Robert L. ORD, Appellant v. DISTRICT OF COLUMBIA, Appellee, 388 U.S. App. D.C. 378

Opinion for the Court filed by Circuit Judge TATEL. Opinion dissenting in part filed by Circuit Judge BROWN. TATEL, Circuit Judge: Appellant, a Virginia Special Conservator of the Peace authorized to carry weapons within the Commonwealth, brought suit against the District of Columbia alleging that it lacked probable cause to secure an arrest warrant against him for allegedly violating D.C. firearms laws.

Because appellant was never arrested, the district court treated his suit as a preenforcement challenge and, finding that appellant failed to demonstrate that he faces a genuine and imminent risk of prosecution, dismissed it for lack of standing. For the reasons set forth in this opinion, we reverse. I. In 2007, the Virginia Circuit Court of Orange County appointed appellant Robert Ord a Special Conservator of the Peace (SCOP). That order authorized Ord to carry firearms while acting in the course of his duties.

It also designated him a “Qualified Law Enforcement Officer” with respect to certain provisions of Virginia and federal law, including the federal Law Enforcement Officers Safety Act of 2004. Known as LEOSA, that statute allows officers to carry concealed firearms notwithstanding contrary state law. See 18 U.S.C. § 926B. Ord owns Falken Industries, a private security company holding a Detective Agency License issued by the D.C. Metropolitan Police Department (MPD). Since 2006, Falken has provided private security services within the District of Columbia.

In 2008, sowing the seeds of this litigation, Falken contracted to provide armed security at a District of Columbia Head Start school. Because certain aspects of that contract required MPD approval, Ord discussed it with an MPD officer and submitted requested paperwork. Although Ord was told that “all things looked ‘OK,’ ” Appellant’s Aff. ¶ 16, he learned a few days later that the MPD had arrested Falken employees stationed at the school for carrying weapons without permits.

An MPD officer then told Ord that a warrant had been issued for his arrest for violating D.C.Code § 7-2502.01(a), which prohibits carrying a firearm without a license. The next day Ord noticed several MPD officers near Falken’s Virginia headquarters. After learning of the warrant, Ord’s attorney contacted the D.C. Office of the Attorney General (OAG), supplied evi-. dence of Ord’s SCOP status, and demanded nullification of the warrant because of Ord’s exemption from the District of Columbia’s firearms law.

Although an OAG official initially indicated that the office would “not go forward with this warrant,” Compl. ¶ 26, OAG changed its position several hours later, informing counsel that it might enforce the warrant. Ord’s attorney immediately asked the D.C. Superior Court to quash the warrant. Again reversing course and shortly before a scheduled hearing, OAG declared a nolle prosequi. Ord was never arrested. Fearing future prosecution and claiming injury from the arrest warrant, Ord brought suit in federal district court, seeking damages for a Fourth Amendment violation under 42 U.S.C. § 1983.

In his complaint, Ord alleged that MPD officers filed the affidavit in support of the warrant in bad faith and without probable cause. According to Ord, MPD officers knew not only that Ord is an SCOP, but also that SCOP status exempts him from

section 7-2502.01(a)’s ban on possessing weapons in the District of Columbia. He cited

section 7-2502.01(b), which provides that “any law enforcement officer or agent of the government of any state or subdivision thereof’ is exempt from the statute if he is “authorized to possess ... a firearm ... while on duty in the performance of official authorized functions.” In support of his damages claim, Ord alleged that the issuance of an arrest warrant without probable cause required him to incur substantial attorney’s fees and forced his company to abandon contracts to provide armed security in the District of Columbia — contracts that were worth several hundred thousand dollars.

Alleging that the MPD may arrest him in the future in order to intimidate him from competing with off-duty MPD officers for private security contracts, Ord also sought declaratory and injunctive relief. Specifically, Ord asked the court to declare him (1) a “law enforcement officer or agent of the government of any state or subdivision thereof’ for the purposes of D.C. law and (2) exempt from D.C.Code § 7-2502.01(

a) and “other such District of Columbia firearms regulations wherein law enforcement officers or agents are exempt therefrom.” Compl. ¶¶ 48-49. Finally, Ord asked the court to enjoin the District of -Columbia from enforcing or prosecuting “such laws” against him. Id. ¶ 50. The district court, focusing on Ord’s request for declaratory and injunctive relief, labeled his claim a “preenforcement challenge” and dismissed the complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1). Ord v. District of Columbia, 573 F.Supp.2d 88 (2008).

Although the court acknowledged that “[a] credible and imminent threat of prosecution ... ‘can simultaneously ripen a preenforcement challenge and give the threatened party standing,’” id. at 92 (quoting Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C.Cir.1997)), it nonetheless ruled that Ord had no basis for asserting such a credible and imminent threat of prosecution because “the affirmative step by the District to nullify the warrant is strong evidence that the District does not presently intend to prosecute Ord,” id. at 94-95.

The court also rejected Ord’s reliance on a memorandum the MPD sent to Reserve Corps Members, which stated that LEOSA authorizes only “employees of government agencies” to carry firearms within the District of Columbia, see 18 U.S.C. § 926B(c), and warned that SCOPs not “covered” by LEOSA will be subject to all relevant criminal penalties for violating D.C. firearms laws, Mem. of Victor Brito, Inspector/Director, MPD (Feb. 2, 2008).

Pointing out that “this memorandum was not sent to [Ord] and does not include him as a member of its general audience,” the district court found that the memorandum’s “general recognition of, or even intention to enforce, the District’s firearms laws does not establish that Ord was specifically targeted” for prosecution- as required by our standing cases. Ord, 573 F.Supp.2d at 95. Ord appeals, arguing that he has sufficiently alleged standing based on the previous arrest warrant, his allegations of bad faith, and the MPD memoi'andum.

Amici curiae, the Second Amendment Foundation and the American Civil Liberties Union of the National Capital Area, ux’ge us to overrule our preenfoi’cement standing cases because, in their view, they conflict with Supreme Court doctrine. II. As an initial matter, the District of Columbia urges us to convert its motion to dismiss into a motion for

summary judgment because the district court considered matters outside the pleadings, namely Or-d’s affidavit describing his business, the events suxTOunding the arrest warrant, and his concerns about futui'e prosecution. See Fed.R.Civ.P. 12(d). But because Rule 12(d)’s conversion mechanism applies only to motions under Rule 12(b)(6) or 12(c), “the impropriety of transforming Rule 12(b)(1) motions into

summary-judgment motions is well-settled.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987) (internal quotation marks omitted). To be sure, the District of Columbia filed motions to dismiss under both Rules 12(b)(1) and 12(b)(6), but the district coux’t xmled only on the Rule 12(b)(1) motion. We thus consider Ord’s complaint and the parties’ arguments under standards applicable to a motion to dismiss. Specifically, reviewing de novo, see, e.g., Doe v. Metro.

Police Dep’t, 445 F.3d 460, 465 (D.C.Cir.2006), we “must accept as true all material allegations of the complaint, and must eonstme the complaint in favor of the complaining party,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). With this standai’d in mind, we first consider whether Ord has sufficiently alleged

Article III standing. Then in

Part III we consider the District of Columbia’s altei’native jurisdictional argument, namely that Ord’s preenforcement and damages claims are too insubstantial to invoke federal jurisdiction. Preenforcement Challenge To establish

Article III standing, “[a] plaintiff must have suffei’ed an ‘injury in fact’ — an invasion of a legally protected interest which is (

a) concrete and particularized, and (

b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation max’ks and citations omitted). The plaintiffs injury must be “fairly traceable to the challenged action of the defendant,” and likely to be “redressed by a favorable decision.” Id. at 560-61, 112 S.Ct. 2130 (internal quotation marks and alterations omitted). Where a plaintiff has yet to face prosecution under a statute he seeks to challenge, the Supi’eme Court, in Babbitt v. United Farm Workers, inquires that he establish

Article III standing by (1) “alleging] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and (2) demonstrating that “there exists a credible thi’eat of prosecution thereunder.” 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). In Navegar, Inc. v. United States, however, we held that plaintiffs must show more than a “credible threat” of prosecution: they must demonstrate an “imminent” threat. 103 F.3d at 999; see also Parker v. District of Columbia, 478 F.3d 370, 375 (D.C.Cir.2007), aff'd in part sub nom. District of Columbia v.

Heller, — U.S. -, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); Seegars v. Gonzales, 396 F.3d 1248, 1255 (D.C.Cir.2005). To prove that a threat is both credible and imminent, we require plaintiffs to demonstrate that their prosecution results from a special law enforcement priority, namely that they have been “singled out or uniquely targeted by the ... government for prosecution.” Parker, 478 F.3d at 375.

In Navegar, we considered gun manufacturers’ preenforcement challenges to provisions of the Violent Crime Control and Law Enforcement Act of 1994, which barred manufacturing and possessing semiautomatic assault weapons. 18 U.S.C. §§ 921-924 (1994). Certain provisions of the statute banned specific weapons by name. Navegar, 103 F.3d at 997. Observing that this specificity “show[ed] that the law place[d] a high priority” on prosecuting the companies that manufactured the named weapons, we found that those companies had standing to challenge the provisions of the statute that banned their products. Id. at 1000.

By contrast, we found that no plaintiff had standing to challenge other parts of the statute prohibiting weapons not by name, but by general characteristics. Given that the statute described those weapons only in general terms, we concluded that their manufacturers had failed to show that the government placed a special priority on enforcing the law against them. Id. at 1001-02.

Acknowledging that our case law demands more than does United Farm Workers, we have nonetheless continued to require plaintiffs to demonstrate that enforcing the law against them represents a “‘special priority’ for the government.” See Seegars, 396 F.3d at 1255 (quoting Navegar, 103 F.3d at 1001).

For example, in Seegars we held that where plaintiffs alleged nothing more than that but for the District of Columbia’s gun laws they would have obtained and registered pistols to keep and carry in their homes, they “ha[d] not shown a threat of prosecution reaching the level of imminence required by Nave-gar.” Id. “[NJothing in the record,” we explained, demonstrated that plaintiffs had been “personally threatened with prosecution” or that their prosecution had “any special priority for the government.” Id. (internal quotation marks omitted). Similarly, in Parker v.

District of Columbia, we felt “obliged to look for an allegation that appellants ... ha[d] been singled out or uniquely targeted by the D.C. government for prosecution.” 478 F.3d at 375. We were unable to find such an allegation because, -with one exception, the plaintiffs claimed only that (1) they wished to own prohibited firearms and (2) the District of Columbia had declared its intention to prosecute all violators.

We found those threats insufficient given that they expressed no “ ‘special priority’ for preventing these [plaintiffs] from violating the gun laws, or a particular interest in punishing them for having done so.” Id. Instead, the District of Columbia merely expressed “a sentiment ubiquitous among stable governments the world over, to wit, scofflaws will be punished.” Id. Ord argues that he has satisfied our preenforcement standing requirements because the previous warrant for his arrest demonstrates that enforcing the law against him is a “special priority” of the District of Columbia.

Challenging the district court’s conclusion that the warrant’s nullification was “strong evidence that the District [did] not presently intend to prosecute” him, Ord, 573 F.Supp.2d at 94-95, Ord argues that D.C.’s only motivation for quashing the warrant was to prevent judicial review of his claimed exemption from the District’s firearms laws. According to Ord, the District of Columbia’s bad faith in securing and then belatedly quashing the warrant, together with the MPD’s determination to drive his company from the District of Columbia, proves that he faces a credible and imminent threat of future prosecution.

Ord also claims that the MPD memorandum supports his fear of future prosecution, emphasizing its statement that “SCOP[s] who [are] not covered by 18 U.S.C. § 926B and carr[y] firearm[s] in the District of Columbia will be subject to all relevant criminal penalties.” Mem. of Victor Brito. The District of Columbia’s position with regard to Ord’s standing has evolved during this litigation.

In the district court, it “ma[de] much ado about the fact that the Office of the Attorney General declared a nolle prosequi of the Information in support of the warrant” and insisted that this action negated any inference of a credible and imminent threat of future prosecution. Ord, 573 F.Supp.2d at 93.

On appeal, however, the District of Columbia now agrees with Ord that “his showing regarding the likelihood that [future] prosecution [will] occur [is] sufficient” because “Ord’s allegations that the District applied for an arrest warrant against him [are] sufficient to show ... a special priority.” Appellee’s Br. 24. Given the District of Columbia’s concession, the previous arrest warrant, Ord’s claims of bad faith, and the arrests of Falken employees, Ord’s allegations support his standing under Navegar.

Indeed, Ord’s position is quite similar to that of the Navegar plaintiffs whose products the statute banned by name. Just as the statute’s identification of certain weapons by name evidenced “a high priority” on prosecuting the companies that produced those weapons, the warrant for Ord’s arrest reveals that the District of Columbia has already targeted him for prosecution, and its concession signals that it expects to prosecute him in the future.

In addition, Ord’s allegation that the MPD remains determined to drive his company from the city suggests that the District of Columbia places a special priority on enforcing the laws against him. Indeed, Ord has alleged a more genuine and imminent threat of prosecution than did the Navegar, Seegars, and Parker plaintiffs whose standing we rejected.

In Navegar, the manufacturers whose weapons were unnamed by the statute pointed only to the high-profile nature of their business, the publicity surrounding enactment of the law, visits from ATF agents, and a letter they all received from ATF describing the newly enacted statute. See Navegar, 103 F.3d at 1001.

The Seegars and Parker plaintiffs showed even less: the Seegars plaintiffs pointed to nothing more than the firearms laws and alleged that the threat of prosecution discouraged them from keeping guns within the District of Columbia, see 396 F.3d at 1255; the Parker plaintiffs (again, with one exception) also pointed to the existence of the gun laws and relied on general threats of their enforcement, see 478 F.3d at 375.

Here, by contrast, the previous arrest warrant, the District of Columbia’s appellate concession, the arrests of Falken employees, and Ord’s allegations of continuing bad faith all demonstrate the District of Columbia’s special priority on enforcing the law against him. Thus, even without relying on the MPD memorandum — the significance of which the parties dispute— we conclude that Ord has sufficiently shown a credible and imminent threat of prosecution.

The dissent faults us for “reading] ‘imminence’ out of our precedents,” Dissenting Op. at 1151, and contends that a special law enforcement priority constitutes “simply one factor” in the imminence analysis, id. at 1150. In Navegar, however, we chiefly relied on the fact that the statute expressly targeted particular weapons manufacturers, pointing out that “[t]he visits by the ATF agents to appellants’ places of business merely providefd] a bit of additional support for a fear of prosecution already firmly grounded in the language of the Act itself.” 103 F.3d at 1000 (emphasis added).

Following Navegar’s lead, Seegars and Parker looked only for a “special priority” of prosecution. See Seegars, 396 F.3d at 1255; Parker, 478 F.3d at 375. Thus, our case law makes clear that such a special priority is sufficient to establish imminence. Our dissenting colleague, stating that Ord “faces a certainty of no prosecution” because he has decided to avoid entering D.C. with a firearm, argues more generally that “[a] prosecution is unlikely to be imminent if individuals refrain from violating the law out of fear of prosecution.” Dissenting Op. at 1151, 1152.

Navegar, however, demonstrates that imminence is not defeated simply because the plaintiff complies with the challenged statute. There, we acknowledged that plaintiffs had ceased manufacturing the banned weapons, Nave-gar, 103 F.3d at 997, but ruled that such compliance did not extinguish their preenforcement standing. Rather, “[i]t is ... th[e] threat of prosecution which creates the ‘injury in fact’ required under standing doctrine, for the threat forces appellants to forego the manufacture and transfer of the weapons specified in the Act.” Id. at 1001. So too here.

Ord’s injury stems from his inability to travel to D.C. and carry on his security business here while armed without fear of prosecution. That injury is imminent because the District of Columbia has made clear its specific intention to prosecute him. The District of Columbia insists that Ord also lacks standing because he has failed to satisfy United Farm Workers’ first requirement: that a preenforcement plaintiff “allege[ ] an intention to engage in a course of conduct ... proscribed by a statute.” United Farm Workers, 442 U.S. at 298, 99 S.Ct. 2301.

To be sure, as the District of Columbia emphasizes, Ord never alleges in so many words that he intends to enter the District of Columbia while armed. But at this stage of the litigation, we must make all reasonable inferences in Ord’s favor, see supra at 1140, and viewed through that lens, Ord’s complaint and affidavit can only be understood to mean that if the threat of arrest is removed, he intends to travel to D.C. while armed to engage in his security business.

See Seegars, 396 F.3d at 1251 (plaintiff need not express an unconditional intent to engage in the prohibited behavior regardless of whether the statute is invalidated). Specifically, Ord alleges in his affidavit that Falken Industries possesses an MPD license and that it had several contracts to provide armed security services in the District of Columbia until forced to abandon them once D.C. issued the warrant for his arrest and actually arrested Falken employees.

Although Ord’s abandonment of the contracts could suggest that he no longer plans to enter the District while armed, his affidavit indicates just the opposite: While I was once able to enter the District of Columbia with my firearm as a police officer, I can no longer do so for fear of my unlawful arrest. It is impossible for me to go from one location in Virginia where I need my firearm to perform my duties to another location in the District of Columbia. I have no means to secure and leave my gun somewhere when I enter the District of Columbia. Appellant’s Aff. ¶ 30.

Moreover, Ord’s request for relief — a declaratory judgment and an injunction prohibiting the District of Columbia from enforcing its firearms laws against him — makes sense only if he actually intends to return to D.C. while armed to service his clients. We thus conclude that Ord has standing to bring his preenforcement claim. Our dissenting colleague, who raises several interesting points, would en banc this case “sua sponte and overrule Nave-gar.” Dissenting Op. at 1146.

But because we have concluded — without “strain[ing],” id. — that Ord has standing under Navegar, this is simply not a case of “exceptional importance” warranting the attention of the full court, Fed. R.App. P. 35(a)(2). Nor, for the same reason, would an Irons footnote be appropriate. See D.C.Cir., Policy Statement on En Banc Endorsement of Panel Decisions 2 (Jan. 17, 1996) (“The panel also should be satisfied that deciding the question is necessary to an adequate disposition of the case.” (emphasis added)); see also LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc).

We thus turn to Ord’s standing to bring his claim for damages flowing from the issuance of the warrant. Damages Claim This issue is easy. The District does not challenge Ord’s standing to bring his damages claim, and for good reason. To begin with, Ord has plainly alleged injury in fact. According to his complaint, an MPD officer caused a warrant to issue for Ord’s arrest on the basis of a false affidavit and without probable cause, forcing him to abandon lucrative armed security contracts within the District of Columbia.

Ord has also sufficiently alleged causation: the arrest warrant prevented him from entering D.C., which in turn required him to abandon the contracts. Finally, an award of damages would obviously redress his injuries. III. This brings us to the District of Columbia’s argument that Ord’s preenforcement and damages claims are too insubstantial to invoke federal court jurisdiction. Federal courts are “without power to entertain claims otherwise within their jurisdiction if [the claims] are ‘so attenuated and unsubstantial as to be absolutely devoid of merit.’ ” Hagans v.

Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 48 L.Ed. 795 (1904)). To warrant dismissal for insubstantiality, “claims [must] be flimsier than ‘doubtful or questionable’ — they must be ‘essentially fictitious.’ ” Best v.

Kelly, 39 F.3d 328, 330 (D.C.Cir.1994) (quoting Hagans, 415 U.S. at 536-37, 94 S.Ct. 1372) (finding claim sufficiently substantial where plaintiffs had not “suggested any bizarre conspiracy theories, any fantastic government manipulations of their will or mind, any sort of supernatural intervention”).

Although we have said that “[t]he Rule 12(b)(1) ‘substantiality’ doctrine is, as a general matter, reserved for complaints resting on truly fanciful factual allegations,” id. at 331 n. 5, legal claims may be so insubstantial as to deprive federal courts of jurisdiction if “prior decisions inescapably render the claims frivolous.” Hagans, 415 U.S. at 538, 94 S.Ct. 1372. That said, “previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial.” Id.

Thus, to qualify as insubstantial, a claim’s “unsoundness [must] so clearly result[ ] from the previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933) (internal quotation marks omitted). The substantiality inquiry is, however, a separate question from whether a complaint is subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim on which relief may be granted.

See, e.g., Hagans, 415 U.S. at 542, 94 S.Ct. 1372; Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Best, 39 F.3d at 331 & n. 5. “Jurisdiction, therefore, is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.” Bell, 327 U.S. at 682, 66 S.Ct. 773.

Preenforcement Challenge The District of Columbia contends that Ord’s preenforcement challenge is insubstantial because “under binding precedent, Ord has a Fourth Amendment claim as to a future arrest only if the invalidity of such an arrest is obvious.” Appellee’s Br. 12. In support, the District of Columbia relies on Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), in which the Supreme Court held that an arrest for violating an ordinance later found to be unconstitutionally vague did not run afoul of the Fourth Amendment.

The DeFillippo court reasoned that probable cause existed because, at the time of the arrest, the officer had a factual basis for concluding that the arrestee had violated the ordinance and the officer was not “required to anticipate that a court would later hold the ordinance unconstitutional.” Id. at 37-38, 99 S.Ct. 2627. Similarly, in Barwood, Inc. v. District of Columbia, 202 F.3d 290, 294 (D.C.Cir.2000), also relied on by the District, we concluded that arrests of taxicab drivers for violating an allegedly invalid D.C. law would not necessarily contravene the Fourth Amendment.

The District of Columbia takes DeFillippo and Barwood to mean that “the mere possibility that a court would hold as a matter of law” that Ord is exempt from the District’s firearms laws “clearly should not negate probable cause.” Appellee’s Br. 15. Thus, according to the District of Columbia, DeFillippo and Barwood make clear that Ord’s Fourth Amendment claim cannot succeed and thus “inescapably render [it] frivolous.” Hagans, 415 U.S. at 538, 94 S.Ct. 1372. We disagree that DeFillippo and Ba'mood foreclose all debate on Ord’s allegations.

Neither decision addresses the precise question Ord raises: whether a warrant or arrest would lack probable cause where the responsible officer, knowing that the arrestee is exempt from the criminal statute, nonetheless files an affidavit in bad faith-an allegation we must take as true at this stage of the litigation.

Indeed, unlike the issues addressed in De-Fillippo and Barwood, the question here bears directly on the existence of probable cause, for it requires an inquiry into whether “facts and circumstances within the officer’s knowledge [could be] sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” DeFillippo, 443 U.S. at 37, 99 S.Ct. 2627.

Moreover, even were we to agree with the District of Columbia that Ord’s allegations ultimately fail to state a Fourth Amendment claim — a question we leave for the district court to resolve in the first instance — that would provide no basis for finding that Ord’s claim is so insubstantial as to deprive the district court of jurisdiction. Damages Claim We are equally unpersuaded by the District of Columbia’s argument that Ord’s claim for damages caused by the warrant is so insubstantial as to deprive the district court of jurisdiction.

According to the District of Columbia, Ord’s claim is frivolous because he was never arrested. The Fourth Amendment, D.C. insists, protects only against unreasonable “searches” and “seizures,” and “there is no seizure without actual submission.” Brendlin v. Califor nia, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). To be sure, the Supreme Court often speaks of the Fourth Amendment exclusively in terms of “searches” and “seizures,” see, e.g., County of Sacramento v.

Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), but none of those cases considered a claim, like the one at issue here, which alleges that the issuance of a warrant without probable cause may itself deprive a person of his liberty in violation of the Fourth Amendment. True, Ord may not have been seized in the traditional sense, but the arrest warrant effectively exiled him from the District of Columbia, thus restricting his ability to travel and causing him substantial injury. Cf. Albright v.

Oliver, 510 U.S. 266, 277-79, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Ginsburg, J., concurring) (suggesting that a criminal defendant facing pending prosecution remains “continually seized” after release from custody due, in part, to the travel restrictions and reputational and employment consequences that often flow from a criminal prosecution). Because neither Supreme Court nor D.C. Circuit case law forecloses the possibility that Ord’s allegations raise a constitutional issue, his damages claim is sufficiently substantial to confer federal jurisdiction.

Although we leave open the question whether injury from the issuance of a warrant without arrest is cognizable under the Fourth Amendment, we are sure that Ord’s claim is neither “fictitious,” “fantastic,” nor “fanciful,” and thus that the district court has jurisdiction to entertain it. Best, 39 F.3d at 330-31 (internal quotation marks omitted). IY. For the foregoing reasons, we reverse the dismissal of Ord’s claims and remand to the district court for further proceedings consistent with this opinion. So ordered.