22-3210-cv
Corbett v. Hochul, et al.


                             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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 14th day of November, two thousand twenty-three.

PRESENT:                    JOSÉ A. CABRANES,
                            SARAH A. L. MERRIAM,
                                     Circuit Judges,
                            JENNIFER L. ROCHON,
                                            Judge. *

__________________________________________

JONATHAN CORBETT,

          Plaintiff-Appellant,

                    v.                                               No. 22-3210-cv

KATHLEEN HOCHUL, in her official capacity
as chief executive of the State of New York;
LETITIA JAMES, in her official capacity as
Attorney General of the State of New York;
ERIC ADAMS, in his official capacity as

*
 Judge Jennifer L. Rochon of the United States District Court for the Southern District of
New York, sitting by designation.
Mayor of the City of New York; KEECHANT
SEWELL, in her official capacity as Police
Commissioner of the New York Police
Department; INSPECTOR HUGH BOGLE, in
his official capacity as Commanding Officer of
the New York Police Department, Licensing
Division; STEVEN NIGRELLI, in his official
capacity as Acting Superintendent of the New
York State Police, 1

      Defendants-Appellees.
__________________________________________

FOR PLAINTIFF-APPELLANT:                 JONATHAN CORBETT, Corbett Rights, P.C., Los
                                         Angeles, CA.


FOR DEFENDANTS-APPELLEES:                ELINA DRUKER (Richard Dearing, Clause S.
                                         Platton, on the brief), for Hon. Sylvia O. Hinds-
                                         Radix, Corporation Counsel of the City of New
                                         York, New York, NY.
                                         PHILIP J. LEVITZ, Assistant Solicitor General,
                                         (Barbara D. Underwood, Solicitor General,
                                         Judith N. Vale, Deputy Solicitor General, on the
                                         brief), for Letitia James, Attorney General State
                                         of New York, Albany, NY.
       Appeal from an order of the United States District Court for the Southern District

of New York (Schofield, J.).

       UPON DUE CONSIDERATION, the November 29, 2022, order of the District

Court is VACATED, and this case is REMANDED for further proceedings consistent

with this Order.



1
 The Clerk of Court is directed to amend the caption of the case to substitute Steven
Nigrelli for Kevin Bruen as the Acting Superintendent of the New York State Police
pursuant to Federal Rule of Appellate Procedure 43(c)(2).

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       Plaintiff-appellant Jonathan Corbett (“Corbett”) appeals from the District Court’s

November 29, 2022, order denying his motion for a preliminary injunction. On April 14,

2022, Corbett submitted an online application to the New York Police Department

licensing division for a permit to own and carry a concealed weapon on his person and

outside of his home. While Corbett’s application was pending, and in response to New

York State Rifle & Pistol Association, Inc. v. Bruen, 

 (2022), the State of

New York enacted the Concealed Carry Improvement Act (“CCIA”). The CCIA requires,

as relevant here, that before issuance or renewal of a concealed-carry license, the

“applicant shall complete an in-person live firearms safety course,” which includes “a

minimum of sixteen hours of in-person live curriculum . . . and . . . a minimum of two

hours of a live-fire range training course.” 

(19). In July 2022,

Corbett sued several New York State and New York City officials alleging that this

training requirement “unnecessarily, intentionally, and unreasonably” restricted his “right

to keep and bear arms,” in violation of the Second Amendment. Joint App’x at 11. We

assume the parties’ familiarity with the underlying facts and procedural history of the

case, to which we refer only as necessary to explain our decision to vacate the District

Court’s order.

       On September 28, 2022, while his concealed-carry application was still pending

and incomplete, Corbett filed a motion for a preliminary injunction seeking to enjoin the

enforcement of the CCIA’s training requirement. On November 29, 2022, the District

Court denied Corbett’s motion, finding that he had not established a likelihood of success

on the merits in showing that the training requirement was unconstitutional. Before

                                             3
reaching that conclusion, the District Court “assum[ed] without deciding that [Corbett] is

likely to be able to show that he has standing to challenge the training requirement.” Joint

App’x at 237.

       Because standing “is the threshold question in every federal case,” we begin our

discussion there. Warth v. Seldin, 

 (1975); see also Dep’t of Educ. v.

Brown, 

, 560 (2023) (“We have an obligation to assure ourselves of

litigants’ standing under Article III before proceeding to the merits of a case.” (citation

and quotation marks omitted)). “We review questions of standing de novo.” Jackson-Bey

v. Hanslmaier, 

 (2d Cir. 1997).

       The Supreme “Court has made clear its disapproval of so-called hypothetical

jurisdiction — the assumption of jurisdiction for the purpose of deciding the merits — in

cases where a court would ‘resolve contested questions of law when its jurisdiction is in

doubt.’” Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 

 (2d Cir. 2002) (quoting Steel Co. v. Citizens for a Better Env’t, 

(1998)). We have interpreted the “bar on hypothetical jurisdiction” to apply “only to

questions of Article III jurisdiction” in cases presenting a constitutional issue. Butcher v.

Wendt, 

 (2d Cir. 2020) (citation and quotation marks omitted).

       The District Court improperly assumed that Corbett had Article III standing to

challenge the CCIA’s training requirement. The District Court did not undertake the

required inquiry to ensure that it had subject matter jurisdiction before proceeding to a

determination of the merits. By assuming hypothetical jurisdiction over Corbett’s

challenge to the CCIA’s training requirement, the District Court left unresolved “factual

                                              4
and legal issues bearing on the Article III standing of” Corbett. Cent. States Se. & Sw.

Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 

(2d Cir. 2005).

         Jurisdictional questions of this sort “should be addressed in the first instance by

the District Court,” and thus, we cannot address the merits of the appeal “[u]ntil the

jurisdictional question is decided.” 

 Accordingly, we remand this matter to the District

Court to resolve the Article III standing questions in the first instance. Following the

District Court’s decision, any party to this appeal may restore jurisdiction to this Court

within thirty days by letter to the Clerk’s Office seeking review. The letter shall state that

the case will be heard by this Panel upon letter briefs to be filed according to a schedule

set by the Clerk. See United States v. Jacobson, 

 (2d Cir. 1994). An

additional notice of appeal will not be needed. If any circumstances obviate the need for

the case to return to this Court, the parties shall promptly notify the Clerk’s Office in

writing.

         For the foregoing reasons, the November 29, 2022, order of the District Court is

VACATED, and the case is REMANDED for further proceedings consistent with this

Order.

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




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