declined to dismiss the complaint for failure to state a

claim. Id.

That, however, did not provide sufficient basis to grant affirmative relief to Plaintiff for

two reasons. First, Plaintiff had not moved for judgment on the pleadings or for summary

judgment. Second, Plaintiff had only plausibly alleged that he had Article III standing; he

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continued to bear the burden of proof on that question. Hence, after conferring with the parties,

the Court set a schedule for the parties to file cross-motions for summary judgment on the

question of standing. Min. Order (Nov. 17, 2022).

Plaintiff filed his motion for summary judgment on January 16, 2023. Dkt. 33. In

support of that motion, Plaintiff submitted a declaration attesting that he is a resident of the state

of Florida; that he regularly travels “to the [s]tate of New Jersey,” where “three shooting clubs”

had “informed [his] attorney . . . that they would refuse [to grant him] access to their guns [and]

to their premises to shoot” after “he disclosed to them that [he is] a ‘non-violent federal felon.’”

Dkt. 33-3 at 1–3 (Cuti Decl. ¶¶ 3, 6–7). He further attested that he “understands that it is

unlawful under New Jersey law to possess any rifle or shotgun without first obtaining a” New

Jersey Firearms Purchase Identification Card (“NJFPIC”); that he “applied online for a NJFPIC

via the Saddle River, New Jersey Police Department as required by state law;” and that “the

Saddle Rive Police Department formally denied [his] NJFPIC application.” Id. at 2 (Cuti Decl.

¶¶ 8–9, 12). The letter denying Plaintiff’s application for an NJFPIC stated as follows:

The investigation uncovered and indicated that you have a Criminal History
Record with the Federal Government FBI/4469CD9. According to New Jersey
Statute, no handgun purchase permit or firearms purchaser identification card
shall be issued to any person who has ever been convicted of a crime of the first,
second, third, or fourth degree in this state, or equivalent in another state or
jurisdiction, that has not been expunged or sealed. It is not in the interest of the
public health, safety or welfare of the citizens of the State of New Jersey to issue
you a Firearms Purchaser Identification Card, pursuant to N.J.S. 2C:58-3(c)5.

Id. at 2–3 (Cuti Decl. ¶ 12) (emphasis omitted). Finally, Plaintiff attested that, on January 13,

2023, he “appealed the Saddle River Police Department’s formal denial of [his] NJFPIC

application.” Id. at 3 (Cuti Decl. ¶ 15).

On April 4, 2023, the government opposed Plaintiff’s motion and cross-moved for

summary judgment. Dkt. 34; Dkt. 35. In the government’s view, Plaintiff’s submission merely

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confirmed that he lacks standing. As he concedes, Plaintiff has been barred by the state of New

Jersey from possessing a firearm. Moreover, according to the government, a recently enacted

“New Jersey law now independently prohibits Plaintiff from possessing firearms as a result of

his federal conviction.” Dkt. 35-1 at 3. As a result, according to the government, his asserted

“injury cannot be fairly traced to Defendants,” and, “[e]ven if this Court were to grant Plaintiff

the relief he seeks, he would still be legally barred from renting or borrowing a firearm from the

shooting clubs that he visits in New Jersey.” Id.

Because Plaintiff appealed the decision of the Saddle Rive Police Department denying his

NJFPIC application, and because the resolution of that appeal was likely “directly [to] affect[]

the sole remaining issue in this case,” the Court issued an order staying proceedings pending a

decision on the appeal. Min. Order (June 9, 2023). On July 31, 2023, Judge Christopher Kazlau

of the Superior Court of New Jersey, Bergen County—Law Division, issued an order denying

Plaintiff’s appeal. That order provides as follows:

ORDERED that Anthony J. Cuti’s application for a firearms purchaser
identification card and a permit to purchase a handgun is hereby DENIED
because he has been convicted of any crime in this State or its felony counterpart
in any other state or federal jurisdiction, specifically in the United States District
Court for the Southern District of New York, N.J.S.A. 2C:58-3(c)(l); and
because the issuance would not be in the interest of the public health, safety or
welfare because he is found to be lacking the essential character of temperament
necessary to be entrusted with a firearm, N.J.S.A. 2C:58-3(c)(5).

Dkt. 42-1 at 2–3 (Joint Status Report Ex. 1). In response to an inquiry from the Court, Plaintiff

subsequently represented that he “will not appeal the July 28, 2023, New Jersey Superior Court

order denying his NJFPIC.” Dkt. 43 at 1. The parties’ dispute, accordingly, is now ripe for

decision.

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 II. LEGAL STANDARD

A plaintiff bears the burden with respect to standing at every stage of the litigation,

although that burden evolves with the progressively more demanding standards that apply over

the course of the litigation. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At the

summary judgment stage, a plaintiff may no longer rest on mere allegations, and, instead, must

“cit[e] to particular parts of materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), that

demonstrate that there is no genuine dispute of material fact as to the existence of “a concrete

and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant

and likely to be redressed by a favorable judicial decision,” Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 125 (2014) (citation omitted). Similarly, a defendant may

obtain summary judgment on standing by demonstrating “that there is no genuine dispute as to

any material fact,” Fed. R. Civ. P. 56(a), and that the plaintiff cannot establish the required

elements of Article III standing based on the record evidence, see Lujan, 504 U.S. at 561. “The

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

To establish standing, a plaintiff must prove (1) “an injury in fact” that is “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical”; (2) “a causal

connection between the injury and the conduct complained of”; and (3) that “the injury will be

redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (citations and internal quotation

marks omitted). “Causation and redressability typically ‘overlap as two sides of a causation

coin,’” because “[a]fter all, if a government action causes an injury, enjoining the action usually

will redress that injury.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017)

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(quoting Dynalantic Corp. v. Dep’t of Def., 115 F.3d 1012, 1017 (D.C. Cir. 1997)); see also

Siegel v. U.S. Dep’t of Treasury, 304 F. Supp. 3d 45, 52 (D.D.C. 2018).

“Although ‘standing is not precluded’ in a case that turns on third-party conduct, ‘it is

ordinarily substantially more difficult to establish,’” Arpaio v. Obama, 797 F.3d 11, 20 (D.C.

Cir. 2015) (quoting Lujan, 504 U.S. at 562), and the D.C. Circuit “ha[s] required ‘substantial

evidence of a causal relationship between the government policy and the third-party conduct,

leaving little doubt as to causation and the likelihood of redress,’” id. (quoting Nat’l Wrestling

Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004)). “Redressability examines

whether the relief sought, assuming that the court chooses to grant it, will likely alleviate the

particularized injury alleged by the plaintiff.” West v. Lynch, 845 F.3d 1228, 1235 (D.C. Cir.

2017) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663–64 (D.C. Cir. 1996) (en banc)).

“The key word is ‘likely,’” id. (quoting Lujan, 504 U.S. at 561), and thus “the prospect of

obtaining relief from the injury as a result of a favorable ruling” cannot be “too speculative,”

Allen v. Wright, 468 U.S. 737, 752 (1984). As with causation, when redressability “depends on

the unfettered choices made by independent actors not before the court[] and whose exercise of

broad and legitimate discretion the court[] cannot presume either to control or to predict, it

becomes substantially more difficult to establish standing.” Scenic Am., Inc. v. U.S. Dep’t of

Transp., 836 F.3d 42, 50 (D.C. Cir. 2016) (internal quotation marks omitted) (quoting Lujan, 504

U.S. at 562). “Courts do not lightly speculate how independent actors not before them might”

act, and “[w]hen conjecture is necessary, redressability is lacking.” West, 845 F.3d at 1237

(internal quotation marks and alterations omitted).

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 III. ANALYSIS

Plaintiff lacks standing because he has failed to show that the injury that he alleges is

either traceable to the ATF’s construction of the business practices exception or redressable by a

favorable decision from this Court. In his motion for summary judgment and in his opposition to

the government’s cross-motion, Plaintiff identifies only one injury that he contends is traceable

to the government’s assertedly too-narrow construction of the exception and redressable by an

order from this Court declaring that the government has misread the exception: his ability to

possess and use a firearm in New Jersey. See Dkt. 33 at 5.

On Plaintiff’s telling, the federal government has caused that injury. Indeed, he initially

claimed that he wanted to hunt and shoot in New Jersey (rather than in Florida, where he

resides), in part, “because state and local laws do not prohibit him from purchasing and/or

possessing firearms for hunting and target shooting” there. Dkt. 33-1 at 2 (Pl. SUMF ¶ 6)

(emphasis added). He argued that, light of the ATF’s construction of the exception, either “the

FBI or ATF directed the Saddle River Police Department to ensure that [he] was not in a

possession of any guns and ammunition based on [his] predicate offenses.” Dkt. 33 at 6.

According to Plaintiff, “the Saddle River Police Department . . . rejected [his] NJFPIC

application” because of—and only because of—the federal government’s misreading of the

business practices exception. Id. at 7.

The order recently issued by the New Jersey Superior Court demonstrates that this

account is incorrect. As Plaintiff acknowledges, before he can possess a gun and shoot at a New

Jersey shooting club he must possess an NJFPIC. Dkt. 33-1 at 2 (Pl. SUMF ¶ 8). But Plaintiff

made no effort to satisfy this state-law condition until November 2022, id. at 2 (Pl. SMUF

¶ 10)—almost three years after he filed his original complaint in this action, Dkt. 1, and one year

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after he filed his second amended complaint, Dkt. 19. A month later, on December 22, 2022, the

Saddle River Police Department denied his application based, not on the ATF’s reading the

business practices exception or any other federal law, but, rather, based on New Jersey state law.

The letter from the Saddle River Police Department denying his application explained that,

“[a]ccording to New Jersey Statute,” a “person who has ever been convicted of a crime of the

first, second, third, or fourth degree in this state, or equivalent in another state or jurisdiction,”

which “has not been expunged or sealed,” may not obtain a NJPIC. Dkt. 33-1 at 3 (Cuti Decl.

¶ 16) (emphasis added). The letter further explained that it was “not in the interest of the public

health, safety or welfare of the citizens of the State of New Jersey to issue [Cuti] a Firearms

Purchaser Identification Card, pursuant to N.J.S. 2C:58-3(c)5.” Id. The letter makes no

reference to the business practices exception, the AFT’s reading of that provision, or 18 U.S.C.

§§ 922(g)(1) & 922(d)(1). And to the extent the letter implicitly refers to any federal law, it

refers to the federal “crime” or “crimes” that Plaintiff was “convicted” of committing—that is,

securities fraud and the making of false statements. Plaintiff, however, does not dispute that he

was, in fact, convicted of those crimes. In all other respects, the letter refers to, interprets, and

enforces only state law.

Although Plaintiff raises doubts about this reading of the letter, he does not—and

cannot—respond to two salient points: first, nothing in the letter even appears to turn on the

meaning of the business practices exception, and, second, it is Plaintiff who bears the burden of

proof with respect to jurisdiction, and his speculation about how the AFT’s interpretation of the

exception might have influenced the state is wholly unsupported.

Any doubt about whether federal law has any bearing on Plaintiff’s quest to obtain an

NJFPIC is put soundly to rest by the July 31, 2023 order from the Superior Court of New Jersey,

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Bergen County – Law Division, which upheld the Saddle River Police Department’s decision on

appeal. Dkt. 42-1 at 2–3 (Joint Status Report Ex. 1). That order provides two, state-law grounds

supporting the denial of Plaintiff’s application for an NJFPIC. The appeal was denied, first,

because Plaintiff had been convicted of the “felony counterpart” to a New Jersey crime—that is,

the convictions that Plaintiff sustained in the United States District Court for the Southern

District of New York. Id. And, second, it was denied “because the issuance” of a NJFPIIC

“would not be in the interest of the public health, safety or welfare because [Cuti] is found to be

lacking the essential character of temperament necessary to be entrusted with a firearm.” Id. As

to both, the New Jersey court cited and applied New Jersey law (N.J.S.A. 2C:58-3(c)(1), 2C:58-

3(c)(5), respectively)—not the business practices exception or the ATF’s interpretation of the

exception. Although Plaintiff presses for a different reading of the “felony counterpart”

provision than that adopted by the New Jersey court, he offers no basis for this Court to

substitute its view—even if it agreed with Plaintiff, which it does not—for that of the New Jersey

court.

It follows that Plaintiff is unable to possess a gun in New Jersey because he has been

denied the necessary permit under New Jersey law, Dkt. 42-1 at 2–3 (Joint Status Report Ex. 1),

and that, even if this Court were to decide that federal law and regulations do not prohibit

Plaintiff from possessing a firearm as a matter of federal law, his alleged injury would

nonetheless go unredressed. He would still be barred from hunting and shooting in New Jersey

as a matter of New Jersey law. In similar circumstances, this Court and other courts have

(unsurprisingly) held that a plaintiff lacks standing to challenge a federal firearms restriction.

See, e.g., Kimelman v. Garland, 588 F. Supp. 3d 84, 88–89 (D.D.C. 2022); Daogaru v. U.S. Att’y

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General, 683 F. App’x 824, 825–26 (11th Cir. 2017); Sherlund v. Sessions, No. 18-cv-1126,

2018 WL 5982602, *3 (D. Ariz. Nov. 14, 2018).

Plaintiff attempts a new tack in his response to the government’s cross-motion for

summary judgment. There, he argues that (1) the government confuses mootness with standing,

(2) the amended New Jersey law does not bar him from obtaining a permit, and (3) he should be

granted declaratory relief regardless of whether he can obtain an NJFPIC. Dkt. 39. Each of

these arguments is unconvincing.

First, Plaintiff argues that prior to the amendments enacted on December 22, 2022, New

Jersey state law did not provide a reason for the Saddle River Police Department to have denied

him an NJFPIC, and he hypothesizes that, if this Court had resolved the case before December

22, 2022, he might have obtained an NJFPIC. Id. at 3. As a result, in Plaintiff’s view, the

question before the Court is not standing, but mootness, and the bar for establishing that a claim

is not moot is lower than the bar for establishing standing. Plaintiff, then, makes at least passing

reference to two possible exceptions to the mootness doctrine, asserting that a case is not moot if

the controversy is capable of repetition yet evading review, or, at least arguably, “if there are

secondary or collateral injuries despite resolution of the plaintiff’s primary claim.” Id. at 5.

There are multiple problems with this argument. To start, Plaintiff has borne the burden

of establishing standing throughout this litigation, and he has never shown—when he filed or at

any subsequent time—that the ATF’s reading of the business practices exception had caused him

a cognizable injury or that it was likely to do so in the foreseeable future. It is one thing to allege

facts sufficient to withstand a motion to dismiss. But that does not mean that Plaintiff has ever

shown that he once had standing, only to see that standing evaporate based on intervening events.

Indeed, Plaintiff acknowledges that he did not attempt to obtain a NJFPIC before November

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2022, Dkt. 33-1 at 2 (Pl. SUMF ¶ 10), and so, at the time he brought this suit, at least one

substantial, non-federal law barrier stood in his way of obtaining the relief he seeks.

To be sure, if obtaining a NJFPIC was a mere formality at that time, this failing might be

of little import. But that is not the case. To the contrary, even before New Jersey amended its

laws in December 2022, the shooting ranges that Plaintiff wanted to visit required an NJFPIC, id.

(Pl. SUMF ¶ 8), and the then-governing law precluded “any person where the issuance would not

be in the interest of the public health, safety or welfare” from obtaining an NJFPIC, see 2022 NJ

Sess. Law Serv. Ch. 131. Significantly, this language is similar to language that appears in the

later version of the law1 and, even more importantly, it tracks the language that appeared in the

letter from the Saddle River Police Department denying Plaintiff’s application in 2022, Dkt. 33-1

at 3 (Cuti Decl. ¶ 16) (“It is not in the interest of the public health, safety or welfare of the

citizens of the State of New Jersey to issue you a Firearms Purchaser Identification Card,

pursuant to N.J.S. 2CL58-3(c)5.”). Against this backdrop, it is an uphill battle for Plaintiff to

maintain that he had standing at the time he brought this suit, and it was only the change in New

Jersey law that has now arguably mooted the case.

But, even if the Court were to treat the issue as one of mootness, rather than standing,

Plaintiff’s argument would still fail. Although Plaintiff briefly gestures at exceptions to the

mootness doctrine, he makes no meaningful effort to show that any such exception is satisfied

here. He offers no reason, for example, to conclude that this is a “controversy is capable of

1
Compare N.J. Stat. Ann. § 2C:58-3(c)(5) (2021) (“(5) To any person where the issuance would
not be in the interest of the public health, safety or welfare[.]”) with N.J. Stat. Ann. § 2C:58-
3(c)(5) (2023) (“(5) To any person where the issuance would not be in the interest of the public
health, safety or welfare because the person is found to be lacking the essential character of
temperament necessary to be entrusted with a firearm[.]”).

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repetition, yet evading review,” Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (internal

quotation marks omitted), nor does he point to any, tangible collateral consequences that a

decision in this case would affect, cf. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak

Dan Gas Bumi Negara, 335 F.3d 357, 365 (5th Cir. 2003). Although the moving party bears the

initial burden of establishing that a dispute has become moot, the party invoking an exception to

the mootness doctrine—here, Plaintiff—bears the burden of showing that the exception applies.

See Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 576 (D.C. Cir. 2010). Plaintiff has not come

close to carrying that burden.

Second, Plaintiff contends that New Jersey law does not, in fact, independently bar him

from possessing a firearm. Dkt. 39 at 6. The New Jersey Superior Court has resolved that

question and has held that Plaintiff is barred under New Jersey law, §§ 2C:58-3(c)(1) and 2C:58-

3(c)(5), from obtaining an NJFPIC or a permit to purchase a handgun. Dkt. 42-1 at 2–3 (Joint

Status Report Ex. 1). Plaintiff has declined to appeal that decision, Dkt. 43, and it is,

accordingly, binding and final. This Court, of course, has no authority to alter a state court’s

interpretation and application of state law, much less authority to set aside the decision of a state

court that independently bars Plaintiff from obtaining the NJFPIC that he concedes is a necessary

precondition of the relief that he seeks.

Third, Plaintiff argues that the government “misses the point of [his] claims and injury.”

Dkt. 39 at 11. As he sees it, “this case is not only about obtaining a NJFPIC in New Jersey so

[he] can exercise his Second Amendment rights, but [also] about stopping the [g]overnment’s

mischaracterization of his federal rights when he attempts to lawfully possess, rent, or borrow a

firearm.” Id. at 12. To the extent the Court understands this undeveloped argument, it

fundamentally misconceives the role of the federal judiciary. “Article III of the Constitution

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limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’” Lance v. Coffman, 549

U.S. 437, 439 (2007). That is why Plaintiff must demonstrate that he has standing. Id. A

generalized grievance that is unmoored to any “concrete” and “redressable” harm does not

present a “case” or “controversy” within the meaning of Article III, and the Court, accordingly,

lacks “judicial power” to adjudicate such a claim. U.S. Const., Art. III, Section 2.

For all of these reasons, Plaintiff has failed to carry his burden of demonstrating that this

Court has jurisdiction to enter a declaratory judgment or to grant any other remedy based on the

ATF’s alleged misreading of the business practices exception. Cf. Miriyeva v. United States

Citizenship & Immigr. Servs., 9 F.4th 935, 945 (D.C. Cir. 2021) (“[I]t is a ‘well-established rule

that the Declaratory Judgment Act is not an independent source of federal jurisdiction.’” (quoting

C&E Services, Inc. of Wash. v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002))).

The Court, accordingly, concludes that the government is entitled to summary judgment, and the

Court will dismiss the action without prejudice for lack of jurisdiction.

CONCLUSION

For the foregoing reasons, the Court will DENY Plaintiff’s Motion for Summary

Judgment, will GRANT Defendants’ Cross-Motion for Summary Judgment, and will DISMISS

the case without prejudice.

A separate order will issue.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: September 30, 2023

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