20-3187-cv National Rifle Association of America v. Hochul

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 16th day of November, two thousand twenty-one. 4 5 PRESENT: 6 AMALYA L. KEARSE, 7 RAYMOND J. LOHIER, JR., 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________________ 11 12 NATIONAL RIFLE ASSOCIATION OF 13 AMERICA, 14 15 Plaintiff-Appellant, 16 17 v. No. 20-3187-cv 18 1 KATHY HOCHUL,* IN HER OFFICIAL 2 CAPACITY, ANDREW CUOMO, 3 INDIVIDUALLY, NEW YORK STATE 4 DEPARTMENT OF ECONOMIC 5 DEVELOPMENT, DBA EMPIRE STATE 6 DEVELOPMENT, 7 ERIC GERTLER, BOTH INDIVIDUALLY 8 AND IN HIS OFFICIAL CAPACITY, NEW 9 YORK STATE 10 DEPARTMENT OF LABOR, ROOM 134 11 BLDG. 12, THE STATE CAMPUS, 12 ALBANY, NY 13 12240, ROBERTA REARDON, BOTH 14 INDIVIDUALLY AND IN HER OFFICIAL 15 CAPACITY, 16 17 Defendants-Appellees. 18 _____________________________________________ 19 20 FOR PLAINTIFF-APPELLANT: PHILIP J. FURIA, William 21 A. Brewer III, Sarah B. 22 Rogers, Mordecai 23 Geisler, Brewer, 24 Attorneys & Counselors, 25 New York, NY 26 27 FOR DEFENDANTS-APPELLEES: BRIAN D. GINSBERG, 28 Assistant Solicitor 29 General, Barbara D. 30 Underwood, Solicitor 31 General, Andrea Oser,

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Governor Kathy Hochul in her official capacity is automatically substituted for former Governor Andrew Cuomo in his official capacity as a Defendant-Appellee. 2 1 Deputy Solicitor 2 General, for Letitia 3 James, Attorney General 4 of the State of New 5 York, Albany, NY 6 7 Appeal from a judgment of the United States District Court for the Northern

8 District of New York (Mae A. D’Agostino, Judge).

9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

10 AND DECREED that the judgment of the District Court is AFFIRMED in part and

11 the appeal is DISMISSED in part as moot.

12 In this action brought under

, the National Rifle Association

13 of America (NRA) appeals from the August 14, 2020 judgment of the District Court

14 (D’Agostino, J.) granting the Defendants’ motion for judgment on the pleadings

15 and denying the NRA’s cross-motion for leave to amend its complaint. The NRA

16 challenged New York’s Executive Order 202.8, a COVID-19 measure that banned

17 in-person operations of non-essential businesses without specifically exempting

18 segments of the firearm industry, on the ground that the order violated its rights

19 (and those of its members) under the Second, Fifth, and Fourteenth Amendments.

20 The NRA sought injunctive and declaratory relief, as well as nominal damages.

3 1 After suit was filed, in June 2021 Governor Andrew Cuomo rescinded the

2 challenged order along with a series of other COVID-19 restrictions, see N.Y. Exec.

3 Order 210 (June 24, 2021), and the New York State legislature curtailed the

4 Governor’s emergency powers to reissue COVID-19 restrictions, see

Sess. Laws ch. 71 § 4. We assume the parties’ familiarity with the underlying facts

6 and the record of prior proceedings, to which we refer only as necessary to explain

7 our decision to affirm in part and dismiss in part.

8 I. The NRA’s Claim for Declaratory and Injunctive Relief

9 At oral argument, counsel for the NRA did not contest that its claims for

10 injunctive and declaratory relief in the first amended complaint (FAC) and the

11 proposed second amended complaint (SAC) are now moot. See Oral Argument

12 Audio Recording at 1:50-2:20; 4:46-4:54. We agree. There is no reasonable prospect

13 that the Governor’s rescinded order will be revived, especially since the New York

14 State legislature curtailed the Governor’s emergency powers to reissue COVID-19

15 restrictions. See Conn. Citizens Def. League, Inc. v. Lamont,

(2d

16 Cir. 2021); see also Granite State Outdoor Advert., Inc. v. Town of Orange, Conn.,

17

, 451–52 (2d Cir. 2002). Nor have we been pointed to any “ongoing

4 1 harm from or lingering effect of” the challenged order. Am. Freedom Def.

2 Initiative v. Metro. Transp. Auth.,

(2d Cir. 2016). This Court very

3 recently reviewed a similar challenge to Executive Order 202.8 and determined

4 that the case, which involved claims for injunctive relief only, was moot for the

5 same reasons. See Dark Storm Indus. LLC v. Hochul, No. 20-2725-CV,

4538640, at *1–2 (2d Cir. Oct. 5, 2021). We therefore dismiss as moot the NRA’s

7 appeal from the District Court’s dismissal of its claims for injunctive and

8 declaratory relief.

9 II. The NRA’s Claim for Damages

10 In addition to injunctive and declaratory relief, the NRA’s FAC seeks

11 nominal damages on behalf of NRA members who were prevented from

12 purchasing ammunition and firearms. The SAC, by contrast, seeks nominal

13 damages on behalf of the NRA itself. The rescission of the Executive Order did

14 not moot these claims for damages. See Van Wie v. Pataki,

, 115 n.4

15 (2d Cir. 2001). However, we affirm the District Court's dismissal of these claims

16 for the following reasons.

17 The FAC alleges only injuries to the NRA’s members. We have held,

5 1 however, that “organizations suing under Section 1983 must, without relying on

2 their members’ injuries, assert that their own injuries are sufficient to satisfy

3 Article III’s standing requirements.” N.Y. State Citizens’ Coal. for Child. v. Poole,

4

, 74–75 (2d Cir. 2019) (citing Aguayo v. Richardson,

, 1099–

5 1100 (2d Cir. 1973)). Because the NRA failed to allege its own injuries separate and

6 apart from injuries to its members, it lacks standing in this § 1983 action to pursue

7 a claim for nominal damages. We therefore affirm the District Court’s dismissal

8 of that claim.

9 We conclude that the NRA’s proposed claim for nominal damages in the

10 SAC is barred by Eleventh Amendment sovereign immunity because the SAC

11 proposes to sue the Defendants only in their official capacities. The Eleventh

12 Amendment bars claims for money damages against state officials in their official

13 capacities, see Ford v. Reynolds,

(2d Cir. 2003), including in

14 § 1983 suits, see Will v. Mich. Dep’t of State Police,

, 66–67 (1989).

15 Although we recognize that the District Court relied on a different ground to deny

16 the NRA’s motion for leave to file the proposed SAC, including the SAC’s claim

17 for nominal damages, we affirm the denial as to that claim on the ground that it is

6 1 barred by Eleventh Amendment sovereign immunity. 1 See Ferran v. Town of

2 Nassau,

(2d Cir. 2006) (“[W]e may affirm on any basis for which

3 there is sufficient support in the record, including grounds not relied on by the

4 District Court . . . .”).

5 Apparently acknowledging that our precedent relating to associational

6 standing and Eleventh Amendment immunity may result in affirmance of the

7 District Court’s dismissal, counsel for the NRA stated at oral argument on appeal,

8 “We don't want to pursue that nominal damages claim, as pled.” Oral Argument

9 Audio Recording at 4:37-4:43. The NRA argued instead that we should remand

10 this matter to the District Court with leave to replead so that it may present a claim

11 for damages against various Defendants in their individual as well as their official

12 capacities. We decline to consider this argument, which was raised for the first

13 time at oral argument, and which we deem to have been forfeited. See United

14 States v. Barnes,

(2d Cir. 1998); United States v. Pascarella, 84

, 73 (2d Cir. 1996) (declining to consider a point first made at oral

1 Because we conclude that the NRA’s claims under the SAC are barred by sovereign immunity or moot, we need not reach the issue of whether the District Court erred in determining that the SAC failed to plead an adequate injury-in-fact for purposes of organizational standing. 7 1 argument).

2 We have considered the NRA’s remaining arguments and conclude that

3 they are without merit. For the foregoing reasons, the judgment of the District

4 Court is AFFIRMED in part and the appeal is DISMISSED in part as moot.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court

8