Kearns v. CuomoKearns v. Cuomo
Before: PARKER, CHIN, and CARNEY, Circuit Judges.
Plaintiff-Appellant Michael P. Kearns, the Clerk of Erie County, New York, sued Governor Andrew Cuomo, Attorney General Letitia James, and Department of Motor Vehicle Commissioner Mark J.F. Schroeder, alleging that he could be prosecuted under federal immigration law for performing certain duties under New York‘s Driver‘s License Access and Privacy Act. The United States District Court for the Western District of New York (Wolford, J.) dismissed the suit for lack of Article III standing, holding that Kearns had failed to plead either a credible threat of prosecution for complying with the state law or an injury to his office. Because compliance with the state law would not expose Kearns to a credible threat of prosecution under federal law, the judgment of the District Court is AFFIRMED.
KENNETH R. KIRBY, for Michael A. Siragusa, Erie County Attorney, Buffalo, NY, for Plaintiff-Appellant.
LINDA FANG, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Jeffrey W. Lang, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.
Plaintiff-Appellant Michael P. Kearns appeals from a judgment of the United States District Court for the Western District of New York (Wolford, J.) dismissing
BACKGROUND
Though the processing of driver‘s licenses is governed almost exclusively by state law, federal law also imposes certain requirements. In 2005, Congress passed the REAL ID Act,
The REAL ID Act does not bar states from continuing to issue driver‘s licenses that do not comply with the Act. See REAL ID Act § 202(d)(11);
Finally, the Green Light Law requires that within three days of receiving a request for information or records from federal immigration authorities, DMV provide written notification to the subject of the request and inform the person of the identity of the requesting agency (the “notification provision“).
Though DMV oversees the licensing of drivers, it does not issue driver‘s licenses exclusively through its employees. In several upstate counties—including Erie—county clerks are responsible for issuing licenses. New York law designates certain county clerks as agents of the DMV Commissioner and assigns them discrete functions in that regard. See
As the Erie County Clerk, Kearns is an agent of the DMV Commissioner. State restrictions limit both Kearns’ role in DMV affairs and his access to DMV records. In carrying out his ministerial duties, Kearns is bound by DMV rules, which address the handling of DMV records and the processing of third-party requests for DMV information. Under these rules, Kearns supervises the issuance of driver‘s licenses by members of his office but has no personal involvement in the processing of license applications.
For example, while Kearns is allowed access to DMV systems, this access is limited. Kearns may enter and retrieve information from those systems only on a transaction-by-transaction basis as required to perform DMV business. Further, DMV rules do not authorize county clerks like Kearns to accept subpoenas, court orders, or other legal documents requesting DMV records. Instead, only DMV‘s headquarters in Albany may do so.
In July 2019, Kearns, both individually and in his official capacity commenced this action in the Western District of New York challenging the licensing, nondisclosure, and notification provisions of the Green Light Law. He named as defendants Governor Andrew Cuomo, Attorney General Letitia James, and DMV Commissioner Mark Schroeder, in their official capacities. He sought (1) a declaration that the Green Light Law is preempted by federal immigration law, (2) an injunction against implementation of the Law, and (3) an injunction preventing Cuomo and James from removing him from office for refusing to comply with the Law.
Shortly after suing, Kearns moved for a preliminary injunction. He alleged that he faced a credible threat of prosecution under the federal Immigration and Nationality Act (“INA“) if he complied with the Green Light Law. His argument focused
[a]ny person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.
Second, Kearns referred to
Third, Kearns invoked
In August 2019, Defendants-Appellees moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) and opposed Kearns’ motion for a preliminary injunction. Kearns later filed an amended complaint, but the Parties agreed that the amendment did not moot the outstanding motion to dismiss.
In November 2019, the District Court granted the motion to dismiss under
Regarding the notification provision, the District Court concluded that Kearns “has not alleged a plausible scenario where he personally would be required to notify an individual about a record request received from immigration officials,” because “[a]gents of the [DMV] are not authorized by the Green Light Law to provide that notification.” Id.
This appeal followed. We review de novo the District Court‘s order granting a motion to dismiss for lack of Article III standing. Carter v. HealthPort Techs. LLC, 822 F.3d 47, 56 (2d Cir. 2016).
DISCUSSION
I.
Article III of the Constitution limits the subject-matter jurisdiction of the federal courts to “‘Cases’ and ‘Controversies.‘” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting
Kearns premised his theory of standing on the threat that he would be prosecuted for violating the INA if he complied with the Green Light Law. In general, “a plaintiff has standing to make a preenforcement challenge ‘when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative.‘” Hedges v. Obama, 724 F.3d 170, 196 (2d Cir. 2013) (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 302 (1979)). A plaintiff need not demonstrate with certainty that he will be prosecuted under the statute to show injury, but he must demonstrate a fear that is both actual and well-founded. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000). We conclude that Kearns has not satisfied these requirements.
II.
Kearns contends that he could be prosecuted under
Under the
New York implements this provision by accepting foreign proofs of identity before issuing standard licenses but then labeling those licenses “Not for Federal Purposes” It is implausible—indeed inconceivable--that Congress passed a law and the Department of Homeland Security promulgated a rule that, if complied with, would require county clerks such as Kearns to engage in illegal activity.
In the same vein, the REAL ID Act‘s definition of “lawful status” includes certain persons who may have entered the country without preauthorization, such as those with deferred action status or pending asylum applications. REAL ID Act § 202(c)(2)(B);
The case law construing
Faced with these substantial hurdles, Kearns falls back on the assertion that no lawfully present person would apply for a standard license if the person were eligible for a REAL ID Act-complaint license. This assertion is plainly incorrect. There are a number of reasons a person lawfully present in this country might apply for a standard license. For example, a foreign student present on a visa would possess a foreign passport but not a U.S. passport and might choose to use the foreign passport in connection with his application. A person with a Global Entry card might not require an additional means of identification at airports and thus prefer not to meet the more onerous requirements of the application for a REAL ID Act-complaint license. A lawful resident who is ineligible for a social security number might find it easier to complete an affidavit attesting to his ineligibility than to request a formal letter of ineligibility from the Social Security Administration. In sum, there are abundant explanations for an individual‘s choice to obtain a standard license. Merely applying for a standard license does not put a clerk—particularly one who does not interact with applicants for licenses—on actual or constructive notice of the applicant‘s immigration status. Suffice it to say that Congress did not believe that applying for a standard license provided such notice because it expressly authorized the issuance of these licenses.
The anti-harboring provision of
III.
Kearns also lacks standing to challenge the nondisclosure provisions of the Green Light Law. He argues that these provisions violate
Kearns also contends that complying with the nondisclosure provisions of the Green Light Law would expose him to prosecution under
Although the Green Light Law prohibits Kearns’ office from retaining proofs of identity for longer than necessary to determine their validity and authenticity, the failure to retain such documents does not threaten Kearns with prosecution. To hold otherwise would be to hold that county clerks may be prosecuted under
nondisclosure provisions he would possess the requisite mens rea: i.e., knowledge or reckless disregard of an individual‘s unlawful presence and an intent to shield him or her from detection. Consequently, he lacks standing to challenge the nondisclosure provisions.
Finally, Kearns lacks standing to challenge the notification provision because it does not apply to him. That provision requires “the commissioner [to] notify the individual about whom . . . information was requested [by federal immigration authorities].” Green Light Law § 2(12)(a) (emphasis added). No provision of New York law authorizes or requires Kearns to provide any such notification. Tellingly, he admits that “[he] is not personally responsible for issuing notifications.” Appellant‘s Br. at 39. Kearns does not allege that he has ever received a request that triggered a § 201(12)(a) notification. He does not allege that any such request is forthcoming. And he does not allege that he expects to provide written notification to any standard license applicant under that provision.
IV.
Finally, Kearns claims that in addition to the risk of prosecution if he complies with the Green Light Law, he faces the risk of removal from office if he disobeys the law. Unlike the threat of prosecution, which conveys standing if it is not “imaginary or wholly speculative,” Hedges, 724 F.3d at 196, the threat of removal from office is evaluated under Clapper‘s more restrictive standard, requiring that a prospective injury be “certainly impending,” 568 U.S. at 409, as opposed to “merely speculat[ive],” id. at 411.
The threat that Kearns will be removed from office is speculative. It is based solely on his assertion that “Governor Cuomo has publicly refused to assure County Clerks that he would not remove them from office if they decline to follow the Green Light Law.” Joint App‘x at 196 ¶ 18. New York law gives the governor wide executive authority over county clerks. See
V.
For largely the same reasons that he lacks standing in his individual capacity, Kearns lacks standing in his official capacity. Kearns claims that his office would be injured if he were prosecuted for harboring, but as explained above, Kearns does not face a credible threat of prosecution. Moreover, the Clerk‘s Office itself faces no threat of prosecution because
CONCLUSION
We have considered Kearns’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.