Article III Adversity Bars Facial § 1983 Challenges Against State Judges Acting as Neutral Firearms-Licensing Adjudicators

1. Introduction

Kellogg v. Nichols arises from New York’s handgun licensing regime under N.Y. Penal Law § 400.00, which assigns “licensing officer” authority in many upstate counties to state judges (N.Y. Penal Law § 265.00(10)). Plaintiffs Jeremy Kellogg and Jonathan Harmon applied for pistol licenses in Columbia County, New York. Defendant Jonathan D. Nichols, a New York state judge, acted as the designated “licensing officer” and denied both applications after hearings.

Instead of seeking state-court review of the denials (including via an Article 78 proceeding), Plaintiffs filed a federal action under 42 U.S.C. § 1983 against Judge Nichols (and only Judge Nichols), seeking broad facial relief: a declaration that New York’s firearm licensing statutory scheme is unconstitutional and an injunction preventing New York from criminalizing possession of firearms without a license.

The procedural posture of the provided text is critical: the Second Circuit denied rehearing en banc after an amended panel decision, Kellogg v. Nichols, 170 F.4th 20 (2d Cir. 2026), with separate concurrences (Judges Lohier and Nathan) and dissents (Judges Sullivan and Menashi). The central dispute is whether Article III’s “case or controversy” requirement—specifically adversity—permits a facial constitutional attack on a state statute by suing the state judge who applied it in denying a license.

2. Summary of the Opinion

The en banc court declined to rehear the case. Judge Lohier concurred in the denial, emphasizing that the panel correctly held the suit barred for lack of Article III adversity because Judge Nichols, as a neutral adjudicator under the licensing scheme, lacked a personal or institutional stake in defending the statute. Judge Nathan concurred in the denial but criticized the panel’s breadth, preferring a narrower adversity rule tied to whether the judge was neutrally adjudicating adversarial proceedings (i.e., contests of conflicting legal interests). Judge Sullivan dissented, arguing that upstate licensing judges function as executive regulators and therefore are adverse to denied applicants; he warned the panel’s approach undermines the justiciability foundations of major Second Amendment cases, including New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022). Judge Menashi also dissented, agreeing adversity exists and further arguing that Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir. 2020), was wrong to extend absolute judicial immunity to licensing denials.

3. Analysis

3.1 Precedents Cited

(a) The core Article III adversity authorities

• Muskrat v. United States, 219 U.S. 346 (1911): Cited as the canonical statement that federal courts resolve only “actual controversies arising between adverse litigants.” Judge Lohier and Judge Nathan use Muskrat to frame the panel’s holding as jurisdictional, not merely prudential.
• Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986): Cited for the proposition that federal courts have a “special obligation” to assure subject-matter jurisdiction—supporting the panel’s willingness to dismiss even in a Second Amendment context.
• Pulliam v. Allen, 466 U.S. 522 (1984): The key quotation—“no case or controversy exists between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute”— is treated as an Article III adversity principle and is central to both the concurrences and the dissents. The opinions also use Pulliam to contrast (i) Article III adversity limits with (ii) the availability of injunctive relief against judges (at least historically).
• Whole Woman's Health v. Jackson, 595 U.S. 30 (2021): This is the panel/concurrence linchpin. As Judge Lohier reads it, Whole Woman's Health confirms that state-court judges, when acting as neutral adjudicators, are not proper defendants in federal suits seeking to enjoin the enforcement of a statute they may apply; “judges exist to resolve controversies,” not “to wage battle.” The dissents argue New York’s licensing officer function is materially different from the purely adjudicatory role in Whole Woman's Health.
• Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976): Used by the concurrences to illustrate the absence of adversity where a plaintiff attacks a legal regime without first pursuing available state processes (and where the judge is a “disinterested judicial officer” as to the constitutional dispute). The dissents distinguish Mendez as involving a judge’s traditional adjudicatory posture, not a regulatory licensing role.
• Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821): Cited by Judge Nathan for the proposition that federal courts must exercise jurisdiction conferred and not decline it—supporting her critique that the panel may have crafted an unnecessarily expansive adversity bar.
• Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) and In re Summers, 325 U.S. 561 (1945): Cited by Judge Nathan to emphasize that Article III requires an “actual controversy,” not an abstract declaration of law.

(b) Second Circuit precedent tying NY firearm licensing to “judicial” acts

• Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir. 2020): Judge Lohier uses it in two ways: (i) it characterizes § 400.00 licensing decisions by judges as “quintessentially judicial act[s]” involving “rulings” on applications with factual/statutory reasoning; (ii) that characterization reinforces applying Whole Woman's Health to bar suits against judges for lack of adversity. Judge Menashi attacks Libertarian Party as wrongly decided (especially on judicial immunity), while Judge Nathan warns against importing judicial immunity reasoning wholesale into Article III.
• Mandala v. NTT Data, Inc., 988 F.3d 664 (2d Cir. 2021): Cited by Judge Lohier (in a rhetorical aside) regarding “courthouse doors,” underscoring the tension between jurisdictional limits and access to federal remedies.
• United States v. Peguero, 34 F.4th 143 (2d Cir. 2022): Cited by Judge Lohier for intra-circuit stare decisis: absent en banc action, panels and later panels are bound by circuit precedent like Libertarian Party.

(c) “Judicial function” and non-contentious jurisdiction history

• Spratt v. Spratt, 29 U.S. 393 (1830): Cited by Judge Lohier to show that “non-contentious” proceedings (e.g., naturalization) were historically understood as judicial, challenging a strict “conflicting-interests” view of what counts as judicial action.
• In re Justs. of Sup. Ct. of P.R., 695 F.2d 17 (1st Cir. 1982): Used by both sides. Judge Lohier cites it to emphasize judicial neutrality even when judges apply statutes. Judge Nathan treats it as part of the lineage from Mendez and Pulliam limiting suits against judges who adjudicate adversarial disputes.
• Reule v. Jackson, 114 F.4th 360 (5th Cir. 2024): Cited by Judge Lohier to resist relabeling adjudicatory processes as “administrative” to evade Whole Woman's Health.

(d) Judicial immunity cases and their contested role in the adversity analysis

• State Oil Co. v. Khan, 522 U.S. 3 (1997): Cited by Judge Lohier to emphasize that lower courts must follow Supreme Court precedent like Whole Woman's Health unless and until the Supreme Court overrules it.
• Forrester v. White, 484 U.S. 219 (1988), Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871), Stump v. Sparkman, 435 U.S. 349 (1978), and Mireles v. Waco, 502 U.S. 9 (1991): Discussed by Judge Nathan and Judge Menashi for the scope and history of judicial immunity and for the “functional” nature of immunity analysis. Judge Nathan argues these immunity frameworks should not be conflated with Article III adversity.
• Ex parte Young, 209 U.S. 123 (1908): Appears in Judge Nathan’s discussion of limits on enjoining state-court “machinery,” relevant to why judges adjudicating disputes are poor defendants for prospective relief.
• Anilao v. Spota, 27 F.4th 855 (2d Cir. 2022): Cited by Judge Nathan to illustrate that immunity (even absolute immunity doctrines) and Article III adversity do not necessarily track one another.

(e) Second Amendment and licensing-case fallout cited by the dissents

• New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), and Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir. 2020): Judge Sullivan argues the panel’s adversity rule calls into question the justiciability assumptions in these cases because they proceeded against upstate judges acting as licensing officers—suggesting a destabilizing effect on Second Amendment litigation channels in New York.
• Soule v. Conn. Ass'n of Schs., Inc., 90 F.4th 34 (2d Cir. 2023) (en banc): Cited by Judge Sullivan to criticize jurisdictional narrowing that “needlessly bar[s] plaintiffs with justiciable claims.”

(f) Cases illustrating Judge Nathan’s “conflicting-interests” alternative

• Hadnott v. Amos, 394 U.S. 358 (1969): Cited by Judge Nathan as an example where a judge performs an essentially administrative function (election administration), suggesting Article III should permit suits.
• Allen v. DeBello, 861 F.3d 433 (3d Cir. 2017) and Lindke v. Tomlinson, 31 F.4th 487 (6th Cir. 2022): Cited by Judge Nathan as examples of ex parte or quasi-ex parte judicial actions that are still embedded in adversarial disputes.
• Dalton Adding Mach. Co. v. State Corp. Comm'n, 236 U.S. 699 (1915): Cited by Judge Nathan as an illustration of other doctrines that limit suits against state “courts,” separate from adversity.

3.2 Legal Reasoning

(a) The panel/concurrence theory: no adversity when the defendant is a neutral adjudicator

Judge Lohier frames the dispositive question as whether Plaintiffs can mount a facial challenge to a statute “by suing in his official capacity the sitting state court judge who ruled against them” when the judge has “no personal or institutional stake in the constitutional dispute.” The concurring view is that where a judge’s role is to “resolve controversies” by applying law to facts—rather than to enforce or defend the statute as a policy matter— Article III adversity is absent, making the suit non-justiciable.

Two features are emphasized:

1. Relief sought is facial and sweeping. Plaintiffs did not pursue individualized reconsideration/appeal of their denials; they sought to invalidate New York’s licensing scheme and enjoin criminalization of unlicensed possession—“their guns without any license.” On this account, Judge Nichols is not the relevant antagonist because he neither enacts nor enforces the criminal prohibitions Plaintiffs target.
2. Judge Nichols’s function under § 400.00 is “judicial” in the relevant sense. Libertarian Party of Erie County v. Cuomo is treated as describing the licensing decision as adjudication: fact-finding, credibility determinations, written rulings, and application of statutory standards to particular applicants. That judicial character triggers Whole Woman's Health v. Jackson’s anti-suit logic: adjudicators are not adverse parties to litigants attacking the statute.

Judge Lohier also stresses alternative review channels: Article 78 review of licensing decisions and pre-enforcement litigation against executive officials responsible for criminal enforcement—suggesting the decision is jurisdictionally compelled but not remedially catastrophic.

(b) Judge Nathan’s concurrence: the panel may have built an overly broad test

Judge Nathan agrees en banc rehearing is unwarranted but questions the panel’s move from “no adversity when a judge neutrally adjudicates adversarial proceedings” to “no adversity whenever the judge performs a ‘judicial function’ in non-adversarial contexts.” She proposes a narrower rule: the Article III bar should attach when the defendant judge is sued for neutrally adjudicating a contest of conflicting legal interests. A judge performing single-party regulatory licensing tasks (regulator v. applicant) resembles an administrator and should be amenable to suit.

Her critique includes a structural caution: immunity doctrines (which serve independence-from-harassment goals) and Article III adversity (which prevents advisory opinions) have different histories and purposes; importing immunity reasoning into jurisdiction risks distorting both.

(c) The dissents: licensing judges are executive regulators, so adversity exists

Judge Sullivan rejects the “neutral adjudicator” premise. In his view, when upstate judges act as licensing officers, they execute police power: they control access to firearms via regulatory criteria (including “good moral character”), operate in partnership with law enforcement investigations, and their determinations are reviewed not by normal appellate review of judicial judgments but via Article 78/declaratory mechanisms in which the judge is effectively a party defending the determination.

Judge Sullivan also highlights geographic asymmetry: downstate licensing is performed by sheriffs/police commissioners—executive officials plainly suable—while upstate licensing is vested in judges. The panel’s approach arguably makes federal review of licensing denials depend on where an applicant lives.

Judge Menashi adds a further internal-consistency critique: if the licensing officer is “judicial” enough to receive absolute immunity (Libertarian Party of Erie County v. Cuomo), it is odd to say the same officer is not adverse for Article III purposes—or vice versa. He would use the case to revisit Libertarian Party and deny absolute immunity, treating the licensing function as executive/administrative and therefore subject only to qualified immunity.

3.3 Impact

• Defendant-selection becomes outcome-determinative in facial challenges. The panel rule, as defended by Judge Lohier, turns heavily on whether the named defendant has a stake in enforcing/defending the challenged scheme. Plaintiffs pursuing facial invalidation must target executive officials (e.g., those who prosecute/enforce criminal laws) rather than judges who adjudicate eligibility.
• Potential “upstate/downstate” divergence in federal access (at least as perceived by critics). Judge Nathan and Judge Sullivan both flag that the ruling may create practical disparities in who can sue whom in federal court, given New York’s bifurcated assignment of licensing authority.
• Incentives for statutory design. The dissents warn that legislatures could attempt to “insulate” licensing decisions affecting constitutional rights (marriage, speech-permits, etc.) by assigning them to judges, leveraging Whole Woman's Health-style non-adversity arguments. The concurrence responds that the analysis is circumstance-specific and does not foreclose review against proper executive defendants.
• Pressure on state-court review mechanisms. If federal jurisdiction is limited against upstate licensing judges, applicants may increasingly rely on Article 78 (and hybrid Article 78/declaratory) litigation, shifting constitutional disputes into state courts—precisely the remedial friction the dissents emphasize.
• Tension with earlier Second Amendment litigation practice. By challenging justiciability assumptions in cases like New York State Rifle & Pistol Ass'n v. Bruen, the dissents suggest doctrinal instability: even if those cases remain untouched formally, litigants will likely contest jurisdiction more aggressively in future licensing suits.

4. Complex Concepts Simplified

Article III “case or controversy” and “adversity”

Federal courts can only decide real disputes between parties with opposing legal interests. If the defendant is not truly opposing the plaintiff—because the defendant is a neutral decisionmaker with no stake in the law’s validity—there may be no jurisdiction.

Facial challenge vs. as-applied challenge

A facial challenge argues a law is unconstitutional in all (or most) applications and seeks broad invalidation. An as-applied challenge targets the law’s application to the plaintiff’s specific facts. Here, Plaintiffs sought sweeping facial relief (invalidate the licensing scheme and stop criminalization of unlicensed possession), which heightened the “wrong defendant” concern.

Official-capacity suit under § 1983

Suing an official “in his official capacity” is essentially suing the government entity for prospective relief. That typically requires naming an official who actually enforces or is responsible for the challenged policy in a way that creates adversity.

Judicial immunity

Judicial immunity generally shields judges from damages for judicial acts. It is separate from Article III jurisdiction: immunity asks whether a claim can proceed against a defendant who is properly before the court; adversity asks whether the court can hear the dispute at all. The opinions disagree about how closely these doctrines should track each other in the licensing context.

Article 78 proceeding (New York)

Article 78 is a New York procedure to challenge administrative actions as unlawful, arbitrary, or beyond authority. The concurrences cite it as an available avenue to review licensing denials; the dissents cite it as evidence that licensing denials are administrative/regulatory rather than judicial.

5. Conclusion

The en banc denial leaves in place the panel’s core jurisdictional principle as applied here: when plaintiffs bring a sweeping facial attack on New York’s firearm licensing statutory scheme and name only an upstate judge who applied that scheme as a neutral adjudicator, Article III adversity may be lacking because the judge has no stake in defending or enforcing the challenged law. The concurrences anchor that result in Whole Woman's Health v. Jackson and in the Second Circuit’s own characterization of § 400.00 licensing decisions as “judicial” in Libertarian Party of Erie County v. Cuomo.

At the same time, the separate writings underscore that the decision is contested at multiple levels: conceptually (what “adversity” should mean in licensing regimes), structurally (whether states can channel regulatory functions to judges to complicate federal review), and practically (whether the ruling creates geographic disparities and remedial gaps). The immediate doctrinal takeaway for litigants is strategic and concrete: in broad constitutional challenges to licensing schemes, selecting defendants with enforcement responsibility and an institutional stake is likely to be decisive.