Elias Bochner, 287 7th Avenue Realty LLC, Plaintiffs-Appellees v. City of New York, a municipal entity, Mayor Eric L. Adams, as Mayor of the City of New York, Commissioner Adolfo Carrión Jr., Commissioner of New York City Department of Housing Preservation & Development, Acting Commissioner Dynishal Gross, Acting Commissioner of New York City Department of Small Business Services, Defendants-Appellants* On Appeal from the United States District Court for the Southern District of New York Defendants the City of New York and certain of its named officials (“the City”) appeal from an award of summary judgment entered in the United States District Court for the Southern District of New York (Abrams, J.) in favor of plaintiffs on their Contracts Clause challenge to the City’s Guaranty Law. That law, enacted in response to the COVID-19 pandemic, (1) rendered personal guaranties of commercial lease obligations arising between March 7, 2020, and June 30, 2021, permanently unenforceable; and (2) identified efforts to collect on such guaranties as proscribed commercial tenant harassment. See N.Y.C. Admin. Code §§22-902(a)(14), 22-1005. The City does not here dispute the district court’s determination that the Guaranty Law violates the Contracts Clause. Instead, it argues that there is no federal jurisdiction to hear this case because plaintiffs lack standing to challenge the Guaranty Law in an action against the City, which does not enforce that law. On this ground, the City seeks vacatur not only of the district court’s award of summary judgment but also of this court’s earlier judgment reversing dismissal of plaintiffs’ Contracts Clause challenge for failure to state a claim. See Melendez v. City of New York, 16 F.4th 992 (2d Cir. 2021). The Court denies the City’s request to vacate its judgment in Melendez because, at the pleadings stage of this case, plaintiffs satisfactorily carried their standing burden by alleging the City’s enforcement of the Guaranty Law, which the City did not then disavow. On summary judgment, however, plaintiffs failed to carry their heightened burden to demonstrate standing by coming forward with factual evidence of the City’s likely enforcement of the Guaranty Law against them. On this record, we must vacate the district court’s award of summary judgment and remand the case with instructions to dismiss this action for lack of subject matter jurisdiction. We nevertheless note that the City unnecessarily prolonged litigation in this case by failing to raise its enforcement challenge to standing throughout almost two years of dismissal litigation and, thereafter, failing to provide the district court and this court with a complete and accurate account of the City’s enforcement authority. Because this conduct appears to have been negligent rather than strategic, we do not impose sanctions, but, in our equitable discretion, we deny the City costs on this appeal VACATUR GRANTED IN PART AND DENIED IN PART; CASE REMANDED. REENA RAGGI, C.J. The first time this case came before this court, plaintiffs, a group of New York City landlords, appealed from a judgment of the United States District Court for the Southern District of New York (Ronnie Abrams, Judge), which, pursuant to Fed. R. Civ. P. 12(b)(6), dismissed their constitutional challenges to laws enacted by New York City in response to the COVID-19 pandemic. See Melendez v. City of New York ["Melendez I"], 503 F. Supp. 3d 13 (S.D.N.Y. 2020). Those laws prohibit “threatening” residential or commercial tenants based on their COVID-19 status, see N.Y.C. Admin. Code §§22-902(a)(11), 27-2004(48)(f-7) (together, the “Harassment Law Amendments”), and render permanently unenforceable personal liability guaranties of commercial lease obligations arising during the pandemic between March 7, 2020, and June 30, 2021, see id. §§22-902(a)(14), 22-1005 (the “Guaranty Law”). This court affirmed dismissal of plaintiffs’ free speech and due process challenges to the Harassment Law Amendments, see U.S. CONST. amends. I, XIV, but reversed dismissal of their Contracts Clause challenge to the Guaranty Law, see id. art. I, §10, cl. 1. See Melendez v. City of New York ["Melendez II"], 16 F.4th 992 (2d Cir. 2021). On this appeal, it is defendants, the City of New York and certain of its named officials (together, “the City”), who appeal from the district court’s March 31, 2023 award of summary judgment in favor of plaintiffs 287 7th Avenue Realty LLC and its owner Elias Bochner (together, “the Bochner Plaintiffs”) on their Contracts Clause challenge to the Guaranty Law. See Melendez v. City of New York ["Melendez III"], 668 F. Supp. 3d 184 (S.D.N.Y. 2023). The City does not here dispute the district court’s determination that the Guaranty Law is unconstitutional. Rather, it challenges the court’s jurisdiction to hear the action at all, arguing that the Bochner Plaintiffs cannot demonstrate standing because the City does not enforce the Guaranty Law, which thus poses no imminent threat of injury to plaintiffs that could be redressed in this action. On that ground, the City asks this court to vacate not only the district court’s award of summary judgment in Melendez III but also this court’s Melendez II judgment reversing dismissal of the Bochner Plaintiffs’ Contracts Clause claim pursuant to Fed. R. Civ. P. 12(b)(6). Throughout extensive litigation at the dismissal stage of this case, the City never disavowed enforcement of the Guaranty Law or challenged plaintiffs’ standing or federal jurisdiction on that ground. Because plaintiffs plausibly alleged the City’s enforcement of the Guaranty Law at the pleadings stage of this action, this court denies the City’s request to vacate its judgment in Melendez II for lack of jurisdiction. Only on remand, when the parties cross-moved for summary judgment, did the City assert its non-enforcement of the Guaranty Law to challenge the Bochner Plaintiffs’ standing and federal jurisdiction. At that stage of the proceedings, the Bochner Plaintiffs bore a heightened burden to demonstrate standing by adducing factual evidence showing that they faced a credible threat of imminent and redressable injury from the City’s enforcement of the Guaranty Law. Plaintiffs having failed to carry that burden, and the City having now unequivocally disavowed any intent to enforce the Guaranty Law against them, we must conclude that the Bochner Plaintiffs lack standing to pursue a Contracts Clause challenge to the Guaranty Law in this action against the City. Accordingly, we vacate the district court’s award of summary judgment in favor of the Bochner Plaintiffs, and we remand with instructions to dismiss the action for lack of subject matter jurisdiction. We nevertheless note that the City unnecessarily prolonged litigation in this case by failing to raise its enforcement challenge to standing throughout almost two years of dismissal litigation and, thereafter, by failing to provide a complete and accurate account of the City’s relevant enforcement authority. Because this conduct appears to have been negligent rather than strategic, we do not impose sanctions, but, in our equitable discretion, we deny the City costs on this appeal. See Fed. R. App. P. 39(a). BACKGROUND I. The Guaranty Law Because some understanding of the Guaranty Law is necessary to address the standing question here at issue, we begin by detailing its two substantive provisions, which amended the City’s Administrative Code. First, the Guaranty Law added a section to the Code entitled, “Personal liability provisions in commercial leases,” which rendered permanently unenforceable certain personal liability guaranties on commercial lease obligations arising between March 7, 2020, and June 30, 2021. See N.Y.C. Admin. Code §22-1005.1 Second, the Guaranty Law added to the list of specified acts or omissions proscribed by the Commercial Harassment Law “attempting to enforce a personal liability provision that the landlord knows or reasonably should know is not enforceable pursuant to section 22-1005.” Id. §22-902(a)(14).2 In sum, the Guaranty Law renders certain specified commercial lease guaranties permanently unenforceable and generally proscribes landlord attempts to enforce those guaranties. II. Procedural History In summarizing the procedural history of this case, we pay particular attention to pleadings, arguments, and rulings pertaining to standing. A. Dismissal Litigation 1. First Standing Challenge: The City Questions and then Concedes Plaintiffs’ Possession of a Commercial Lease Guaranty Subject to §22-1005 a. Plaintiff Top East Realty LLC On July 10, 2020, a group of New York City landlords — not yet including the Bochner Plaintiffs — filed this action for declaratory and injunctive relief claiming, inter alia, that the Harassment Law Amendments and Guaranty Law were unconstitutional. On August 12, 2020, the City, represented by its Corporation Counsel, moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that plaintiffs failed plausibly to plead constitutional violations. Only in a footnote to its memorandum in support of that motion did the City first question plaintiffs’ standing to challenge the Guaranty Law — based not on the City’s nonenforcement of that law, but rather on purported record ambiguity as to whether plaintiff Top East Realty LLC in fact held a guaranty agreement subject to §22-1005.3 In opposing dismissal generally, plaintiffs similarly addressed standing only in a footnote. They argued that Top East Realty LLC and its owner Ling Yang “‘reasonably fear’ that in light of [the Guaranty] Law and the substantial penalties the Law provides, they will be unable to enforce their personal guaranty.” Pls.’ Reply Supp. Mot. Prelim. Inj. & Opp’n Defs.’ Mot. Dismiss ["Pls.' Opp'n Defs.' Mot. Dismiss"] at 12 n.10, Dist. Ct. Dkt. 48 (alteration adopted) (citing Pacific Cap. Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008)). In reply, the City continued to question plaintiffs’ standing to challenge the Guaranty Law, but only on the ground that plaintiffs had failed to show that Top East Realty LLC held a commercial lease guaranty subject to §22-1005. b. The Bochner Plaintiffs On September 2, 2020 — before the district court ruled on the City’s motion to dismiss — plaintiffs filed the operative Amended Complaint, adding the Bochner Plaintiffs as parties asserting a Contracts Clause challenge to the Guaranty Law.4 Like the original Complaint, the Amended Complaint alleges that certain City officials, specifically, the Mayor and the City’s Commissioner of Small Business Services, are responsible for the enforcement of City laws generally and the City’s Administrative Code in particular. Two days later, the City sent the district court a letter asserting that questions remained as to plaintiffs’ standing. As to the Contracts Clause claim, the City again did not disavow its enforcement of the Guaranty Law. Rather, it submitted that it was not clear from the documents provided that the Bochner Plaintiffs held a commercial lease guaranty subject to §22-1005. That same day, the district court ordered the parties to brief, inter alia, “[w]hether the plaintiffs have standing to challenge the Harassment Laws and which plaintiffs, if any, have standing to challenge the Guaranty Law.” Order (Sept. 4, 2020), Dist. Ct. Dkt. 61. In a letter brief filed September 9, 2020, plaintiffs submitted, primarily with respect to the Harassment Law Amendments, that they satisfied the causation and redressability elements of standing because (1) “the named defendants possess authority to enforce the complained-of provision[s]” of law, Pls.’ Letter Br. (Sept. 9, 2020) at 4-5, Dist. Ct. Dkt. 64 (quoting Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015)); (2) “ as to [the] municipal defendants,” allegations that the law is unconstitutional are “always sufficient” to establish causations, id. at 5 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125-26 (2d Cir. 2004); (3) the City had not disavowed an intent to enforce the challenged laws, see id. at 6 (“Courts presume that the government intends to enforce a law ‘in the absence of a disavowal by the government or another reason to conclude’ it has no such intent.” (quoting Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir. 2019), cert. denied, 140 S. Ct. 2508 (2020)); and (4) “the court could prevent enforcement of the unconstitutional restriction[s],” id. at 5. Further, as to the Guaranty Law, the Bochner Plaintiffs attached exhibits demonstrating that they held a commercial lease guaranty subject to §22-1005. They also asserted that, by “enacting the Guaranty Law,” the City had injured the Bochner Plaintiffs by “permanently depriv[ing them] of their only remedy” for collecting unpaid rent from “defaulting commercial tenants.” Id. at 8. In its own letter brief, the City conceded plaintiffs’ standing to maintain challenges to both the Harassment Law Amendments and the Guaranty Law. As to the former, the City simply agreed that one or more plaintiffs “appear[ed] to have standing” to challenge the Harassment Law Amendments because they had sufficiently shown that they were landlords of residential and/or commercial tenants — the “minimum” required to satisfy standing. Defs.’ Letter Br. (Sept. 9, 2020) at 2, Dist. Ct. Dkt. 65. As to the latter, the City acknowledged that the Bochner Plaintiffs “appear to have standing to challenge the Guaranty Law under the Contract[s] Clause” because they satisfied the “minimum” requirement to show that they held an effective personal guaranty agreement with an individual who was not the commercial tenant. Id. at 3. Indeed, the City reiterated this last concession at oral argument on the motion to dismiss, acknowledging that “documents that were belatedly provided to us do seem to establish that [the Bochner] plaintiffs appear to have standing.” Hearing Tr. (Sept. 11, 2020) at 4, Dist. Ct. Dkt. 66. At no time did the City disavow its ability to enforce the Guaranty Law, or challenge plaintiffs’ standing or the court’s jurisdiction on that ground. 2. The Dismissal Judgment On November 25, 2020, the district court granted the City’s motion to dismiss the Amended Complaint. See Melendez I, 503 F. Supp. 3d at 38. Presumably relying on defendants’ concessions as to standing, the district court did not address that jurisdictional issue. Instead, the district court concluded pursuant to Fed. R. Civ. P. 12(b)(6) that plaintiffs failed to state any plausible claims for relief because (1) the Harassment Law Amendments did not implicate plaintiffs’ First Amendment rights and were not so vague as to violate the Due Process Clause of the Fourteenth Amendment, see id. at 27-31; and (2) while the Guaranty Law substantially impaired the Bochner Plaintiffs’ contract rights as against the lease guarantor, it did not violate the Contracts Clause because it was a reasonable and necessary means to advance a legitimate public interest in addressing pandemic-related concerns, see id. at 32-36.5 3. The City Raises No Standing Challenge in Defending Dismissal on Appeal On appeal, this court affirmed the district court’s Rule 12(b)(6) dismissal of plaintiffs’ First Amendment and due process challenges to the Harassment Law Amendments, see Melendez II, 16 F.4th at 1010-16, but reversed its dismissal of the Bochner Plaintiffs’ Contracts Clause challenge to the Guaranty Law and remanded to the district court for further consideration of that claim, see id. at 1016-47. Because we assume familiarity with that decision, we do not here repeat its lengthy analysis. We note only that, in urging this court to affirm the district court’s judgment of dismissal as to all claims, the City never suggested that it did not enforce the Guaranty Law, that the Bochner Plaintiffs lacked standing to assert a Contracts Clause claim, or that the district court or this court lacked jurisdiction to hear the case. We proceed now to review how the City eventually came to raise an enforcement-based challenge to standing and jurisdiction on remand. B. Summary Judgment Litigation 1. City Moves for Discovery on Standing Without Disavowing Enforcement On return of this case to the district court, the Bochner Plaintiffs, on March 28, 2022, moved for summary judgment on their Contracts Clause challenge to the Guaranty Law, clarifying that they sought only a declaratory judgment and abandoning any claim for injunctive relief. The City responded by moving for a three-month period of discovery limited to “the question of standing.” Defs.’ Letter Mot. (Apr. 11, 2020) at 1, Dist. Ct. Dkt. 95. The City did not profess to need discovery to clarify its enforcement authority over the Guaranty Law as that pertained to standing or jurisdiction, a matter presumably already within its knowledge. Rather, it stated that it sought discovery to explore “certain holes in the documents previously provided [by plaintiffs] in September 2020″ — an apparent reference to documents provided to show that the Bochner Plaintiffs held a commercial lease guaranty subject to §22-1005. Id.at 1-2. The City explained: While Defendants may have[,] for the purposes of preliminary injunctive relief[,] accepted the minimal discovery that Plaintiffs provided back in September 2020, now, for the purposes of determination on the merits, Defendants require further discovery to address the standing issue, particularly regarding certain holes in the documents previously provided to Defendants in September 2020, and to develop the record regarding events impacting standing issues that may have transpired since September 2020. Id. (citation omitted). The district court granted the City’s request. 2. The City Cross Moves for Summary Judgment and First Disavows Enforcement of the Guaranty Law Some five months later, on September 23, 2022, the City filed its opposition to the Bochner Plaintiffs’ motion for summary judgment and its own cross-motion for summary judgment. It devoted most of its twenty-five-page brief to challenging the merits of the Bochner Plaintiffs’ claim, arguing that the record demonstrated, as a matter of law, that the Guaranty Law did not violate the Contracts Clause. In a single paragraph — and for the first time in the more than two years since the action commenced — the City also challenged the court’s subject matter jurisdiction on the ground that the Bochner Plaintiffs lacked standing because “[t]he City does not enforce the Guaranty Law.” Defs.’ Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“Defs.’ Cross-Mot. Summ. J.”) at 9, Dist. Ct. Dkt. 103. It argued that, in these circumstances, a judgment for the Bochner Plaintiffs would “amount to no more than a declaration that the statutory provision they attack is unconstitutional,’ which…’is the very kind of relief that cannot alone supply jurisdiction otherwise absent.’” Id. (quoting California v. Texas, 593 U.S. 659, 673 (2021)).6 The Bochner Plaintiffs offered only a brief reply to this new standing argument, asserting that California v. Texas was inapt because the statutory provision there in question “failed to include a penalty for noncompliance[,] rendering the provision unenforceable,” while here “[t]hat is plainly not the case.” Pls.’ Reply Supp. Mot. Summ. J. & Opp’n Defs.’ Cross-Mot. Summ. J. at 6, Dist. Ct. Dkt. 110. In its own reply brief, the City expanded on its standing argument. Repeating that the “City does not enforce the Guaranty Law” and continuing to rely on California v. Texas, it argued that any declaration running against defendants as to the constitutionality of the Guaranty Law could not redress the Bochner Plaintiffs’ alleged injury. Defs.’ Reply Supp. Cross-Mot. Summ. J. at 1, Dist. Ct. Dkt. 114; see id. at 2 (“[T]he logic of [California v. Texas] is that litigants may not proceed in federal court if the defendants have no capacity to enforce the law against them and have not caused them any redressable injury[.]“). Because “the only conceivable, potential controversy would be between Plaintiffs and their lessee,” a declaratory judgment or even “an injunction from this court could not affect the legal rights of either Plaintiffs or Defendants here.” Id. at 2 (internal quotation marks omitted). On November 30, 2022, the district court ordered supplemental briefing on defendants’ standing challenge. 3. Bochner Plaintiffs Concede Guaranty Law Is “Not ‘Enforced’ by Anyone” In its supplemental filing, the City repeated its argument that the declaratory relief sought by the Bochner Plaintiffs could not redress their alleged injury because “the City does not enforce the Guaranty Law against the Plaintiffs.” Defs.’ Suppl. Letter (Dec. 7, 2022) at 2, Dist. Ct. Dkt. 120 (quoting Whole Woman’s Health v. Jackson, 595 U.S. 30, 43 (2021), for proposition that “court lacks jurisdiction where plaintiffs could point to no ‘enforcement authority the [defendant] possesses in connection with [the challenged law] that a federal court might enjoin him from exercising’” (alterations in original)). In their supplemental filing, the Bochner Plaintiffs agreed that “the Guaranty Law is not ‘enforced’ by anyone.” Pls.’ Suppl. Letter Br. (Dec. 7, 2022) at 5 n.3, Dist. Ct. Dkt. 119. Nonetheless, they urged rejection of the City’s standing challenge because the “suggestion that the action must be brought against an entity ‘enforcing’ the Guaranty Law would render it completely immune from any constitutional challenge.” Id. The Bochner Plaintiffs maintained that they suffered a redressable injury at the moment the City “enact[ed] the Guaranty Law.” Id. at 4; see id. at 5 (“To the extent there is no ‘threatened action’ here, it is because the City’s action — and resulting injury to Plaintiffs — occurred when the City enacted the Guaranty Law, stripping Plaintiffs of their contractual rights in violation of the Contracts Clause.”). 4. District Court Rejects the City’s Standing Challenge and Awards Summary Judgment to Bochner Plaintiffs The district court rejected the City’s standing challenge. Identifying the three “irreducible constitutional minimum” requirements of standing — “injuryin-fact, causation, and redressability” — the district court concluded that the Bochner Plaintiffs satisfied the first because the Guaranty Law’s “permanent[] bar[]” on their ability to recoup “ unpaid rent for a prime commercial tenancy in the heart of Manhattan” from a guarantor was a concrete and particularized injury. Melendez III, 668 F. Supp. 3d at 194-95 (internal quotation marks omitted). They satisfied the second because “[w]here, as here, a plaintiff is ‘threatened by the enforcement of a statute that specifically targets the plaintiffs, the [causation] requirement [of standing] is met.’” Id. at 195 (quoting Tweed-New Haven Airport Auth. v. Tong, 930 F.3d at 71). Finally, the district court concluded that the Bochner Plaintiffs demonstrated that their injury was redressable because a favorable court decision on their constitutional challenge would remove the “absolute barrier to recovering unpaid rent” imposed by the Guaranty Law. Id. at 196. In granting summary judgment to the Bochner Plaintiffs on their Contracts Clause challenge to the Guaranty Law, the district court concluded that (1) “the contractual impairment imposed by the Guaranty Law on Plaintiffs was substantial”; (2) “the City’s effort to mitigate the devastating economic impact of the COVID-19 pandemic constituted a legitimate public purpose”; but (3) the Guaranty Law was not a reasonable and appropriate means to advance that interest. Id. at 197. In reaching the last conclusion, the district court examined five areas of concern identified by this court in reversing dismissal of plaintiffs’ Contracts Clause challenge in Melendez II. First, it observed that the Guaranty Law “permanently barred [commercial landlords] from recovering any rent owed during the [covered] period,” which weighed against constitutionality in the tailoring analysis. Id. at 200 (citing Melendez II, 16 F.4th at 1039-40). Second, noting that the City had chosen to “rel[y] upon the same record evidence” as at the dismissal stage, the district court found that it failed to show that “permanently eviscerat[ing]” commercial lease guaranties was an appropriate means to advance the City’s professed purpose “ to help shuttered small businesses survive the pandemic.” Id. at 200-02 (quoting Melendez II, 16 F.4th at 1040). Specifically, the City failed to justify the Guaranty Law’s permanent bar “irrespective of (1) a showing that the affected guarantor owned the small business, (2) that such owner guarantor had financial need, and (3) that such owner-guarantor would reopen the closed business following the pandemic emergency if provided the [statutory] aid.” Id. at 202 (citing Melendez II, 16 F.4th at 1041-43). Third, the district court found that the City was “unable to justify its decision to exclusively allocate the [economic] burden” of defaulted commercial leases on landlords by rendering their guaranty agreements unenforceable. Id. at 204; see id. at 203 (noting “no record support for the proposition that commercial landlords were in any way responsible for the economic crisis that the Guaranty Law sought to mitigate” (citing Melendez II, 16 F.4th at 1042)). Fourth, the district court found that the City’s “generalized evidence” of small business owners’ need for urgent economic relief during the pandemic was insufficient to justify “the lack of any hardship requirement in the [Guaranty] Law.” Id. at 204-05 (citing Melendez II, 16 F.4th at 1043). Nor did the fact that the Guaranty Law afforded relief only to natural-person guarantors demonstrate the requisite means-end fit, because a natural person requirement “by itself, does not mean that a particular guarantor cannot pay rent arrears.” Id. at 206 (quoting Melendez II, 16 F.4th at 1043). Fifth, finding that the “record now confirms” that the Bochner Plaintiffs had sustained a loss of “approximately $150,000″ in unpaid rent, the district court noted the Guaranty Law’s failure to provide any compensation or relief for landlords or their principals who were unable to mitigate such losses by enforcing guaranties. Id. (citing Melendez II, 16 F.4th at 1046). Thus finding that the City was “unable to provide record evidence to answer the ‘five serious concerns’” identified by this court as to the Guaranty Law being “a reasonable and appropriate means to pursue the professed public purpose,” id. at 207 (quoting Melendez II, 16 F.4th at 1047), the district court entered summary judgment in favor of the Bochner Plaintiffs on their Contracts Clause claim. 5. Instant Appeal a. Parties’ Initial Agreement that the City Lacks Authority to Enforce Guaranty Law In timely appealing from the award of summary judgment in this case, the City does not challenge that judgment on the merits. It challenges only the district court’s subject matter jurisdiction to hear the case at all, arguing that the Bochner Plaintiffs lack standing to bring this pre-enforcement challenge to the Guaranty Law because the City does not and, indeed, cannot enforce that law. See Appellants’ Br. at 11 (“[T]he City…has absolutely no role in enforcing the [Guaranty Law].” (emphasis added)); Appellants’ Reply Br. at 19 (“[T]here is no threatened enforcement by the government here because none of the defendants has any power to enforce the challenged law.” (emphasis added)). In their initial brief to this court, the Bochner Plaintiffs agreed that “the Guaranty Law is not ‘enforced’ by anyone.” Appellees’ Br. at 25 (emphasis in original). Nevertheless, they argued that “[t]here is no requirement that only enforcers of a statute may be sued in a Contracts Clause constitutional challenge.” Id. Further, plaintiffs asserted that their case “is not a pre-enforcement challenge” but, rather, “a Contracts Clause action where the passage of the Guaranty Law itself caused the injury.” Id. at 22. b. Supplemental Briefing and Identification of City Enforcement Authority At oral argument, this court expressed some skepticism as to the City’s claim that it was completely lacking in authority to enforce the Guaranty Law. It also questioned whether the City had strategically delayed raising its enforcement-based challenge to standing and jurisdiction until after this court’s reversal of a dismissal judgment in its favor — conduct that might be sanctionable. See generally International Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 393 (2d Cir. 1989) (affirming imposition of sanctions under Fed. R. Civ. P. 11 for “attorney’s failure to conduct a proper pre-trial inquiry into the court’s subject matter jurisdiction”). The City requested an opportunity to brief the sanctions issue, which this court granted. In a supplemental letter brief arguing that it did not engage in strategic delay, the City included a brief passage that — at odds with its disavowal of “any power” to enforce the Guaranty Law, Appellants’ Reply Br. at 19 — acknowledged that two laws, one state and one local, provide the City with at least “generalized authority to maintain actions seeking to remedy violations of its laws.” Appellants’ 1st Suppl. Letter Br. at 3, Dkt. 83. The first of these laws, N.Y. Gen. City L. §20(22), empowers all cities within New York State “[t]o maintain an action or special proceeding in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any such ordinance or local law.” The second law, N.Y.C. Charter §394(c), authorizes the City, through its Corporation Counsel, “to institute actions in law or equity…to maintain, defend and establish the rights, interests, revenues, property, privileges, franchises or demands of the city…or of the people thereof, or to collect any money, debts, fines or penalties or to enforce the laws.” The City, nevertheless, submitted that “such generalized authority has consistently been held insufficient to support standing.” Appellants’ 1st Suppl. Letter Br. at 3 & n.1 (collecting out-of-circuit cases). The Bochner Plaintiffs responded to the City’s supplemental submission by abandoning their own prior concession that no one enforces the Guaranty Law and instead arguing that the enforcement authority conferred on the City by N.Y. Gen. City L. §20(22) and N.Y.C. Charter §394(c) establishes the credible risk of enforcement and, therefore, redressable injury, required to satisfy standing to maintain this action. See Appellees’ 1st Suppl. Letter Br. at 3, Dkt 85. Concluding that “Plaintiffs’ standing cannot be determined on the present record,” this court ordered further briefing. Order (July 1, 2024), Dkt. 92.7 c. Identification of Cases in which the City Invoked §20(22) or §394(c) Authority or Appeared to Defend Guaranty Law In the second round of supplemental briefing, the City disclosed that it frequently invokes the authority conferred by N.Y. Gen. City. L. §20(22) and N.Y.C. Charter §394(c) to enforce various laws and regulations. See Appellants’ 2d Suppl. Br. at 2 & Addendum A (listing more than 2,500 cases), Dkt. 94. Indeed, as the City acknowledges, these authorizing laws “mean what they say: the Corporation Counsel may bring suit in the City’s name to enjoin violations of a local law or regulation proscribing or requiring specific conduct.” Id. at 1. Nevertheless, the City submits that §20(22) and §394(c) are irrelevant to the question of the Bochner Plaintiffs’ standing to maintain this action, not because the enforcement authority they confer is general but because the Guaranty Law is “unusual” in that it does not bar or require any specific conduct, but only provides guarantors with a defense in certain contract actions brought by landlords. Id. at 2 (quoting N.Y.C Admin. Code §22-1005 stating that covered guaranties “shall not be enforceable”). Insofar as §22-902(a)(14) does proscribe attempts to collect guaranties rendered unenforceable by §22-1005 as commercial tenant harassment, the City submits that plaintiffs never raised a Contracts Clause challenge to that law. See id. at 7. The City also acknowledges appearing — either as an amicus or an intervening party — in at least five state actions arising under the Guaranty Law and, in each, arguing that the law is constitutional. See id. at 14 & Addendum B. Nevertheless, it maintains that merely defending the constitutionality of a law does not constitute enforcement of the law sufficient to confer standing. See id. (citing Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976)). Moreover, it states that it has no intention of using §20(22), §394(c), or any other law to enforce the Guaranty Law against the Bochner Plaintiffs — “full stop.” Id. at 13. In their own supplemental submission, the Bochner Plaintiffs downplay the significance of defendants’ disavowal and emphasize the large volume and variety of cases in which the City has invoked its enforcement authority under §20(22) and §394(c). See Appellees’ 2d Suppl. Br. at 4, Dkt. 95. At the same time, the Bochner Plaintiffs reiterate that, without regard to City enforcement, their standing to sue is established by the fact that their “injury was complete the minute the Guaranty law was passed.” Id. at 9. DISCUSSION The long history of this case just detailed leads us to two conclusions. First, the Bochner Plaintiffs met their standing burden at the pleadings stage. The Amended Complaint adequately alleged the City’s enforcement of the Guaranty Law, and defendants failed to rebut — indeed twice conceded — the presumption that the government will enforce proscriptive laws. Second, on remand following this court’s decision in Melendez II, the Bochner Plaintiffs failed to meet the more demanding burden on summary judgment to provide factual evidence demonstrating a credible threat of imminent enforcement. They failed to come forward with a single instance in which the City sued or threatened to sue any commercial landlord for violating the Guaranty Law. Moreover, the City has now unequivocally disavowed any intent to enforce the Guaranty Law against the Bochner Plaintiffs. On this record, we deny the City’s request to vacate the judgment in Melendez II, but we must vacate the district court’s award of summary judgment to the Bochner Plaintiffs in Melendez III and remand the case with instructions to dismiss the action for lack of subject matter jurisdiction. I. Article III Standing A. Legal Standards “Article III confines the federal judicial power to the resolution of “‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting U.S. CONST. art III, §2). To satisfy this jurisdictional requirement, a plaintiff cannot simply complain of some wrong in the abstract. Rather, he must have a “personal stake” in the litigation at issue. Id. (internal quotation marks omitted). To demonstrate such a stake, a plaintiff must satisfy the three requirements of standing by showing, “(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.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). The first requirement, i.e., injury in fact, cannot be merely “conjectural” or “hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. at 560 (internal quotation marks omitted). This does not mean, however, that a party must wait until he sustains an actual injury before filing suit. An anticipated future injury may suffice if the threatened injury is “imminent,” a term the Supreme Court construes to mean “certainly impending.” Id. at 564 n.2 (emphasis in original) (internal quotation marks omitted); accord Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 414 n.5 (2013) (requiring “substantial risk” that feared future harm will occur (internal quotation marks omitted)); Vitagliano v. Cnty. of Westchester, 71 F.4th 130, 136 (2d Cir. 2023) (quoting Clapper). Thus, a plaintiff intending “to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” may demonstrate standing to bring a pre-enforcement challenge to that statute by asserting a “credible threat” of imminent enforcement, whether criminal or civil, by a government defendant. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)); see Hedges v. Obama, 724 F.3d 170, 196-97 (2d Cir. 2013). In pre-enforcement challenges, the second and third requirements for standing — causation and redressability — are “often flip sides of the same coin.” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024) (internal quotation marks omitted); see California v. Texas, 593 U.S. at 670-71 (analyzing pre-enforcement standing infirmity “from the point of view of” both causation and redressability). As the Supreme Court has explained, the future injury asserted in a pre-enforcement challenge to a particular law must be “the result of a statute’s…threatened enforcement.” California v. Texas, 593 U.S. at 670 (emphasis in original). Thus, an unenforceable statute cannot cause injury “fairly traceable” to a government actor because “there is no action — actual or threatened”; “[t]here is only the statute’s textually unenforceable language.” Id. at 671 (internal quotation marks omitted). Applying this reasoning in California v. Texas to a challenge to the Affordable Care Act’s insurance-coverage mandate, the Supreme Court held that the absence of any penalty for noncompliance with that mandate precluded plaintiffs from asserting an injury that was traceable to the statute, as required for standing. See id. Similarly, as to redressability, the Supreme Court has stated that, where a challenged statute is unenforceable, “[t]here is no one, and nothing, to enjoin.” Id. at 673. In such circumstances, relief for plaintiffs “could amount to no more than a declaration that the statutory provision they attack is unconstitutional, i.e., a declaratory judgment[,]…the very kind of relief that cannot alone supply jurisdiction otherwise absent.” Id.; see Haaland v. Brackeen, 599 U.S. 255, 292-94 (2023) (holding plaintiffs lacked standing to challenge constitutionality of Indian Child Welfare Act in action against federal officials because statute was not enforced by them but only by state officials). The standing requirements of injury in fact, causation, and redressability are “not mere pleading requirements but rather [are] indispensable part[s] of the plaintiff’s case.” Lujan v. Defs. of Wildlife, 504 U.S. at 561. This means each “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.; see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (“A plaintiff’s burden to demonstrate standing increases over the course of litigation.”). “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.” Lujan v. Defs. of Wildlife, 504 U.S. at 561 (internal quotation marks omitted) (alteration adopted). However, where “the parties have taken discovery, the plaintiff cannot rest on ‘mere allegations,’ but must instead point to factual evidence.” Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024) (quoting Lujan v. Defs. of Wildlife, 504 U.S. at 561). B. Plaintiffs Satisfied Standing at the Pleadings Stage In applying these standing principles here, we start with the operative Amended Complaint, which effectively alleges that (1) the Guaranty Law proscribes as commercial tenant harassment the attempted enforcement of those commercial lease guaranties rendered unenforceable by the Guaranty Law, and (2) the Bochner Plaintiffs face a threat that the City will enforce this proscription against them if they attempt to recoup unpaid rents from their commercial lease guarantor. As to the first point, the Amended Complaint pleads that the Guaranty Law both (a) “forever prohibits landlords from enforcing personal guaranties” on certain commercial leases, Am. Compl. 144, App’x 1046 (citing N.Y.C. Admin. Code §22-1005), and (b) proscribes landlord attempts to do so as commercial tenant harassment, see id. 145, App’x 1046 (citing N.Y.C. Admin. Code §22-902(a)). See also id. 201, App’x 1057 (alleging that “Commercial Harassment Law and the Guaranty Law, operating in tandem, destroy the economic vitality of Plaintiffs’ leases”). As to the second point, the Amended Complaint alleges that certain named City officials are charged with “enforcement” of City laws, including the City’s Administrative Code, which encompasses the Guaranty Law and Commercial Harassment Law. See id.
