* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BILL LOVING,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA; JANET RENO, Attorney General,

Defendants-Appellees. No. 97-6060 (D.C. No. 96-CV-141) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff commenced this action for declaratory andinjunctive relief, asserting that the Drivers Privacy Protection Act o f 1994, see 18 U.S.C. §§ 2721-25 (Act), unconstitutionally infringes uponFirst Amendment freedoms. He appeals the district court’s decision dismissinghis claims without prejudice,

see Fed. R. Civ. P. 12(b)(1), after concluding that th e claims were not yet ripe for adjudication. We need not address the ripeness iss ue, however, because, upon our de novo review, see Committee to Save the Rio Hondo v. Lucero , 102 F.3d 445, 447 (10th Cir. 1996) (standing); Bateman v. City of W. Bountiful , 89 F.3d 704, 706 (10th Cir. 1996) (dismissal for lack of ripenes s under Rule 12(b)(1)), we conclude that plaintiff lacks standing to pursue th ese claims. See Phelps v. Hamilton , No. 95-3251, 1997 WL 458202, at *3 (10th Cir. Aug . 12, 1997) (this court may raise issue of standing sua sponte); Wolf gang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1524 (10th Cir. 1997) (appellate c ourt is free to affirm on any legal ground supported by record). W e, therefore, affirm the dismissal. A litigant seeking to invoke the power of the feder al courts must establish his standing to do so. See, e.g. , Phelps , 1997 WL 458202, at *3. In order to establish standing, plaintiff bears the burden of c learly alleging, see FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231 (1990), “at an ‘irreducible con stitutional minimum,’” Phelps , 1997 WL 458202, at *16 (quoting Lujan v. Defender s of-3-

Wildlife , 504 U.S. 555, 560 (1992)), that 1) he has suffere d an injury in fact, 2) there is a causal connection between the injury and the conduct of which plaintiff complains, and 3) it is likely that the i njury will be redressed by a favorable decision. See id. Plaintiff must do more than allege an abstract in jury. See id. at *3. Rather, “he must show that he has sustaine d or is immediately in danger of sustaining some direct injury as a resultof the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Id. (quotations omitted); see also National Council for Improved Health v. Shalala , No. 95-4151, 1997 WL 452698, at *4 (10th Cir. Aug. 11, 1997) (“to establish injury in fact, a party must first and foremost establish an invasion of a legally protected intere st that is concrete, particularized, and actual or imminent”). This is true even where, as in this case, plaintiff asserts a First Amendment challenge that a statute is facia lly overbroad. See Phelps , 1997 WL 458202, at *16-*17; National Council for Improved Health , 1997 WL 452698, at *2-*4. This plaintiff has failed to do. Plaintiff has not alleged that he has suffered a co ncrete injury in fact. The Act, which does not even go into effect until Septe mber 13, 1997, see note following 18 U.S.C. § 2721, prohibits states, excep t in specifically enumerated situations, from releasing certain personal information, see 18 U.S.C. § 2725(3), contained in their motor vehicle records. See id. § 2721. Plaintiff has not alleged-4-

with any particularity that his previous access to this information, see I R., doc. 2 at 2, para. 9, has been affected by this Act prior to its effective date. The Act specifically provides that, prior to its effective date, “personal information covered by this chapter may be released consistent with State law or practice.” Note following 18 U.S.C. § 2721. Nor has plaintiff sufficiently alleged that he is i n imminent danger of suffering an actual, concrete injury. Although pla intiff “makes clear his intent to pursue the information made illegal by the [Act],” I R., doc. 6 at 3, and states that he “has used or will use the information which will be subject to the restraints imposed by the [Act],” id. , doc. 7 at 14-15; see also Appellant’s Opening Br. at 11-12, he fails to allege with any specificity or p articularity any conduct he may undertake which would subject him to a credible thr eat of prosecution. See Phelps , 1997 WL 458202, at *17; National Council for Impr oved Health , 1997 WL 452698, at *5; see also Phelps , 1997 WL 458202, at *17 (“[E]ven ‘“some day” intentions -- without any description of concr ete plans, or indeed even any specification of whenthe some day will be -- do not support a finding o f the “actual or imminent” injury that our cases require. ’”) (quoting Lujan , 504 U.S.at 564).-5-

The judgment of the United States District Court fo r the Western District of Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge