Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 1 of 32

UNITED STATES DISTRICT COURT

NOV 0 8 2019

WESTERN DISTRICT OF NEW YORK

iOEWENgylli

DISTRl^
MICHAEE P. KEARNS,in his individual

capacity and official capacity as Clerk
of the County of Erie, New York,
DECISION AND ORDER

Plaintiff,
l:19-CV-00902 EAW
V.

ANDREW M. CUOMO,in his official capacity
as Governor of the State of New York,

LETITIA A. JAMES, in her official capacity as
Attorney General of the State of New York, and
MARK J.F. SCHROEDER,in his official

capacity as Commissioner of the New York
State Department of Motor Vehieles,
Defendants.

INTRODUCTION

The power of a federal court is tempered by its jurisdictional boundaries. The
United States Constitution limits the matters federal courts can consider. See Gunn v.

Minton, 568 U.S. 251, 256 (2013) ("Federal courts are courts of limited jurisdiction,
possessing only that power authorized by Constitution and statute." (quotation omitted)).
In particular, "the judicial power of federal courts is constitutionally restricted to 'cases'
and 'eontroversies'. . . . [Tjhose words limit the business of federal courts to questions

presented in an adversary context and in a form historically viewed as capable ofresolution
through the judicial process." Flast v. Cohen, 392 U.S. 83, 94-95 (1968). This coneept
mandating federal judieial restraint is not simply a technicality, but rather serves as a

- 1 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 2 of 32

fundamental bedrock ofthis country's democratic system. In other words,just because an
issue is hotly debated does not mean that a federal court can step in and resolve the

dispute—^the court must first be satisfied that it has the authority to get involved.
What this means is that the doors of the federal courthouse are not always open.

Rather, federal courts assess their ability to hear a case based, in part, on the doctrine of
standing. "[Sjtanding is generally an inquiry about the plaintiff: is this the right person to
bring this claim." Davis v.

824F.3d333,348(3dCir. 2016). "[A]ny person

invoking the power of a federal court must demonstrate standing to do so"—that is, he or
she "must seek a remedy for a personal and tangible harm." Hollingsworth v. Perry, 570
U.S. 693, 704(2013). Because "standing is an essential and unchanging part of the caseor-controversy requirement of Article III," it constitutes not a "mere pleading

requirement[], but rather an indispensable part of the plaintiffs case...." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
In this matter, plaintiff Michael P. Keams("Plaintiff),the elected County Clerk for
Erie County, seeks to challenge the New York State Driver's License and Privacy Act,

commonly known as the "Green Light Law," contending that its provisions are preempted

by federal immigration law. {SeeDki. 1).' However, as discussed in detail below.Plaintiff
has failed to meet his burden to plausibly allege that he has suffered or will imminently

suffer "a concrete and particularized injury that is fairly traceable" to the implementation

'

The Green Light Law was passed by the New York State Legislature and signed

into law by defendant Governor Andrew M. Cuomo in June 2019, and is scheduled to take
effect on December 14, 2019.
-2-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 3 of 32

of the Green Light Law. Hollingsworth, 570 U.S. at 704. In other words, while Plaintiff
may strenuously disagree with the Green Light Law,he is not the proper party to challenge

its legitimacy because he has failed to establish an injury that is recognized under the law.
Accordingly, Plaintiff does not satisfy the "irreducible constitutional minimum" of
demonstrating standing. Lujan, 504 U.S. at 560.
The Court recognizes that Plaintiff desires to resolve the merits of his claim—i.e.,

whether or not the Green Light Law conflicts with federal immigration law. However,the
Court cannot act withoutjurisdiction. Monitoring government action "is not the role ofthe
judiciary, absent actual present or immediately threatened injury...." Laird v. Tatum,408
U.S. 1,15(1972). Because Plaintiff has failed to establish standing to challenge the Green
Light Law, the Court is left with no choice but to dismiss Plaintiffs lawsuit. The Court

therefore grants Defendants Governor Andrew M. Cuomo's. New York Attorney General

Letitia James', and Commissioner of the New York State Department of Motor Vehicles
Mark J.F. Schroeder's (collectively "Defendants") motion to dismiss(Dkt. 24), and denies
Plaintiffs motion for a preliminary injunction seeking to enjoin enforcement and
implementation ofthe Green Light Law prior to its effective date (Dkt. 3).
BACKGROUND

I.

Factual Background
A.

Drivers' Licenses in New York

The licensing of drivers in New York State is governed by Article 19 of the New
York Vehicle and Traffic Law ("VTL"). See generally N.Y. Veh.& Traf. Law Ch. 71, tit.
V, art. 19. VTL § 502 provides that an application for a driver's license shall be made to
-3 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 4 of 32

the Commissioner of the New York State Department of Motor Vehicles

("Commissioner"), and that the applicant "shall furnish such proof of identity, age, and
fitness as may be required by the commissioner." N.Y. Veh. & Traf. Law § 502(1). "A

1995 amendment to section 502(1)added the more specific requirement" that an applicant
provide a social security number. Cubas v. Martinez, 8 N.Y.3d 611, 617 (2007). In

accordance with this statutory mandate,the New York State Department ofMotor Vehicles
("DMV") promulgated regulations providing that "[a]n applicant for a license or a nondriver identification card or an applicant renewing such a license or such identification card
must submit his or her social security number or provide proof that he/she is not eligible
for a social security number." 15. N.Y.C.R.R. § 3.9(a).

In certain upstate counties, including Erie County, DMV functions are performed
by county clerks. N.Y. Veh. & Traf. Law § 205(1). The county clerks and their staff are
responsible for accepting and processing applications for drivers' licenses to residents in

those counties. (Dkt. 24-1 at

4-5). They have access to DMV systems to perform these

functions and may access or use DMV records or information only when necessary for

official DMV business. DMV,Protection ofDepartment Records 1, 3 (rev. Jan. 2019).

County clerks are not authorized to accept subpoenas, court orders, or other legal
documents requesting DMV records or information; any such requests must be accepted at
DMV headquarters in Albany. DMV,Requests for Information from External Entities 4

(rev. July 2016); see Miscellaneous Notices/Hearings, 35 N.Y. Reg. 106 (Feb. 13, 2013),
https://docs.dos.ny.gov/info/register/2013/feb 13/pdf/misc.pdf.

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 5 of 32

In 2005, Congress enacted the REAL ID Act, Pub. L. 109-13, 119 Stat. 231. The
READ ID Act establishes minimum federal requirements for state-issued drivers' licenses

and identification cards to gain entry to federal facilities and board federally regulated
commercial aircrafts. 49 U.S.C. § 30301 note (Sec. 201 Definitions). To issue a REAL
ID-compliant license or identification card, a state must verify an applicant's lawful

presence within federal databases and maintain copies ofthe proofs ofeligibility submitted
by the applicant. Id. note (Sec. 202 Minimum Document Requirements and Issuance

Standards for Federal Recognition). However, the REAL ID Act also permits states to
issue licenses exempt from REAL ID requirements("standard licenses"), see id., although
standard licenses will not be accepted as valid identification at airports beginning in
October 2020.

The Green Light Law, enacted on June 17, 2019, see Ch. 37, 2019 N.Y. Laws,

amends VTL § 502(1) by directing the Commissioner to accept various foreign-issued

documents as primary proof of identification and/or age, and by providing that, for a
standard license, in lieu of a social security number, an applicant may submit an affidavit
attesting that he or she has not been issued a social security number. Ch. 37, 2019 N.Y.
Laws,§ 3. The Green Light Law further amends VTL § 502(8)to expressly state that proof
of lawful presence in the United States is not required in order to obtain a standard license

and to prohibit the DMV from inquiring about an applicant's citizenship or immigration
status in connection with the issuance of such a license. Id. ^ 5.
The Green Light Law also has provisions related to the dissemination ofinformation
related to an applicant's citizenship status. In particular, the Green Light Law prohibits the
-5-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 6 of 32

DMV from retaining either the original or copies of documents used by an applicant for a

standard license to prove age or identity for any longer than "a limited period necessary to
ensure the validity and authenticity ofsuch documents." Id. It further provides that records
and information maintained by the DMV containing "the social security number,telephone
number, place of birth, country of origin, place of employment, school or educational
institution attended, source ofincome, status as a recipient of public benefits, the customer
identification number associated with a public utilities account, medical information or

disability information" of an applicant for a driver's license cannot be disclosed except(1)
to the applicant him- or herself,(2) where the Real ID Act expressly requires disclosure,

or (3) pursuant to a court order, judicial warrant, or a state criminal or civil subpoena.
Id. ^2. Moreover,the Commissioner and his agents are prohibited from turning over DMV
records to any agencies that "primarily enforce[] immigration law" in the absence of"a

lawful court order or judicial warrant signed by a judge appointed pursuant to article III of
the United States constitution." Id. Upon receiving a request for records or information
from an agency that "primarily enforces immigration law," the Commissioner is required,
within three days, to notify the individual whose information was sought. Id.
B.

Federal Immigration Legislation

The federal government enacted the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), which prohibits
state and local governments from limiting their employees in the voluntary provision of

information about the immigration status of aliens to federal immigration authorities. See
8 U.S.C. § 1373. Additionally, federal law requires that "[njotwithstanding any other
-6-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 7 of 32

provision of Federal, State, or local law, no State or local government entity may be
prohibited, or in any way restricted, from sending to ...[federal immigration authorities]
information regarding the immigration status, lawful or unlawful, of an alien in the United
States." 8 U.S.C. § 1644.

Also relevant to the instant litigation is 8 U.S.C. § 1324, a federal criminal statute
entitled "Bringing in and harboring certain aliens." Subsection (a)(1)(A) of § 1324

criminalizes the following:(i) knowing that a person is an alien, bringing or attempting to
bring that person into the United States other than a designated port of entry; (ii)
transporting, moving, or attempting to transport or move an alien within the United States,

knowing or in reckless disregard of the fact that such alien is not lawfully present in the

United States; (iii) concealing, harboring, shielding from detection, or attempting to
conceal, harbor, or shield from detection an alien, knowing or in reckless disregard of the
fact that such alien is not lawfully present in the United States;(iv)encouraging or inducing
an alien to "come to, enter, or reside in the United States, knowing or in reckless disregard
of the fact that such coming to, entry, or residence is or will be" unlawful; and (v) aiding
or abetting in the commission of any ofthe preceding acts, or engaging in a conspiracy to
commit any ofthe previous acts. 8 U.S.C. § 1324(a)(l)(A)(i-v).
II.

Procedural Background

PlaintifffiledtheinstantactiononJuly 8,2019. (Dkt. 1). Shortly after commencing

this litigation. Plaintiff filed a motion for a preliminary injunction, seeking to enjoin
enforcement and implementation of the Green Light Law prior to its effective date of

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 8 of 32

December 14, 2019. (Dkt. 3). On August 16, 2019, Defendants filed a motion to dismiss.
(Dkt. 24).

Plaintiff filed a First Amended Complaint as of right pursuant to Federal Rule of
Civil Procedure 15(a)(1)(B) on September 4, 2019. (Dkt. 41). Plaintiffs First Amended

Complaint seeks a declaratory judgment that certain portions of the Green Light Law
conflict with federal law and attempt to regulate a field that Congress has determined to be

within its exclusive governance, and therefore are preempted under the Supremacy Clause
ofthe United States Constitution. Plaintiff also seeks a permanent injunction enjoining the
implementation and enforcement of the challenged portions of the Green Light Law, and
preventing the removal of Plaintiff from office for his failure to "carry out any and all
unconstitutional requirements ofthe Green Light Law." (Dkt. 41 at 20). With the consent

ofPlaintiff and Defendants, the Court agreed to consider the merits ofthe pending motion
to dismiss in light of the First Amended Complaint. (Dkt. 51).

Plaintiff filed a memorandum of law in further support of his motion for a
preliminary injunction and in opposition to Defendants' motion to dismiss on September
16, 2019. (Dkt. 60). Defendants filed a reply memorandum of law in further support of
their motion to dismiss on September 27, 2019(Dkt. 72), and Plaintiff filed an additional

memorandum of law related solely to Defendants' response to the new allegations
contained in the First Amended Complaint on October 1, 2019(Dkt. 73).

Since the filing ofthis lawsuit, numerous third parties have sought leave ofcourt to

become involved in various ways. The Court granted the Connecticut Attorney General's
request by letter dated July 31, 2019(Dkt. 15), for leave to file an amicus curiae brief in
-8-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 9 of 32

support ofDefendants(Dkt. 16);the Court granted the Immigration Reform Law Institute's
request by letter dated August 14, 2019(Dkt. 19), for leave to file an amicus curiae brief

in support of Plaintiff (Dkt. 20); and the Court granted the New York Civil Liberties
Union's("NYCLU")request by letter dated September 6, 2019(Dkt. 52), for leave to file

an amicus curiae brief in support of Defendants(Dkt. 53). The Immigration Reform Law

Institute filed its brief on August 14, 2019 (Dkt. 21); on August 23, 2019, the State of
Connecticut joined with seven additional states and the District of Columbia and filed an

amid curiae brief(Dkt. 35); and the NYCLU filed its brief on September 9, 2019 (Dkt.
54). On October 9,2019,the Court issued a Decision and Order(Dkt. 79)denying all other

outstanding requests from third parties to become involved in this litigation.^
Oral argument on Plaintiffs motion for a preliminary injunction and Defendants'
motion to dismiss was held on October 23,2019. (Dkt. 81). The Court reserved decision.

^

On August 28, 2019, the Court issued a certification to the Attorney General ofthe

United States pursuant to Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403,
certifying that the constitutionality of 8 U.S.C. §§ 1373 and 1644 had been challenged.
(Dkt. 37). The Court ordered that ifthe Attorney General elected to intervene in this action
to defend the constitutionality of those statutory provisions, he must do so on or before
November 12, 2019. (Dkt. 76). As of the date of this Decision and Order, the Attorney
General has not filed a motion to intervene. Because the Court resolves the instant matter

on grounds other than the constitutionality of8 U.S.C. §§ 1373 and 1644, it need not wait
for the Attorney General's motion to intervene before issuing this Decision and Order. See
Fed. R. Civ. P. 5.1(c) ("Before the time to intervene expires, the court may reject the
constitutional challenge, but may not enter a final judgment holding the statute
unconstitutional.").
-9-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 10 of 32

DISCUSSION
1.

Defendants* Motion to Dismiss

The Court must resolve Defendants' pending motion to dismiss before turning to
Plaintiffs motion seeking to preliminarily enjoin enforcement ofthe Green Light Law. In
other words, if Plaintiffs lawsuit does not survive Defendants' motion to dismiss, then he

is not entitled to any relief—injunctive or otherwise.

Defendants have moved for dismissal ofPlaintiffs claims pursuant to Federal Rule
of Civil Procedure 12(b)(1) and (6), arguing that:(1) Plaintiff lacks capacity to bring his
claims;(2)Plaintiff lacks standing to bring his claims;(3)Plaintiff does not have a viable
claim under the Supremacy Clause; and(4)Plaintiffs' preemption claims fail on the merits.
For the reasons discussed below, the Court finds that Plaintiff lacks standing to bring his
claims in either his official or his individual capacity. As a result, the Court agrees with
Defendants that Plaintiffs claims must be dismissed.
A.

Legal Standard—Subject Matter Jurisdiction

"A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1)for lack

of subject matter jurisdiction if the court lacks the statutory or constitutional power to
adjudicate it, such as when . . . the plaintiff lacks constitutional standing to bring the
action." Cortlandt St. Recovery Corp. v. Hellas Telecomms, S.d.r.l, 790 F.3d411, 416-17

(2d Cir. 2015) (quotation and citation omitted). "A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists."

Makarova v. United States,201 F.3d 110, 113(2d Cir. 2000). "When considering a motion
to dismiss for lack ofsubject matter jurisdiction ..., a court must accept as true all material
- 10-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 11 of 32

factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129,
131 (2d Cir. 1998). In addition, a court is not limited to the allegations in the complaint
and can "refer to evidence outside the pleadings," Luckett v. Bure, 290 F.3d 493, 496-97

(2d Cir. 2002), but it "may not rely on conclusory or hearsay statements contained in the
affidavits." J.S. v. Attica Central Schools, 386 F.3d 107, 110(2d Cir. 2004). "Indeed, a

challenge to the jurisdictional elements of a plaintiffs claim allows the Court to weigh the
evidence and satisfy itself as to the existence of its power to hear the case." Celestine v.
Mt. Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392, 399 (S.D.N.Y. 2003)
(quotation omitted), aff'd, 403 F.3d 76 (2d Cir. 2005). "Where, as here, the defendant
moves for dismissal under Rule 12(b)(1), Fed. R. Civ. P., as well as on other grounds, the
court should consider the Rule 12(b)(1) challenge first since if it must dismiss the

complaint for lack ofsubject matterjurisdiction,the accompanying defenses and objections
become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins.
Guar. Ass'n, 896 F.2d 674,678(2d Cir. 1990)(quotation omitted).
B.

Standing

Defendants argue that the Court lacks subject matter jurisdiction because Plaintiff
does not have standing, in either his individual or official capacity, to challenge the
implementation ofthe Green Light Law. (See Dkt. 25 at 21-29). The Court agrees, for the
reasons that follow.

This Court, like all courts established under Article III of the United States

Constitution, has jurisdiction only over "cases and controversies." Lujan,504 U.S. at 559;
see also Whitmore v. Arkansas,495 U.S. 149, 154-55(1990)("Article III, ofcourse, gives
- II -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 12 of 32

the federal courts jurisdiction over only 'cases and controversies. . .

While the

Constitution does not define "case" or "controversy," "the doctrine of standing serves to
identify those disputes which are appropriately resolved through the judicial process."
Whitmore,495 U.S. at 155.

The Second Circuit has explained:

To satisfy the requirements of Article III standing, plaintiffs must
demonstrate "(1)[an] injury-in-fact, which is a concrete and particularized
harm to a legally protected interest; (2) causation in the form of a fairly
traceable connection between the asserted injury-in-fact and the alleged
actions of the defendant; and (3) redressability, or a non-speculative
likelihood that the injury can be remedied by the requested relief."
Hu V. City of New York, 927 F.3d 81, 89 (2d Cir. 2019)(quoting Selevan v. New York
Thruway Auth., 711 F.3d 253,257(2d Cir. 2013)). "These elements are not mere pleading

requirements but rather an indispensable part of the plaintiffs case." Id. (quotation and
alteration omitted). Moreover,the Supreme Court has recognized that the standing inquiry
must be "especially rigorous" when reaching the merits of a dispute would require a court
to determine whether action taken by the political branches of government was

constitutional, due to the "time-honored concern about keeping the Judiciary's power
within its proper constitutional sphere." Raines v. Byrd,521 U.S. 811, 819-20(1997). At
the pleading stage, to survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) based on lack of standing, a plaintiff must "allege facts that affirmatively and
plausibly suggest that it has standing to sue." Amidax Trading Grp. v. S.W.I.F.T. SCRL,

671 F.3d 140, 145 (2d Cir. 2011). "The presence of a disagreement, however sharp and

12-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 13 of 32

acrimonious it may be, is insufficient by itself to meet Art. Ill's requirements."
Hollingsworth, 570 U.S. at 704(quotation omitted).

Defendants contend that Plaintiff has not plausibly alleged an injury-in-fact related
to the implementation of the Green Light Law, and that he therefore lacks standing to

challenge its provisions. (See Dkt. 25 at 21-29). Plaintiff argues in opposition that(1) he
has alleged an injury to his office sufficient to confer standing for his official capacity
claims and (2) he has alleged that he faces a credible threat of prosecution or of removal

from office, which establishes standing with respect to his individual capacity claims. (See
Dkt. 60 at 11-19). The Court considers each ofthese contentions below.
1.

Individual Capacity Claims

The requirement that a plaintiff demonstrate an injury-in-fact "has been repeatedly
described as the hard floor of Article III jurisdiction, and requires a litigant to show an

invasion of a legally protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical." Hassan v. United States, 441 F.
App'x 10, 11 (2d Cir. 2011)(citations and quotations omitted). Here, Plaintiff claims that
he has suffered an injury-in-fact in his individual capacity related to the enactment of the

Green Light Law, because he, in his role as Erie County Clerk, will be required to comply
with its provisions, which will expose him to federal criminal prosecution and/or removal
from office by the Governor. The Court has considered Plaintiffs allegations and

arguments and concludes that Plaintiff has not satisfied his burden of alleging "facts that
affirmatively and plausibly suggest that [he] has standing to sue" with respect to his
individual capacity claims. Amidax Trading, 671 F.3d at 145.
- 13 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 14 of 32

a.

Threat of Criminal Prosecution

Turning first to Plaintiffs claim that he will be subject to potential federal criminal
prosecution if he complies with the Green Light Law's mandates, it is true that "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)(quotation omitted). In other words, a plaintiff
does not have to wait to be prosecuted before challenging the constitutionality of a statute.
See id. (explaining that where a plaintiff credibly fears prosecution under an allegedly
unconstitutional statute, he is "not...required to await and undergo a criminal prosecution
as the sole means of seeking relief."(quotation omitted)).

However, the cases dealing with standing in the context of preenforcement
challenges to allegedly unconstitutional laws involve challenges to the very statutes under
which the plaintifffears prosecution. See, e.g., Virginia v. Am. Booksellers Ass'n, Inc.,484

U.S. 383, 393 (1988)(finding standing for preenforcement challenge where the plaintiffs
had "alleged an actual and well-founded fear that the [challenged]law [would] be enforced

against them"); Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979)
("When the plaintiff has alleged an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a credible
threat of prosecution thereunder, he should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief."(emphasis added and quotation omitted));
Steffel V. Thompson, 415 U.S. 452, 459 (1974)(finding standing where the petitioner's
challenge was to "those specific provisions of state law which have provided the basis for
- 14-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 15 of 32

threats ofcriminal prosecution against him"); Cayuga Nation v. Tanner,824 F.3d 321, 331
(2d Cir. 2016)("[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."(emphasis added and quotation omitted)).

By contrast, in this case. Plaintiffis not alleging that he would be subject to criminal

prosecution under the Green Light Law (nor could he plausibly do so, because the Green
Light Law is not a criminal statute). Instead,Plaintiff contends that if he complies with the
Green Light Law, he may be criminally prosecuted under 8 U.S.C. § 1324. {See Dkt. 41
at^ 44("The Green Light Law places County Clerks such as [Plaintiff]...at risk offederal
prosecution under 8 U.S.C. § 1324.")). Plaintiff has not cited any case in which

preenforcement standing to challenge a particular statute has been recognized based on the
potential for prosecution under a different law. Indeed, at oral argument.Plaintiffs counsel

conceded that he was not aware of any such case. A plaintiff asserting standing on such
grounds necessarily cannot satisfy the essential requirement identified by the Supreme
Court in Babbitt—^that the plaintiff allege an intention to engage in a course of conduct

proscribed by the challenged statute. See 442 U.S. at 298; see also Susan B. Anthony List

V. Driehaus, 573 U.S. 149, 162(2014)(assessing as part of the standing inquiry whether
the petitioners' "intended future conduct is arguably proscribed by the statute they wish to

challenge"(quotations and alterations omitted)). In other words,the Court is not persuaded
that the case law Plaintiff relies upon regarding preenforcement challenges based on a
credible threat of prosecution is applicable here, where the law Plaintiff is challenging is
different than the law under which he allegedly fears criminal prosecution.
- 15-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 16 of 32

Even if Plaintiff could challenge a non-criminal state law based on a claimed fear
of prosecution under a different federal law, Plaintiffs efforts to meet his burden to

establish standing fall flat. Plaintiff has not plausibly alleged that he intends to engage in
future conduct proscribed by § 1324.

"To sufficiently allege standing on his

preenforcement claim, Plaintiff must... allege both a concrete intention to violate the law
and the credible threat of prosecution if he were to do so." Adam v. Barr,No. 18-CV-2106

(AJN),2019 WL 1426991, at *3(S.D.N.Y. Mar. 29,2019)(emphasis added)(finding lack

of standing to challenge laws regarding cannabis where the plaintiff made conclusory
allegation that he had "an immediate intention to use cannabis for religious purposes," but
had not alleged "how he would seek to obtain marijuana, how or where he intends to use
it, nor how much marijuana he intends to use"(quotation omitted)); cf. Cayuga Nation,

824 F.3d at 331-32(finding standing for preenforcement challenge to village anti-gambling
ordinance where the plaintiffs alleged they intended to conduct bingo games,"which is
clearly prohibited by the Ordinance"); Knife Rights, Inc. v. Vance, 802 F.3d 377, 386-87
(2d Cir. 2015)(finding standing for preenforcement challenge to statute banning certain

types of knives where the plaintiffs alleged that "they have in the past carried, and wish
again to carry, common folding knives"); Unkechaug Indian Nation v. N.Y. State Dep 't of
Envtl. Conservation, No. 18-CV-1132(WFK), 2019 WL 1872952, at *6 (E.D.N.Y. Apr.

23,2019)(finding standing where the plaintiffs had "articulated a concrete plan, including
fishing in waters they consider customary under their treaty rights, which would violate the
regulations in question").

- 16

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 17 of 32

Here, Plaintiff has not alleged that he intends to engage in any conduct that would
violate the federal criminal statute under which he purportedly fears prosecution, and
particularly has not alleged that he intends to comply with the provisions ofthe Green Light
Law. To the contrary. Plaintiff has provided the Court with no information at all regarding
his intentions should the Green Light Law go into effect, opting instead to argue as to the

potential legal effects of both complying and not complying with the Green Light Law's
mandates. {See Dkt. 3-1 at

11-12, 15-17, 24; Dkt. 41 at

62-65). A fair reading of

Plaintiffs allegations is that he may not comply with the Green Light Law, in which case
his claimed exposure to criminal prosecution under federal law would disappear. In order
to establish a threat of prosecution sufficiently imminent to satisfy the injury-in-fact
requirement ofstanding, a plaintiff must have "concrete plans to perform,in the near future,
the conduct that officials would consider illegal." Jones v. Schneiderman, 101 F. Supp. 3d
283,291 (S.D.N.Y. 2015)(quotation omitted); see also Lujan, 504 U.S. at 564(explaining

that mere intentions,"without any description ofconcrete plans," are insufficient to support
"a finding ofthe 'actual or imminent' injury" necessary to establish standing). In this case.

Plaintiff has not alleged such concrete plans, and he has actually suggested just the
opposite. This undercuts Plaintiffs claim that he possesses standing to challenge the Green
Light Law in his individual capacity based upon a credible fear of prosecution.
In addition, the Court agrees with Defendants that Plaintiffs allegations do not

support the conclusion that, even if he complied with the Green Light Law, he would open

himself up for federal criminal prosecution. In particular. Plaintiff has failed to allege any

17-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 18 of 32

facts that plausibly support the claim that the Green Light Law would force him personally

to engage in conduct that violates § 1324.^
Neither Plaintiff nor amid who support his position have identified a nonspeculative scenario in which Plaintiff could plausibly anticipate being criminally
prosecuted under § 1324 should he comply with the Green Light Law's provisions. In this
regard, it is important to note that the minimum state ofmind requirement in any subsection
of§ 1324 is that a person act in "reckless disregard" ofthe fact that an alien is in the United

States unlawfully. See 8 U.S.C. § 1324(a). With respect to the provisions of the Green
Light Law that eliminate the requirement that a driver's license applicant provide a social
security number, as Defendants point out in their motion to dismiss, many people who are
lawfully present in the United States lack social security numbers for various reasons. The
mere fact that an individual does not have a social security number provides no meaningful

information about that individual's immigration status, and knowledge that an individual
does not have a social security number is insufficient to satisfy the mens rea requirement
of § 1324. See United States v. Rodriguez, 880 F.3d 1151, 1162 (9th Cir. 2018)

(explaining, in connection with § 1324, that a defendant acts with reckless disregard only
if he "knew of facts which, if considered and weighed in a reasonable manner, indicate[d]
a substantial and unjustifiable risk that the alleged alien . . . was in the United States

^

To the extent Plaintiff alleges that compliance with the Green Light Law would

conflict with certain other provisions of federal immigration law (including 8 U.S.C.
§§ 1373 and 1644),those allegations are not relevant to the standing inquiry, because those
provisions are not criminal statutes under which Plaintiff could theoretically fear
prosecution.
- 18-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 19 of 32

unlawfully, and the defendant knew ofthat risk"(emphasis omitted)). Moreover, far from
exposing Plaintiff to information regarding an applicant's immigration status, the Green
Light Law expressly forbids Plaintiff and his stafffrom making any such inquiry. See Ch.
37, 2019 N.Y. Laws, §5.

Plaintiffalleges in his Amended Complaint that it is "not unusual for driver's license
applicants—^without being asked—^to provide [Plaintiff] and his staff with information or

records regarding their immigration status." (Dkt. 41 at ^ 34)."^ This conclusory allegation
is insufficient to support Plaintiffs claim of individual standing. See Baur v. Veneman,
352 F.3d 625, 636-37 (2d Cir. 2003) (explaining that even at the pleadings stage, "a
plaintiff cannot rely solely on conclusory allegations of injury or ask the court to draw
unwarranted inferences in order to find standing"). A fundamental problem with Plaintiffs
allegation is that he fails to explain why he would be personally interacting with an
applicant for a driver's license. Certainly Plaintiff, the elected County Clerk, is not
working the intake counter at Erie County's DMV offices, nor has he described any other
scenario in which he would be personally responsible for reviewing the documents

As noted above, under the pre-Green Light Law version of the VTL, an applicant
for a driver's license was required to either provide a social security number or proof that
he or she was not eligible for the same. As such, some level of discussion regarding
immigration status may have been expected. However, the Green Light Law expressly
removes immigration status as a consideration in the issuance of a standard license. As
such, even accepting the claim that driver's license applicants volunteered information
regarding their immigration status in the past, it is pure speculation to assume they would
continue to do so when such status has no bearing whatsoever on their eligibility for a
standard driver's license—and in fact, any inquiry regarding immigration status is now
expressly forbidden under the Green Light Law.
- 19-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 20 of 32

submitted by a driver's license applicant.^ Of course, Plaintiff cannot rely on potential
injuries to his staffto establish standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548
(2016)(explaining that an injury-in-fact must be "particularized" such that it "affect[s] the
plaintiff in a personal and individual way"(quotations omitted)). Moreover, Plaintiff has
failed to allege that any driver's license applicant has ever told him personally that he or
she was unlawfully present in the United States, or presented records demonstrating that
this was the case.^

Put simply. Plaintiff has failed to plausibly allege a scenario in which he personally
would be on notice of a substantial risk that an individual was in the United States

unlawfully and would nonetheless be required to process that individual's driver's license
application. In other words. Plaintiffs "theory of standing, which relies on a highly
attenuated chain of possibilities, does not satisfy the requirement that threatened injury

must be certainly impending." Clapper v. Amnesty Int'I USA,568 U.S. 398,410(2013).

^

At oral argument. Plaintiffs counsel suggested that members of Plaintiffs staff

might come to him with questions about documents they received, and thereby put him on
notice that a driver's license applicant is in the country unlawfully. However, no such
allegation is contained in the Amended Complaint, nor has Plaintiff alleged that this has
ever happened in the past. Indeed, Plaintiff has failed to allege that he has any personal
involvement—^past, present, or future—in the administrative tasks associated with the
issuance of a driver's license. At a minimum, in order to establish individual standing
based on a credible threat of prosecution. Plaintiff would need to establish that he was
personally involved in the process of issuing driver's licenses so as to expose himself to
information regarding an applicant's immigration status—and he has wholly failed to
plausibly allege his personal involvement.

^

Plaintiff has also failed to explain what kind of records applicants could produce

that would even arguably put him on notice that they were in the United States unlawfully.
As with not having a social security number, the mere possession of foreign documents is
not evidence of an unlawful immigration status.
-20-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 21 of 32

The Court further agrees with Defendants that, even in the implausible scenario

where Plaintiff is made aware that someone is in the United States unlawfully, merely

processing that individual's application for a driver's license^ would not constitute a
violation of§ 1324. Plaintiff argues that the Second Circuit has adopted a broad definition
of harboring under § 1324, which could encompass processing driver's license

applications. However,recent Second Circuit case law is clear that"to constitute harboring
[under § 1324], a defendant's action must be intended (1) substantially to facilitate an
illegal alien's remaining in the United States, and (2) to prevent the alien's detection by
immigration authorities." United States v. George, 779 F.3d 113, 117-18(2d Cir. 2015).

Plaintiff has not offered any plausible construction of this intentionality requirement that
would encompass merely processing the paperwork for a driver's license application, even
ifPlaintiff himself was the individual working the counter at the Erie County DMV(which,
again, he has not alleged). Cf. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383

(2d Cir. 2000) (finding standing in preenforcement context because the plaintiff had

^

It is relevant to note that Plaintiffs role in the issuance of drivers' licenses is purely

ministerial—it is the State of New York, acting via the DMV Commissioner, and not
Plaintiff, that is the ultimate decisionmaker as to who is issued a driver's license. See VTL

§ 508 ("The commissioner shall appoint agents to act in his behalf with respect to the
acceptance of applications and the issuance of licenses and permits prescribed in this
article, and he may prescribe the internal procedures to be followed by such agents with
respect to such matters."(emphasis added)). Plaintiff, whether in his individual or official
capacity, has no independent power or authority to grant or deny driving privileges to any
person; all such actions are performed on behalf of New York State. Accordingly, the
Immigration Reform Law Institutes' argument that the Green Light Law requires Plaintiff
to commit inducement, shielding, and human trafficking under § 1324 {see Dkt. 21 at 6-9)
are specious, because they are based on the faulty premise that it is Plaintiff himself who

is "providing in-state driving privileges to aliens who lack registration" {id. at 7).
-21 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 22 of 32

plausibly alleged that its intended conduct would violate a reasonable interpretation ofthe
challenged statute).

Plaintiffs claim that he may be criminally prosecuted merely for processing driver's
license applications for aliens who are unlawfully present in the United States is also belied
by the fact that numerous states and territories have laws that do not condition the issuance
of a driver's license (or comparable driving credential) on proof of lawful immigration

status, and the federal government has never prosecuted anyone for compliance therewith.
Indeed, as the Amid States point out,"as recently as 2002 half of all states did not require
applicants to produce documentation of lawful immigration status before obtaining
permission to drive." (Jd. at 11). Moreover, it was more than 25 years ago (in 1993)that

"Washington State enacted legislation explicitly allowing the issuance of driving
credentials without proof of legal immigration status." (Jd. at 13). The Second Circuit has

acknowledged that when a plaintiff asserts standing based on a claimed threat of
prosecution, it is relevant whether the statute proscribing his conduct is "recent and not

moribund." Hedges, 724 F.3d at 197 (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)).
In this case, § 1324 is not a recently enacted statute, and individuals who have been

engaging in the precise conduct mandated by the Green Light Law (that is, processing
driver's license applications without regard to the applicant's immigration status) have

faced no threat of prosecution thereunder. While this fact is not alone dispositive, it

-22-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 23 of 32

supports the conclusion that Plaintiffs claimed fear of prosecution is illusory and he has

failed to plausibly allege standing.^
In his papers, Plaintiff argues that his claimed fear of prosecution is plausible
because "[t]he Trump Administration[has]threatened retaliation against local officials that
it believes are interfering with the enforcement of federal immigration law." (Dkt. 60 at
18). Plaintiff offers two examples in favor ofthis contention, neither of which is remotely
factually analogous to the current matter. First, Plaintiffrefers to an incident in 2018 where

President Trump publicly urged the United States Attorney General to consider prosecuting
the Mayor of Oakland, California, for obstruction ofjustice after she alerted individuals
who were not legally present in the Untied States of a pending law enforcement raid. (Dkt.
3-1 at ^ 7). Second, Plaintiff refers to United States v. Joseph, Grim. Action No. 19-cr10141, Dkt. 1 (D. Mass. Apr. 25, 2019), a case in which a Massachusetts state courtjudge

and a court officer were criminally prosecuted for obstruction of justice after having
allegedly allowed an individual whom they knew was subject to a final order of removal
to exit the court through a back door in order to evade being taken into custody by United
States Immigration and Customs Enforcement("ICE"). {Id. at ^ 8).

^

Plaintiff argues that the federal government has not disavowed any intention to

prosecute him under § 1324 should he comply with the Green Light Law. {See Dkt. 60 at
16-17). However, an express disavowal is not necessary where there is "another reason to
conclude" that such a prosecution is not plausible. Hedges, 724 F.3d at 197. Indeed, the
Second Circuit has indicated that the presence or absence of an express disavowal should
not play a determinative role in the standing inquiry, because such a disavowal is not legally
binding. See Vt. Right to Life, 221 F.3d at 383.
-23 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 24 of 32

Far from supporting Plaintiffs claimed fear of prosecution under § 1324, these
examples underscore the speculative nature of his claims. With respect to the mayor of

Oakland, it is undisputed that she was not criminally prosecuted, despite having allegedly
deliberately aided unlawfully present aliens in evading law enforcement detection.
Similarly, the defendants in Joseph were allegedly on notice that the individual was subject

to a final order ofremoval and nonetheless took active and affirmative steps to prevent ICE
from taking him into custody. Both these scenarios are a far cry from the issue in this case,

involving the processing ofdriver's license applications for individuals whose immigration
status is unknown. Moreover, in both of Plaintiffs examples, the prosecution (or
threatened prosecution) was for obstruction of justice, not for violation of § 1324. See
United States v. Joseph, Grim. Action No. 19-cr-10141, Dkt. 1 at 15-16(D. Mass. Apr. 25,

2019);(Dkt. 3-1 at 17). Plaintiff has not identified a single instance of even a threatened
prosecution of a local official pursuant to § 1324.

Plaintiffs claim of standing based on potential prosecution under § 1324 fares no
better with respect to the provisions of the Green Light Law that govern the dissemination
ofrecords and information. Plaintiff has not alleged that he has ever been asked for records

or information by federal immigration authorities in the past, nor has he alleged that such
a scenario is likely to occur in the future. Moreover, Plaintiff does not dispute that under

longstanding DMV policy, only the DMV's central office in Albany is authorized to accept

service of court orders, subpoenas, and judicial warrants. Again, Plaintiffs theory of
standing "relies on a highly attenuated chain of possibilities," Clapper, 568 U.S. at 410—
namely, that a driver's license applicant would produce some unspecified record
-24-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 25 of 32

suggesting that he or she was in this country unlawfully, that federal immigration
authorities would request that record from Plaintiff personally (as opposed to properly
submitting the request to the DMV's central office), that Plaintiff would accept the request
despite having no authority to do so, that Plaintiff would be able to glean from the face of

the request that there was a substantial risk it pertained to an individual who was in this
country unlawfully, and that Plaintiff would then either refuse to turn the record over

(which he has not stated he intends to do) or conspire with the DMV's central office to
refuse to produce the information. This sort of speculation about a series of implausible
events is insufficient to demonstrate a credible fear of prosecution so as to afford Plaintiff
standing.

Plaintiffs arguments regarding the notification provisions of the Green Light Law
fail for similar reasons. The Green Light Law requires that in the event the DMV receives

a request for records from an immigration enforcement agency, "the commissioner
shall... notify the individual about whom such information was requested...." Ch. 37,
2019 N.Y. Laws, § 2(emphasis added). Agents of the Commissioner are not authorized
by the Green Light Law to provide that notification. In other words. Plaintiff has not

alleged a plausible scenario where he personally would be required to notify an individual
about a record request received from immigration officials.

In sum, it is apparent Plaintiff disagrees with the Green Light Law. But the mere
disagreement with a duly-enacted state statute does not entitle anyone—even an elected
official—^to seek intervention from a federal court. Rather, Plaintiff must have suffered a

legally cognizable injury. To the extent Plaintiff bases his theory of injury on a credible
-25 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 26 of 32

threat of prosecution against him individually, he fails to meet his burden to establish
standing.
b.

Threat of Removal from Office

Plaintiff has also argued that there is an imminent threat that he will be removed

from office should he refuse to comply with the Green Light Law's provisions. Again,the
Court finds Plaintiffs contentions speculative and insufficient to support a finding of
injury-in-fact.

Plaintiffs claim that he faces removal from office arises not from any provision of

the Green Light Law itself, but from a wholly separate provision of the New York State
Constitution. In particular. Article 13,§ 13(a)ofthe New York State Constitution("Article

13, § 13(a)") grants the Governor of New York the ability to remove from office "any
elective sheriff, county clerk, district attorney or register," so long as the official in question

is provided "a copy of the charges against him or her and an opportunity of being heard in
his or her defense." N.Y. Const, art. Xlll, § 13(a).

Plaintiffs theory of standing based on his fear of removal from office suffers from
similar infirmities as his theory ofstanding based on his fear ofcriminal prosecution. First,

there is simply no relation between the Green Light Law and Article 13, § 13(a)—^that is,
the sanction Plaintiff claims to fear does not arise from the statute he is seeking to

challenge. Plaintiff also has not, as set forth above, alleged in his Amended Complaint that
he definitely intends to disobey the Green Light Law, which is what he contends would be

the impetus for the Governor to initiate removal proceedings. Moreover, Plaintiff has not

-26

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 27 of 32

cited a single instance in which a county clerk has been removed pursuant to Article 13, §
13(a) for having refused to comply with a statute.
In addition, the Court notes that nothing on the face of Article 13, § 13(a) limits its

applicability to scenarios in which an elected official refuses to perform a statutory duty.
To the contrary, it appears to be left to the discretion of the Governor to determine what

constitutes a basis for removal. Cf. Mulroy v. Carey, 43 N.Y.2d 819, 822-23 (1977)
(Cooke, J., concurring)(explaining, in context ofthe Governor's authority to supersede an
elected district attorney, that the "Governor of the State is immune from interference by
judicial process and free from judicial control in his performance of executive powers,"

and that "[t]he separation of powers doctrine contemplates that the voters or their elected
representatives will check any abuse by the Executive through the political process—by
means of elective change, constitutional amendment or corrective legislation."(quotations
omitted)). According to Plaintiffs logic, if the mere theoretical possibility of removal

under Article 13, § 13(a) was sufficient to confer standing, any elected official covered by
Article 13, § 13(a) would be able to automatically create Article III standing simply by
declaring his or her intention not to comply with a law with which he or she personally

disagreed. Such a conclusion is wholly inconsistent with the fundamental standing
requirement of, at a minimum, an imminent injury-in-fact. See Hollingsworth, 570 U.S. at

704 ("The presence of a disagreement, however sharp and acrimonious it may be, is
insufficient by itself to meet Art. Ill's requirements."(quotation omitted)).
Moreover, Plaintiffs allegation that Governor Cuomo "has publicly refused to
assure" New York's county clerks that he would not exercise his removal powers is not
-27-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 28 of 32

sufficient to raise Plaintiffs claimed injury above a speculative level. {See Dkt. 3-1 at
f 15). A government official's refusal to take a position on what future action he will

pursue is a far cry fi*om the concrete and particularized injury necessary to establish
standing, especially when the State could respond to Plaintiffs theoretical non-compliance

with the Green Light Law in several ways. See Clapper, 568 U.S. at 412 (holding
respondents' alleged injury was insufficient for standing purposes because the statute at
issue "at most authorizes—but does not mandate or direcf the conduct respondents feared,
making their allegations "necessarily conjectural"). For example, VTL § 205 expressly
provides for the possibility that the Commissioner could direct someone other than the

County Clerk to serve as his agent "in the issuance of non-driver identification cards and
drivers' licenses," N.Y. Veh. & Traf. Law § 205(1), which means that even if Plaintiff
refused to comply with the Green Light Law,the Commissioner could direct someone else
to issue drivers' licenses in Plaintiffs stead. In short, an allegation regarding Governor

Cuomo's indecisiveness, especially when combined with Plaintiffs own refusal to plead
with defmiteness as to what his future action will be, is too speculative to allege an injuryin-fact based on Plaintiffs claimed prospective removal from office.
Finally, the fact that Defendants have publicly stated that they intend to enforce the
Green Light Law and defend it from constitutional challenge does not establish an intent
to remove Plaintiff from office should he refuse to comply with the Green Light Law's
terms. SeePoe v. Ullman, 367 U.S. 497, 501-02(1961)(state attorney's statement that he
intended "to prosecute any offenses against Connecticut law, and that he claims that use of
and advice concerning contraceptives would constitute offenses" insufficient to confer
-28-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 29 of 32

standing on doctor who sought to challenge statute prohibiting him from giving

contraceptive advice to patient, particularly in light of "[t]he undeviating policy of
nullification by Connecticut ofits anti-contraceptive laws throughout all the long years that
they have been on the statute"). Plaintiff has not alleged that any county clerk in New
York's history has been removed from office under Article 13, § 13(a) or that Defendants
have indicated any plans to seek such a removal should he refuse to comply with the Green

Light Law's mandates. On these facts. Plaintiff has not established a credible fear of
removal from office sufficient to confer standing upon him.
2.

Official Capacity Claims

Having determined that Plaintiff lacks standing to bring his individual capacity

claims,the Court considers whether Plaintiff has standing to bring his claims in his official
capacity, and easily concludes that he does not.

In assessing the standing of a state subdivision to challenge a state law under the

Supremacy Clause, the Second Circuit has applied the traditional test for Article III

standing, including the requirement that the state subdivision demonstrate an "injury-infact." See Tweed-New Haven Airport Auth. v. Tang, 930 F.3d 65, 70(2d Cir. 2019). The
parties agree that in order to establish standing with respect to his official capacity claims.
Plaintiff is required to plead a "cognizable injury to his office." (Dkt.60 at 12; see Dkt. 25

at 22). Plaintiff claims that he has done so because "[ajlthough the Clerk's Office cannot
itself be prosecuted, it would undoubtedly be harmed if[Plaintiff] and others subsequently
holding his position are prosecuted for a federal offense for complying with the Green
Light Law" and because "the Clerk's Office will inevitably suffer harm if the Clerk is
-29-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 30 of 32

removed from office each time s/he chooses to comply with federal law rather than the
mandates of the Green Light Law." (Dkt. 60 at 12). These arguments lack merit.

First, Plaintiff has not explained what harm would come to the Erie County Clerk's
Office merely from having the county clerk replaced, as happens on a regular basis due to
elections, resignations, etc., but has merely asserted in a conclusory fashion that such harm

is "inevitable." (Id). Similarly, Plaintiff has not explained why it would harm the Erie
County Clerk's Office if he were personally criminally prosecuted, but has simply stated
as fact that this is the case. (Jd.). As the Court has already explained, even at this early

stage of the proceedings. Plaintiff"cannot rely solely on conclusory allegations of injury
or ask the court to draw unwarranted inferences in order to find standing." Baur,352 F.3d
at 636-37.

Second,the purported harms to the Erie County Clerk's Office identified by Plaintiff

depend on Plaintiff being either criminally prosecuted under federal law or removed from

office under Article 13, § 13(a).^ However, the Court has already found, for the reasons
discussed at length above, that Plaintiff has not plausibly alleged a credible threat of either
ofthose situations occurring. It necessarily follows that these scenarios are too speculative
to support a finding of standing as to Plaintiffs official capacity claims.

^
At oral argument. Plaintiff argued that the Green Light Law would force county
clerks and their staff to sort through documents they are not trained to review, such as
foreign passports and drivers' licenses, and that this more difficult work is part of the
damage to the Office of the Erie County Clerk. Plaintiff alleges this nowhere in his
Complaint or Amended Complaint, and Plaintiffs counsel conceded that he raised this
issue not for standing purposes but to explain how the system presently works in response
to a question raised by the Court.
-30-

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 31 of 32

For all these reasons, the Court finds that Plaintiff has not "allege[d] facts that
affirmatively and plausibly suggest that[he] has standing to sue" in either his individual or
official capacities. Amidax Trading, 671 F.3d at 145. This is so even in light of the

additional allegations included in Plaintiffs Amended Complaint. Accordingly,Plaintiffs

claims must be dismissed for lack ofsubject matterjurisdiction. See Cortlandt St. Recovery
Corp., 790 F.3d at 416-17("A district court properly dismisses an action under Fed. R.
Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court lacks the statutory or

constitutional power to adjudicate it, such as when (as in the case at bar)the plaintiff lacks
constitutional standing to bring the action."(quotation and citation omitted)).
C.

Defendants^ Remaining Arguments

In addition to their standing arguments. Defendants have also argued that Plaintiff
lacks capacity to bring his claims and have sought dismissal of Plaintiffs claims on the

merits. Ftowever, because the Court has found that Plaintiff lacks standing and that the
Court therefore lacksjurisdiction over his claims,the Court does not reach these arguments.
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)("Article III generally

requires a federal court to satisfy itself of its jurisdiction over the subject matter before it
considers the merits of a case.").
II.

Plaintiffs Motion for a Preliminary Injunction

Plaintiff has asked the Court for a preliminary injunction. (Dkt. 3). The Court's
determination that it lacks subject matter jurisdiction over Plaintiffs claims eliminates any

possibility that the Court could grant Plaintiffs request for preliminary injunctive relief.
Accordingly, Plaintiffs motion for a preliminary injunction is denied as moot.
-31 -

 Case 1:19-cv-00902-EAW Document 83 Filed 11/08/19 Page 32 of 32

CONCLUSION

For the foregoing reasons, the Court grants Defendants' motion to dismiss(Dkt. 24)
and denies Plaintiffs motion for a preliminary injunction (Dkt. 3) as moot. The Clerk of
Court is instructed to enter judgment in favor of Defendants and close the case.
SO ORDERED.

ELIZABETH A.JKO
United States Pfstrict Judge
Dated: November 8, 2019
Buffalo, New York

-32