Ronald Eugene DuBerry v. District of Columbia

Subject to certain

conditions, the Law Enforcement Officers Safety Act

(“LEOSA”) authorizes “qualified retired law enforcement

officer[s]” to carry concealed firearms. 18 U.S.C. § 926C(a).

Ronald DuBerry, Maurice Curtis, and Robert Smith

(“Appellees”) formerly served as correctional officers with the

Washington, D.C. Department of Corrections (“DCDOC”).

After they had separated from service in good standing, see id.

§ 926C(c)(1), Appellees sought to invoke LEOSA so that they

would be able to carry concealed firearms as “qualified retired

law enforcement officers.” The District of Columbia

(“District”) refused to issue the necessary certification forms

for Appellees, however. The District claimed that, as former

corrections officers, Appellees never had statutory powers of

arrest and, therefore, could not claim any rights under LEOSA.

Appellees then initiated an action under 42 U.S.C. § 1983

seeking declaratory and injunctive relief to require the District

to recognize them as “qualified retired law enforcement

officers” for purposes of LEOSA. The District Court dismissed

Appellees’ complaint for failure to state a claim. This court

reversed and remanded the case to the District Court for further

proceedings. DuBerry v. District of Columbia (“DuBerry I”),

824 F.3d 1046 (D.C. Cir. 2016).

In DuBerry I, we found that “LEOSA’s plain text, purpose,

and context show that Congress intended to create a concrete,

individual right to benefit individuals like [Appellees] and that

3

is within the competence of the judiciary to enforce.” 824 F.3d

at 1054–55 (citation omitted). We rejected the District’s theory

that rights under LEOSA “attach” only after officers have

obtained requisite identifications. Id. at 1055. We therefore

held that Appellees had “sufficiently alleged that the federal

right they seek to enjoy has been unlawfully deprived by the

District of Columbia to be remediable under Section 1983.” Id.

On remand, the District Court granted summary judgment

for Appellees, holding that they had met three of LEOSA’s

statutory requirements necessary to be considered “qualified

retired law enforcement officers.” DuBerry v. District of

Columbia, 316 F. Supp. 3d 43, 58 (D.D.C. 2018). Specifically,

the court found that each Appellee, in his prior position,

possessed “statutory powers of arrest,” served as a “law

enforcement officer” for an aggregate of at least 10 years, and

separated from service in good standing. See 18 U.S.C. §

926C(c). Appellees did not ask the District Court to determine

whether they had “identifications” sufficient to satisfy the

requirements of 18 U.S.C. § 926C(d). Therefore, the court did

not address this issue. Instead, the District Court simply noted

that “whether or not [Appellees] have sufficient identification

is irrelevant for purposes of determining whether they have

met certain statutory preconditions to be considered ‘qualified

retired law enforcement officers.’” DuBerry, 316 F. Supp. 3d

at 58. The District now appeals.

The District presses two arguments on appeal. The

principal claim raised by the District is that, under LEOSA, “to

carry a concealed weapon, an individual must be both a

qualified retired law enforcement officer and hold an

identification issued by his former government employer

stating that he was a law enforcement officer.” District Br. at

14 (emphasis in original). Therefore, according to the District,

“since [Appellees] lack the proper identification, they have no

4

enforceable right that is remediable under Section 1983.” Id. at

15. The District also suggests that Appellees lack standing to

pursue this action, because “even assuming [Appellees] have a

viable claim under Section 1983,” they have failed to “show a

causal link between the District’s alleged misconduct and their

injury.” See id. at 16. In other words, according to the District,

Appellees have “failed to show that, but for the District’s

refusal to complete their employment certification forms, they

would have been entitled to carry under LEOSA.” Id.

We find no merit in the District’s contentions. The first

argument is foreclosed by DuBerry I. The second argument

completely misapprehends the relief sought and obtained by

Appellees in this litigation. Appellees are not seeking a

declaration that they are entitled to carry firearms pursuant to

LEOSA. Rather, they have sought to overturn the District’s

unlawful refusal to certify them as “qualified retired law

enforcement officers,” which is necessary in order for them to

pursue the right to carry under LEOSA. Therefore, it does not

matter whether Appellees have yet to obtain the identifications

required by Section 926C(d). As the District Court correctly

noted, the requirements of Section 926C(d) are not at issue in

this case. We therefore affirm the judgment of the District

Court.

I. BACKGROUND

A. The Law Enforcement Officers Safety Act

The District Court’s opinion cogently explains the relevant

portions of LEOSA, as follows:

Before 2004, a patchwork of state laws governed

whether out-of-state current or former law enforcement

officers could carry a concealed firearm within a

5

particular state’s borders. . . . Beginning in 1992,

lawmakers introduced legislation aimed at permitting

concealed carry nationwide for certain law enforcement

officers. . . . Efforts succeeded in 2004 with the

enactment of the Law Enforcement Officers Safety Act,

known as “LEOSA.” See LEOSA, Pub. L. 108–277, 118

Stat. 865[, 866] (2004) (codified at 18 U.S.C. §§ 926B,

926C).

LEOSA mandates that all active and retired law

enforcement officers be able to carry a concealed firearm

anywhere in the United States subject to certain

conditions, overriding most contrary state and local

laws. . . . LEOSA provides that, “[n]otwithstanding any

other provision of the law of any State or any political

subdivision thereof,” a “qualified law enforcement

officer” or “qualified retired law enforcement officer”

“may carry a concealed firearm that has been shipped or

transported in interstate or foreign commerce,” so long

as the individual also carries the requisite identification.

18 U.S.C. §§ 926B(a), 926C(a).

. . . .

Section 926C sets forth the requirements to be

considered a “qualified retired law enforcement officer,”

which differ in some respects from the qualifications for

active officers. See id. § 926C(c). To qualify for LEOSA

rights, a retired employee must have “separated from

service in good standing . . . with a public agency as a

law enforcement officer.” Id. § 926C(c)(1). The

individual must also meet the relevant standards for

qualification in firearms training; must not have been

found unqualified for reasons related to mental health;

must not be under the influence of alcohol or another

intoxicating substance; and must not be prohibited by

6

federal law from receiving a firearm. Id. § 926C(c)(4)–

(7). In addition, before separating from the agency, the

individual must have “served as a law enforcement

officer for an aggregate of 10 years or more”; must have

had legal authority to “engage in or supervise the

prevention, detection, investigation, or prosecution of, or

the incarceration of any person for, any violation of law”;

and must have had either “statutory powers of arrest” or

powers of apprehension pursuant to 10 U.S.C. § 807(b).

18 U.S.C. § 926C(c)(2)–(3). Qualified retired law

enforcement officers must carry “photographic

identification issued by the agency . . . that identifies the

person as having been employed as a police officer or

law enforcement officer.” Id. § 926C(d)(1), (2)(A). And,

if the agency-issued identification does not indicate that

the retired officer has completed the appropriate firearms

training, the officer must carry a separate certification

form so establishing. Id. § 926C(d)(2).

DuBerry v. District of Columbia, 316 F. Supp. 3d at 45–46.

B. Background Facts

Appellees worked as correctional officers with the

DCDOC for at least sixteen years before retiring in good

standing. As correctional officers, they were responsible for

the treatment, custody, counseling, and supervision of

individuals incarcerated in District correctional facilities.

Following their retirements, and starting in approximately

November 2012, Appellees individually sought to exercise

concealed-carry rights under LEOSA.

The District Court’s opinion lucidly recounts the facts

leading to Appellees’ initiation of this litigation after the

7

District denied their requests for certifications required by

LEOSA:

In Prince George’s County, Maryland (where [Appellee]

Duberry and [Appellee] Curtis reside) and in the District

of Columbia (where [Appellee] Smith resides), an

individual must submit a prior employment certification

form completed by the law enforcement agency for

which he previously worked before seeking firearm

certification. On this certification form, the agency must

answer a series of questions by checking boxes for “yes”

or “no.” One question asks whether the applicant, while

employed, possessed various authorizations enumerated

in subsection (c)(2) of LEOSA, including “statutory

powers of arrest.” Relatedly, another question asks

whether the applicant was “regularly employed as a law

enforcement officer” for the indicated duration of time.

In response to both of these questions on [Appellee]

Duberry’s prior employment certification form, a

DCDOC human resources officer checked the boxes for

“no” and wrote that Mr. Duberry was “not a law

enforcement officer.” DCDOC took the same position

with respect to the other [Appellees], with the agency’s

former director explaining to [Appellees’] counsel that

the agency does not believe that active or retired

correctional officers of DCDOC meet all of the LEOSA

requirements.

In July 2014, [Appellees] initiated this action against

the District of Columbia . . . . [Appellees’] amended

complaint alleged that [the District’s] actions had denied

them rights under LEOSA in violation of 42 U.S.C.

§ 1983. [Appellees] contended that they met all of the

LEOSA conditions, including that they had “statutory

8

powers of arrest.” In support of this claim, [Appellees]

asserted that they were given identification cards stating

that they had such powers under D.C. Code § 24–405.

[Appellees] sought injunctive and declaratory relief

requiring [the District] to recognize them as retired law

enforcement officers for purposes of LEOSA.

. . . .

Interpreting [Appellees’] complaint as seeking “the right

to have [DC]DOC classify them as retired ‘law

enforcement officers’ under subsection (c)(2) for

purposes of completing their application[s] for []

concealed carry permit[s],” the [District Court] could not

say that Congress intended to confer upon [Appellees]

the right that they sought to enforce in this action. Rather,

the Court construed LEOSA as conferring only one

right—the right to carry a concealed firearm—and doing

so only with respect to individuals who already have

status as “qualified retired law enforcement officer[s]”

and who already possess the identification documents

required by subsection (d). Accordingly, [the District

Court] explained that even if the District had

misclassified [Appellees]—an issue that [the District

Court] did not reach—[Appellees] could not seek to

correct that error through § 1983.

316 F. Supp. 3d at 47–48 (citations omitted); see also DuBerry

v. District of Columbia, 106 F. Supp. 3d 245 (D.D.C. 2015)

(District Court’s initial decision).

C. This Court’s Decision in DuBerry I

This court reversed the District Court’s judgment in favor

of the District. DuBerry v. District of Columbia (“DuBerry I”),

824 F.3d 1046 (D.C. Cir. 2016). The court applied the three9

factor test enunciated in Blessing v. Freestone, 520 U.S. 329

(1997), and concluded that Appellees’ lawsuit rested on a

viable cause of action under 42 U.S.C. § 1983. DuBerry I, 824

F.3d at 1051–55. Under Blessing, a statute creates a right

enforceable under Section 1983 if (1) “Congress . . . intended

that the provision in question benefit the plaintiff,” (2) “the

plaintiff . . . demonstrate[s] that the right assertedly protected

by the statute is not so ‘vague and amorphous’ that its

enforcement would strain judicial competence,” and (3) “the

statute . . . unambiguously impose[s] a binding obligation on

the States” using “mandatory, rather than precatory, terms.”

520 U.S at 340–41 (citation omitted).

In addressing the first Blessing factor, the court in

DuBerry I concluded that Congress enacted LEOSA to directly

benefit retired officers such as Appellees. See 824 F.3d at

1052. Notably, the court pointed out that LEOSA afforded a

right not only to police officers, but also to “correctional

officers and parole authorities who ‘engage[d] in . . . the

incarceration of any person for[ ] any violation of law.’” Id.

(quoting 18 U.S.C. § 926C(c)(2)).

Regarding the second Blessing factor, the court in

DuBerry I found that the right to carry under LEOSA, which

Appellees sought to secure, was not “vague and amorphous.”

Id. at 1053 (citation omitted). The court found it significant that

Congress had set forth clear statutory criteria for defining the

LEOSA right and for determining eligibility under the statute.

See id. The court also was satisfied that an individual’s

eligibility can be readily determined in judicial proceedings

through record evidence and the interpretation of relevant state

and local laws. See id. The court thus concluded that LEOSA

is readily susceptible to judicial enforcement. See id.

10

Finally, regarding the third Blessing factor, the court in

DuBerry I highlighted Congress’s “categorical preemption of

state and local law standing in the way of the LEOSA right to

carry,” and concluded that states have a “mandatory duty” to

“recognize the right” LEOSA establishes. Id. The court was

clear in its determination that Congress did not afford states the

discretion to “redefine either who are ‘qualified law

enforcement officers’ or who is eligible for the LEOSA right.”

Id.

In sum, in DuBerry I, the court held that LEOSA’s plain

text “confers upon a specific group of individuals a concrete

right the deprivation of which is presumptively remediable

under Section 1983.” Id. at 1053–54. Accordingly, we reversed

the District Court’s judgment in favor of the District and

remanded for further proceedings.

D. The District Court’s Decision on Remand

Following this court’s decision to remand in DuBerry I, the

District Court denied the District’s motion for summary

judgment and granted Appellees’ cross-motion for summary

judgment. DuBerry v. District of Columbia, 316 F. Supp. 3d 43,

45, 50 (D.D.C. 2018). In concluding that Appellees meet the

statutory preconditions to be considered “qualified retired law

enforcement officers,” the District Court made three principal

findings.

First, the court found that Appellees had “statutory powers

of arrest” under 18 U.S.C. § 926C(c)(2). 316 F. Supp. 3d at

50–54. “[B]ecause the record shows that [Appellees] were

‘officer[s] of the District of Columbia penal institutions’—a

fact that the District does not contest— . . . D.C. Code § 24–

405 authorized them to execute warrants for the arrest of

11

parole violators, satisfying the LEOSA ‘statutory powers of

arrest’ requirement.” 316 F. Supp. 3d at 54 (citation omitted).

Second, the court found “that each [Appellee] worked as

[a] DCDOC corrections officer—a role in which they

‘engage[d] in or supervise[d] . . . the incarceration of . . .

[people],’ 18 U.S.C. § 926C(c)—for at least ten years.

Accordingly, the Court conclude[d] that each [Appellee] has

met the requirement outlined in subsection (c)(3)(A) of

LEOSA.” 316 F. Supp. 3d at 57.

Third, the court “reject[ed] the District’s argument that

[Appellees] must prove that they have photographic

identification that satisfies subsection (d) before the Court can

grant their motion for summary judgment.” 316 F. Supp. 3d at

57. On this point, the District Court explained that,

[i]n [DuBerry I], the Circuit explicitly rejected the notion

that [Appellees] might “lack the [LEOSA] right until

they obtain the subsection (d)(2)(B) firearms

certification.” Duberry I, 824 F.3d at 1055. In the

Circuit’s view, “the firearm certification requirement

does not define the right itself but is rather a precondition

to the exercise of [the LEOSA] right.” Id. The District

appears to offer a different version of this argument,

asserting that [Appellees] must prove that they meet

other preconditions for exercising LEOSA rights before

they can be deemed “qualified retired law enforcement

officers” to whom Congress conferred LEOSA rights.

This Court thinks that, just as the firearm certification

did not define the LEOSA right, the possession of a

photographic identification that is required to exercise

the right does not define the LEOSA right.

12

316 F. Supp. 3d at 57 (citation omitted). As we explain below,

the District Court’s understanding of the decision in DuBerry I

is exactly right.

It is also noteworthy that Appellees did not ask the District

Court to determine whether they had “identifications”

sufficient to satisfy the requirements of 18 U.S.C. § 926C(d).

Therefore, the District Court did not address this issue. Instead,

the District Court simply noted that “whether or not

[Appellees] have sufficient identification is irrelevant for

purposes of determining whether they have met certain

statutory preconditions to be considered ‘qualified retired law

enforcement officers.’” 316 F. Supp. 3d at 58.

The District now appeals, arguing that summary judgment

was improper because Appellees are not the intended

beneficiaries of LEOSA and, even if they are beneficiaries

under the statute, they lack standing to pursue this action. For

the reasons explained below, we find no merit in the District’s

claims.

II. ANALYSIS

A. Standard of Review

“This court reviews the District Court’s ruling on summary

judgment de novo.” Feld v. Fireman’s Fund Ins. Co., 909 F.3d

1186, 1193 (D.C. Cir. 2018). In reviewing a summary

judgment motion, courts are required to ‘“examine the facts in

the record and all reasonable inferences derived therefrom in a

light most favorable to’ the non-moving party.” Id. (quoting

Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016)). We must

then determine whether “there are any genuine factual issues

that properly can be resolved only by a finder of fact because

13

they may reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

B. The Law of the Case Doctrine Controls the Disposition

of the First Issue

The District’s principal argument in this case is that, under

LEOSA, “to carry a concealed weapon, an individual must be

both a qualified retired law enforcement officer and hold an

identification issued by his former government employer

stating that he was a law enforcement officer.” District Br. at

14 (emphasis in original). Therefore, according to the District,

“since [Appellees] lack the proper identification, they have no

enforceable right that is remediable under Section 1983.” Id. at

15.

The District has not challenged the District Court’s

conclusion that Appellees meet the requirements of

Section 926C(c)(1)–(3) of LEOSA, i.e., that Appellees

separated in good standing, had statutory powers of arrest, and

served for an aggregate of 10 years or more. Rather, the

District contends that, absent proper identification, Appellees

“are not intended beneficiaries under LEOSA and have no

enforceable right that is remediable under Section 1983 in light

of Blessing.” District Br. at 17. This argument is merely a

rehash of the issue that was decided by the court in DuBerry I.

Therefore, we reject it, both because it lacks merit and because

there are no “extraordinary circumstances” here that compel us

to revisit an issue that is controlled by the law of the case.

United States v. Thomas, 572 F.3d 945, 948 (D.C. Cir. 2009)

(citation omitted).

Section 1983 provides a remedy for the deprivation of

federal constitutional and statutory rights by any person acting

under color of state law. 42 U.S.C. § 1983; see also Maine v.

14

Thiboutot, 448 U.S. 1, 4 (1980); Golden State Transit Corp. v.

City of Los Angeles, 493 U.S. 103, 105–06 (1989). Section

1983 relief is also available when officials act under color of

District of Columbia law. See, e.g., Dist. Props. Assocs. v.

District of Columbia, 743 F.2d 21, 26 (D.C. Cir. 1984). In

DuBerry I, we found that “LEOSA’s plain text, purpose, and

context show that Congress intended to create a concrete,

individual right to benefit individuals like [Appellees] and that

is within the competence of the judiciary to enforce.” 824 F.3d

at 1054–55 (citation omitted). We therefore held that

Appellees had “sufficiently alleged that the federal right they

seek to enjoy has been unlawfully deprived by the District of

Columbia to be remediable under Section 1983.” Id. at 1055.

In amplifying this holding, the court in DuBerry I made it

clear that,

[i]n enacting the requirements for “qualified law

enforcement officers” to claim this right, Congress gave

every signal that it contemplated no state reevaluation or

redefinition of federal requirements. Consequently, the

firearms certification requirement does not define the

right itself but is rather a precondition to the exercise of

that right.

824 F.3d at 1055 (emphasis added). And, pursuant to our

decision in DuBerry I that the firearms certification

requirement in subsection (d)(2)(B) does not define the

LEOSA right, the District Court rejected “a different version of

[the District’s] argument,” one that was based on the

photographic identification requirement in subsection

(d)(2)(A). 316 F. Supp. 3d at 57. The District Court correctly

found that,

15

just as the firearm certification did not define the LEOSA

right, the possession of a photographic identification that

is required to exercise the right does not define the

LEOSA right.

316 F. Supp. 3d at 57. This finding necessarily flows from this

court’s decision in DuBerry I. And we affirm it.

In DuBerry I, we explained that LEOSA’s “plain text,

purpose, and context” demonstrated that Congress intended for

individuals like Appellees to have a “concrete, individual

right.” 824 F.3d at 1054. We rejected the District’s

“attachment” theory, which erroneously suggested that

individuals possess no right until they obtain a firearms

certification. See id. at 1055. Our analysis does not change due

to the substitution of another provision in the same subsection

of LEOSA. Therefore, the disposition of this issue is controlled

by the law of the case, which is found in the court’s decision in

DuBerry I.

The “law of the case” doctrine “reflects the understanding

that ‘[i]nconsistency is the antithesis of the rule of law.’”

United States v. Philip Morris USA Inc., 801 F.3d 250, 257

(D.C. Cir. 2015) (alteration in original) (quoting LaShawn A. v.

Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)). When

a different panel hears a case on its subsequent trip to the

appellate court, absent “extraordinary circumstances,” the

second panel will not reconsider issues already decided.

Thomas, 572 F.3d at 948 (citation omitted). No extraordinary

circumstances exist in this case. See id. at 948–49 (explaining

that “manifest injustice” and an intervening change in

controlling law are primary examples of extraordinary

circumstances).

16

In the first appeal of this case, the District argued that,

under the first Blessing factor, Congress did not intend for

Appellees to benefit from LEOSA because they were not “in

possession of an identification required under subsection (d).”

See Br. for District of Columbia at 16, DuBerry I, 824 F.3d

1046 (No. 15–7062). This court, in DuBerry I, rejected the

contention that Appellees have no enforceable right until they

obtain a firearms certification – one component of a subsection

(d) identification. Since a firearms certification and a

photographic identification are each required for a subsection

(d)–compliant identification, the same reasoning from DuBerry

I forecloses the District’s argument here. See PNC Fin. Servs.

Grp. v. Comm’r, 503 F.3d 119, 126 (D.C. Cir. 2007) (“Law-ofthe-

case doctrine encompasses issues decided both explicitly

and by necessary implication.” (citation omitted)). While each

requirement is a precondition to exercising concealed carry,

neither defines this right. Accordingly, we once again state that

LEOSA creates an individual right to carry that is remediable

under Section 1983.

C. The District’s “Causation” Argument is Meritless

The District’s alternative argument is that it is entitled to

judgment because its actions did not cause Appellees to be

deprived of any concealed-carry right under LEOSA. In other

words, the District contends that, “[a]ssuming that [Appellees]

have a viable Section 1983 claim, the District is also entitled

to judgment because the actions about which [Appellees]

complain—the District’s failure to issue them a form necessary

to obtain the training certification required by Subsection

926C(d)(2)(B)—did not deprive them of any right under

LEOSA.” District Br. at 26. This is a perplexing claim, to say

the least.

17

First, this argument is essentially the same as the District’s

principal argument, discussed above. That is, that under

LEOSA, “to carry a concealed weapon, an individual must be

both a qualified retired law enforcement officer and hold an

identification issued by his former government employer

stating that he was a law enforcement officer.” District Br. at

14 (emphasis in original). As we have already explained, this

claim fails under the law of the case.

The District also claims that, under tort law principles,

Appellees have “fail[ed] to establish entitlement to relief under

42 U.S.C. § 1983 because they have not established that they

possess the requisite identification cards required to have the

right to carry a firearm across state lines under LEOSA.”

District Reply Br. at 15; see also District Br. at 14. In other

words, the District contends that “a defendant must have

‘caused’ the deprivation of rights to establish Section 1983

liability.” District Reply Br. at 15. The problem with this

argument is that it is based on a blatant mischaracterization of

Appellees’ claim. As we noted at the outset of this opinion, and

as we explain further below, Appellees are not seeking a

declaration that they are entitled to carry firearms pursuant to

LEOSA. Rather, they have challenged the District’s unlawful

refusal to certify them as “qualified retired law enforcement

officers,” which is necessary in order for them to pursue the

right to carry under LEOSA.

The District’s Section 1983 argument, invoking tort law

principles, see District Br. at 27–28, is a smoke screen. The

District’s proximate cause and but-for notions of “causation”

do not in any way advance its argument. The District, by its

own admission, has refused to acknowledge that Appellees are

qualified retired law enforcement officers. In fact, when

Appellees requested necessary documentation, DCDOC

explicitly indicated that they did not meet LEOSA’s definition.

18

Therefore, the District is the cause of Appellees’ inability to be

considered qualified retired law enforcement officers.

In framing its alternative argument, the District never uses

the word “standing.” It appears, however, that the District’s

argument strongly suggests that, for want of causation,

Appellees lack Article III standing to pursue their action

against the District. We disagree.

“Article III of the Constitution limits the jurisdiction of

federal courts to ‘Cases’ and ‘Controversies.’” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting

U.S. Const. art. III, § 2).

In order to demonstrate standing, a party must allege

(and ultimately prove) that it [ ] has suffered an “injury

in fact” to a judicially cognizable interest “that is

concrete and particularized; the threat must be actual and

imminent, not conjectural or hypothetical; it must be

fairly traceable to the challenged action of the defendant;

and it must be likely that a favorable judicial decision

will prevent or redress the injury.” Summers, 555 U.S. at

493 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000)); see

also Defs. of Wildlife, 504 U.S. at 560–63. “The

‘irreducible constitutional minimum of standing’” is thus

often summarized as “requir[ing] that a plaintiff

demonstrate three elements: (1) injury in fact; (2)

causation; and (3) redressability.” Scenic Am., Inc. v.

U.S. Dep’t of Trans., 836 F.3d 42, 48 (D.C. Cir. 2016)

(quoting Defs. of Wildlife, 504 U.S. at 560–61).

EDWARDS & ELLIOTT, FEDERAL STANDARDS OF REVIEW—

REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS

43–44 (3d ed. 2018).

19

In addition to establishing that it has suffered an

injury-in-fact, a litigant must also demonstrate causation

and redressability. “Causation and redressability are

closely related[,] like two sides of a coin.” West v. Lynch,

845 F.3d 1228, 1235 (D.C. Cir. 2017). Nonetheless each

has a distinct focus. Causation requires “a fairly

traceable connection” between the complained-of

conduct of the defendant and the injury claimed. Steel

Co., 523 U.S. at 103; accord DaimlerChrysler, 547 U.S.

at 342. Redressability requires a litigant to demonstrate

“a likelihood that the requested relief will redress the

alleged injury.” Steel Co., 523 U.S. at 103; see also Defs.

of Wildlife, 504 U.S. [at] 561 (“[I]t must be likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.”) Consequently,

consideration of causation can be analytically distinct

from redressability, and vice versa.

Id. at 47.

The District suggests that Appellees lack Article III

standing because any injuries that they have suffered were not

caused by the District. And, relatedly, the District claims that

because it did not cause Appellees’ injuries, a judgment against

the District will not afford Appellees any redress.

When the District Court first heard this case in 2015, the

District challenged Appellees’ Article III standing. After

carefully considering the matter, the District Court rejected the

District’s arguments. Regarding injury-in-fact, the District

Court

readily conclude[d] that [Appellees] have suffered an

injury to their “cognizable interest” in proceeding with

20

their applications to obtain the right to carry a concealed

firearm, as permitted by LEOSA. . . . [Appellees] have

made efforts to effectuate their own (alleged) rights

under LEOSA, efforts that they claim [DCDOC] has

stymied.

. . . .

[B]ecause all [Appellees] have already been refused the

prior employment certification requested from

[DCDOC] and are still unable to proceed in obtaining a

concealed carry permit, the injury to [Appellees’]

“cognizable interests” (or alleged “legal rights”) has

already occurred—and continues to occur, absent a

change in [DCDOC’s] legal position.

DuBerry v. District of Columbia, 106 F. Supp. 3d 245, 255–

56 (D.D.C. 2015) (citations omitted).

Regarding causation, the District Court found that

[t]he parties do not dispute causation. . . . The Court

nonetheless readily concludes that causation is satisfied.

[Appellees] allege that [DCDOC’s] erroneous

interpretation of LEOSA and resultant refusal to

recognize [Appellees] as retired “law enforcement

officers” directly caused their injury-in-fact.

Id. at 257.

And, finally, regarding redressability, the District Court

found that,

[h]ere again, the Court’s analysis is straightforward. A

“favorable decision” for [Appellees] would result in an

order directing [the District] to “certify and/or

21

acknowledge [Appellees] as retired law enforcement

officers” under LEOSA. This order would “likely” (if

not certainly) enable [Appellees] to obtain the prior

employment certification from [DCDOC] indicating that

they were indeed “law enforcement officers” under

LEOSA, thereby remedying their injury-in-fact.

Id. (citations omitted).

When the District Court’s decision was reviewed by this

court in DuBerry I, Article III standing was neither raised by

the District nor considered by the court. Appellees obviously

were seen to have Article III standing, as the District Court

correctly found, so there was nothing for this court to say on

the matter.

Having already lost on the matter of Article III standing,

the District now tries, in vain, to cast its argument as if it

involves something other than the causation and redressability

prongs of Article III standing. Here is how the District now

frames its alternative claim:

Despite the need to establish causation, [Appellees]

failed to show that, but for the District’s refusal to

complete their employment certification forms, they

would have been entitled to carry under LEOSA. This is

because they failed to show that they have the requisite

agency-issued identifications needed to carry under

LEOSA. And because [Appellees] cannot carry firearms

under LEOSA without the necessary identification—

which, again, they do not have—[Appellees] cannot

establish that the denial of the certification form caused

them to be deprived of any right.

22

District Br. at 16. These are precisely the same issues that were

considered and correctly rejected by the District Court when it

addressed Appellees’ Article III standing. We will not revisit

these claims because the District Court’s decision is on the

mark.

The District has persisted in this litigation in suggesting

that Appellees have no remediable injuries because they are

not entitled to carry firearms under LEOSA without the

identifications specified under subsection (d) of the statute.

But, as noted at the outset of this opinion, the District’s

position completely mischaracterizes the relief sought and

obtained by Appellees in this litigation. Appellees are not

seeking a declaration that they are entitled to carry firearms

pursuant to LEOSA. Rather, they have sought to overturn the

District’s unlawful refusal to certify them as “qualified retired

law enforcement officers” under subsection (c) of the statute,

which is necessary in order for them to pursue the right to carry

under LEOSA.

In the proceedings before the District Court, Appellees

made it clear that they were not seeking any relief with regard

to identifications. Cross-Mot. Summ. J. at 37–38, DuBerry v.

District of Columbia, 316 F. Supp. 3d 43 (D.D.C. 2018) (No.

1:14-cv-01258-RC), ECF No. 59 (“From the outset of their

case, [Appellees] have only sought relief as to the [DCDOC’s]

conduct of falsely claiming that [Appellees] were not law

enforcement officers.”). The District Court’s decision

confirms this:

[Appellees] note explicitly that they have not asked this

Court to address whether they have identification that

satisfies the requirements of subsection (d). . . . The

Court agrees that whether or not [Appellees] have

sufficient identification is irrelevant for purposes of

23

determining whether they have met certain statutory

preconditions to be considered “qualified retired law

enforcement officers.”

316 F. Supp. 3d at 58. And Appellees have not raised the issue

with this court.

The District’s argument not only mischaracterizes

Appellees’ position, it is also wrong. The District continues to

contend that Appellees are barred from seeking relief to require

the District to recognize them as “qualified retired law

enforcement officers” under LEOSA because they do not have

the requisite agency-issued identifications needed to carry

under LEOSA. This contention is a classic non sequitur. The

premise does not support the conclusion. As explained above,

the District Court correctly “reject[ed] the District’s argument

that [Appellees] must prove that they have photographic

identification that satisfies subsection (d) before the Court can

grant their motion for summary judgment.” 316 F. Supp. 3d at

57. We affirm the District Court’s conclusion, which is rooted

in this court’s decision in DuBerry I.

The District Court’s opinion also usefully explains that the

court

[did] not conclude that [Appellees] are unalterably

“qualified retired law enforcement officers” for purposes

of LEOSA. This is because some of the statutory

preconditions for “qualified retired law enforcement

officers” are mutable characteristics. For example, no

court could accurately declare on the basis of motions

and responses filed months prior that a retired officer

certainly is not “under the influence of alcohol or another

intoxicating or hallucinatory drug or substance” such

that he meets the requirements of subsection (c)(7).

24

Instead, this Court only concludes that [Appellees] meet

the requirements listed in subsection (c)(1)–(3).

Specifically, [Appellees] each separated from service in

good standing with a public agency as a law enforcement

officer; before such separation, they each were

authorized to engage in or supervise the incarceration of

persons and they had statutory powers of arrest; and

before separation, they each served as a law enforcement

officer for an aggregate of 10 years or more.

316 F. Supp. 3d at 58 n.8.

The critical point here is that the District’s refusal to certify

Appellees is “an absolute barrier” to the exercise of their rights

under LEOSA. See Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 261 (1977). Therefore, Appellees

have standing to seek to remove this barrier. See id.; see also

Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 285

(4th Cir. 2018) (“The removal of even one obstacle to the

exercise of one’s rights, even if other barriers remain, is

sufficient to show redressability.”).

The law is clear that a party has standing to pursue a claim

so long as the relief sought will constitute a “necessary first

step on a path that could ultimately lead to relief fully

redressing the [claimant’s] injury.” Power Co. of Am., L.P. v.

FERC, 245 F.3d 839, 842 (D.C. Cir. 2001) (citation omitted);

Tel. & Data Sys., Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994)

(same); Hazardous Waste Treatment Council v. EPA, 861 F.2d

270, 273 (D.C. Cir. 1988) (same); see also Int’l Ladies’

Garment Workers’ Union v. Donovan, 722 F.2d 795, 811 n.27

(D.C. Cir. 1983) (explaining the underlying rationale for

redressability requirement); Tierney v. Schweiker, 718 F.2d

449, 456 (D.C. Cir. 1983) (reversing denial of a declaratory

25

judgment that “will put an end to the uncertainty and insecurity

faced by the appellants”).

Appellees acknowledge that, even if they obtain

declaratory relief, they “may not prevail” in the long run if they

do not secure the identifications required by LEOSA; “but

[they] cannot prevail unless we [grant declaratory relief], and

that is enough to ensure that the relief requested will produce

tangible, meaningful results in the real world.” Tel. & Data

Sys., 19 F.3d at 47 (citation omitted).

The District Court’s judgment in Appellees’ favor will

eliminate “[t]he harm of being categorically blocked from any

ability to access the core concealed-carry right.” Appellees Br.

at 34. We agree. The relief afforded Appellees will

meaningfully redress their concrete injuries caused by the

District’s unlawful refusals to certify them as qualified retired

law enforcement officers.

III. CONCLUSION

For the reasons stated herein, the judgment of the District

Court is affirmed.

So ordered.

ROGERS, Circuit Judge, concurring in part: I join the court

in affirming the grant of summary judgment because our

opinion in DuBerry v. District of Columbia, 824 F.3d 1046

(D.C. Cir. 2016) (“DuBerry I”), effectively bars the two

contentions of the District of Columbia government in the

instant appeal. The law of the case doctrine bars its first

contention that appellees possess no enforceable right under the

Law Enforcement Officers Safety Act (“LEOSA”) if they lack

the identification card necessary to exercise their LEOSA right.

Op. 13–16. To the extent any room is left after DuBerry I for

its second, alternative tort-causation contention, the District of

Columbia government’s view that it did not cause the

deprivation of appellees’ LEOSA right overlooks the limited

nature of the wrong appellees now allege; it is the District of

Columbia government’s refusal to certify appellees as qualified

retired law enforcement officers that has prevented them from

obtaining documentation necessary to access their LEOSA

right. Op. 16–18.

The court’s analysis, therefore, need not go further. Yet

the court does. Op. 18–25. The parties have understood the

current dispute to be independent of any suggestion that

appellees lack standing under Article III of the Constitution.

The District of Columbia government did not appeal the ruling

that appellees had standing on their LEOSA claim, DuBerry v.

District of Columbia, 106 F. Supp. 3d 245, 253–58 (D.D.C.

2015), much less renew its Article III challenge in appealing

the summary judgment order on remand, DuBerry v. District of

Columbia, 316 F. Supp. 3d 43 (D.D.C. 2018). Instead, the

District of Columbia government has attempted to pursue its

substantive objection to this court’s decision in Duberry I and

challenged the grant of summary judgment based on a theory

of tort causation, which is distinct from the causation

requirement for Article III standing, see Bennett v. Spear, 520

U.S. 154, 168 (1997); Tozzi v. Dep’t of Health & Human

Servs., 271 F.3d 301, 308 (D.C. Cir. 2001). In these

2

circumstances, there is no basis for the court to assume the

District of Columbia government also intended to raise or

“strongly suggests” that appellees have failed to establish

causation for purposes of standing, Op. 4, 18, when it so clearly

(but non-meritoriously) framed its causation contention in

terms of tort causation necessary for liability under 42 U.S.C.

§ 1983. Appellant’s Br. 26–29; Reply Br. 14–15.

Consequently, I do not join the court’s discussion of standing.

For the reasons stated herein, the judgment of the District

Court is affirmed.

So ordered.