Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 6, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court ERIC S. CLARK,
Plaintiff - Appellant,
v. No. 24-3088 (D.C. No. 2:23-CV-02170-JAR-RES) MERRICK GARLAND, United States (D. Kan.) Attorney General, in both his official and individual capacities; (FNU) (LNU), unknown Government Agent #1, in individual capacity; (FNU) (LNU), Unknown Government Agent #2, in individual capacity; (FNU) (LNU), Unknown Government Agent #3, in individual capacity; (FNU) (LNU), Unknown Government Agent #4, in individual capacity; (FNU) (LNU), Unknown Government Agent #5, in individual capacity; (FNU) (LNU), Unknown Government Agent #6, in individual capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT* _________________________________
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 2
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.** _________________________________
Pro se Plaintiff Eric S. Clark sued Attorney General Merrick Garland and six
unknown government agents, alleging that 18 U.S.C. § 922 (and particularly
§§ 922(g)(3), (k), and (t)) violate the Second Amendment facially and as applied to him.
He sought damages, a declaratory judgment, and injunctive relief. The United States
District Court for the District of Kansas dismissed the action for lack of subject-matter
jurisdiction because Mr. Clark failed to show he had standing to pursue his requested
relief. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Clark is a convicted felon whose rights were restored in 2013. See Clark v.
Garland, Case No. 23-2170-JAR-RES, 2024 WL 167357, at *2 (D. Kan. Jan. 16, 2024).
He has tried to purchase firearms from various federal firearms licensees but his
background checks were often denied or delayed. See id. In 2021 the Federal Bureau of
Investigation (FBI) informed him that he could apply to the Voluntary Appeal File
(VAF)—“a separate procedure” designed to “prevent future extended delays or erroneous
denials during the background check process.” Id.
Mr. Clark’s complaint alleged that (1) because of injuries from an accident, he
** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Page 2 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 3
“intends to use marijuana for potential pain relief in the future,” in violation of 18 U.S.C.
§ 922(g)(3), Aplt. App. at 18; (2) that he “has intent to engage in conduct of restoring a
rusty firearm . . . that will require [him] to remove or alter or obliterate” the firearm’s
serial number, in violation of 18 U.S.C. § 922(k), Aplt. App. at 25; and (3) that he would
“attempt to exercise [his] right to purchase lawful firearms more frequently but for the
near certainty of that exercise being futile because of the enforcement of 18 U.S.C.
§ 922(t),” Aplt. App. at 24. As relief, Mr. Clark sought nominal and compensatory
damages; a declaration stating that the challenged statutes violate the Second
Amendment; and injunctive and “further equitable relief the court deems appropriate.”
Aplt. App. at 12. The district court held that sovereign immunity barred Mr. Clark’s
requests for damages and retrospective declaratory and injunctive relief, see Clark, 2024
WL 167357 at *4, and that Mr. Clark failed to show standing to seek prospective
injunctive and declaratory relief, see id. at *7. On appeal, Mr. Clark challenges only the
latter ruling.
II. DISCUSSION
We review de novo a dismissal for lack of Article III standing. See Young v. Colo.
Dep’t of Corr., 94 F.4th 1242, 1249 (10th Cir. 2024). “[S]tanding generally has three
requirements: (1) an injury in fact; (2) causation; and (3) redressability.” Colo. Outfitters
Ass’n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016). The plaintiff bears the burden
to prove “standing to seek each form of relief in each claim.” Rocky Mountain Gun
Owners v. Polis, 121 F.4th 96, 108 (10th Cir. 2024) (internal quotation marks omitted).
Mr. Clark argues he has standing to pursue prospective equitable relief against the
Page 3 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 4
challenged statutes. We disagree. When a plaintiff asserts a pre-enforcement challenge
against “an existing law where the plaintiff has yet to be prosecuted,” he “must present
concrete plans to engage in conduct that has the potential to violate the challenged
statute . . . .” Id. at 110 (brackets and internal quotation marks omitted). “Speculative
plans or vague intentions to potentially violate the challenged statute are insufficient.”
Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (holding affidavits
expressing intent to return to Egypt and Sri Lanka at unspecified times in the future to
observe threatened species were “simply not enough” to confer standing to seek
injunctive relief because “such some day intentions—without any description of concrete
plans, or indeed even any specification of when the some day will be—do not support a
finding of the actual or imminent injury that our cases require” (internal quotation marks
omitted)); Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (“[A] court will not
entertain a claim for injunctive relief where the allegations take it into the area of
speculation and conjecture.” (brackets and internal quotation marks omitted)).
We begin with § 922(g)(3), which prohibits, among other things, possession of a
firearm by a person “who is an unlawful user of . . . any controlled substance.” Marijuana
is a controlled substance. See 21 U.S.C. § 812, sched. I(c)(10). We have held that a
person violates § 922(g)(3) only when his use of a controlled substance is “regular and
ongoing at the time he possessed the . . . firearm.” United States v. Morales-Lopez, 92
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Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 6, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court ERIC S. CLARK,
Plaintiff - Appellant,
v. No. 24-3088 (D.C. No. 2:23-CV-02170-JAR-RES) MERRICK GARLAND, United States (D. Kan.) Attorney General, in both his official and individual capacities; (FNU) (LNU), unknown Government Agent #1, in individual capacity; (FNU) (LNU), Unknown Government Agent #2, in individual capacity; (FNU) (LNU), Unknown Government Agent #3, in individual capacity; (FNU) (LNU), Unknown Government Agent #4, in individual capacity; (FNU) (LNU), Unknown Government Agent #5, in individual capacity; (FNU) (LNU), Unknown Government Agent #6, in individual capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT* _________________________________
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 2
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.** _________________________________
Pro se Plaintiff Eric S. Clark sued Attorney General Merrick Garland and six
unknown government agents, alleging that 18 U.S.C. § 922 (and particularly
§§ 922(g)(3), (k), and (t)) violate the Second Amendment facially and as applied to him.
He sought damages, a declaratory judgment, and injunctive relief. The United States
District Court for the District of Kansas dismissed the action for lack of subject-matter
jurisdiction because Mr. Clark failed to show he had standing to pursue his requested
relief. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Clark is a convicted felon whose rights were restored in 2013. See Clark v.
Garland, Case No. 23-2170-JAR-RES, 2024 WL 167357, at *2 (D. Kan. Jan. 16, 2024).
He has tried to purchase firearms from various federal firearms licensees but his
background checks were often denied or delayed. See id. In 2021 the Federal Bureau of
Investigation (FBI) informed him that he could apply to the Voluntary Appeal File
(VAF)—“a separate procedure” designed to “prevent future extended delays or erroneous
denials during the background check process.” Id.
Mr. Clark’s complaint alleged that (1) because of injuries from an accident, he
** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Page 2 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 3
“intends to use marijuana for potential pain relief in the future,” in violation of 18 U.S.C.
§ 922(g)(3), Aplt. App. at 18; (2) that he “has intent to engage in conduct of restoring a
rusty firearm . . . that will require [him] to remove or alter or obliterate” the firearm’s
serial number, in violation of 18 U.S.C. § 922(k), Aplt. App. at 25; and (3) that he would
“attempt to exercise [his] right to purchase lawful firearms more frequently but for the
near certainty of that exercise being futile because of the enforcement of 18 U.S.C.
§ 922(t),” Aplt. App. at 24. As relief, Mr. Clark sought nominal and compensatory
damages; a declaration stating that the challenged statutes violate the Second
Amendment; and injunctive and “further equitable relief the court deems appropriate.”
Aplt. App. at 12. The district court held that sovereign immunity barred Mr. Clark’s
requests for damages and retrospective declaratory and injunctive relief, see Clark, 2024
WL 167357 at *4, and that Mr. Clark failed to show standing to seek prospective
injunctive and declaratory relief, see id. at *7. On appeal, Mr. Clark challenges only the
latter ruling.
II. DISCUSSION
We review de novo a dismissal for lack of Article III standing. See Young v. Colo.
Dep’t of Corr., 94 F.4th 1242, 1249 (10th Cir. 2024). “[S]tanding generally has three
requirements: (1) an injury in fact; (2) causation; and (3) redressability.” Colo. Outfitters
Ass’n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016). The plaintiff bears the burden
to prove “standing to seek each form of relief in each claim.” Rocky Mountain Gun
Owners v. Polis, 121 F.4th 96, 108 (10th Cir. 2024) (internal quotation marks omitted).
Mr. Clark argues he has standing to pursue prospective equitable relief against the
Page 3 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 4
challenged statutes. We disagree. When a plaintiff asserts a pre-enforcement challenge
against “an existing law where the plaintiff has yet to be prosecuted,” he “must present
concrete plans to engage in conduct that has the potential to violate the challenged
statute . . . .” Id. at 110 (brackets and internal quotation marks omitted). “Speculative
plans or vague intentions to potentially violate the challenged statute are insufficient.”
Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) (holding affidavits
expressing intent to return to Egypt and Sri Lanka at unspecified times in the future to
observe threatened species were “simply not enough” to confer standing to seek
injunctive relief because “such some day intentions—without any description of concrete
plans, or indeed even any specification of when the some day will be—do not support a
finding of the actual or imminent injury that our cases require” (internal quotation marks
omitted)); Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (“[A] court will not
entertain a claim for injunctive relief where the allegations take it into the area of
speculation and conjecture.” (brackets and internal quotation marks omitted)).
We begin with § 922(g)(3), which prohibits, among other things, possession of a
firearm by a person “who is an unlawful user of . . . any controlled substance.” Marijuana
is a controlled substance. See 21 U.S.C. § 812, sched. I(c)(10). We have held that a
person violates § 922(g)(3) only when his use of a controlled substance is “regular and
ongoing at the time he possessed the . . . firearm.” United States v. Morales-Lopez, 92
F.4th 936, 945 (10th Cir. 2024) (internal quotation marks omitted). Here, Mr. Clark
alleges that he “intends to become a user of marijuana for potential pain relief in the near
future including use of the substance in a State where such use is lawful but that use is
Page 4 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 5
unlawful under Federal law.” Aplt. App. at 24. This allegation falls short in several
respects. He does not say how soon the “near future” will come or what State he will visit
to purchase marijuana. He does not say whether he will use marijuana in that State long
enough to become a “regular and ongoing” user of the substance. Morales-Lopez, 92
F.4th at 945 (internal quotation marks omitted). And he does not state whether he will
take a firearm with him. In short, Mr. Clark shares no “concrete plans” to violate the law.
Rocky Mountain Gun Owners, 121 F.4th at 110.
We consider next § 922(k), which prohibits, among other things, possession of
“any firearm which has had the importer’s or manufacturer’s serial number removed,
obliterated, or altered.” Mr. Clark alleges that he “has intent to engage in conduct of
restoring a rusty firearm” at some point “that will require [him] to remove or alter or
obliterate the rusty firearm’s manufacturer’s serial number.” Aplt. App. at 25. Again, Mr.
Clark offers nothing but “vague intentions” to violate the statute. Rocky Mountain Gun
Owners, 121 F.4th at 110. He does not allege whether he has already purchased a rusty
firearm or whether he plans to purchase one at some point in the future. He does not
allege he has even identified a supposed rusty firearm, assessed its condition, and
determined that its actual physical condition requires the alteration or obliteration of its
serial number.
Finally, we address § 922(t), which requires licensed importers, manufacturers,
and dealers to “contact[] the national instant criminal background check system”
before transferring “a firearm to any other person who is not licensed” under the
statute. Mr. Clark alleges that he “intends to engage in future purchases of handguns
Page 5 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 6
and appropriate associated ammunition from out of state private parties . . . after the
date of the filing of [his] complaint and beyond the final disposition of this case.”
Aplt. App. at 18. Yet Mr. Clark offers no details about these “future purchases” other
than that he wants to purchase firearms in the future. Id. Moreover, even if Mr. Clark
had standing, his claim for injunctive relief would fail on equitable grounds.
Although he alleges that the FBI encouraged him to use the VAF system to eliminate
future wrongful delays and denials, Mr. Clark fails to explain why he cannot take
advantage of this system or why the system will not prevent future issues with
background checks. His “continued susceptibility to injury” from § 922(t) is therefore
far from “reasonably certain.” Jordan, 654 F.3d at 1024.
To be sure, “granular specificity is unnecessary” to establish standing in a pre-
enforcement challenge. Rocky Mountain Gun Owners, 121 F.4th at 110. But Mr. Clark
presents nothing but “bare allegation[s]” to engage in conduct “at some unspecified time
in the future.” Id. Such allegations do not suffice. See Colo. Outfitters Ass’n, 823 F.3d at
551 (plaintiff did not have standing to challenge statute outlawing possession of new
large-capacity magazines (LCMs) simply “because eventually, her LCMs w[ould] wear
out and because it would be possible to lose her LCMs (or lose continuous possession of
them) in the meantime” (brackets and internal quotation marks omitted)); DeWilde v.
Att’y Gen. of U.S., 2024 WL 1550708, at *3 (10th Cir. Apr. 10, 2024) (plaintiff did not
have standing to challenge statute prohibiting the possession or transfer of machineguns
because he alleged only a vague desire to possess a machinegun, “untethered” from
“concrete plan[s] to possess or transfer a machinegun”).
Page 6 Appellate Case: 24-3088 Document: 28 Date Filed: 01/06/2025 Page: 7
III. CONCLUSION
We AFFIRM the district court’s dismissal.
Entered for the Court
Harris L Hartz Circuit Judge
Page 7