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07u816cvN;lt:ol\Ol! Council ofta v. M u \ c : l . ~ c y

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

SUMMARY ORDER,RllLlNGSBYSUMMARYORDERDONOTHAVEPRECEDENTlALEmCT. CITATION TO SUMMARYORDERS FILED AFTER JANlJARY 1, 1007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S

LOCAL RULE 32.1 AND 1

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MICHAELB. MUKASEY,AttomeyGeneral of the United States,MICHAEL CHERTOFF,Secretary ofme Department ofHomeland Security,ROBERT MUELLER,Director, Federal Bureau of Investigation.JULIE L. MYERS,A;sislant Secretary of he Department ofHomeland Securityfor U.s. Immigration and Customs Enforcement,2UNITED STATES DEPARTMENT OF JUSTICE,UNITED STATES DEPARTMENT OF HOMELAND SECURITY,FEDERAL BUREAU OF INVESTIGATION,BUREAU OF Th1MIGRATION AND CUSTOMS ENFORCEMENT,De.fendants-Appellees .-_ ._---- ...--------------_ ._-_ ..........-..._.- - - - - - - - - - - - - - - - - - - - - - - - - -FOR APPELLANTS:

FOR APPELLEES:

FORAMICI CURIAE:

MICHAEL J. WISHNIE, LowensteinH'IlJll2nRights Clinic, NationalLitigation Project, Yale Law School, ~ e w Haven, Connecticut(Sarah Burg and Saumya Manohar, law student interns, Yale LawSchool; Lueas Guttentag, Lee Gclemt, : and Omar C. Jadwat,American Civil Liberties Union Foundation, Immigrants' RightsProject, New York, New York; Peter Markowitz, The Bronx:Defenders, Bronx, New York; and ArthUT C. Eisenberg andChristopherDunn,NewYorkCivil Liberties Union,NewYork,NewYork, on [he brief).JONATHAN F. COHN, Deputy Assistant .{\ttomey General, UnitedS t ~ t e s Department of Justice, Washington; D.C. (peter D. Keisler,Assistant Attorney General, Douglas N. Letter, Appellate LitigationCounsel. Lewis S. Yelin, Attorney, AppelJ.ate Staff, United StatesDeparttnent of Justice; and Roslynn R. l\1auskopf, United StatesAttorney for the Eastern. District ofNew York, F. Franklin Amanat,Assistant United States Attorney, BrooklYIl/New York, on the brief).Azmy Baher and Meetali Jain (Jared L a f e ~ T e and AsimBada:ruzzaman,law student interns), Centet;.for Social Justice, SetonHall Law School, Newark, New Jersey, for Hispanic CommandPolice Officers Association, National Black Police Association, andNational Latino Officers' Association.

2 Pursuant to Federal Rulc of Appellate Procedure 43(c}(2), Attorney General Michael B.Mukasey is automat1ca)Jy substituted for fonner Attorney General Alberti:> R. Gonzales.2

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Karen Tumlin, Joan Friedland, LintonJoaquin, National JmmigrationLaw Center, Los Angeles, Californiafo r N ~ o n a l Immigration LawCenter:Appeal from the United States District Court for the Eastern District of New York (T. Leo

Glasser, Judge).AFTERARGU'.tv!ENT ANDUPONDUECONSlDERATION,ITlSHEREBYORDERED,

ADJUDGED, AND DECREED that the judgment of dismissal e n t e r ~ on January 5, 2007, isAFFIRMED.

Plaintiffs, four non-:profit advocacy organizations and one laboI'iunion, filed this lawsuitagainst varioas government officials and agencies in an effort to halt t h ~ entry into the NationalCrime Information Center ("NCIC") databa.se of certain civil immigration records pertaining toaliens who are in pmported violation oforders ofremoval or r e q u i r e m e n t ~ of he National SecurityEntry-Exit Registration System ("NSEERS") and to remove all such infcinnation already entered.

iPlaintiffs now appeal the district court's dismissal of their complaint p ~ s u a n t to Fed. R. Civ. P.12(b)(l) for lack of subject matter jurisdiction due to lack of standing. ; We assume the parties'familiarity with the record and history ofprior proceedings, which we reference only as necessaryto explain our decision to affirm.

We review de novo the dismissal ofa complaint for lack of s t a n d i n ~ . Sec Banr v. Veneman.,352 F.3d 625,631 (2 d Cir. 2003). In doing so, we are mindful that, "a t thcl pleading stage, standingallegations need not be crafted with precise detail," and that we, therefm-c, 'rcswnc that generalallegations embrace those specific facts that are necessary to support the claim." Id. (internalquotation marks omitted). Although this pleading standard is liberal,"bald assertions andconclusions oflaw will not suffice." Leeds.v. Meltz, 85 F.3d 51, 53-55 (2d eir. 1996) (holding thateonclllSoryallegation that state employees prevented publication ofadvertisement was insufficientto demonstrate that "[t]he decision to reject the advertisement [was] 'fairly attributable' to thestate").

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Under Article mof he Constitution. federal courts have jurisdiction only over "cases" and"controversies." U.S. Const. art. m, 2. Standing

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(B98); Arizonans rOt' Official English v. Ari7.ona, 520 U.S. 43, 64 (1997).Turning to plaintiffs' cla im of an imminent risk of unlawful arrest, the point to which the

parties devote the most attention on appeal, we need not decide the ~ c u l t question ofwhetherplamtiffs' pleadings demonstrate injury-in-fact because, even if we were to resolve this point inphintiffs' favor, we would affinn the district court's standing dismissal for lack of causation. SeE;:Bf!11in v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (observing t h a ~ we may"affinn on anybasis for which there is a record sufficient to permit COllClusions of l a w , ~ i n c l u d i n g grounds uponwhich the district court did not rely").

While the Supreme Court has explained that causation is lacking if!he claimed injw:yis ''there:mlt [ofJ the independent action ofsome third party not before the court" Lujan v. Defenders of

I,Wildlife, 504 U.S. at 560 (internal quotation marks omitted), a plaintiff need not allege that adefendant's challenged actions were the very last step in a chain of events leading to an allegedinjury to allege causation adequately. It is sufficient for a plaintiff to plead facts indicating that a

!defendant's actions had a "determinative or coercive effect upon the action of someone else" whoI

directly caused the alleged injury. Bennett v. Spear, 520 U.S. 154, 169 (11997). Because plaintiffsI

hc,re allege that state an d local authorities, not defendants, are engaged in tinIawful arrests of alienswhose civil immigration records are entered. into NCIC, the sufficiency o ~ t h e i r causation pleading

I.depends on its ability to support a reasonable inference that defendants' a c t ~ b n s had a "determinativeor coercive effect" on the state and 10cal1aw enforcement officers who out the alleged llnlawfu Iarrcsts. kl Plaint iffs' allegations that defendants "encouraged, caused, anti induced state and localpC1lice to arrest immigr311ts listed in the NCIC" do not adequately allege that the injury was fairlyt r ~ L c e a b l e to defendants.

Plaintiffs allege that (1) when a state or local1aw enforcement officer runs an NCIC checkon an individual, theNCIC identifies as an immigration violator personswho have allcgedlyviolared

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removal orders or NSERS requirements and advises the requesting offic.er to contact a unit of heDepartment of Homeland Security ("'DHS") for confinnation; and (2) Ilpon confinnation, DHSgenerallyasks the local officerto arrestor detain the alleged immigration violator until DRS officialscan arrive to take the person into federal custody. But plaintiffs also plea!9 that, for policy reasonsnotmaterial to our ruling, (3) a number of state and local authorities choose no t to complywith such

rDHSrequests. Significantly, plaintiffs do not allege that such authorities suffer any adverseconsequences from this resistance. Under these circumstances, the pleadings do not support theconclusion that defendants' actions have had a determinative or coercive':effe;:ci on those state andlocal authorities that carry out the allegedly unlawful arrests.

Bennett v. Spear, 520 U.S. 154, is not to the contraIy. In that case, the Supreme Court ruledth3.t an "advisory" opinion of he federal Fish and Wildlife Service had a "powcr.ful coercive effecton. the action agency," precisely because of particular costs and risks;to the action agency indisregarding the opinion. rd. at 169. In the absence of any allegations ~ s u p p o r t i . n g a reasonableinference that defendants' actionshave a determinative or coercive effect on the state and local law,enforcement officerswho canyoutthe arrests, we conclude that plaintiffs' complaint failed to pleadcausation by the named defendants.

Because we affirm dismissal on standing grounds pursuant to Fed. R. Civ. P. 12(b)(1), weexpress no view as to the government's alternative argument that the complaint [-ails to state a claimso as to support dismissal pursuant to Fed. R. Civ. P. 12(b)(6).

The judgment ofdis.m..issal is AFFIRMED.

FOR THE COURT:CATHERlNE O'HAGANWOLFE; Clerk ofCourtsy-?wl ~ j ~

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