Otrompke v. First Dep't Comm. on Character & Fitness

20-4107-cv
Otrompke v. First Dep’t Comm. on Character & Fitness
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 6th day of December, two thousand twenty-one.
4
5 PRESENT:
6 MICHAEL H. PARK,
7 WILLIAM J. NARDINI,
8 STEVEN J. MENASHI,
9 Circuit Judges.
10 _____________________________________________
11
12 JOHN OTROMPKE, JD,
13
14 Plaintiff-Appellant,
15
16 v. 20-4107
17
18 THE FIRST DEPARTMENT COMMITTEE
19 ON CHARACTER AND FITNESS, GEORGE
20 ANTHONY ROYALL, in his official and
21 personal capacity, JOHN DOE, THE
22 PRESIDENT OR CHIEF EXECUTIVE OF
23 THE NEW YORK BOARD OF LAW
24 EXAMINERS, in their official capacity,
25 LETITIA JAMES, NEW YORK ATTORNEY
26 GENERAL, in their official capacity, THE NEW
27 YORK BOARD OF LAW EXAMINERS, in
28 their official capacity,
29
30 Defendants-Appellees.
31
32 _____________________________________________
1 FOR PLAINTIFF-APPELLANT: John Otrompke, pro se, New
2 York, NY.
3
4 FOR DEFENDANTS-APPELLEES: Barbara D. Underwood,
5 Solicitor General, Anisha S.
6 Dasgupta, Deputy Solicitor
7 General, David Lawrence III,
8 Assistant Solicitor General,
9 for Letitia James, Attorney
10 General, State of New York,
11 New York, NY.
12 Appeal from a judgment of the United States District Court for the Southern District of
13 New York (Stanton, J.).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
15 DECREED that the judgment of the district court is AFFIRMED.
16 Appellant John Otrompke, a law school graduate proceeding pro se, sued the First
17 Department Committee on Character and Fitness (the “Committee”), the New York Board of Law
18 Examiners (the “Board”), two Board officials, and New York State Attorney General Letitia James
19 under 42 U.S.C. § 1983, alleging violations of his First, Fifth, and Fourteenth Amendment rights
20 in connection with his application for admission to the New York Bar. The district court sua
21 sponte dismissed the complaint for lack of subject matter jurisdiction, reasoning that Otrompke
22 had failed to establish standing. 1 We assume the parties’ familiarity with the underlying facts,
23 the procedural history of the case, and the issues on appeal.
24 We review the sua sponte dismissal of a complaint for lack of subject matter jurisdiction
25 de novo. See Digitel, Inc. v. MCI Worldcom, Inc., 239 F.3d 187, 190 (2d Cir. 2001). Underlying
26 factual findings are reviewed for clear error. Filler v. Hanvit Bank, 378 F.3d 213, 216 (2d Cir.
1
We construe the dismissal as being without prejudice. See Katz v. Donna Karan Co., 872 F.3d
114, 121 (2d Cir. 2017) (explaining that where a district court lacks subject matter jurisdiction, it lacks “the
power to dismiss the case with prejudice” (cleaned up)).
1 2004). The district court may consider evidence outside the pleadings in resolving questions of
2 subject matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
3 A district court lacks jurisdiction “when (as in the case at bar) the plaintiff lacks
4 constitutional standing to bring the action.” Cortlandt St. Recovery Corp. v. Hellas Telecomms.
5 S.à.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (cleaned up). To establish standing, a plaintiff must at
6 a minimum allege that he has suffered an “injury in fact that is concrete, particularized, and actual
7 or imminent.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
8 On appeal, Otrompke asserts three theories of injury: (1) Defendants have delayed and will
9 continue to delay processing his application, thus denying him his due process right to a hearing;
10 (2) Defendants’ dilatory conduct is because of Otrompke’s past associations with anarchists, and
11 his application will be denied on these grounds, in violation of his First Amendment rights; and
12 (3) the character and fitness rules are unconstitutionally vague, and have chilled Otrompke’s and
13 other applicants’ exercise of their First Amendment rights.
14 Otrompke did not establish standing to bring any of his claims. First, Otrompke could not
15 yet bring a due process challenge because he had not submitted a completed bar application at the
16 time of his complaint. “[S]tanding is to be determined as of the commencement of suit,” Lujan
17 v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992), and an injury is not imminent where “the
18 plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the
19 injury happen are at least partly within the plaintiff’s own control,” id. at 564 n.2. Otrompke
20 concedes on appeal that Defendants required certified copies of his prior bar applications to
21 complete his application, that those copies were not difficult to obtain, and that he did not submit
22 them until September 2020 (after filing of his amended complaint in May 2020). Otrompke also
3
1 did not allege any facts suggesting that Defendants will improperly delay consideration of his
2 application once it is complete; he merely speculates that they may do so. See, e.g., First
3 Amended Complaint ¶ 23 (“[I]f a hearing were conducted tomorrow, it could take eight months to
4 get a final order . . . .”). He thus cannot establish that he had standing to bring a due process claim
5 at the time he filed suit.
6 Second, Otrompke similarly has suffered no First Amendment injury because he had not
7 completed his bar application at the time he brought suit. See Lujan, 504 U.S. at 564 n.2. Even
8 if Otrompke had completed his application, his alleged First Amendment injury would be purely
9 speculative because he has provided no facts supporting the claim that unconstitutional
10 considerations will play a role in Defendants’ handling of his application. To the extent that
11 Otrompke intended to assert standing based on a chilling effect, the complaint was devoid of any
12 allegations showing such an effect.
13 Finally, we decline to consider additional theories of injury that Otrompke has proffered
14 for the first time on appeal. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016)
15 (“It is a well-established general rule that an appellate court will not consider an issue raised for
16 the first time on appeal.” (cleaned up)). We also decline to consider any challenge to the district
17 court’s order denying Otrompke’s motion for reconsideration of the dismissal order because
18 Otrompke does not argue in his appellate briefs that he satisfied the requirements for such a motion.
19 See Green v. Dep’t of Educ., 16 F.4th 1070, 1074 (2d Cir. 2021) (“[A] pro se litigant abandons an
20 issue by failing to address it in the appellate brief.”).
21
4
1 We have considered all of Otrompke’s remaining arguments and find them to be without
2 merit. Accordingly, we AFFIRM the judgment of the district court.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk of Court
5