07·u816·cv

N;lt:ol\Ol! Council ofta ~ v. Mu\c:l.~cy

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER
,
RllLlNGSBYSUMMARYORDERDONOTHAVEPRECEDENTlALEmCT. CITATION TO SUMMARY
ORDERS FILED AFTER JANlJARY 1, 1007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S
LOCAL RULE 32.1 AND 1<'EDERAL RULE OF APl'ELLA1"E PROCEDURE 32.1. IN ABRlEF OR OTHER
PAPER IN WHICH A LITJGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WlIICn: A
CITATION APPEARS. AT LEAST ONE CITATION MUS1' EITHER BE TOTKE}"EDERAL APPENDIX OR
BF.: ACCOMPANIED 'BY THE NOTATION: "(SUMMARY ORDER)." A p-4.RrY CITlNG A SUMMARY
ORDER MlJ'ST SERVE A COl'Y OF THAT SUMMARY ORDER TOGETaER WITH THE PAPER IN
WillCH THE SUMM.ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
U.NLESS THE SUMMARY ORDER IS AVAlLABLE IN .4N ELECTRONIC DATABASE WBlCB IS
PUBLICLY ACCESSmLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE A,VAlLABLE AT
HTTP://WWW.CA2.USCOURTS.GOVJ). IF NO COPY IS SERVED BY REASON OF THE A VAll.ABILITY
OI~ TRE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND TIlE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTEltED.

At a stated tenn of the United States COUIt of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse. 500 Pearl Street. in the City of New York. on
tht~ 3ld day of July. two thousand eight.

PRESENT: HONORABLE CHESTER J. STRAUB.

HONORABLE REENA RAGG!,
CircuiT Judges,
HONORABLE WILLIAM K. SESSIONS m.
District Judge. I

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NATIONAL COUNelL OF LA RAZA,
NEW YORK IMMIGRATION COALITION.
AMERICAN-ARAB ANTI-DISCRlMINATION COMMITTEE,
LATIN AMERICAN WORKERS PROJECT,
UlmEHERE!,
Plaintijft-Appellants.

v. I No.07-0816-cv

1 The Honorable William K.

Sessions lTI. Chief Judge ofthe United. States District Court for
th~ District ofVennont, sitting by designation.
MICHAEL B. MUKASEY,
AttomeyGeneral of the United States,
MICHAEL CHERTOFF,
Secretary of me Department of Homeland Security,
ROBERT MUELLER,
Director, Federal Bureau of Investigation.
JULIE L. MYERS,
A;sislant Secretary of the Department of Homeland Security
for U.s. Immigration and Customs Enforcement,2
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
FEDERAL BUREAU OF INVESTIGATION,
BUREAU OF Th1MIGRATION AND CUSTOMS ENFORCEMENT,
De.fendants-Appellees .
-_.._---- ... --------------_.. _-_ ..........-..._..--------------------------
FOR APPELLANTS: MICHAEL J. WISHNIE, Lowenstein H'IlJll2nRights Clinic, National
Litigation Project, Yale Law School, ~ew Haven, Connecticut
(Sarah Burg and Saumya Manohar, law student interns, Yale Law
School; Lueas Guttentag, Lee Gclemt, : and Omar C. Jadwat,
American Civil Liberties Union Foundation, Immigrants' Rights
Project, New York, New York; Peter Markowitz, The Bronx:
Defenders, Bronx, New York; and ArthUT C. Eisenberg and
Christopher Dunn, New York Civil Liberties Union, New York, New
York, on [he brief).

FOR APPELLEES: JONATHAN F. COHN, Deputy Assistant .{\ttomey General, United

St~tes Department of Justice, Washington; D.C. (peter D. Keisler,
Assistant Attorney General, Douglas N. Letter, Appellate Litigation
Counsel. Lewis S. Yelin, Attorney, AppelJ.ate Staff, United States
Departtnent of Justice; and Roslynn R. l\1auskopf, United States
Attorney for the Eastern. District of New York, F. Franklin Amanat,
Assistant United States Attorney, BrooklYIl/ New York, on the brief).

FOR AMICI CURIAE: Azmy Baher and Meetali Jain (Jared Lafe~Te and Asim
Bada:ruzzaman,law student interns), Centet;.for Social Justice, Seton
Hall Law School, Newark, New Jersey, for Hispanic Command
Police Officers Association, National Black Police Association, and
National Latino Officers' Association.

2 Pursuant to Federal Rulc of Appellate Procedure 43(c}(2), Attorney General Michael B.

Mukasey is automat1ca)Jy substituted for fonner Attorney General Alberti:> R. Gonzales.

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 Karen Tumlin, Joan Friedland, Linton Joaquin, National Jmmigration
Law Center, Los Angeles, California for N~onal Immigration Law
Center:

Appeal from the United States District Court for the Eastern District of New York (T. Leo

Glasser, Judge).

AFTERARGU'.tv!ENT ANDUPONDUECONSlDERATION,ITlSHEREBYORDERED,

ADJUDGED, AND DECREED that the judgment of dismissal enter~ on January 5, 2007, is

AFFIRMED.

Plaintiffs, four non-:profit advocacy organizations and one laboI'iunion, filed this lawsuit

against varioas government officials and agencies in an effort to halt th~ entry into the National

Crime Information Center ("NCIC") databa.se of certain civil immigration records pertaining to

aliens who are in pmported violation of orders of removal or requirement~ of the National Security

Entry-Exit Registration System ("NSEERS") and to remove all such infcinnation already entered.
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Plaintiffs now appeal the district court's dismissal of their complaint p~suant to Fed. R. Civ. P.

12(b)(l) for lack of subject matter jurisdiction due to lack of standing. ; We assume the parties'

familiarity with the record and history of prior proceedings, which we reference only as necessary

to explain our decision to affirm.

We review de novo the dismissal of a complaint for lack of standin~. Sec Banr v. Veneman.,

352 F.3d 625,631 (2d Cir. 2003). In doing so, we are mindful that, "at thcl pleading stage, standing

allegations need not be crafted with precise detail," and that we, therefm-c, '»rcswnc that general

allegations embrace those specific facts that are necessary to support the claim." Id. (internal

quotation marks omitted). Although this pleading standard is liberal,"bald assertions and

conclusions oflaw will not suffice." Leeds.v. Meltz, 85 F.3d 51, 53-55 (2d eir. 1996) (holding that

eonclllSory allegation that state employees prevented publication of advertisement was insufficient

to demonstrate that "[t]he decision to reject the advertisement [was] 'fairly attributable' to the

state").

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 Under Article m of the Constitution. federal courts have jurisdiction only over "cases" and

"controversies." U.S. Const. art. m, § 2. Standing <Cis an essential and unchanging part of the case-

or··controversy requirement of Article m." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1~92). The ''irreducible constitutional minimum of standing" contains the following three elements:

First, the plaintiff must have suffered an injw:y in fact - an inv3sion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, nol conj ectural or hypothetical. Second. there must be a causal connection
between the injury and the conduct complained of - the injury has to be fairly
traceable to' the challenged action of the defendant, and not !:he result of the
independent action of some third party not before the court. Third~ it must be likely,
as opposed to merely speculative, that the inj\JIy will be redressed by a favorable
decision.

Lujan v. Defenders of Wildlife, 504 U.S. at 560-61 (internal citations, quotation marks, and

a}l:erations omitted). Plaintiffs assert that the district court erred. in ruling ~t their complaint f.ajled

ad.equately to plead the injury element. They insist their complaint dc:rnonstrated three fonns of

i~iury: (1) an "imminent risk of unlawful arrest" by state and local Jaw enforcement officers

(allegedly unlawful because the arrests are preempted by fedcrallaw and invalid), (2) a loss of

privacy, and (3) dimiJrished public safety. Defendants submit that the dispict court corrcctlyrulcd

as to injury and that plaintiffs' complaint also failed adequately to plead capsation. rn addition, they

submit that dismissal was warranted because plaintiffs failed to state a cIhlm. See Fed. R. Civ. P.

12(b)(6).

For substantially the reasons stated by the district court, we conclude that plaintiffs'

allegations of lost privacy and dimllllshed public safety arc.: inadequate to demonstrate the injury
•
ne~cessary to establish standing. See National Council ofLaRaza v. Gonziiles,
i
468 F. Supp. 2d 429,
;
I

443-44 (E.D.N.Y. 2007). We also note that plaintiffs' argument that tbcylhave sufficiently alleged

a present injury-in-fact in their allegation of diminished public safety is unavamng because the
I
t
diminished public safety of which plaintiffs complain is a generalized i~jw:y that is not concrete
I

erJough to confer standing. See id. at 437 n.S; Federal Election Comm'n v. Akins, 524 U.S. 11,24

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(B98); Arizonans rOt' Official English v. Ari7.ona, 520 U.S. 43, 64 (1997).
Turning to plaintiffs' claim of an imminent risk of unlawful arrest, the point to which the

parties devote the most attention on appeal, we need not decide the ~cult question of whether

plamtiffs' pleadings demonstrate injury-in-fact because, even if we were to resolve this point in

phintiffs' favor, we would affinn the district court's standing dismissal for lack of causation. SeE;:

Bf!11in v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (observing tha~ we may"affinn on any

basis for which there is a record sufficient to permit COllClusions of law,~including grounds upon

which the district court did not rely").

While the Supreme Court has explained that causation is lacking if!he claimed injw:y is ''the

re:mlt [ofJ the independent action of some third party not before the court" Lujan v. Defenders of
I

,
Wildlife, 504 U.S. at 560 (internal quotation marks omitted), a plaintiff need not allege that a

defendant's challenged actions were the very last step in a chain of events leading to an alleged

injury to allege causation adequately. It is sufficient for a plaintiff to plead facts indicating that a
!
defendant's actions had a "determinative or coercive effect upon the action of someone else" who
I
directly caused the alleged injury. Bennett v. Spear, 520 U.S. 154, 169 (11997). Because plaintiffs
I

hc,re allege that state and local authorities, not defendants, are engaged in tinIawful arrests of aliens

whose civil immigration records are entered. into NCIC, the sufficiency o~their causation pleading
I.

depends on its ability to support a reasonable inference that defendants' act~bns had a "determinative

or coercive effect" on the state and 10cal1aw enforcement officers who c~ out the alleged llnlawfu I
arrcsts. kl Plaintiffs' allegations that defendants "encouraged, caused, anti induced state and local

pC1lice to arrest immigr311ts listed in the NCIC" do not adequately allege that the injury was fairly

tr~Lceable to defendants.

Plaintiffs allege that (1) when a state or local1aw enforcement officer runs an NCIC check

on an individual, the NCIC identifies as an immigration violator persons who have allcgedlyviolared

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removal orders or NS£ERS requirements and advises the requesting offic.er to contact a unit of the

Department of Homeland Security ("'DHS") for confinnation; and (2) Ilpon confinnation, DHS

generally asks the local officerto arrest or detain the alleged immigration violator until DRS officials

can arrive to take the person into federal custody. But plaintiffs also plea!9 that, for policy reasons

not material to our ruling, (3) a number of state and local authorities choose not to comply with such
r
DHSrequests. Significantly, plaintiffs do not allege that such authorities suffer any adverse

consequences from this resistance. Under these circumstances, the pleadings do not support the

conclusion that defendants' actions have had a determinative or coercive':effe;:ci on those state and

local authorities that carry out the allegedly unlawful arrests.

Bennett v. Spear, 520 U.S. 154, is not to the contraIy. In that case, the Supreme Court ruled

th3.t an "advisory" opinion of the federal Fish and Wildlife Service had a "powcr.ful coercive effect
~
on. the action agency," precisely because of particular costs and risks;to the action agency in

disregarding the opinion. rd. at 169. In the absence of any allegations ~supporti.ng a reasonable

on
inference that defendants' actions have a determinative or coercive effect , the state and local law

enforcement officerswho canyoutthe arrests, we conclude that plaintiffs' complaint failed to plead

causation by the named defendants.

Because we affirm dismissal on standing grounds pursuant to Fed. R. Civ. P. 12(b)(1), we

express no view as to the government's alternative argument that the complaint [-ails to state a claim

so as to support dismissal pursuant to Fed. R. Civ. P. 12(b)(6).

The judgment of dis.m..issal is AFFIRMED.

FOR THE COURT:

CATHERlNE O'HAGAN WOLFE; Clerk of Court

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