United States District Court, E.D. Michigan, Southern Division
Steven Whalen United States Magistrate Judge
OPINION AND ORDER GRANTING OFFICIAL-CAPACITY
DEFENDANTS' MOTION TO DISMISS  AND DISMISSING
COMPLAINT AS TO INDIVIDUAL-CAPACITY
DEFENDANT WITHOUT PREJUDICE
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Khalid Turaani commenced this action on December 20, 2017.
Dkt. No. 1. In the Complaint, he contends that the Defendants
improperly delayed (by three days) his right to purchase a
firearm and constructively denied him that right. See
Id. The Defendants are an Unnamed FBI Agent, in his
individual capacity, and the following individuals in their
official capacity: Jefferson B. Sessions, III, the Attorney
General of the United States of America; Christopher A. Wray,
the Director of the Federal Bureau of Investigation; Charles
H. Kable, IV, the Director of the Terrorist Screening Center;
and Thomas E. Brandon, the Deputy Director, Head of the
Bureau of Alcohol, Tobacco, Firearms and Explosives.
asserts a defamation claim against the Unnamed FBI Agent in
his individual capacity (Count I). He also maintains that the
official-capacity Defendants violated his right to procedural
due process under the Fifth Amendment (Count II); substantive
due process under the Fifth Amendment (Count III); and equal
protection under the Fifth Amendment (Count IV).
Additionally, Turaani alleges that the official-capacity
Defendants violated the Administrative Procedure Act, 5
U.S.C. §§ 701-706 (“APA”), (Count V),
and he asserts a claim for injunctive and declaratory relief
under 28 U.S.C. §§ 2201, 2202 (Count VI).
April 5, 2018, the official-capacity Defendants moved to
dismiss Counts II-VI of the Complaint for lack of
subject-matter jurisdiction and failure to state a claim upon
which relief may be granted. Dkt. No. 10. Turaani responded
to the motion on April 26, 2018. Dkt. No. 12. The
official-capacity Defendants replied in support of the motion
on May 23, 2018. Dkt. No. 16.
before the Court is the official-capacity Defendants'
Motion to Dismiss Counts II-VI of the Complaint for Lack of
Subject-Matter Jurisdiction and Failure to State a Claim
. The Court held a hearing on this motion on Monday, June
4, 2018. For the reasons detailed below, the Court will GRANT
the official-capacity Defendants' Motion to Dismiss .
The Court lacks subject-matter jurisdiction over certain
claims asserted by Turaani. The Court also concludes that
Turaani has failed to state a claim on Counts II-VI. That is,
the Court will dismiss his claims regarding procedural due
process (Count II), substantive due process (Count III),
equal protection (Count IV), the Administrative Procedure Act
(Count V), and injunctive and declaratory relief (Count VI).
as the claims against the official-capacity Defendants will
not survive the motion to dismiss and the individual-capacity
Defendant (the Unnamed FBI Agent) has yet to receive service,
the Court will DISMISS Count I WITHOUT PREJUDICE.
Khalid Turaani is a United States citizen domiciled in
Michigan. Dkt. No. 1, p. 2 (Pg. ID 2). He is the legal owner
of three firearms, firearms which he purchased between 2000
and 2016. Id. at p. 9 (Pg. ID 9). This case concerns
his inability to buy a fourth firearm, in 2017 and from
Target Sports Orchard Lake in Michigan.
Firearm Background Check Procedures
24, 2017, after discussing Turaani's request to purchase
a firearm with an FBI agent, a clerk at Target Sports Orchard
Lake refused to sell Turaani a gun. Id. at p. 10
(Pg. ID 10). By way of background, the Brady Act, 18 U.S.C.
§§ 921 et seq., requires that federal
firearms licensees (“FFL”) contact the National
Instant Criminal Background Check System (“NICS”)
before selling a firearm to any person. Id. at p. 5
(Pg. ID 5); see generally 28 C.F.R. § 25.1
et seq. The FBI manages the NICS, and in Michigan,
FFLs directly contact the FBI with certain information about
the potential purchaser. Dkt. No. 1, p. 5 (Pg. ID 5); see
also Dkt. No. 10, pp. 17-18 (Pg. ID 78-79). Using that
information, a search is run in certain databases, including
the National Crime Identification Center
(“NCIC”). Dkt. No. 10, p. 18 (Pg. ID 79). The
NCIC, in turn, includes a sub-file on Known or Appropriately
Suspected Terrorists (“KST”). Dkt. No. 1, p. 12
(Pg. ID 12); see also Dkt. No. 10, p. 18 (Pg. ID
79). Plaintiff alleges that, on the date of the firearm
transaction, he was on a No. Fly List or Watch List, and
thus, he was on a KST list. Dkt. No. 1, p. 9 (Pg. ID 9).
person on a KST list initiates a firearm transaction, the
background check results in a “delay” response.
28 C.F.R. § 25.6(c)(1); see also Dkt. No. 10,
p. 19 (Pg. ID 80). To be sure, residence on a KST list,
standing alone, does not prohibit a person from legally
owning a firearm. See 18 U.S.C. § 922(g);
see also Dkt. No. 10, p. 19 (Pg. ID 80). Rather, a
delay response suspends the transaction for three days while
authorities further investigate the individual. Dkt. No. 10,
p. 19 (Pg. ID 80); see also 28 C.F.R. §
25.6(c)(1)(iv)(B). A person may complete the firearm
transaction if the NICS responds “proceed” or
three days have passed from the delay response, whichever
occurs first. 28 C.F.R. § 25.6(c)(1)(iv)(B).
a “deny” response occurs where federal or state
law prohibits a person from obtaining a firearm. See
Id. at § 25.6(c)(1)(iv)(C); see also 18
U.S.C. § 922(g), (n). If a person passes the background
check, NICS will respond “proceed.” 28 C.F.R.
Turaani's Experience at Target Sports Orchard Lake
Target Sports Orchard Lake is an FFL, it contacted the FBI
when Turaani initiated the firearm transaction. Dkt. No. 1,
p. 10 (Pg. ID 10). A store clerk began a NICS background
check on Turaani, including running Plaintiff's name
through the relevant databases. Id. Turaani
maintains that an FBI agent then called the store clerk,
informed him that Turaani was the subject of an FBI
investigation, and instructed him to delay the transaction.
Id. Following the FBI's directions, the store
clerk delayed the transaction. Id. at pp. 10-11 (Pg.
ID 10-11). The FBI, however, did not contact the store clerk
again regarding Turaani's transaction and, of course,
three days have passed since Turaani attempted to purchase
the firearm. Id. at p. 10 (Pg. ID 10). Therefore,
Turaani may legally purchase the gun. See 28 C.F.R.
Turaani contends that he has not been able to purchase a gun
from Target Sports Orchard Lake. He alleges that the store
will not sell him a gun until the FBI has informed the store
that he never was, or is no longer, under investigation by
the FBI. Dkt. No. 1, pp. 10-11 (Pg. ID 10-11). He also
asserts that because the store clerk knows that he is or was
under investigation by the FBI, this news will spread
throughout his Orchard Lake community and thereby damage his
reputation. Id. at pp. 16-17 (Pg. ID 16-17).
Rule of Civil Procedure 12(b)(6) allows a court to assess
whether a plaintiff has stated a claim upon which relief may
be granted. See Fed. R. Civ. P. 12(b)(6).
“Federal Rule of Civil Procedure 8(a)(2) requires only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief, ' in order to
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.' ” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“[E]ven though the complaint need not contain
‘detailed' factual allegations, its ‘factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the
allegations in the complaint are true.' ”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Twombly, 550 U.S. at 555).
must construe the complaint in favor of a plaintiff, accept
the allegations of the complaint as true, and determine
whether plaintiff's factual allegations present plausible
claims. Twombly, 550 U.S. at 570. But, “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
668 (2009). To survive a Rule 12(b)(6) motion, a
plaintiff's pleading for relief must provide “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Ass'n of Cleveland Fire Fighters, 502 F.3d at
548 (quoting Twombly, 550 U.S. at 553-54).
“Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678 (internal citations and
quotations omitted). Instead, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id.
(internal citations and quotation marks omitted). The
plausibility standard requires “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
show[n]-that the pleader is entitled to relief.”
Id. at 679. (internal citations and quotation marks
Plaintiff raises five claims against the official-capacity
Defendants. He contends that they violated his right to
procedural due process (Count II), to substantive due process
(Count III), and to equal protection of the laws (Count IV).
He also maintains that their actions contravened the APA
(Count V), and he raises an independent claim for injunctive
and declaratory relief (Count VI). The Court will find that
Plaintiff lacks standing to assert claims regarding certain
harms. In addition, the Court will hold that none of these
counts will survive the Motion to Dismiss.
principally claims that he has suffered harm as a result of
both the three-day delay of his firearm purchase and the
“constructive denial” of his Second Amendment
right. The Court will find that it has subject-matter
jurisdiction over his claims regarding the three-day delay of
his Second Amendment rights. Conversely, the Court will
conclude that it lacks subject-matter jurisdiction over
Plaintiff's constructive denial claim.
courts, ” the Sixth Circuit has noted, “have
constitutional authority to decide only ‘cases' and
‘controversies.' ” Crawford v. Dep't
of Treasury, 868 F.3d 438, 452 (6th Cir. 2017) (quoting
U.S. Const. art. III § 2) (citing Muskrat v. United
States, 219 U.S. 346 (1911)). “And there is no
case or controversy if a plaintiff lacks standing to
sue.” Duncan v. Muzyn, 885 F.3d 422, 427 (6th
Cir. 2018) (citing Spokeo, Inc. v. Robins, __
U.S.__, 136 S.Ct. 1540, 1547 (2016)). “A claimant bears
the burden of establishing standing and must show it
‘for each claim he seeks to press.' ”
Hagy v. Demers & Adams, 882 F.3d 616, 620 (6th
Cir. 2018) (quoting DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 352 (2006)). If a claimant fails to establish
standing, a court must dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(1). Lyshe v. Levy, 854
F.3d 855, 858 (6th Cir. 2017) (citing Allstate Ins. Co.
v. Glob. Med. Billing, Inc., 520 Fed.Appx. 409, 410-11
(6th Cir. 2013)).
‘irreducible constitutional minimum' of standing
comprises three elements: (1) an injury-in-fact, which is (2)
fairly traceable to the defendant's challenged conduct,
and that in turn is (3) likely redressable by a favorable