Michael TESLER, Plaintiff-Appellant, v. Susan CACACE, County of Westchester, Defendants-Appellees, 607 F. App'x 87

SUMMARY ORDER Plaintiff-Appellant Michael Tesler (“Tesler”) appeals the judgment of the District Court for the Southern District of New York (Seibel, J.), granting the motions to dismiss of Defendants-Appellees Susan Cacace (“Cacace”) and the County of Westchester (the “County,” and together with Cacace, “Defendants”). Tesler filed this action in response to an administrative decision rendered by Cacace pursuant to N.Y. Penal Law § 400.00(11) in which she granted the County’s application to revoke Tesler’s Westchester County pistol permit.

We assume the parties’ familiarity with the underlying facts and procedural history of the case, and with the issues on appeal. Tester’s complaint alleges, inter alia, that the decision revoking his pistol permit violated his rights under the Second Amendment of the United States Constitution, N.Y. Civil Rights Law § 4, and the Law Enforcement Officers Safety Act, 18 U.S.C. § 926C (“LEOSA”). The complaint contains two claims.

The first requests a declaratory judgment stating that at the time of revocation, Tester “was and remains authorized to carry concealed firearms nationwide as a qualified retired law enforcement officer as defined in [LEO-SA].” Jt. App’x 15. His second claim requests that the decision revoking his Westchester County pistol permit be vacated because it violated his rights to carry concealed firearms pursuant to the Second Amendment, N.Y. Civil Rights Law § 4, and his status as a qualified retired law enforcement officer under LEOSA.

However, in a declaration in opposition to Defendants’ motions to dismiss Tester’s complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), Tester’s attorney stated that contrary to the allegations in the complaint, Tester has not taken the annual firearms training course necessary for an individual to be a qualified retired law enforcement officer pursuant to LEOSA. Accordingly, Tester does not allege that he is currently entitled to carry a firearm pursuant to that statute. The district court granted the motions to dismiss pursuant to Rule 12(b)(1).

It concluded that the declaration of Tester’s counsel limited Tester’s “requested relief to a declaration that [he] is qualified to apply for a LEOSA permit if he takes the necessary course unaffected by the West-chester pistol permit revocation.” Jt. App’x 278 (internal quotation marks and alterations omitted). The court reasoned that Tester’s request for such a declaration was not ripe because Tester “does not qualify for the protection of LEOSA and might never do so.” Jt. App’x 278. “[A]ny conflict between LEOSA and local permitting regulations” was therefore not “sufficiently immediate.” Id.

In reviewing a district court’s dismissal of an action under Rule 12(b)(1), we review the district court’s factual findings for clear error and its legal conclusions -de novo. Makarova v. United States, 201 F.3d 110, 118 (2d Cir.2000). “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks omitted).

We agree with the district court that Tester’s request for a declaratory judgment regarding his rights under LEOSA should he complete the necessary training course is not ripe for review. By his counsel’s own admission, Tester has not taken the training course required in order for him to be entitled to carry firearms pursuant to LEOSA. He may never do so. Further, should Tester take such a course in the future, it remains possible that he would be granted a firearms permit under LEOSA, or denied a permit for reasons having nothing to do with the decision revoking his Westchester County pistol permit.

Because any injury related to Tester’s rights under LEOSA is “merely speculative and may never occur,” his request for a declaratory judgment clarifying his rights under LEOSA is unripe. United States v. Baton, 384 F.3d 38, 46 (2d Cir.2004). . Tesler argues that the complaint was improperly dismissed because his complaint requests that the permit revocation decision be vacated based not only on LEOSA but also on his rights under the Second Amendment and N.Y. Civil Rights Law § 4.

He states that his counsel’s declaration did not limit his claims solely to his request for a declaratory judgment regarding his rights under LEOSA, because in that declaration his counsel also argued that Tester’s case was not moot because his complaint seeks “restoration of his right to carry firearms as it existed” prior to the events that precipitated the revocation of his Westchester County pistol permit. Jt. App’x 194. Nevertheless, pursuant to Rule 12(b)(6), that claim was properly dismissed because his assertions of rights under the Second Amendment and N.Y. Civil Rights Law § 4 are conclu-sory.

Tester does not plead facts that render those allegations plausible on their face and his complaint fails to give Defendants fair notice regarding the specific grounds upon which those allegations rest. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). His referencés to his rights under the Second Amendment and N.Y. Civil Rights Law § 4 are merely “a-formulaic recitation of the elements of a cause of action” rather than the “showing” that Rule 8(a)(2) requires. Id. at 555,127 S.Ct. 1955.

Accordingly, his complaint fails to state a claim upon which relief may be granted. At a pre-motion conference, the district court offered Tester leave to amend his complaint and he declined. The district court’s decision to deny Tester leave to amend his complaint was therefore not an abuse of discretion. See Horoshko v. Citibank, N.A., 373 F.3d 248, 249-50 (2d Cir.2004). We have considered Tester’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. .

LEOSA permits an individual who is a "qualified retired law enforcement officer [as that term is defined in 18 U.S.C. § 926C] and who is carrying the identification required by subsection (d)” to "carry a concealed firearm” notwithstanding "any other provision of the law of any State.” 18 U.S.C. § 926C(a). Both forms of permissible identification set forth in subsection (

d) require an individual to have satisfied an annual firearms training requirement. See 18 U.S.C. § 926C(d)(2).