Den Hollander v. United States ( 2009 )

08-6183-cv
Den Hollander v. United States of America
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 3rd
day of December, two thousand nine.
Present:
AMALYA L. KEARSE,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
________________________________________________
ROY DEN HOLLANDER, SEAN MOFFETT, BRUCE CARDOZO, and DAVID BRANNON,
Plaintiffs-Appellants,
v. No. 08-6183-cv
UNITED STATES OF AMERICA, DIRECTOR OF THE U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, DIRECTOR OF THE DEPARTMENT OF HOMELAND
SECURITY, and DIRECTOR OF THE EXECUTIVE OFFICE FOR IMMIGRATION,
Defendants-Appellees.
________________________________________________
For Plaintiffs-Appellants: ROY DEN HOLLANDER, New York, NY
For Defendants-Appellees: NATASHA OELTJEN , Assistant United States Attorney (for
Preet Bharara, United States Attorney for the Southern
District of New York), New York, NY
Appeal from the United States District Court for the Southern District of New York
(Pauley, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiffs Roy Den Hollander, Sean Moffett, Bruce Cardozo, and David Brannon appeal
from the decision of the district court dismissing their suit pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of Article III standing. We assume the parties’ familiarity with the
facts and procedural history of the case.
Plaintiffs argue that they have standing to bring suit because the Violence Against
Women Act, by allowing aliens who have been battered or subject to extreme cruelty by their
spouses to self-petition for legal permanent resident status, created incentives for their alien
wives and ex-wives to file false police complaints and false applications for temporary
restraining orders against them. This argument lacks merit because plaintiffs’ injury is not fairly
traceable to defendants, but to the independent actions of their wives or ex-wives who are not
before this Court. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-43 (1976). The
links in the chain of causation here, which depend upon the independent actions of (1) plaintiffs’
wives or ex-wives, (2) state courts and state officials, and in some cases (3) private employers are
too attenuated and too numerous to satisfy the standing requirement. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (“the injury has to be fairly traceable to the challenged action
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of the defendant, and not the result of the independent action of some third party not before the
court”) (quotation marks and alterations omitted). Moreover, similar “incentive” arguments have
been rejected as a basis for establishing causation. See, e.g., Linda R.S. v. Richard D., 410 U.S.
614, 618 (1973) (concluding that the incentive created by the prospect of jail time was not
sufficient to support finding that requested prosecution would result in the payment of child
support).
Plaintiffs further argue that the government or third parties have or will disseminate
information about them that was gathered during the self-petitioning process, harming their
reputation and privacy. Plaintiffs fail to state an injury-in-fact, however, because this injury is
purely speculative—plaintiffs have failed to allege that any information concerning them has or
will likely be disseminated. See Lujan, 504 U.S. at 560 (an injury must be “actual or imminent,
not conjectural or hypothetical”) (internal quotation marks omitted). While the Violence Against
Women Act does permit limited disclosure of information to certain third parties such as
agencies that provide public benefits, see 8 U.S.C. §§ 1367(a), (b), there is no reason to believe
that such information would include any information about plaintiffs themselves. Moreover,
those parties to whom dissemination is permitted are bound by the statute’s non-disclosure
provisions. See id. § 1367(c). Similarly, plaintiffs’ argument that they are injured because they
are constrained in their marital affairs is purely speculative. Nowhere in plaintiffs’ complaint do
they allege that they did not divorce because of the contested provisions or would marry an alien
in the future but for the contested provisions. Finally, plaintiffs are not injured by being “shut
out” of the self-petitioning process because they cannot show that they have been injured as a
result of the self-petitioning process.
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We have considered the remainder of plaintiffs’ arguments and conclude that they lack
merit.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:_________________________________
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