Kearns v. Cuomo, No. 19-3769-cv

• Decision Date: 30 November 2020
• Docket Number: August Term 2019,No. 19-3769-cv
• Citation: 981 F.3d 200
• Parties: Michael P. KEARNS, in His Individual Capacity and Official Capacity As The Clerk of the County of Erie, New York, Plaintiff-Appellant, v. Andrew M. CUOMO, in His Official Capacity as Governor of the State of New York, Letitia James, in Her Official Capacity as Attorney General of the State of New York, Mark J.F. Schroeder, in His Official Capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants-Appellees, New York State Conservative Party, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

981 F.3d 200

Michael P. KEARNS, in His Individual Capacity and Official Capacity As The Clerk of the County of Erie, New York, Plaintiff-Appellant,

v. Andrew M. CUOMO, in His Official Capacity as Governor of the State of New York, Letitia James, in Her Official Capacity as Attorney General of the State of New York, Mark J.F. Schroeder, in His Official Capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants-Appellees,New York State Conservative Party, Defendant.

No. 19-3769-cv

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: May 13, 2020

Decided: November 30, 2020

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.

Before: PARKER, CHIN, and CARNEY, Circuit Judges.

BARRINGTON D. PARKER, Circuit Judge:

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 his complaint for lack of Article III standing. See generally Fed. R. Civ. P. 12(b)(1). Kearns is the Clerk of Erie County, New York. He sued on federal preemption grounds to challenge certain of his duties under state law related to processing applications for driver's licenses. The District Court concluded that Kearns suffered no concrete, particularized injury because he did not face a credible threat of prosecution under federal law if he complied with the provisions of the state statute that he challenged. It further held that Kearns failed to plead an injury to his office and that he was not a proper plaintiff to litigate the claims he raised. Because we agree that Kearns lacks standing, we AFFIRM the judgment of the District Court. The District Court did not reach the merits of Kearns’ claims; nor do we.

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, Pub. L. No. 109-13, §§ 201-02, 119 Stat. 302, 311 (2005) (codified at 49 U.S.C. § 30301 note). Among other provisions, the Act sets forth minimum requirements that state-issued driver's licenses and identification documents must meet if they are to confer all the privileges of REAL ID Act-compliant licenses, such as entering federal facilities or boarding federally regulated commercial aircraft. Id. §§ 201(3), 202(a)(1).

To issue a REAL ID Act-compliant license, a state must verify an applicant's "lawful status" with Department of Homeland Security databases and maintain copies of the applicant's proof of that status. Id. § 202(b)-(d). "Lawful status" includes citizens and lawful permanent residents, but also includes certain persons who may have entered the country without preauthorization, such as those with deferred action status or pending asylum applications. Id. § 202(c)(2)(B); 6 C.F.R. § 37.3.

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); 6 C.F.R. § 37.71(a). The Act requires states to maintain individuals’ proofs of identity only when they apply for REAL ID Act-compliant licenses, see REAL ID Act § 202(d)(2), (11), and although the Act requires states to collect a social security number or proof of ineligibility from any applicant for a compliant license, it imposes no such requirement on applicants for noncompliant licenses. See REAL ID Act § 202(c)(1)(C), (d)(11). Notably, the REAL ID Act does not require states to verify the lawful status of applicants for noncompliant licenses. See REAL ID Act § 202(c)(2)(B), (d)(11).

Regardless of whether a putative applicant would be eligible for a REAL ID-Act compliant license, under New York law applicants may apply for what are known as "standard licenses." In June 2019, the New York legislature enacted the Driver's License Access and Privacy Act (the "Green Light Law") that establishes certain policies and procedures related to standard licenses. 2019 N.Y. Laws, Ch. 37. The Green Light Law directs the New York State Department of Motor Vehicles ("DMV") to accept various foreign documents as proof of identification and age for standard licenses, and prohibits DMV from inquiring about the immigration status of standard-license applicants. (N.Y. Veh. & Traf. Law ("VTL") § 502(1), (8) ). The law also provides that—in lieu of a social security number or proof of ineligibility—applicants for a standard license may submit an affidavit attesting that they have not been issued a social security number. ( Id. § § 502(8) ). Standard licenses are branded as "Not for Federal Purposes." Id.

The Green Light Law also restricts DMV's retention and use of certain applicant information (the "nondisclosure provisions"). For example, it prohibits DMV from retaining originals or copies of the documents used by a standard-license applicant to prove age or identity "except for a limited period necessary to ensure the validity and authenticity of such documents," ( Id. § 502(8)(d) ).¹ Except as required by federal law to renew or issue a federally compliant license, the Act prevents the DMV from disclosing an applicant's records or information to "any agency that primarily enforces immigration law or to any employee or agent of such agency" absent a lawful court order or judicial warrant. Id. § 201(12)(a). The Act also requires persons with access to DMV records to certify to the DMV commissioner that they will not make such disclosures. (Id. § 201(12)(b)).

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"). Id . § 201(12)(a).

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 VTL § 205(1).

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 on three provisions of the INA. The first was 8 U.S.C. § 1324(a)(1)(A)(iii), which imposes criminal penalties on

[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 8 U.S.C. § 1644, which provides that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States." This provision, however, does not impose criminal or civil penalties. See City of Chicago v. Barr , 961 F.3d 882, 902 (7th Cir. 2020).

Third, Kearns invoked 8 U.S.C. § 1373, which imposes the same requirement as § 1644 and prevents states from limiting any government entity's ability to maintain information on an individual's immigration status. Like § 1644, § 1373 imposes no criminal or civil penalties.

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 Rule 12(b)(1) on the grounds that Kearns failed to adequately plead Article III standing. Regarding Kearns’ challenge to the licensing provisions, the District Court found it dispositive that Kearns’ role in...