Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 05-22-2019
Case Style:
Ronald Eugene DuBerry v. District of Columbia
Case Number: 18-7102
Judge: Edwards
Court: United States Court of Appeals for the District of Columbia Circuit on appeal from the District of Columbia
Plaintiff's Attorney:
If you need a constitutional law second amendment lawyer in Washington, DC, call: 888-354-4529 and we will help you.
Defendant's Attorney: Mary L. Wilson, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued
the cause for appellant. With her on the briefs were Karl A.
Racine, Attorney General, Loren L. AliKhan, Solicitor
General, and Caroline S. Van Zile, Deputy Solicitor General.
Description:
Subject to certain
conditions, the Law Enforcement Officers Safety Act
(“LEOSA”) authorizes “qualified retired law enforcement
officer[s]” to carry concealed firearms. 18 U.S.C. § 926C(a).
Ronald DuBerry, Maurice Curtis, and Robert Smith
(“Appellees”) formerly served as correctional officers with the
Washington, D.C. Department of Corrections (“DCDOC”).
After they had separated from service in good standing, see id.
§ 926C(c)(1), Appellees sought to invoke LEOSA so that they
would be able to carry concealed firearms as “qualified retired
law enforcement officers.” The District of Columbia
(“District”) refused to issue the necessary certification forms
for Appellees, however. The District claimed that, as former
corrections officers, Appellees never had statutory powers of
arrest and, therefore, could not claim any rights under LEOSA.
Appellees then initiated an action under 42 U.S.C. § 1983
seeking declaratory and injunctive relief to require the District
to recognize them as “qualified retired law enforcement
officers” for purposes of LEOSA. The District Court dismissed
Appellees’ complaint for failure to state a claim. This court
reversed and remanded the case to the District Court for further
proceedings. DuBerry v. District of Columbia (“DuBerry I”),
824 F.3d 1046 (D.C. Cir. 2016).
In DuBerry I, we found that “LEOSA’s plain text, purpose,
and context show that Congress intended to create a concrete,
individual right to benefit individuals like [Appellees] and that
3
is within the competence of the judiciary to enforce.” 824 F.3d
at 1054–55 (citation omitted). We rejected the District’s theory
that rights under LEOSA “attach” only after officers have
obtained requisite identifications. Id. at 1055. We therefore
held that Appellees had “sufficiently alleged that the federal
right they seek to enjoy has been unlawfully deprived by the
District of Columbia to be remediable under Section 1983.” Id.
On remand, the District Court granted summary judgment
for Appellees, holding that they had met three of LEOSA’s
statutory requirements necessary to be considered “qualified
retired law enforcement officers.” DuBerry v. District of
Columbia, 316 F. Supp. 3d 43, 58 (D.D.C. 2018). Specifically,
the court found that each Appellee, in his prior position,
possessed “statutory powers of arrest,” served as a “law
enforcement officer” for an aggregate of at least 10 years, and
separated from service in good standing. See 18 U.S.C. §
926C(c). Appellees did not ask the District Court to determine
whether they had “identifications” sufficient to satisfy the
requirements of 18 U.S.C. § 926C(d). Therefore, the court did
not address this issue. Instead, the District Court simply noted
that “whether or not [Appellees] have sufficient identification
is irrelevant for purposes of determining whether they have
met certain statutory preconditions to be considered ‘qualified
retired law enforcement officers.’” DuBerry, 316 F. Supp. 3d
at 58. The District now appeals.
The District presses two arguments on appeal. The
principal claim raised by the District is that, under LEOSA, “to
carry a concealed weapon, an individual must be both a
qualified retired law enforcement officer and hold an
identification issued by his former government employer
stating that he was a law enforcement officer.” District Br. at
14 (emphasis in original). Therefore, according to the District,
“since [Appellees] lack the proper identification, they have no
4
enforceable right that is remediable under Section 1983.” Id. at
15. The District also suggests that Appellees lack standing to
pursue this action, because “even assuming [Appellees] have a
viable claim under Section 1983,” they have failed to “show a
causal link between the District’s alleged misconduct and their
injury.” See id. at 16. In other words, according to the District,
Appellees have “failed to show that, but for the District’s
refusal to complete their employment certification forms, they
would have been entitled to carry under LEOSA.” Id.
We find no merit in the District’s contentions. The first
argument is foreclosed by DuBerry I. The second argument
completely misapprehends the relief sought and obtained by
Appellees in this litigation. Appellees are not seeking a
declaration that they are entitled to carry firearms pursuant to
LEOSA. Rather, they have sought to overturn the District’s
unlawful refusal to certify them as “qualified retired law
enforcement officers,” which is necessary in order for them to
pursue the right to carry under LEOSA. Therefore, it does not
matter whether Appellees have yet to obtain the identifications
required by Section 926C(d). As the District Court correctly
noted, the requirements of Section 926C(d) are not at issue in
this case. We therefore affirm the judgment of the District
Court.
I. BACKGROUND
A. The Law Enforcement Officers Safety Act
The District Court’s opinion cogently explains the relevant
portions of LEOSA, as follows:
Before 2004, a patchwork of state laws governed
whether out-of-state current or former law enforcement
officers could carry a concealed firearm within a
5
particular state’s borders. . . . Beginning in 1992,
lawmakers introduced legislation aimed at permitting
concealed carry nationwide for certain law enforcement
officers. . . . Efforts succeeded in 2004 with the
enactment of the Law Enforcement Officers Safety Act,
known as “LEOSA.” See LEOSA, Pub. L. 108–277, 118
Stat. 865[, 866] (2004) (codified at 18 U.S.C. §§ 926B,
926C).
LEOSA mandates that all active and retired law
enforcement officers be able to carry a concealed firearm
anywhere in the United States subject to certain
conditions, overriding most contrary state and local
laws. . . . LEOSA provides that, “[n]otwithstanding any
other provision of the law of any State or any political
subdivision thereof,” a “qualified law enforcement
officer” or “qualified retired law enforcement officer”
“may carry a concealed firearm that has been shipped or
transported in interstate or foreign commerce,” so long
as the individual also carries the requisite identification.
18 U.S.C. §§ 926B(a), 926C(a).
. . . .
Section 926C sets forth the requirements to be
considered a “qualified retired law enforcement officer,”
which differ in some respects from the qualifications for
active officers. See id. § 926C(c). To qualify for LEOSA
rights, a retired employee must have “separated from
service in good standing . . . with a public agency as a
law enforcement officer.” Id. § 926C(c)(1). The
individual must also meet the relevant standards for
qualification in firearms training; must not have been
found unqualified for reasons related to mental health;
must not be under the influence of alcohol or another
intoxicating substance; and must not be prohibited by
6
federal law from receiving a firearm. Id. § 926C(c)(4)–
(7). In addition, before separating from the agency, the
individual must have “served as a law enforcement
officer for an aggregate of 10 years or more”; must have
had legal authority to “engage in or supervise the
prevention, detection, investigation, or prosecution of, or
the incarceration of any person for, any violation of law”;
and must have had either “statutory powers of arrest” or
powers of apprehension pursuant to 10 U.S.C. § 807(b).
18 U.S.C. § 926C(c)(2)–(3). Qualified retired law
enforcement officers must carry “photographic
identification issued by the agency . . . that identifies the
person as having been employed as a police officer or
law enforcement officer.” Id. § 926C(d)(1), (2)(A). And,
if the agency-issued identification does not indicate that
the retired officer has completed the appropriate firearms
training, the officer must carry a separate certification
form so establishing. Id. § 926C(d)(2).
DuBerry v. District of Columbia, 316 F. Supp. 3d at 45–46.
B. Background Facts
Appellees worked as correctional officers with the
DCDOC for at least sixteen years before retiring in good
standing. As correctional officers, they were responsible for
the treatment, custody, counseling, and supervision of
individuals incarcerated in District correctional facilities.
Following their retirements, and starting in approximately
November 2012, Appellees individually sought to exercise
concealed-carry rights under LEOSA.
The District Court’s opinion lucidly recounts the facts
leading to Appellees’ initiation of this litigation after the
7
District denied their requests for certifications required by
LEOSA:
In Prince George’s County, Maryland (where [Appellee]
Duberry and [Appellee] Curtis reside) and in the District
of Columbia (where [Appellee] Smith resides), an
individual must submit a prior employment certification
form completed by the law enforcement agency for
which he previously worked before seeking firearm
certification. On this certification form, the agency must
answer a series of questions by checking boxes for “yes”
or “no.” One question asks whether the applicant, while
employed, possessed various authorizations enumerated
in subsection (c)(2) of LEOSA, including “statutory
powers of arrest.” Relatedly, another question asks
whether the applicant was “regularly employed as a law
enforcement officer” for the indicated duration of time.
In response to both of these questions on [Appellee]
Duberry’s prior employment certification form, a
DCDOC human resources officer checked the boxes for
“no” and wrote that Mr. Duberry was “not a law
enforcement officer.” DCDOC took the same position
with respect to the other [Appellees], with the agency’s
former director explaining to [Appellees’] counsel that
the agency does not believe that active or retired
correctional officers of DCDOC meet all of the LEOSA
requirements.
In July 2014, [Appellees] initiated this action against
the District of Columbia . . . . [Appellees’] amended
complaint alleged that [the District’s] actions had denied
them rights under LEOSA in violation of 42 U.S.C.
§ 1983. [Appellees] contended that they met all of the
LEOSA conditions, including that they had “statutory
8
powers of arrest.” In support of this claim, [Appellees]
asserted that they were given identification cards stating
that they had such powers under D.C. Code § 24–405.
[Appellees] sought injunctive and declaratory relief
requiring [the District] to recognize them as retired law
enforcement officers for purposes of LEOSA.
. . . .
Interpreting [Appellees’] complaint as seeking “the right
to have [DC]DOC classify them as retired ‘law
enforcement officers’ under subsection (c)(2) for
purposes of completing their application[s] for []
concealed carry permit[s],” the [District Court] could not
say that Congress intended to confer upon [Appellees]
the right that they sought to enforce in this action. Rather,
the Court construed LEOSA as conferring only one
right—the right to carry a concealed firearm—and doing
so only with respect to individuals who already have
status as “qualified retired law enforcement officer[s]”
and who already possess the identification documents
required by subsection (d). Accordingly, [the District
Court] explained that even if the District had
misclassified [Appellees]—an issue that [the District
Court] did not reach—[Appellees] could not seek to
correct that error through § 1983.
316 F. Supp. 3d at 47–48 (citations omitted); see also DuBerry
v. District of Columbia, 106 F. Supp. 3d 245 (D.D.C. 2015)
(District Court’s initial decision).
C. This Court’s Decision in DuBerry I
This court reversed the District Court’s judgment in favor
of the District. DuBerry v. District of Columbia (“DuBerry I”),
824 F.3d 1046 (D.C. Cir. 2016). The court applied the three9
factor test enunciated in Blessing v. Freestone, 520 U.S. 329
(1997), and concluded that Appellees’ lawsuit rested on a
viable cause of action under 42 U.S.C. § 1983. DuBerry I, 824
F.3d at 1051–55. Under Blessing, a statute creates a right
enforceable under Section 1983 if (1) “Congress . . . intended
that the provision in question benefit the plaintiff,” (2) “the
plaintiff . . . demonstrate[s] that the right assertedly protected
by the statute is not so ‘vague and amorphous’ that its
enforcement would strain judicial competence,” and (3) “the
statute . . . unambiguously impose[s] a binding obligation on
the States” using “mandatory, rather than precatory, terms.”
520 U.S at 340–41 (citation omitted).
In addressing the first Blessing factor, the court in
DuBerry I concluded that Congress enacted LEOSA to directly
benefit retired officers such as Appellees. See 824 F.3d at
1052. Notably, the court pointed out that LEOSA afforded a
right not only to police officers, but also to “correctional
officers and parole authorities who ‘engage[d] in . . . the
incarceration of any person for[ ] any violation of law.’” Id.
(quoting 18 U.S.C. § 926C(c)(2)).
Regarding the second Blessing factor, the court in
DuBerry I found that the right to carry under LEOSA, which
Appellees sought to secure, was not “vague and amorphous.”
Id. at 1053 (citation omitted). The court found it significant that
Congress had set forth clear statutory criteria for defining the
LEOSA right and for determining eligibility under the statute.
See id. The court also was satisfied that an individual’s
eligibility can be readily determined in judicial proceedings
through record evidence and the interpretation of relevant state
and local laws. See id. The court thus concluded that LEOSA
is readily susceptible to judicial enforcement. See id.
10
Finally, regarding the third Blessing factor, the court in
DuBerry I highlighted Congress’s “categorical preemption of
state and local law standing in the way of the LEOSA right to
carry,” and concluded that states have a “mandatory duty” to
“recognize the right” LEOSA establishes. Id. The court was
clear in its determination that Congress did not afford states the
discretion to “redefine either who are ‘qualified law
enforcement officers’ or who is eligible for the LEOSA right.”
Id.
In sum, in DuBerry I, the court held that LEOSA’s plain
text “confers upon a specific group of individuals a concrete
right the deprivation of which is presumptively remediable
under Section 1983.” Id. at 1053–54. Accordingly, we reversed
the District Court’s judgment in favor of the District and
remanded for further proceedings.
D. The District Court’s Decision on Remand
Following this court’s decision to remand in DuBerry I, the
District Court denied the District’s motion for summary
judgment and granted Appellees’ cross-motion for summary
judgment. DuBerry v. District of Columbia, 316 F. Supp. 3d 43,
45, 50 (D.D.C. 2018). In concluding that Appellees meet the
statutory preconditions to be considered “qualified retired law
enforcement officers,” the District Court made three principal
findings.
First, the court found that Appellees had “statutory powers
of arrest” under 18 U.S.C. § 926C(c)(2). 316 F. Supp. 3d at
50–54. “[B]ecause the record shows that [Appellees] were
‘officer[s] of the District of Columbia penal institutions’—a
fact that the District does not contest— . . . D.C. Code § 24–
405 authorized them to execute warrants for the arrest of
11
parole violators, satisfying the LEOSA ‘statutory powers of
arrest’ requirement.” 316 F. Supp. 3d at 54 (citation omitted).
Second, the court found “that each [Appellee] worked as
[a] DCDOC corrections officer—a role in which they
‘engage[d] in or supervise[d] . . . the incarceration of . . .
[people],’ 18 U.S.C. § 926C(c)—for at least ten years.
Accordingly, the Court conclude[d] that each [Appellee] has
met the requirement outlined in subsection (c)(3)(A) of
LEOSA.” 316 F. Supp. 3d at 57.
Third, the court “reject[ed] the District’s argument that
[Appellees] must prove that they have photographic
identification that satisfies subsection (d) before the Court can
grant their motion for summary judgment.” 316 F. Supp. 3d at
57. On this point, the District Court explained that,
[i]n [DuBerry I], the Circuit explicitly rejected the notion
that [Appellees] might “lack the [LEOSA] right until
they obtain the subsection (d)(2)(B) firearms
certification.” Duberry I, 824 F.3d at 1055. In the
Circuit’s view, “the firearm certification requirement
does not define the right itself but is rather a precondition
to the exercise of [the LEOSA] right.” Id. The District
appears to offer a different version of this argument,
asserting that [Appellees] must prove that they meet
other preconditions for exercising LEOSA rights before
they can be deemed “qualified retired law enforcement
officers” to whom Congress conferred LEOSA rights.
This Court thinks that, just as the firearm certification
did not define the LEOSA right, the possession of a
photographic identification that is required to exercise
the right does not define the LEOSA right.
12
316 F. Supp. 3d at 57 (citation omitted). As we explain below,
the District Court’s understanding of the decision in DuBerry I
is exactly right.
It is also noteworthy that Appellees did not ask the District
Court to determine whether they had “identifications”
sufficient to satisfy the requirements of 18 U.S.C. § 926C(d).
Therefore, the District Court did not address this issue. Instead,
the District Court simply noted that “whether or not
[Appellees] have sufficient identification is irrelevant for
purposes of determining whether they have met certain
statutory preconditions to be considered ‘qualified retired law
enforcement officers.’” 316 F. Supp. 3d at 58.
The District now appeals, arguing that summary judgment
was improper because Appellees are not the intended
beneficiaries of LEOSA and, even if they are beneficiaries
under the statute, they lack standing to pursue this action. For
the reasons explained below, we find no merit in the District’s
claims.
II. ANALYSIS
A. Standard of Review
“This court reviews the District Court’s ruling on summary
judgment de novo.” Feld v. Fireman’s Fund Ins. Co., 909 F.3d
1186, 1193 (D.C. Cir. 2018). In reviewing a summary
judgment motion, courts are required to ‘“examine the facts in
the record and all reasonable inferences derived therefrom in a
light most favorable to’ the non-moving party.” Id. (quoting
Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016)). We must
then determine whether “there are any genuine factual issues
that properly can be resolved only by a finder of fact because
13
they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
B. The Law of the Case Doctrine Controls the Disposition
of the First Issue
The District’s principal argument in this case is that, under
LEOSA, “to carry a concealed weapon, an individual must be
both a qualified retired law enforcement officer and hold an
identification issued by his former government employer
stating that he was a law enforcement officer.” District Br. at
14 (emphasis in original). Therefore, according to the District,
“since [Appellees] lack the proper identification, they have no
enforceable right that is remediable under Section 1983.” Id. at
15.
The District has not challenged the District Court’s
conclusion that Appellees meet the requirements of
Section 926C(c)(1)–(3) of LEOSA, i.e., that Appellees
separated in good standing, had statutory powers of arrest, and
served for an aggregate of 10 years or more. Rather, the
District contends that, absent proper identification, Appellees
“are not intended beneficiaries under LEOSA and have no
enforceable right that is remediable under Section 1983 in light
of Blessing.” District Br. at 17. This argument is merely a
rehash of the issue that was decided by the court in DuBerry I.
Therefore, we reject it, both because it lacks merit and because
there are no “extraordinary circumstances” here that compel us
to revisit an issue that is controlled by the law of the case.
United States v. Thomas, 572 F.3d 945, 948 (D.C. Cir. 2009)
(citation omitted).
Section 1983 provides a remedy for the deprivation of
federal constitutional and statutory rights by any person acting
under color of state law. 42 U.S.C. § 1983; see also Maine v.
14
Thiboutot, 448 U.S. 1, 4 (1980); Golden State Transit Corp. v.
City of Los Angeles, 493 U.S. 103, 105–06 (1989). Section
1983 relief is also available when officials act under color of
District of Columbia law. See, e.g., Dist. Props. Assocs. v.
District of Columbia, 743 F.2d 21, 26 (D.C. Cir. 1984). In
DuBerry I, we found that “LEOSA’s plain text, purpose, and
context show that Congress intended to create a concrete,
individual right to benefit individuals like [Appellees] and that
is within the competence of the judiciary to enforce.” 824 F.3d
at 1054–55 (citation omitted). We therefore held that
Appellees had “sufficiently alleged that the federal right they
seek to enjoy has been unlawfully deprived by the District of
Columbia to be remediable under Section 1983.” Id. at 1055.
In amplifying this holding, the court in DuBerry I made it
clear that,
[i]n enacting the requirements for “qualified law
enforcement officers” to claim this right, Congress gave
every signal that it contemplated no state reevaluation or
redefinition of federal requirements. Consequently, the
firearms certification requirement does not define the
right itself but is rather a precondition to the exercise of
that right.
824 F.3d at 1055 (emphasis added). And, pursuant to our
decision in DuBerry I that the firearms certification
requirement in subsection (d)(2)(B) does not define the
LEOSA right, the District Court rejected “a different version of
[the District’s] argument,” one that was based on the
photographic identification requirement in subsection
(d)(2)(A). 316 F. Supp. 3d at 57. The District Court correctly
found that,
15
just as the firearm certification did not define the LEOSA
right, the possession of a photographic identification that
is required to exercise the right does not define the
LEOSA right.
316 F. Supp. 3d at 57. This finding necessarily flows from this
court’s decision in DuBerry I. And we affirm it.
In DuBerry I, we explained that LEOSA’s “plain text,
purpose, and context” demonstrated that Congress intended for
individuals like Appellees to have a “concrete, individual
right.” 824 F.3d at 1054. We rejected the District’s
“attachment” theory, which erroneously suggested that
individuals possess no right until they obtain a firearms
certification. See id. at 1055. Our analysis does not change due
to the substitution of another provision in the same subsection
of LEOSA. Therefore, the disposition of this issue is controlled
by the law of the case, which is found in the court’s decision in
DuBerry I.
The “law of the case” doctrine “reflects the understanding
that ‘[i]nconsistency is the antithesis of the rule of law.’”
United States v. Philip Morris USA Inc., 801 F.3d 250, 257
(D.C. Cir. 2015) (alteration in original) (quoting LaShawn A. v.
Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)). When
a different panel hears a case on its subsequent trip to the
appellate court, absent “extraordinary circumstances,” the
second panel will not reconsider issues already decided.
Thomas, 572 F.3d at 948 (citation omitted). No extraordinary
circumstances exist in this case. See id. at 948–49 (explaining
that “manifest injustice” and an intervening change in
controlling law are primary examples of extraordinary
circumstances).
16
In the first appeal of this case, the District argued that,
under the first Blessing factor, Congress did not intend for
Appellees to benefit from LEOSA because they were not “in
possession of an identification required under subsection (d).”
See Br. for District of Columbia at 16, DuBerry I, 824 F.3d
1046 (No. 15–7062). This court, in DuBerry I, rejected the
contention that Appellees have no enforceable right until they
obtain a firearms certification – one component of a subsection
(d) identification. Since a firearms certification and a
photographic identification are each required for a subsection
(d)–compliant identification, the same reasoning from DuBerry
I forecloses the District’s argument here. See PNC Fin. Servs.
Grp. v. Comm’r, 503 F.3d 119, 126 (D.C. Cir. 2007) (“Law-ofthe-
case doctrine encompasses issues decided both explicitly
and by necessary implication.” (citation omitted)). While each
requirement is a precondition to exercising concealed carry,
neither defines this right. Accordingly, we once again state that
LEOSA creates an individual right to carry that is remediable
under Section 1983.
C. The District’s “Causation” Argument is Meritless
The District’s alternative argument is that it is entitled to
judgment because its actions did not cause Appellees to be
deprived of any concealed-carry right under LEOSA. In other
words, the District contends that, “[a]ssuming that [Appellees]
have a viable Section 1983 claim, the District is also entitled
to judgment because the actions about which [Appellees]
complain—the District’s failure to issue them a form necessary
to obtain the training certification required by Subsection
926C(d)(2)(B)—did not deprive them of any right under
LEOSA.” District Br. at 26. This is a perplexing claim, to say
the least.
17
First, this argument is essentially the same as the District’s
principal argument, discussed above. That is, that under
LEOSA, “to carry a concealed weapon, an individual must be
both a qualified retired law enforcement officer and hold an
identification issued by his former government employer
stating that he was a law enforcement officer.” District Br. at
14 (emphasis in original). As we have already explained, this
claim fails under the law of the case.
The District also claims that, under tort law principles,
Appellees have “fail[ed] to establish entitlement to relief under
42 U.S.C. § 1983 because they have not established that they
possess the requisite identification cards required to have the
right to carry a firearm across state lines under LEOSA.”
District Reply Br. at 15; see also District Br. at 14. In other
words, the District contends that “a defendant must have
‘caused’ the deprivation of rights to establish Section 1983
liability.” District Reply Br. at 15. The problem with this
argument is that it is based on a blatant mischaracterization of
Appellees’ claim. As we noted at the outset of this opinion, and
as we explain further below, Appellees are not seeking a
declaration that they are entitled to carry firearms pursuant to
LEOSA. Rather, they have challenged the District’s unlawful
refusal to certify them as “qualified retired law enforcement
officers,” which is necessary in order for them to pursue the
right to carry under LEOSA.
The District’s Section 1983 argument, invoking tort law
principles, see District Br. at 27–28, is a smoke screen. The
District’s proximate cause and but-for notions of “causation”
do not in any way advance its argument. The District, by its
own admission, has refused to acknowledge that Appellees are
qualified retired law enforcement officers. In fact, when
Appellees requested necessary documentation, DCDOC
explicitly indicated that they did not meet LEOSA’s definition.
18
Therefore, the District is the cause of Appellees’ inability to be
considered qualified retired law enforcement officers.
In framing its alternative argument, the District never uses
the word “standing.” It appears, however, that the District’s
argument strongly suggests that, for want of causation,
Appellees lack Article III standing to pursue their action
against the District. We disagree.
“Article III of the Constitution limits the jurisdiction of
federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting
U.S. Const. art. III, § 2).
In order to demonstrate standing, a party must allege
(and ultimately prove) that it [ ] has suffered an “injury
in fact” to a judicially cognizable interest “that is
concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be
fairly traceable to the challenged action of the defendant;
and it must be likely that a favorable judicial decision
will prevent or redress the injury.” Summers, 555 U.S. at
493 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000)); see
also Defs. of Wildlife, 504 U.S. at 560–63. “The
‘irreducible constitutional minimum of standing’” is thus
often summarized as “requir[ing] that a plaintiff
demonstrate three elements: (1) injury in fact; (2)
causation; and (3) redressability.” Scenic Am., Inc. v.
U.S. Dep’t of Trans., 836 F.3d 42, 48 (D.C. Cir. 2016)
(quoting Defs. of Wildlife, 504 U.S. at 560–61).
EDWARDS & ELLIOTT, FEDERAL STANDARDS OF REVIEW—
REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS
43–44 (3d ed. 2018).
19
In addition to establishing that it has suffered an
injury-in-fact, a litigant must also demonstrate causation
and redressability. “Causation and redressability are
closely related[,] like two sides of a coin.” West v. Lynch,
845 F.3d 1228, 1235 (D.C. Cir. 2017). Nonetheless each
has a distinct focus. Causation requires “a fairly
traceable connection” between the complained-of
conduct of the defendant and the injury claimed. Steel
Co., 523 U.S. at 103; accord DaimlerChrysler, 547 U.S.
at 342. Redressability requires a litigant to demonstrate
“a likelihood that the requested relief will redress the
alleged injury.” Steel Co., 523 U.S. at 103; see also Defs.
of Wildlife, 504 U.S. [at] 561 (“[I]t must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.”) Consequently,
consideration of causation can be analytically distinct
from redressability, and vice versa.
Id. at 47.
The District suggests that Appellees lack Article III
standing because any injuries that they have suffered were not
caused by the District. And, relatedly, the District claims that
because it did not cause Appellees’ injuries, a judgment against
the District will not afford Appellees any redress.
When the District Court first heard this case in 2015, the
District challenged Appellees’ Article III standing. After
carefully considering the matter, the District Court rejected the
District’s arguments. Regarding injury-in-fact, the District
Court
readily conclude[d] that [Appellees] have suffered an
injury to their “cognizable interest” in proceeding with
20
their applications to obtain the right to carry a concealed
firearm, as permitted by LEOSA. . . . [Appellees] have
made efforts to effectuate their own (alleged) rights
under LEOSA, efforts that they claim [DCDOC] has
stymied.
. . . .
[B]ecause all [Appellees] have already been refused the
prior employment certification requested from
[DCDOC] and are still unable to proceed in obtaining a
concealed carry permit, the injury to [Appellees’]
“cognizable interests” (or alleged “legal rights”) has
already occurred—and continues to occur, absent a
change in [DCDOC’s] legal position.
DuBerry v. District of Columbia, 106 F. Supp. 3d 245, 255–
56 (D.D.C. 2015) (citations omitted).
Regarding causation, the District Court found that
[t]he parties do not dispute causation. . . . The Court
nonetheless readily concludes that causation is satisfied.
[Appellees] allege that [DCDOC’s] erroneous
interpretation of LEOSA and resultant refusal to
recognize [Appellees] as retired “law enforcement
officers” directly caused their injury-in-fact.
Id. at 257.
And, finally, regarding redressability, the District Court
found that,
[h]ere again, the Court’s analysis is straightforward. A
“favorable decision” for [Appellees] would result in an
order directing [the District] to “certify and/or
21
acknowledge [Appellees] as retired law enforcement
officers” under LEOSA. This order would “likely” (if
not certainly) enable [Appellees] to obtain the prior
employment certification from [DCDOC] indicating that
they were indeed “law enforcement officers” under
LEOSA, thereby remedying their injury-in-fact.
Id. (citations omitted).
When the District Court’s decision was reviewed by this
court in DuBerry I, Article III standing was neither raised by
the District nor considered by the court. Appellees obviously
were seen to have Article III standing, as the District Court
correctly found, so there was nothing for this court to say on
the matter.
Having already lost on the matter of Article III standing,
the District now tries, in vain, to cast its argument as if it
involves something other than the causation and redressability
prongs of Article III standing. Here is how the District now
frames its alternative claim:
Despite the need to establish causation, [Appellees]
failed to show that, but for the District’s refusal to
complete their employment certification forms, they
would have been entitled to carry under LEOSA. This is
because they failed to show that they have the requisite
agency-issued identifications needed to carry under
LEOSA. And because [Appellees] cannot carry firearms
under LEOSA without the necessary identification—
which, again, they do not have—[Appellees] cannot
establish that the denial of the certification form caused
them to be deprived of any right.
22
District Br. at 16. These are precisely the same issues that were
considered and correctly rejected by the District Court when it
addressed Appellees’ Article III standing. We will not revisit
these claims because the District Court’s decision is on the
mark.
The District has persisted in this litigation in suggesting
that Appellees have no remediable injuries because they are
not entitled to carry firearms under LEOSA without the
identifications specified under subsection (d) of the statute.
But, as noted at the outset of this opinion, the District’s
position completely mischaracterizes the relief sought and
obtained by Appellees in this litigation. Appellees are not
seeking a declaration that they are entitled to carry firearms
pursuant to LEOSA. Rather, they have sought to overturn the
District’s unlawful refusal to certify them as “qualified retired
law enforcement officers” under subsection (c) of the statute,
which is necessary in order for them to pursue the right to carry
under LEOSA.
In the proceedings before the District Court, Appellees
made it clear that they were not seeking any relief with regard
to identifications. Cross-Mot. Summ. J. at 37–38, DuBerry v.
District of Columbia, 316 F. Supp. 3d 43 (D.D.C. 2018) (No.
1:14-cv-01258-RC), ECF No. 59 (“From the outset of their
case, [Appellees] have only sought relief as to the [DCDOC’s]
conduct of falsely claiming that [Appellees] were not law
enforcement officers.”). The District Court’s decision
confirms this:
[Appellees] note explicitly that they have not asked this
Court to address whether they have identification that
satisfies the requirements of subsection (d). . . . The
Court agrees that whether or not [Appellees] have
sufficient identification is irrelevant for purposes of
23
determining whether they have met certain statutory
preconditions to be considered “qualified retired law
enforcement officers.”
316 F. Supp. 3d at 58. And Appellees have not raised the issue
with this court.
The District’s argument not only mischaracterizes
Appellees’ position, it is also wrong. The District continues to
contend that Appellees are barred from seeking relief to require
the District to recognize them as “qualified retired law
enforcement officers” under LEOSA because they do not have
the requisite agency-issued identifications needed to carry
under LEOSA. This contention is a classic non sequitur. The
premise does not support the conclusion. As explained above,
the District Court correctly “reject[ed] the District’s argument
that [Appellees] must prove that they have photographic
identification that satisfies subsection (d) before the Court can
grant their motion for summary judgment.” 316 F. Supp. 3d at
57. We affirm the District Court’s conclusion, which is rooted
in this court’s decision in DuBerry I.
The District Court’s opinion also usefully explains that the
court
[did] not conclude that [Appellees] are unalterably
“qualified retired law enforcement officers” for purposes
of LEOSA. This is because some of the statutory
preconditions for “qualified retired law enforcement
officers” are mutable characteristics. For example, no
court could accurately declare on the basis of motions
and responses filed months prior that a retired officer
certainly is not “under the influence of alcohol or another
intoxicating or hallucinatory drug or substance” such
that he meets the requirements of subsection (c)(7).
24
Instead, this Court only concludes that [Appellees] meet
the requirements listed in subsection (c)(1)–(3).
Specifically, [Appellees] each separated from service in
good standing with a public agency as a law enforcement
officer; before such separation, they each were
authorized to engage in or supervise the incarceration of
persons and they had statutory powers of arrest; and
before separation, they each served as a law enforcement
officer for an aggregate of 10 years or more.
316 F. Supp. 3d at 58 n.8.
The critical point here is that the District’s refusal to certify
Appellees is “an absolute barrier” to the exercise of their rights
under LEOSA. See Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 261 (1977). Therefore, Appellees
have standing to seek to remove this barrier. See id.; see also
Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 285
(4th Cir. 2018) (“The removal of even one obstacle to the
exercise of one’s rights, even if other barriers remain, is
sufficient to show redressability.”).
The law is clear that a party has standing to pursue a claim
so long as the relief sought will constitute a “necessary first
step on a path that could ultimately lead to relief fully
redressing the [claimant’s] injury.” Power Co. of Am., L.P. v.
FERC, 245 F.3d 839, 842 (D.C. Cir. 2001) (citation omitted);
Tel. & Data Sys., Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994)
(same); Hazardous Waste Treatment Council v. EPA, 861 F.2d
270, 273 (D.C. Cir. 1988) (same); see also Int’l Ladies’
Garment Workers’ Union v. Donovan, 722 F.2d 795, 811 n.27
(D.C. Cir. 1983) (explaining the underlying rationale for
redressability requirement); Tierney v. Schweiker, 718 F.2d
449, 456 (D.C. Cir. 1983) (reversing denial of a declaratory
25
judgment that “will put an end to the uncertainty and insecurity
faced by the appellants”).
Appellees acknowledge that, even if they obtain
declaratory relief, they “may not prevail” in the long run if they
do not secure the identifications required by LEOSA; “but
[they] cannot prevail unless we [grant declaratory relief], and
that is enough to ensure that the relief requested will produce
tangible, meaningful results in the real world.” Tel. & Data
Sys., 19 F.3d at 47 (citation omitted).
The District Court’s judgment in Appellees’ favor will
eliminate “[t]he harm of being categorically blocked from any
ability to access the core concealed-carry right.” Appellees Br.
at 34. We agree. The relief afforded Appellees will
meaningfully redress their concrete injuries caused by the
District’s unlawful refusals to certify them as qualified retired
law enforcement officers.
III. CONCLUSION
For the reasons stated herein, the judgment of the District
Court is affirmed.
So ordered.
ROGERS, Circuit Judge, concurring in part: I join the court
in affirming the grant of summary judgment because our
opinion in DuBerry v. District of Columbia, 824 F.3d 1046
(D.C. Cir. 2016) (“DuBerry I”), effectively bars the two
contentions of the District of Columbia government in the
instant appeal. The law of the case doctrine bars its first
contention that appellees possess no enforceable right under the
Law Enforcement Officers Safety Act (“LEOSA”) if they lack
the identification card necessary to exercise their LEOSA right.
Op. 13–16. To the extent any room is left after DuBerry I for
its second, alternative tort-causation contention, the District of
Columbia government’s view that it did not cause the
deprivation of appellees’ LEOSA right overlooks the limited
nature of the wrong appellees now allege; it is the District of
Columbia government’s refusal to certify appellees as qualified
retired law enforcement officers that has prevented them from
obtaining documentation necessary to access their LEOSA
right. Op. 16–18.
The court’s analysis, therefore, need not go further. Yet
the court does. Op. 18–25. The parties have understood the
current dispute to be independent of any suggestion that
appellees lack standing under Article III of the Constitution.
The District of Columbia government did not appeal the ruling
that appellees had standing on their LEOSA claim, DuBerry v.
District of Columbia, 106 F. Supp. 3d 245, 253–58 (D.D.C.
2015), much less renew its Article III challenge in appealing
the summary judgment order on remand, DuBerry v. District of
Columbia, 316 F. Supp. 3d 43 (D.D.C. 2018). Instead, the
District of Columbia government has attempted to pursue its
substantive objection to this court’s decision in Duberry I and
challenged the grant of summary judgment based on a theory
of tort causation, which is distinct from the causation
requirement for Article III standing, see Bennett v. Spear, 520
U.S. 154, 168 (1997); Tozzi v. Dep’t of Health & Human
Servs., 271 F.3d 301, 308 (D.C. Cir. 2001). In these
2
circumstances, there is no basis for the court to assume the
District of Columbia government also intended to raise or
“strongly suggests” that appellees have failed to establish
causation for purposes of standing, Op. 4, 18, when it so clearly
(but non-meritoriously) framed its causation contention in
terms of tort causation necessary for liability under 42 U.S.C.
§ 1983. Appellant’s Br. 26–29; Reply Br. 14–15.
Consequently, I do not join the court’s discussion of standing.
Outcome: For the reasons stated herein, the judgment of the District
Court is affirmed.
So ordered.
Plaintiff's Experts:
Defendant's Experts:
Comments: