Umbert v. United States of America ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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DANIEL A. UMBERT et al., )
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Plaintiffs, )
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v. ) Civil Action No. 18-cv-1336 (TSC)
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UNITED STATES et al., )
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Defendants. )
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MEMORANDUM OPINION
Plaintiffs Daniel Umbert, Troy Chodosh, Erroll Eaton, Chase Bickel, Gary LeComte,
Justin Bargeron, Charles Stewart, and Kevin Borquez sued the United States, the Attorney
General of the United States, and the Federal Bureau of Investigation (“FBI”), alleging that
Defendants unlawfully prevented them from purchasing firearms in violation of their Second and
Fifth Amendment rights, as well as their statutory rights under 18 U.S.C. § 925A. LeComte,
Bargeron, and Eaton are the only remaining plaintiffs. 1 LeComte claims that the FBI unlawfully
denied his attempt to transfer a firearm that he previously pawned, because of two previous
arrests, see ECF No. 6 ¶ 122–27; and Bargeron and Eaton claim that they sought to obtain a
suppressor (a device attached to a firearm to dampen its sound) by filing a Form 4 with the
Alcohol, Tobacco, Firearms and Explosives (“ATF”), but their applications were unlawfully
1
Chodosh, Bickel, and Stewart’s claims were dismissed as moot on September 11, 2019. See
Order, 09/11/2019, ECF No. 22; Mem. Opinion, 09/11/2019, ECF No. 21. Borquez’s claims
were dismissed on March 13, 2020, in consideration of the parties’ joint stipulation of dismissal,
ECF No. 34. See Order, 03/13/2020, ECF No. 35. Umbert’s claims were dismissed on
December 28, 2020, in consideration of the parties’ joint stipulation of dismissal, ECF No. 40.
See Minute Order of Partial Dismissal, 12/28/2020.
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denied. 2 Plaintiffs ask the court to order Defendants to: (1) correct Plaintiffs’ records so that
they are no longer barred from purchasing, receiving, or possessing firearms; (2) permit the
transfer of Plaintiffs’ firearms; and (3) issue each Plaintiff a Unique Personal Identification
Number (“UPIN”). 3 See ECF No. 6 at 35–36. Plaintiffs also seek declaratory judgment against
Defendants, injunctive relief against continued violations of the law, and an award of attorney
costs and fees. Id. Because Defendants have provided the injunctive relief that Plaintiffs seek,
this action is now moot.
In an earlier opinion, the court set forth the legal background that animates this dispute
and explained LeComte, Bargeron, and Eaton’s specific allegations. See Mem. Opinion
9/11/2019, ECF No. 21 at 1–6. Since then, Defendants have taken several actions which provide
the relief Plaintiffs seek. First, Defendants have corrected information in the FBI’s National
Instant Criminal Background Check System (“NICS”) so that a criminal background search of
LeComte, Bargeron, or Eaton in NICS no longer prevents them from obtaining a firearm due to
their criminal history. See ECF No. 54-3 at 2, 6, 10. Second, LeComte and Bargeron have each
been issued a UPIN, and both are approved to purchase a firearm. See ECF No. 54-1 at 10; ECF
No. 64-1 at 3; ECF No. 68 at 2. As to Eaton, his counsel states that he has lost touch with his
client and is “unable to advise on Eaton’s status” regarding his ability to purchase firearms. ECF
No. 68 at 2 n.1. Third, Defendants have refunded Bargeron the fee for his initially denied
application. Id.
2
Anyone seeking to transfer a firearm must complete an application with the ATF, which must
in turn conduct a background check of the applicant before approving the transfer. ECF No. 54-
3 at 2. If the FBI confirms that the individual is prohibited from possessing a firearm, the FBI’s
National Instant Criminal Background Check System Section will recommend that ATF “deny”
the application. Id.
3UPINs can be used during NICS background checks to “help prevent future extended delays or
erroneous denials in their attempts to possess or receive a firearm.” ECF No. 54-3 at 6.
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Plaintiffs nonetheless oppose dismissal of this suit on mootness grounds. See ECF No.
68 at 2. Their arguments are unavailing.
Article III’s Case-or-Controversy Clause limits federal courts’ jurisdiction to “actual,
ongoing controversies.” Foretich v. United States, 351 F.3d 1198, 1210 (D.C. Cir. 2003)
(quoting Honig v. Doe, 484 U.S. 305, 317 (1988)); U.S. Const. Art. III, §2, cl. 1. Thus, a lawsuit
is “moot—and is therefore no longer a ‘Case’ or ‘Controversy’—‘when the issues presented are
no longer live or the parties lack a legally cognizable interest in the outcome.’” Almaqrami v.
Pompeo, 933 F.3d 774, 779 (D.C. Cir. 2019) (quoting Chafin v. Chafin, 568 U.S. 165, 172
(2013)). In deciding whether it has subject matter jurisdiction, a court may consider “undisputed
facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3); see Chafin, 568 U.S. at 172.
At this juncture, Plaintiffs may legally purchase firearms and pass background checks,
and LeComte and Bargeron have been issued UPINs and successfully purchased firearms. If
Eaton has not yet been issued a UPIN, he may apply for one. See ECF No. 12-3 ¶ 2. Since
Plaintiffs can now purchase firearms and either have obtained or can apply for a UPIN, their
claims have been fully resolved. Plaintiffs, however, argue that this case is not moot because the
court can declare that their Second Amendment rights have been violated and because the delays
that they experienced in obtaining government approval to purchase or transfer a firearm are
capable of repetition and evading review. ECF No. 68 at 2–3.
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In City of Houston, Tex. v. Dep’t of Hous. & Urb. Dev., the D.C. Circuit explained that
when a plaintiff’s specific claim—“attack[ing] an isolated agency action”—is fully resolved,
“then the mooting of the specific claim moots any claim for a declaratory judgment that the
specific action was unlawful, unless the specific claim fits the exception for cases that are
capable of repetition, yet evading review.” 24 F.3d 1421, 1429 (D.C. Cir. 1994) (internal
quotation marks and citation omitted). “Under the capable of repetition yet evading review
exception to mootness, the plaintiff must demonstrate that ‘(1) the challenged action is in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party would be subjected to the same action
again.’” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009)
(quoting Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir. 1990) (en banc)).
Here, the challenged agency action—preventing Plaintiffs from legally purchasing or
transferring firearms—fails both the “evading review” and “capable of repetition” prongs. First,
“evading review” is understood to mean that the action complained of will likely “evad[e]
Supreme Court review,” because of its short duration. Id. The D.C. Circuit has held that
“agency actions of less than two years’ duration cannot be ‘fully litigated’ prior to cessation or
expiration, so long as the short duration is typical of the challenged action.” Id. (quoting Pub.
Utils. Comm’n v. FERC, 236 F.3d 708, 714 (D.C. Cir. 2001) and Burlington N. R.R. Co. v.
Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir. 1996)). But Plaintiffs admit that LeComte was
denied a firearm purchase for more than three years because Defendants rejected his firearm
purchase application, ECF No. 68 at 2–3, thus dispatching their argument that denial of a firearm
purchase evades review. Second, the issuance of UPINs is intended to resolve any issues
regarding repeated denials of firearm purchases or transfers, see ECF No. 54-3 at 6, and
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Plaintiffs’ declarations that they will seek to purchase firearms in the future does not satisfy the
capable of repetition prong. See Int’l Internship Programs v. Napolitano, 853 F. Supp. 2d 86, 96
(D.D.C. 2012) (finding that plaintiff’s declaration that it will file future visa petitions “alone is
insufficient to show probability or reasonable expectation” of future injury).
Accordingly, the court finds that this action is moot and will dismiss it sua sponte for
lack of subject matter jurisdiction. An Order will accompany this Memorandum Opinion.
Date: June 7, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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