Susman v. Sullivan, M.D.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDMUND J. SUSMAN JR. and all

similarly situated individuals,

Plaintiff, 24-CV-1281-LJV

DECISION & ORDER

v.

ANN MARIE T. SULLIVAN, M.D., in her

official capacity,

Defendant.

On December 31, 2024, the plaintiff, Edmund J. Susman Jr., commenced this

action under 42 U.S.C. § 1983. Docket Item 1. Susman asserts claims against the

defendant, Ann Marie T. Sullivan, M.D., in her official capacity as the Commissioner of

the New York State Office of Mental Health (“OMH”). Id. at 1.1 More specifically,

Susman alleges that New York Mental Hygiene Law § 7.09(j) (“section 7.09(j)”) and a

related state regulation (“rule 543”) violate his Second and Fourteenth Amendment

rights. Docket Item 1 at ¶¶ 148-53; see also N.Y. Mental Hyg. Law § 7.09(j); 14 N.Y.

Comp. Codes R. & Regs. §§ 543.1-543.6.

Two days after filing the complaint, Susman moved for a temporary restraining

order (“TRO”) and a preliminary injunction with respect to his Second Amendment

claims; more specifically, he asked this Court to enjoin Sullivan from enforcing section

1 Page numbers in docket citations refer to ECF pagination.

7.09(j) and rule 543 against him.2 Docket Item 5. Sullivan responded to the motion for

a TRO and a preliminary injunction, Docket Item 16, and Susman replied, Docket Item

21. On February 11, 2025, this Court heard oral argument.3 Docket Item 26.

For the reasons that follow, this Court denies Susman’s motion for a TRO and a

preliminary injunction.

BACKGROUND4

Susman is a military veteran who “has been regularly armed with a firearm

personally []or in his employment capacity for over 30 years, without incident.” Docket

2 Susman’s motion is based only on his Second Amendment, and not his

Fourteenth Amendment, claims, and so this Court does not consider the latter here.

See Docket Item 16 at 41-42; Docket Item 21 at 7 n.2.

3 Susman also moved to expedite his motion. Docket Item 6. As the Court

already has received briefing and heard argument on Susman’s motion for a TRO and a

preliminary injunction, his motion to expedite is denied as moot.

4 The following facts are taken from the complaint, Docket Item 1; from Susman’s

medical records, Docket Item 23 at 46-231, which were submitted by Sullivan in support

of her opposition and filed under seal, and from a signed declaration about OMH

practices that also was submitted by Sullivan, Docket Item 16-1. The parties generally

agree about the underlying facts; when they do not, the Court notes the disagreement.

“A hearing is generally required on a properly supported motion for [a]

preliminary injunction if material facts are in dispute.” Mercado v. Dep’t of Corr., 2017

WL 1095023, at *2 (D. Conn. Mar. 23, 2017) (citing Kern v. Clark, 331 F.3d 9, 12 (2d

Cir. 2003)); see Commodity Futures Trading Comm’n v. Incomco, Inc., 649 F.2d 128,

131 (2d Cir. 1981) (“The existence of factual disputes necessitates an evidentiary

hearing followed by the making of findings of fact and conclusions of law as required by

[Federal Rule of Civil Procedure] 52(a) before a motion for a preliminary injunction may

be decided.”). “An evidentiary hearing is not required,” however, “when the relevant

facts either are not in dispute . . . or when the disputed facts are amenable to complete

resolution on a paper record.” Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d

Cir. 1998) (citations omitted). Further, “[a] party may, of course, waive its right to an

evidentiary hearing.” Id.

Item 1 at ¶¶ 75-76. He “is currently employed as a Special Agent with the [U.S.

Department of State’s] Bureau of Diplomatic Security” and “serves as a Liaison Agent to

[the] Joint Terrorism Task Force” of the Federal Bureau of Investigation (“FBI”) in

Buffalo, New York. Id. at ¶¶ 79-80. He also “serves on protective details for senior U.S.

and foreign diplomats in the U[nited States] and abroad, including [in] high threat

environments, [and he] conducts advance security surveys and site assessments.” Id.

at ¶ 81.

In 2015—almost a decade ago—Susman was hospitalized at Erie County

Medical Center (“ECMC”)5 for several days after experiencing a mental health episode.

Id. at ¶¶ 103-08. Susman says that he “was experiencing suicidal ideations” and

“sought to discuss some personal issues with a counselor.” Id. at ¶¶ 103-04. He

therefore asked his wife to drive him to a hospital for an evaluation, and she did so. Id.

at ¶ 103. Susman stresses that he “had not . . . taken any steps to harm himself,” nor

In response to this Court’s questions at oral argument on February 11, 2025,

Sullivan stated that in her view, no hearing was required for the Court to rule on the

motion for a TRO and a preliminary injunction. In a letter filed shortly after oral

argument, Susman agreed, stating that he “joins [Sullivan’s] position that no factual

hearing is required to reach a determination on the merits of [the] motion for a

preliminary injunction, and requests that a final determination be made to allow

[Susman] to proceed to an appeal, if necessary.” Docket Item 25 at 1. Susman also

submitted a “citation to the federal NICS Indices.” See id.; Docket Item 25-1. For the

reasons stated in this decision and order, the Court agrees that a hearing is not

required: The parties do not dispute any material fact that would impact the Court’s

application of the law here.

5 Susman’s complaint does not name the facility, instead referring to it simply as

“the hospital[].” See Docket Item 1 at ¶ 108. But the medical records submitted under

seal by Sullivan clearly identify the hospital as ECMC, see Docket Item 23, and Susman

has not disputed the accuracy of those records.

did he have a plan to do so; in fact, he says, he has never taken any such steps. Id. at

¶¶ 104-05. Instead, he “simply sought to speak with someone.” Id. at ¶ 107.

Sullivan disputes some of this account, suggesting that Susman was in

considerably more distress than simply wanting to speak with someone. See Docket

Item 16 at 10; see also Docket Item 23. Nonetheless, both parties agree that Susman

was experiencing suicidal ideation and that he sought help from a hospital. And they

largely agree about what happened in connection with that hospital visit.

Susman “was observed and evaluated” in the “Comprehensive Psychiatric

Emergency Program” (“CPEP”) at the ECMC emergency room. Id. at ¶ 108. He then

was admitted under New York Mental Hygiene Law § 9.39;6 in his telling, he “voluntarily

admitted himself” to the CPEP. Docket Item 1 at ¶¶ 108-110. At no point was he ever

“adjudicated by any court or other formal body as being a ‘dangerous’ individual or

‘insane.’” Id. at ¶ 113. In fact, he was discharged from the hospital “[w]ithin days.” Id.

at ¶ 114.

Susman says that he was never “provided with any notice that, by voluntarily

admitting himself to [the] CPEP to speak with someone[,] he was forfeiting his Second

Amendment rights.” Id. at ¶ 116. And, he says, had he “known that New York would

terminate his Second Amendment rights simply because he voluntarily went to [ECMC]

to speak with someone, he never would have asked his wife to drive him there.” Id. at

6 In his complaint, Susman states that he was admitted under Mental Hygiene

Law section “9.39/9.40,” Docket Item 1 at ¶ 109, and notes that he refers to the two

sections “interchangeably,” see id. at ¶ 71 n.13. The medical records suggest that

Susman was admitted only under section 9.39, see Docket Item 23, and Susman’s reply

in support of his motion for a TRO and a preliminary injunction refers only to that

section, see Docket Item 21; see also Docket Item 16. So throughout this decision, this

Court, much like the parties, discusses only section 9.39.

¶ 117. But unbeknownst to Susman, ECMC reported his section 9.39 commitment to

OMH, which in turn reported the information to the FBI’s National Instant Criminal

Background Check System (“NICS”). Id. at ¶ 118. And according to Susman, “OMH

continues to report [Susman] to NICS . . . and other law enforcement agencies as a

‘prohibited person’” who cannot purchase a gun. Id. at ¶ 135.

Sullivan, for her part, disputes Susman’s contention that “OMH somehow

‘continues’ to transmit the information about his hospitalization.” Docket Item 16 at 22

n.2; Docket Item 16-1 at ¶ 34. According to the declaration Sullivan submitted from

Yacine Ounis, “an attorney in [OMH’s] Counsel’s Office,” ECMC submitted a record of

Susman’s section 9.39 “commitment to the Person-based Electronic Response Data

System, which resulted in an entry in [the] NICS [database].” Docket Item 16-1 at ¶¶ 1,

34. According to OMH, “[t]hat process is automatic and computerized; no OMH

representative took any action regarding [Susman,] . . . [n]or has OMH taken any action

since that time that had any bearing on [Susman’s] inclusion in the NICS database.” Id.

at ¶¶ 35-36.

But both sides agree about what happened next—the event that led to this

lawsuit. On November 22, 2024, almost a decade after his admission to ECMC,

Susman attempted “to purchase a firearm” from a federal firearms licensee—referred to

throughout this opinion as a firearms dealer—and so “underwent a NICS background

check.” Id. at ¶ 97. His purchase then “was denied by NICS.” Id. at ¶ 98.

Susman was entirely confused about why this transaction would be denied, and

so he promptly contacted the New York State Attorney General’s Office. Id. at ¶ 99.

That office informed him that he had been denied under 18 U.S.C. § 922(g)(4), “which

prohibits a person who has been adjudicated as a mental defective or has been

committed to a mental institution at 16 years of age or older from possessing a firearm.”

Id. at ¶ 100.

The Attorney General’s office also told Susman that “from [his] email,” it

“sound[ed] like” his admission had been “voluntary” and perhaps had been

“mischaracterized as involuntary.” Docket Item 5-3 at 2. It informed Susman that if that

was the case, he could submit identifying documents to OMH, which would confirm the

error. Id. “Upon confirmation, the records that triggered the denial w[ould then] be

removed from the federal NICS database.” Id.

In other words, the Attorney General’s office suggested that Susman try to fix the

problem administratively. Instead, he filed this lawsuit. See Docket Item 1. He also

moved for a TRO and a preliminary injunction, Docket Item 5, and the parties briefed

that motion as described above.

Susman says that he currently cannot carry or possess a gun without exposing

himself to criminal prosecution and that his inability to exercise his Second Amendment

rights jeopardizes both his job and his safety. Docket Item 1 at 26, ¶¶ 6-8.7 Indeed, in

his reply, Susman submitted an unsigned declaration stating that “because [he] cannot

perform [his] job duties unarmed, [he] ha[s] been forced to expend[] 160 hours of [his]

7 Susman attached a signed declaration to his complaint in which he attested to

these facts. Docket Item 1 at 25-27; see L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d

419, 422 (2d Cir. 2011) (“A complaint is . . . deemed to include any written instrument

attached to it as an exhibit, materials incorporated in it by reference, and documents

that, although not incorporated by reference, are integral to the complaint.” (internal

quotation marks omitted) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004))).

Because the declaration has its own paragraph numbering, the Court cites the

relevant page and paragraph number when referring to it.

annual leave time to date, which will continue until the leave time is exhausted . . . in

approximately 1-2 months’ time.”8 Docket Item 21-3 at ¶ 10. He further stated that “[a]s

part of [his] job duties, [he is] also required to qualify with [his] duty firearm on or before

February 22, 2025,” and that “[i]f [he] do[es] not qualify on or before that date, [he] will

be deemed not fit[ ]for[ ]duty and either terminated or forced to retire.” Id. at ¶ 9.

LEGAL PRINCIPLES

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“When the government is a party to the suit, [the court’s] inquiries into the public interest

and the balance of the equities merge.” We The Patriots USA, Inc. v. Hochul, 17 F.4th

266, 295 (2d Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021). “The standard for

issuance of a temporary restraining order is identical to that for issuance of a

preliminary injunction.” Bimber’s Delwood, Inc. v. James, 496 F. Supp. 3d 760, 771

(W.D.N.Y. 2020).

8 There is some contradiction between the assertions in Susman’s complaint and

motion for a TRO and a preliminary injunction, on the one hand, and his later filings, on

the other, about whether he continues to possess firearms. For instance, in his

complaint, he asserts that he “intend[s] to continue possessing [his] firearms,” noting

that “[c]arrying a firearm is an essential function of [his] employment.” Docket Item 1 at

26, ¶ 6; see Docket Item 5-4 at 14-15. His reply in support of his motion, however,

indicates that he has turned in his weapons due to his status as a prohibited person.

See Docket Item 21 at 18; Docket Item 21-3 at ¶¶ 9-10. Based on Susman’s

representations at oral argument and in his reply, it seems that he does not currently

possess any firearms.

“A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter, 555 U.S. at 24. In fact, preliminary injunctions “should not be routinely granted.”

Hanson Tr. PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985) (quoting Med. Soc. of

State of N.Y. v. Toia, 560 F.2d 535, 537 (2d Cir. 1977)). And “[w]hen deciding whether

to issue a preliminary injunction, courts ‘should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.’” We The Patriots

USA, Inc., 17 F.4th at 279 (quoting Winter, 555 U.S. at 24).

DISCUSSION

Assessing Susman’s claims here requires an understanding of the statutory

scheme at issue—a complex web of federal and state laws and regulations. The Court

therefore begins with a discussion of the background check system.

I. THE BACKGROUND CHECK SYSTEM

A. Federal Law and Regulations

For more than half a century, “[f]ederal law has . . . regulated sales by licensed

firearms dealers, principally to prevent guns from falling into the wrong hands.”

Abramski v. United States, 573 U.S. 169, 172 (2014). More specifically, under 18

U.S.C. § 922, individuals who fall into one of several enumerated categories are

prohibited from “possess[ing]” or “receiv[ing] any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.’” Id. § 922(g)(1)-(9). And the

same statute bars firearms dealers from selling or otherwise transferring guns to

individuals who they “know[] or hav[e] reasonable cause to believe” fall into a prohibited

category. Id. § 922(d)(1)-(9). Here, only one of the prohibited categories is relevant:

Section 922(g)(4) prohibits a person “who has been adjudicated as a mental defective

or who has been committed to a mental institution” from purchasing or possessing a

firearm, and section 922(d)(4) bars others from selling firearms to such an individual.

See id. § 922(d)(4), (g)(4).

In 1993, to better enable enforcement of its gun control laws, Congress enacted

the Brady Handgun Violence Prevention Act (“Brady Act”), which is codified at 18

U.S.C. § 922(t). See Robinson v. Sessions, 721 F. App’x 20, 21-22 (2d Cir. 2018)

(summary order). The Brady Act “require[d] the Attorney General to establish a national

instant background[ ]check system by November 30, 1998.” Printz v. United States,

521 U.S. 898, 902 (1997). The result was NICS, which refers to the system managed

by the FBI (or, more specifically, the FBI’s NICS Operations Center) that provides

information “on whether receipt of a firearm by a [particular person] . . . would violate

[f]ederal or state law.” 28 C.F.R. § 25.2; see Robinson, 721 F. App’x at 21-22.

Federal law and its related regulations spell out how NICS operates. First,

“before completing any sale, [a firearms] dealer must ‘verif[y] the identity of the

transferee by examining a valid identification document’ bearing a photograph.”

Abramski, 573 U.S. at 172 (second alteration in original) (quoting 18 U.S.C.

§ 922(t)(1)(C)). Each “prospective customer[ also] must complete . . . the [Bureau of

Alcohol, Tobacco, Firearms, and Explosives] Form 4473, which elicits personal

information and propounds questions to certify that the customer is qualified to possess

a firearm under the enumerated Brady Act factors.” Robinson, 721 F. App’x at 22 (citing

27 C.F.R. § 478.124; 28 C.F.R. § 25.7(a); 18 U.S.C. § 922(g)(1)-(9), (n)). The Brady

Act then requires9 that “the dealer . . . submit that information” for a NICS background

check “to determine whether the potential purchaser is for any reason disqualified from

owning a firearm.”10 Id. at 172-73 (quoting § 922(t)(1)(A)-(B)); see Gazzola v. Hochul,

88 F.4th 186, 200 (2d Cir. 2023), cert. denied, 144 S. Ct. 2659 (2024).

9 This requirement is subject to certain “limited exceptions.” See Abramski, 573

U.S. at 172 & n.1. More specifically, a NICS background check is not required if the

individual seeking to purchase a firearm “has presented . . . a permit” of a certain type; if

“an authorized government official has verified that the information available to [the]

official does not indicate that possession of a firearm” by the prospective buyer would

be unlawful; or if the Attorney General has otherwise signed off on the transaction. See

18 U.S.C. § 922(t)(3). Susman has not argued that any of those exceptions apply to

him, see Docket Items 1, 5-4, and 21; indeed, it is undisputed that Susman underwent a

NICS background check when he sought to obtain a gun in November 2024, and he has

not argued that was improper, Docket Item 1 at ¶¶ 97-102; see also Docket Items 5-4

and 21. Instead, his quarrel is with whether the record obtained through that

background check should have been in the NICS database. See, e.g., Docket Item 1 at

¶¶ 124-26; Docket Item 5-4 at 9.

10 Whom the dealer must contact to conduct a NICS background check depends

on the state where the transfer will be made. As the Second Circuit recently explained,

the default is that the FBI—and specifically the NICS Operations Center—performs the

check. 28 C.F.R. § 25.2; see Gazzola, 88 F.4th at 200. But federal regulations allow

states to “alternatively designate a ‘law enforcement agency’ as a point of contact . . . to

‘serv[e] as an intermediary between a[ firearms dealer] and the federal databases

checked by . . . NICS.’” Gazzola, 88 F.4th at 200 (quoting 28 C.F.R. § 25.2). New York

has designated the New York State Police as “a point of contact for NICS background

checks,” and state law “also directs the [New York] State Police to create a ‘statewide

firearms license and records database’ containing records provided by various other

state-level agencies, including” OMH. Id. at 201 (quoting N.Y. Exec. L. § 228(3)).

Under federal regulations, when a state designates one of its law enforcement

agencies as a “NICS point of contact,” that agency—rather than the NICS Operations

Center—“receive[s] NICS background check requests” from firearms dealers. 28 C.F.R.

§ 25.2; see Gazzola, 88 F.4th at 200-01. The agency then reaches out to NICS for the

system to search the federal databases. 28 C.F.R. § 25.6(d). Such an agency also

may “check state or local record systems” and then, based on the results of both

inquiries, “determine whether matching records provide information demonstrating that

an individual is disqualified from possessing a firearm under [f]ederal or state law, and

respond to [firearms dealers] with the results of a NICS background check.” 28 C.F.R.

§ 25.2; see Gazzola, 88 F.4th at 220.

In a NICS background check, the information from the customer is “compared

against [several] databases,” Robinson, 721 F. App’x at 22, including the NICS Index,

an FBI-managed database containing records from both state and federal agencies; the

National Crime Information Center database, a “nationwide computerized information

system of criminal justice data established by the FBI as a service to local, state, and

[f]ederal criminal justice agencies”; and the “Interstate Identification Index.” 28 C.F.R.

§§ 25.2 and 25.6; see Sedita v. United States, 2025 WL 387962, at *1 (D.D.C. Feb. 4,

2025) (stating that in a background check, “NICS searches relevant databases for any

records suggesting that the customer may be prohibited from acquiring a firearm under

federal or state law”). Based on the records that “match” the identifying information

provided, a transaction is either approved, delayed, or denied. See 25 C.F.R.

§ 25.6(c)(iv), (g)(2); see also Robinson, 721 F. App’x at 22.

The FBI maintains a “NICS Audit Log of all incoming and outgoing transactions

that pass through the system.” 28 C.F.R. § 25.9(b); see Sedita, 2025 WL 387962, at *2.

When a transaction is denied, the NICS Audit Log “retain[s]” all “records obtained or

created in the course of” the background check for ten years, “after which time

the[ records are] transferred to an appropriate FBI-maintained electronic database.” 28

C.F.R. § 25.9(b)(1)(i); see Sedita, 2025 WL 387962, at *2.

It is not clear on the current record whether the New York State Police served as

a point of contact in Susman’s case. See Docket Item 1. Regardless, Susman does

not say that OMH was involved in the NICS background check process other than by

providing his 2015 hospitalization record to NICS. And for the reasons discussed

below, see infra Section II.A.1, that is not enough to show that Susman has standing

here.

B. New York’s Role

While NICS is a creation of the federal government, it operates with assistance

from the states. Indeed, as noted above, the NICS Index includes records from both

federal and state agencies. See 28 C.F.R. § 25.2. That is by design: In 2007,

Congress passed the NICS Improvement Amendments Act, which aimed to make the

federal background check system more comprehensive, including by providing grants to

assist states in submitting all relevant records to NICS.11 See NICS Improvement

Amendments Act of 2007, Pub. L. 110-180, 122 Stat. 2559 (codified at 34 U.S.C.

§§ 40901-40903, 40911-40917, 40931, 40941); see also City of New York v. U.S. Dep’t

of Def., 913 F.3d 423, 428 (4th Cir. 2019); Montgomery v. Cuomo, 291 F. Supp. 3d 303,

315-16 (W.D.N.Y. 2018). To be eligible for the grant money, states also must have an

administrative process by which anyone barred under federal law from owning firearms

based on a mental health event may obtain a certificate of relief from firearm disabilities.

See NICS Improvement Amendments Act of 2007, § 105 (codified at 34 U.S.C.

§ 40915).

In response to the NICS Improvement Amendments Act, “New York State law

was amended to allow relevant mental health records to be made accessible to NICS.”

11 Congress passed the law in response to two mass shootings—including one at

the Virginia Polytechnic Institute and State University (“Virginia Tech”). See NICS

Improvement Amendments Act of 2007, Pub. L. 110-180, 122 Stat. 2559. In fact, the

congressional findings explicitly refer to the Virginia Tech shooting, “the deadliest

campus shooting in [U.S.] history.” Id. That event underscored, in Congress’s view,

“the need to improve information-sharing that would enable [f]ederal and [s]tate law

enforcement agencies to conduct complete background checks on potential firearms

purchases” because “[i]n spite of a proven history of mental illness, the shooter was

able to purchase the two firearms used in the shooting.” Id.

Montgomery, 291 F. Supp. 3d at 316. Section 7.09(j) of New York’s Mental Hygiene

Law—the statute that Susman challenges here—provides that

[t]he commissioner [of OMH], in cooperation with other applicable state

agencies, shall collect, retain or modify data or records, and shall transmit

such data or records: (i) to the division of criminal justice services, or to the

criminal justice information services division of the [FBI], for the purposes

of responding to queries to [NICS] regarding attempts to purchase or

otherwise take possession of firearms, as defined in 18 [U.S.C. §] 921(a)(3),

in accordance with applicable federal laws or regulations. . . . Such records,

which may not be used for any other purpose, shall include [the] names and

other non-clinical identifying information of persons who have been

involuntarily committed to a hospital pursuant to article nine of this chapter

[among other statutes].

N.Y. Mental Hyg. Law § 7.09(j)(1); see also Montgomery, 291 F.Supp.3d at 316

(explaining that section 7.09(j)(1) “gives OMH authorization to collect data, including the

‘names and other non-clinical identifying information of persons who [were] involuntarily

committed to a hospital,’ and to make such information available to queries from NICS”

(quoting N.Y. Mental Hyg. Law § 7.09(j)(1))).

In accordance with congressional requirements, section 7.09(j)(2) provides for a

relief from disabilities program. Houston v. Nassau Cnty. Police Dep’t, 2020 WL

7643132, at *3 (E.D.N.Y. Dec. 23, 2020) (“New York Mental Hygiene Law § 7.09 sets

forth a process for removing a name from the NICS list by seeking a certificate of relief

from disabilities, which is based on a determination as to whether the ‘person’s record

and reputation are such that such person will not be likely to act in a manner dangerous

to public safety and where the granting of the relief would not be contrary to public

safety.’” (quoting N.Y. Mental Hyg. Law § 7.09)).

The last parts of the relevant legal scheme are the New York regulatory code

sections that implement section 7.09(j). As relevant to this lawsuit, rule 543 essentially

reiterates section 7.09(j)’s directive about mental health records, explaining that section

7.09(j) “authorizes [OMH] to collect, retain, modify[,] or transmit data or records for

inclusion in . . . NICS . . . for the purpose of responding to NICS queries regarding

attempts to purchase or otherwise take possession of firearms.” 14 N.Y. Comp. Codes

R. & Regs. § 543.1(c). The rule further notes that “[t]he records which [OMH] is

authorized by law to collect, retain, modify, or transmit are expressly limited to persons

who have been involuntarily committed pursuant to article 9 or 10 of the Mental Hygiene

Law” or under several other statutes not relevant here. Id. Other regulations “establish

the required administrative ‘certificate of relief from disabilities’ process.” See id.

§ 543.1(d); id. §§ 543.2-543.6.

II. MOTION FOR A TRO AND PRELIMINARY INJUNCTION

Having surveyed the legal context of this dispute, the Court now addresses the

Winter factors. Winter, 555 U.S. at 20.

A. Likelihood of Success on the Merits

Sullivan says that Susman cannot show a likelihood of success on his Second

Amendment claims because this Court lacks jurisdiction over those claims. See Docket

Item 16 at 19-27. More specifically, she argues that Susman lacks standing and that

the Eleventh Amendment bars his claims.12 Id. at 19-23. Susman contests those

arguments, see Docket Item 21 at 14-15, and the Court therefore reviews each in turn.

12 Sullivan also argues that this Court cannot exercise jurisdiction over Susman’s

claims based on his failure to use the relief from disabilities process. See Docket Item

16 at 23-27. Because Congress intended that relief to be “exclusive,” she says,

Susman cannot bring a section 1983 suit, and, even if he could, his failure to seek

administrative relief would render his lawsuit unripe. See id. She further argues that

even if this Court could exercise jurisdiction, Susman “cannot demonstrate a clear

likelihood of success on [the merits of] his Second Amendment claim[s].” See id. at 27-

41 (bold omitted). Because this Court lacks jurisdiction over Susman’s claims on

1. Standing

Article III of the United States Constitution limits the jurisdiction of federal courts

to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “For there to be a case or

controversy under Article III, the plaintiff must have a ‘personal stake’ in the case—in

other words, standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting

Raines v. Byrd, 521 U.S. 811, 819 (1997)). As the Second Circuit recently has

explained, “[t]he doctrine of standing gives meaning to the[] constitutional limits, by

requiring a plaintiff to allege such a personal stake in the outcome of the controversy as

to warrant his invocation of federal[ ]court jurisdiction and to justify exercise of the

court’s remedial powers on his behalf.” Antonyuk v. James, 120 F.4th 941, 976 (2d Cir.

2024) (some internal quotation marks omitted) (quoting Knife Rights, Inc. v. Vance, 802

F.3d 377, 383 (2d Cir. 2015)); see also TransUnion, 594 U.S. at 430-31 (stating that

the plaintiff—“[a]s the party invoking federal jurisdiction”—“bear[s] the burden of

demonstrating . . . standing”).

“[T]o establish standing, a plaintiff must show” three things: “(i) that he suffered

an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury

was likely caused by the defendant; and (iii) that the injury would likely be redressed by

judicial relief.” TransUnion, 594 U.S. at 423 (citing Lujan v. Defs. of Wildlife, 504 U.S.

555, 560-561 (1992)). Only the second and third elements are at issue here.

To show the second element, sometimes called “traceability,” “the plaintiff must

‘demonstrate a causal nexus between the defendant’s conduct and the injury.’”

standing and sovereign immunity grounds, at least as to his motion for a TRO and a

preliminary injunction, see infra, it need not and does not reach any of those arguments.

Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Heldman v. Sobol, 962

F.2d 148, 156 (2d Cir.1992)); see also Dep’t of Educ. v. Brown, 600 U.S. 551, 561

(2023) (holding that for plaintiff’s injury to “be ‘fairly traceable to the challenged action of

the defendant,’ . . . ‘there must be a causal connection between the injury and the

conduct complained of’” (quoting Lujan, 504 U.S. at 561)). The required nexus is

something “lower than that of proximate cause.” Rothstein, 708 F.3d at 91. Indeed, an

“indirect[]” relationship between the injury and the challenged conduct does not

necessarily mean that the plaintiff lacks standing, although it may make the showing

required “substantially more difficult.” Id. (quoting Simon v. E. Kentucky Welfare Rts.

Org., 426 U.S. 26, 44-45 (1976)).

At the same time, there is a floor: An injury is not “fairly traceable” if it is “the

result of the independent action of some third party not before the court.” Bennett v.

Spear, 520 U.S. 154, 167 (1997). As the Supreme Court has held, in cases challenging

a statute’s constitutionality, the plaintiff must “assert an injury that is the result of a

statute’s actual or threatened enforcement, whether today or in the future.” See

California v. Texas, 593 U.S. 659, 670-71 (2021) (collecting cases). And courts have

frequently found that an injury was not “fairly traceable” to the conduct of a defendant

who did not enforce the statute causing the alleged injury. See Elias Bochner, 287 7th

Ave. Realty LLC v. City of New York, 118 F.4th 505, 526 (2d Cir. 2024) (plaintiffs lacked

standing when there was no risk that the defendant, New York City, would enforce the

challenged statute against them); Bldg. & Realty Inst. of Westchester & Putnam Cntys.,

Inc. v. New York, 2021 WL 4198332, at *12 (S.D.N.Y. Sept. 14, 2021) (holding that

plaintiffs failed to show that injuries caused by allegedly unconstitutional statute were

“fairly traceable” to New York City because the City did “not enforce” the law—a state

statute—“and thus could not possibly cause any [of plaintiffs’ alleged] injuries”), aff’d,

2024 WL 1061142 (2d Cir. Mar. 12, 2024) (summary order).

The third element, called “redressability,” refers to “a non-speculative likelihood

that the injury can be remedied by the requested relief.” W.R. Huff Asset Mgmt. Co.,

LLC v. Deloitte & Touche LLP, 549 F.3d 100, 107 (2d Cir. 2008). “There is no

redressability where such depends on an independent actor who retains ‘broad and

legitimate discretion [that] the courts cannot presume either to control or to predict.’”

Neary v. Weichert, 489 F. Supp. 3d 55, 67 (E.D.N.Y. 2020) (quoting ASARCO, Inc. v.

Kadish, 490 U.S. 605, 615 (1989)); see also California, 593 U.S. at 673 (plaintiffs had

no standing to assert claims against Secretary of Health and Human Services “because

he ha[d] no power to enforce [challenged law] against them” and thus could not be

enjoined from doing so).

a. Required showing

The plaintiff’s burden to establish standing changes depending on the stage of

the litigation. See Do No Harm v. Pfizer Inc., 126 F.4th 109, 119 (2d Cir. 2025) (“As

with any other matter on which the plaintiff bears the burden of proof, each element of

standing must be supported ‘with the manner and degree of evidence required at the

successive stages of the litigation.’” (quoting Lujan, 504 U.S. at 561)); Cacchillo v.

Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011). “At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may suffice, for on a motion

to dismiss we presume that general allegations embrace those specific facts that are

necessary to support the claim.” Elias Bochner, 118 F.4th at 518-19 (quoting Lujan,

504 U.S. at 561). In contrast, “[t]he evidentiary burden for establishing Article III

standing for the purposes of a motion for a preliminary injunction is at least as onerous

as the burden for establishing standing to secure a summary judgment.” Do No Harm,

126 F.4th at 113-14. Thus, “to establish standing for a preliminary injunction, ‘a plaintiff

cannot rest on such mere allegations as would be appropriate at the pleading stage but

must set forth by affidavit or other evidence specific facts, which for purposes of the

summary judgment motion will be taken to be true.’” Id. at 119 (quoting Cacchillo, 638

F.3d at 404).

b. Susman’s showing

Susman undoubtedly has suffered an “injury in fact” here: His attempt to

purchase a gun was denied after a NICS background check found that he was

prohibited from doing so under section 922(g)(4) based on his 2015 hospitalization.

See Docket Item 1 at ¶¶ 97-98, 100. As a result of that prohibition, Susman cannot

legally carry weapons, which he is required to do for his job as a federal law

enforcement officer; what is more, if he continued to carry weapons, he would be

exposing himself to “criminal penalties.” Id. at 26-27, ¶¶ 8-9.

Thus, Susman’s inability to purchase or carry weapons is certainly an injury, one

that he says impairs his ability both to work at his current job and to protect himself.

See id. at 26, ¶¶ 6-8. In addition, the unsigned declaration he attached to his reply says

that “[i]f [he] do[es] not qualify” with his duty firearm “on or before” February 22, 2025,

he “will be deemed not fit[ ]for[ ]duty and either terminated or forced to retire.” Docket

Item 21-3 at ¶ 9.

Sullivan does not contest that Susman has suffered an injury in fact.13 Instead,

she says that Susman has failed to establish the second and third standing elements—

namely, traceability and redressability. Docket Item 16 at 21-22. That is, she says that

Susman has not shown that “any of his alleged Second Amendment injuries are

traceable to OMH,” or that those injuries would be redressed “if [this Court] grant[ed]”

his requested relief. See id.

Susman counters that his injuries are directly traceable to OMH and would be

redressed if this Court enjoined Sullivan—the commissioner of the agency—from

enforcing section 7.09(j) and rule 543 against him. See Docket Item 21 at 14-15.

Indeed, Susman’s complaint asserts that the sole cause of his disarmament is OMH’s

report to NICS about his 2015 hospitalization. See, e.g., Docket Item 1 at ¶¶ 143-44; id.

at 26 ¶ 8 (Susman’s statement that “[d]efendant’s enforcement of the challenged

regulations exposes [him] to federal and state criminal penalties, prevents [him] from

acquiring new firearms, and prevents [him] from possessing and carrying firearms for

self-defense”). But such assertions—even if expressed in the guise of factual

allegations—are nothing more than legal conclusions, which this Court has no obligation

to accept. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court

13 Sullivan argues that “until [Susman] makes an application [for a certificate of

relief] and has it denied, he lacks standing to sue,” because otherwise, he has not

“‘submit[ted] to the challenged policy.’” See Docket Item 16 at 20-21 (quoting United

States v. Decastro, 682 F.3d 160, 164 (2d Cir. 2012)). Such arguments are relevant to

the first standing requirement: whether a plaintiff has proven that the alleged injury is

sufficiently concrete and actual. See id. But Sullivan does not contest the fact that

Susman cannot legally carry a weapon and that his inability to do so currently impacts

his ability to perform his job. See generally id. In any event, because this Court finds

that Susman has not met the second and third prongs of the standing requirements, the

Court need not and does not address Sullivan’s alternative argument that Susman was

required first to pursue a certificate of relief to establish standing.

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.”); Papasan v. Allain, 478 U.S. 265, 286 (1986) (“[Courts] are not bound to

accept as true a legal conclusion couched as a factual allegation.”). And, in fact, this

Court cannot accept those legal conclusions here because they are simply incorrect.

Susman’s theory seems to be that if OMH ceased to “enforce” section 7.09(j)

against him, any bar to his ability to possess firearms would be removed. But that is not

accurate for several reasons.

For one thing, this Court has no reason to believe that any action that OMH takes

now with respect to Susman’s hospitalization record will impact the FBI’s knowledge of

that record. As Sullivan points out, OMH already submitted the record to NICS some

nine and a half years ago. So it is not clear that Sullivan is doing anything to enforce

the statute against Susman at this time.

True, Susman asserts something somewhat different: that OMH “only recently

beg[a]n to report” him and that it “continues” to do so. Docket Item 1 at ¶¶ 123, 135.

But the basis for those assertions is suspect at best. Susman seems to suggest that

this report must be recent because he has “successfully undergone federal high-level

security clearance background checks, without incident” in the past, see id. at ¶ 122,

although it is not apparent to this Court why such checks would necessarily involve the

same criteria or databases as the NICS background check. And Susman provides no

factual basis for his bald assertion that “OMH continues to report [him] to NICS,” id. at

¶ 135, an assertion that Sullivan contests, see Docket Item 16-1 at ¶ 36.

Even if this Court were to accept Susman’s assertion that OMH continues to

transmit the record of his hospitalization and thus that its “enforcement” of the statute is

ongoing, it is undisputed that Susman’s attempt to purchase a weapon was denied in

November 2024 following a NICS background check. Id. at ¶ 97. Thus, under federal

regulations, NICS has a record of that denied transaction and all related records in the

NICS Audit Log, which is separate from the NICS database to which states contribute.

28 C.F.R. § 25.9(a), (b)(1)(i); Sedita, 2025 WL 387962, at *2. So even if OMH’s

transmission of the record to NICS is continuous—and even if this Court ordered it to

stop—there is no basis for this Court to conclude that would prevent the FBI from

accessing those records of denied transactions in the NICS Audit Log. See 28 C.F.R. §

25.9(a), (b)(1)(i).

In addition, and aside from any of the specifics about how NICS operates,

section 7.09(j) is a reporting statute; by its own terms, it imposes no criminal penalties

and no proscriptions. See N.Y. Mental Hyg. Law § 7.09(j)(1). On the contrary, it simply

authorizes the transfer of records to NICS. Id. And rule 543 merely reiterates that

directive. See 14 N.Y. Comp. Codes R. & Regs. § 543.1(c).

In other words, neither section 7.09(j) nor rule 543 bars anyone from purchasing

or possessing a weapon. To argue otherwise is to confuse the whistleblower with the

prosecutor, the person who calls in a tip with the arresting officer. Indeed, Susman

implicitly admits that a federal law—section 922(g)(4)—rather than section 7.09(j) is to

blame for his predicament.14 See, e.g., Docket Item 1 at ¶ 100 (stating that Susman

14 Following oral argument, Susman submitted a letter in further support of his

argument that this Court could order Sullivan to “change . . . or cancel” information in

the NICS database and included a “citation to the federal NICS Indices.” Docket Item

25 at 1; see also Docket Item 25-1. But the letter itself, quoting the indices, described

NICS as “contain[ing] information on people who are prohibited from receiving firearms

by federal or state law” and further stated that the “information helps the FBI make sure

firearms are not sold or transferred to people who are prohibited from receiving them.”

was informed that his transaction was denied under section 922(g)(4)); Docket Item 5-4

at 15 (stating that Susman is subject to prosecution under section 922(g)(4) based on

OMH’s reporting).

It is true, of course, that had OMH never transferred the record of Susman’s

commitment, NICS might never have flagged Susman, and no one may ever have

identified his 2015 hospitalization as disqualifying. Seen in that light, OMH’s

transmission of the record would be a but-for cause of Susman’s injury. But the Second

Circuit has stated that for purposes of standing, showing that an injury is fairly traceable

“requires more than mere ‘but[-]for’ causation.” Pettus v. Morgenthau, 554 F.3d 293,

299 n.1 (2d Cir. 2009). So the fact that Susman might not have been flagged would

not—without more—be enough here.

Further, and even more important, OMH’s report is not even a but-for cause of

Susman’s possession of firearms being illegal. Instead, Susman’s injury is the result of

“the independent action of [a] third party not before the court”—namely, the federal

government—and therefore not traceable to Sullivan. See Bennett, 520 U.S. at 167.

That is, because section 7.09(j) is only a reporting statute that authorizes the transfer of

records to NICS, it has no effect on what is actually illegal—as opposed to what is

flagged as being illegal. Put still another way, NICS is a tool designed to flag unlawful

transactions and thus to “prevent guns from falling into the wrong hands.” See

Abramski, 573 U.S. at 172-73. But the mere fact that someone has passed a NICS

Docket Item 25 at 1 (emphasis added) (citation omitted). So even based on Susman’s

own submission, there is no reason for this Court to believe that altering or cancelling

the record here will change the fact that the federal government—and not OMH—

enforces section 922(g).

background check does not mean that the person’s possession of a weapon is, in fact,

legal. Indeed, individuals barred under federal law from accessing weapons have

nonetheless been cleared to purchase weapons through NICS, sometimes with

devastating consequences. See, e.g., supra note 11.

In other words, section 922(g), a federal statute, is the cause of Susman’s injury

and would continue to apply regardless of this Court’s disposition of the motion here. It

is undisputed that Susman was admitted to the hospital in 2015 under section 9.39, see

supra note 6; and whether or not that admission precludes his possessing a weapon

under federal law may be a question worth litigating. But the answer to that question is

irrelevant to Susman’s claim here.

The crux of Susman’s argument is that OMH is “falsely reporting him to . . . NICS

. . . as a prohibited person” based on his 2015 commitment under section 9.39. See,

e.g., Docket Item 5-4 at 15. But by “falsely reporting,” Susman does not mean that

OMH is erroneously reporting that he was committed under section 9.39 when in fact he

was not. If that were his claim, he might indeed be entitled to relief: As Sullivan points

out, if an agency provides an incorrect record to NICS and then “refuses to correct the

information, the individual may sue for an order directing correction of the erroneous

information” under 18 U.S.C. § 925A.15 Docket Item 16 at 15. But Susman did not

bring this case under section 925A, see Docket Item 1, and he does not claim that he

was not committed under section 9.39, see id. at ¶ 109.

15 This Court expresses no opinion on whether such a challenge would be ripe on

the record here.

Instead, Susman’s real argument is with the interpretation of section 922(g)(4)

under federal law as it intersects with section 9.39. The former makes it unlawful for

anyone “who has been adjudicated as a mental defective or who has been committed to

a mental institution” to possess or purchase a firearm. 18 U.S.C. § 922(g)(4). And the

statute’s implementing regulations define being “[c]ommitted to a mental institution” as

involving:

[a] formal commitment of a person to a mental institution by a court, board,

commission, or other lawful authority. The term includes a commitment to

a mental institution involuntarily. The term includes commitment for mental

defectiveness or mental illness. It also includes commitments for other

reasons, such as for drug use. The term does not include a person in a

mental institution for observation or a voluntary admission to a mental

institution.

27 C.F.R. § 478.11.

New York Mental Hygiene Law section 9.39, in turn, provides:

The director of any hospital maintaining adequate staff and facilities for the

observation, examination, care, and treatment of persons alleged to be

mentally ill and approved by the commissioner to receive and retain patients

pursuant to this section may receive and retain therein as a patient for a

period of fifteen days any person alleged to have a mental illness for which

immediate observation, care, and treatment in a hospital is appropriate and

which is likely to result in serious harm to himself or others.

N.Y. Mental Hyg. Law § 9.39(a). The law defines a “[l]ikelihood to result in serious

harm” as meaning either:

1. substantial risk of physical harm to himself as manifested by threats of or

attempts at suicide or serious bodily harm or other conduct demonstrating

that he is dangerous to himself, or

2. a substantial risk of physical harm to other persons as manifested by

homicidal or other violent behavior by which others are placed in reasonable

fear of serious physical harm.

Id. And courts have repeatedly held that commitments under section 9.39 are

involuntary as a matter of law. See, e.g., Montgomery, 291 F. Supp. 3d at 311-12

(stating that section 9.39 provides for “involuntary admission,” in contrast to other

sections of the Mental Hygiene Law that provide for voluntary admission); R.M. v. C.M.,

226 A.D.3d 153, 160, 207 N.Y.S.3d 634, 640 (2d Dep’t 2024) (stating that section 9.39

“permits the emergency involuntary commitment” of certain individuals); Colihan v.

State, 211 A.D.3d 1432, 1436, 181 N.Y.S.3d 359, 363 (3d Dep’t 2022) (rejecting “any

claim that petitioner’s . . . admission [under section 9.39] was not an involuntary

commitment within the meaning of federal law” and noting that “[c]ourts have

consistently understood Mental Hygiene Law [section] 9.39 to be one of the several

sections of that law that authorize involuntary civil commitment” (collecting cases)).

Susman protests that he “voluntarily” consented to a section 9.39 commitment,

but that is of no moment: As one court has explained, the fact that a particular

individual “may have been cooperative with the admission process . . . does not render

a[ section 9.39] admission ‘voluntary’” under section 922(g). See Colihan, 211 A.D.3d

at 1437; see also Escamilla v. United States, 62 F.4th 367, 373 (7th Cir. 2023) (rejecting

plaintiff’s argument that “his admission [under section 9.39] was voluntary because he

wanted to be there and never tried to leave” and stating that “whatever [plaintiff’s]

subjective intentions were at the time, his admission was still involuntary under New

York law”). So under the plain language of section 922(g)(4) and its implementing

regulations, a section 9.39 admission is disqualifying under federal law. And there is

nothing that this Court can do to change that.

In fact, the Second Circuit already has found that a commitment under section

9.39 is an involuntary commitment under section 922(g)(4) and that such a commitment

disqualifies an individual from purchasing a gun under federal law. See Phelps v.

Bosco, 711 F. App’x 63, 64 (2d Cir. 2018) (summary order).16 And the Seventh Circuit

reached the same conclusion in Escamilla, rejecting the plaintiff’s argument that his

commitment in a New York hospital under section 9.39 was not a commitment under

section 922(g)(4). See 62 F.4th at 374-75.

Susman tries to distinguish Phelps by noting that the case “involved no

constitutional challenge.” Docket Item 21 at 13. And he says that consistent with the

Second Amendment, section 922(g) “cannot be read to encompass” commitments

under section 9.39, which do not involve “an adjudication that an individual has a mental

illness or is a violent person.” Id. at 9, 11-13 (emphases omitted). It is true that the

plaintiff in Phelps “did not raise a constitutional challenge to [New York officials’]

conduct on appeal.” Phelps, 711 F. App’x at 65. Moreover—as Susman also notes,

Docket Item 21 at 13—the Second Circuit observed that “[s]uch a [constitutional]

challenge would present complex issues, whether under the Second Amendment or the

Due Process Clause.” Phelps, 711 F. App’x at 65. Indeed, the court explicitly noted

that it “d[id] not consider whether . . . concern for these constitutional rights might

change [its] interpretation of the word ‘commitment’ under New York’s scheme.”17 Id.

The problem for Susman is that none of this makes his injury any more

“traceable” to Sullivan or OMH. For one thing, Phelps involved a challenge to both state

and federal defendants: The plaintiff in that case sued, among others, the U.S. attorney

16 Although Phelps is a non-precedential summary order, the parties do not cite—

nor has this Court found—any other Second Circuit decisions directly on point.

17 Elsewhere, however, the Second Circuit has “held that section 9.39 facially

satisfies Fourteenth Amendment due process requirements.” Olivier v. Robert L.

Yeager Mental Health Ctr., 398 F.3d 183, 188 (2d Cir. 2005).

general and the FBI director. See Phelps, 711 F. App’x at 63. In other words, the

plaintiff in Phelps challenged the way that both section 922(g)(4) and section 9.39—a

federal statute and a state one—were being applied to him, see id., while Susman

challenges only OMH’s transferring a record of his section 9.39 commitment. And even

if this Court barred the agency from transmitting that record—indeed, even if this Court

could reverse time and prevent that record from having ever been transmitted to

NICS—that would not change the fact that Susman’s section 9.39 commitment renders

him ineligible to purchase a gun under federal law. See id. at 64; Escamilla, 62 F.4th at

374-75; cf. United States v. Waters, 23 F.3d 29, 34-36 (2d Cir. 1994).18 Absent a

constitutional challenge to the application of section 922(g)(4)—which Susman does not

make,19 see Docket Items 5-4 and 21—this Court is unable to give him the relief that he

seeks.

The fact that Susman could seek a certificate of relief from disability through a

state process does not change this analysis. Federal law provides that if a state grants

18 In Waters, the Second Circuit held that an “involuntary admission” under

section 9.27 of the New York Mental Hygiene Law “constitute[d] a ‘commitment’ within

the meaning of 18 U.S.C. § 922(g)(4).” 23 F.3d at 36. The court rejected the

defendant’s argument that because he was hospitalized under section 9.27 without “any

formal judicial ‘commitment’ or adjudication of mental illness,” he could not be convicted

of violating section 922(g)(4). See id. at 34. While Susman’s case involves a

hospitalization under a different section of the Mental Hygiene Law—section 9.39,

rather than 9.27—he makes a very similar argument. Docket Item 21 at 9, 11. The

court’s decision in Phelps relied heavily on Waters. See Phelps, 711 F. App’x at 64-65

(“Although that decision dealt with involuntary hospitalization under [s]ection 9.27 and

we deal with [s]ection 9.39 here, Waters provides all the guidance we need.”). And this

Court sees no reason not to find it equally persuasive here.

19 As Sullivan points out, if Susman had raised such a constitutional challenge to

section 922(g), “he would have been required to provide notice to the United States

Attorney General and an opportunity for the United States to intervene.” Docket Item 16

at 27 n.5 (citing Fed. R. Civ. P. 5.1(a)). He did not do so.

“an application for relief” under a certificate of relief from disability program “with respect

to an adjudication or a commitment to a mental institution . . . the adjudication or

commitment, as the case may be, is deemed not to have occurred for purposes of

subsections (d)(4) and (g)(4) of section 922 of Title 18.” 34 U.S.C. § 40915. In other

words, if relief is granted through this state process—which Susman thus far has

declined to pursue—then federal law provides that section 922(g)(4) no longer applies.

But the state has no free-floating power to otherwise determine the correct interpretation

of section 922(g)(4), much less how it will be enforced.

So Susman’s injury is not traceable to OMH and Sullivan: As a matter of law, the

statute that is inflicting Susman’s injury is section 922(g)(4). And for similar reasons, his

injury is not redressable by this Court. Regardless of what the Court orders OMH to do,

Susman will not be able to purchase and possess a firearm legally absent some action

by the federal government or a change to the interpretation of federal law in this circuit.

Courts have reached the same conclusion in similar cases. For instance, in

Mahoney v. United States Department of the Interior, 682 F. Supp. 3d 265 (E.D.N.Y.

2023), the plaintiffs sued several agencies to “halt construction” on a project near their

homes, claiming that “onshore trenching” for the project would “worsen . . .

contamination in their groundwater.” Id. at 266-67. The plaintiffs argued that their

injuries were sufficiently traceable to the federal defendants—despite the fact that the

project was being carried out by a separate entity—because the “trenching . . . would

not occur without [the federal d]efendants’ approval of the” project. Id. at 269-71.

Because none of the federal agencies had jurisdiction over the place and manner of the

trenching, however, the court found that their actions in approving certain permits

related to the project was “too attenuated from the location and manner of onshore

trenching to be fairly traceable to [the p]laintiffs’ alleged injuries,” and it therefore

dismissed the claims against those defendants for lack of standing. See id. at 271; see

also Elias Bochner, 118 F.4th at 526.

Similarly, Susman has failed to establish standing here, at least with respect to

his request for a preliminary injunction. Indeed, he certainly has failed to meet the

demanding standard applicable on motions for a preliminary injunction, and even his

complaint’s factual allegations—accepted as true—appear not to establish standing.

The Court therefore denies Susman’s motion for a TRO and preliminary injunction

because he lacks standing on his Second Amendment claims.

2. Eleventh Amendment

Sullivan argues that Susman’s Second Amendment claims must be dismissed

because she is entitled to state sovereign immunity. Docket Item 16 at 22-23. And for

some of the same reasons discussed in this Court’s analysis of standing, the Court

agrees. Thus, the Eleventh Amendment provides an alternative basis for denying

Susman’s motion.

“The Eleventh Amendment shields states and their agencies, departments, and

officials in their official capacities from suit in federal court.” Gianni v. Kopp, 2011 WL

5080195, at *2 (N.D.N.Y. Oct. 26, 2011) (citing Papasan, 478 U.S. at 276). In Ex parte

Young, 209 U.S. 123 (1908), the Supreme Court recognized a narrow exception to state

sovereign immunity in cases in which “a state official is sued in her official capacity for

prospective injunctive relief.” Gianni, 2011 WL 5080195, at *2. But the requested

injunction must remedy that plaintiff’s injury. And because there appears to be no

prospective relief that this Court can provide to remedy Susman’s injury here, his claims

against Sullivan likely are barred by sovereign immunity.

A case from the Tenth Circuit is illustrative. In Peterson v. Martinez, 707 F.3d

1197 (10th Cir. 2013), the plaintiff sued state officials based on the denial of his

application for a concealed handgun license in Colorado. Id. at 1201. Colorado law

generally permitted only state residents to obtain such licenses but included an

exception for residents of any state that had a reciprocity agreement with Colorado. Id.

at 1202. The plaintiff sued, in addition to a sheriff, the executive director of Colorado’s

Department of Public Safety, arguing that the executive director “maintain[ed] a

database of states with which Colorado maintains reciprocity.” Id. at 1206. But the

Tenth Circuit dismissed that claim because under the statutory scheme, only Colorado

sheriffs had the ability to enforce the provisions of the license law. Id. In doing so, the

court noted that while the executive director’s “maintenance of a database may provide

a convenient source for sheriffs seeking information relevant to . . . reciprocity, . . . Ex

parte Young require[d] a nexus between the defendant and enforcement of the

challenged statute.” Id. (emphasis and internal quotation marks omitted). The court

therefore dismissed the claims against the executive director on sovereign immunity

grounds. Id. at 1206-07; see also Whole Woman’s Health v. Jackson, 595 U.S. 30, 35-

45 (2021) (state court judge and state court clerk were entitled to sovereign immunity in

case challenging constitutionality of Texas statute that allowed private citizens to bring

civil suits against those who provided abortions because neither of those defendants

enforced the challenged statute against plaintiffs).

The same logic would appear to apply here. Indeed, Susman seems to have

failed to establish—even on the allegations of his complaint—that either Sullivan or

OMH enforce the law that bars him from accessing firearms. But Sullivan has not

moved for dismissal, instead raising the argument as part of her opposition to Susman’s

motions for a TRO and a preliminary injunction. So while this Court might be inclined to

grant such a motion, it declines to decide issues other than those raised by the motions

before it.

B. Other Factors

Because this Court finds that Susman lacks standing, it denies his motion for a

TRO and a preliminary injunction, and it need not address the remaining Winter factors.

See Rojas v. Cigna Health & Life Ins. Co., 793 F.3d 253, 259 (2d Cir. 2015) (holding

that because plaintiff “lacked standing,” court “need not address the [remaining] factors

to be considered in deciding whether to award a preliminary injunction”).

The Court notes, however, that even if Susman had standing here, this Court

would have reservations about whether he had shown “irreparable harm” in light of his

failure to seek relief through the administrative avenues available to him, even in

tandem with this lawsuit. At oral argument, Susman cited red tape as his reason for not

taking that route, noting the delays inherent in the administrative process and stating

that it would likely take at least four months for him to obtain relief through that avenue.

But it now has been nearly three months since Susman’s attempt to purchase a firearm

was denied, see Docket Item 1 at ¶ 97, and Susman “does not explain why he could not

have used those same three months to exhaust” or at least make use of “the

administrative procedures” available to him. See Rosenberg v. Pliler, 2021 WL

6014938, at *3-4 (S.D.N.Y. Dec. 20, 2021) (addressing whether habeas petitioner had

shown that possibility of “irreparable harm” excused his failure to exhaust his

administrative remedies). And so while Susman’s failure to use those procedures does

not necessarily divest this Court of jurisdiction over his claims—a question this Court

does not reach—his failure to pursue the avenues of recourse available to him does at

least undercut his argument of irreparable harm.

CONCLUSION

In light of Susman’s employment history, he has a strong argument that he ought

to be able to possess a weapon. And he certainly may make that argument in another

case challenging the statute that causes his injury, namely, section 922(g)(4). Perhaps

he even can amend his complaint to establish standing on this Second Amendment

claim here, although this Court is hard-pressed to see how that is possible.

But regardless of all that, it is clear to this Court that Susman has not established

standing sufficient to be entitled to a TRO or preliminary injunction. Susman’s motion

for a TRO and a preliminary injunction, Docket Item 5, is DENIED. His motion to

expedite, Docket Item 6, is DENIED as moot. By separate order, the Court will refer the

case to a magistrate judge to proceed to discovery.

SO ORDERED.

Dated: February 21, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE