City of N.Y. v. U.S. Dep't of Def., 18-1699

• Decision Date: 16 January 2019
• Docket Number: No. 18-1699,18-1699
• Citation: 913 F.3d 423
• Parties: The CITY OF NEW YORK; The City of Philadelphia; The City and County of San Francisco, Plaintiffs – Appellants, v. The UNITED STATES DEPARTMENT OF DEFENSE; The United States Department of the Air Force; The United States Department of the Navy; The United States Department of the Army; James N. Mattis, in His Official Capacity as United States Secretary of Defense; Heather A. Wilson, in Her Official Capacity as United States Secretary of the Air Force; Richard V. Spencer, in His Official Capacity as United States Secretary of the Navy; Dr. Mark T. Esper, in His Official Capacity as United States Secretary of the Army; Dermot F. O'Reilly, in His Official Capacity as Director of the Defense Criminal Investigative Service; Colonel Kirk B. Stabler, in His Official Capacity as Commander of the Air Force Office of Special Investigations; Andrew L. Traver, in His Official Capacity as Director of the Naval Criminal Investigative Service; Major General David P. Glaser, in His Official Capacity as Commanding General of the United States Army Criminal Investigation Command; Rear Admiral John B. Nowell, in His Official Capacity as Commander of the Navy Personnel Command And Deputy Chief of Naval Personnel, Defendants - Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

913 F.3d 423

The CITY OF NEW YORK; The City of Philadelphia; The City and County of San Francisco, Plaintiffs – Appellants,

v.The UNITED STATES DEPARTMENT OF DEFENSE; The United States Department of the Air Force; The United States Department of the Navy; The United States Department of the Army; James N. Mattis, in His Official Capacity as United States Secretary of Defense; Heather A. Wilson, in Her Official Capacity as United States Secretary of the Air Force; Richard V. Spencer, in His Official Capacity as United States Secretary of the Navy; Dr. Mark T. Esper, in His Official Capacity as United States Secretary of the Army; Dermot F. O'Reilly, in His Official Capacity as Director of the Defense Criminal Investigative Service; Colonel Kirk B. Stabler, in His Official Capacity as Commander of the Air Force Office of Special Investigations; Andrew L. Traver, in His Official Capacity as Director of the Naval Criminal Investigative Service; Major General David P. Glaser, in His Official Capacity as Commanding General of the United States Army Criminal Investigation Command; Rear Admiral John B. Nowell, in His Official Capacity as Commander of the Navy Personnel Command And Deputy Chief of Naval Personnel, Defendants - Appellees.

No. 18-1699

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2018

Decided: January 16, 2019

ARGUED: Matthew Jeffrey MacLean, PILLSBURY WINTHROP SHAW PITTMAN LLP, Washington, D.C., for Appellants. Tyce R. Walters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Laura B. LoBue, Jeetander Dulani, Washington, D.C., Kenneth W. Taber, Matthew F. Putorti, Nicholas M. Buell, PILLSBURY WINTHROP SHAW PITTMAN LLP, New York, New York, for Appellants. Eric Proshansky, Melanie C.T. Ash, Eric Lee, Claude S. Platton, Zachary W. Carter, CORPORATION COUNSEL OF THE CITY OF NEW YORK, NEW YORK CITY LAW DEPARTMENT, New York, New York, for Appellant City of New York. Dennis J. Herrera, Yvonne R. Mere, Owen J. Clements, SAN FRANCISCO CITY ATTORNEY’S OFFICE, San Francisco, California, for Appellant City and County of San Francisco. Marcel S. Pratt, Eleanor N. Ewing, Benjamin H. Field, CITY OF PHILADELPHIA LAW DEPARTMENT, Philadelphia, Pennsylvania, for Appellant City of Philadelphia. Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Michael J. Fucci, Associate General Counsel, UNITED STATES DEPARTMENT OF DEFENSE, Washington, D.C., for Appellees.

Before WILKINSON, AGEE, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Thacker joined.

WILKINSON, Circuit Judge:

Appellants are three municipalities who use the National Instant Criminal Background Check System to carry out their obligations under state law. This system, known as the NICS, is managed by the Federal Bureau of Investigation. The Department of Defense (DOD) is required under federal law to provide records to the NICS but has persistently been unable to fully carry out this obligation. The appellants sued DOD and its constituent military departments to compel the department’s more thorough compliance. The district court dismissed their claim, holding both that the appellants lacked constitutional standing and failed to establish subject matter jurisdiction under the Administrative Procedure Act. For the following reasons, we affirm.

I.

A.

The responsibility to combat gun violence falls on every level of government. Law enforcement officials, whether local, state, or federal, work to prevent senseless gun violence and are often the first to risk their lives to protect our communities. Working alongside these officers are many other governmental partners, including agencies of the federal government. The dispute here grows out of a program that facilitates information sharing between federal agencies and local law enforcement officials: The National Instant Criminal Background Check System.

The Brady Handgun Violence Prevention Act, or Brady Act, established the first nationwide system for background checks. Pub. L. No. 103-159, 107 Stat. 1536 (1993). Under the law, enacted in 1993, a background check was required for firearms sales by licensed dealers. Id. § 102. The Brady Act directed the Attorney General to establish a national database that would be accessible to the firearms dealers tasked with ensuring these background checks were performed. Id. § 102(b). To implement the statute, the Attorney General established the National Instant Criminal Background Check System (NICS) and delegated control of the system to the Federal Bureau of Investigation (FBI).

The NICS contains records for individuals who are prohibited from possessing a firearm. The system draws from many distinct federal databases that contain disqualifying records and relies on information submitted from across the federal government. In the military context, DOD provides information regarding current and former service members who are disqualified from owning a gun because of a prior conviction. The Brady Act also empowers the Attorney General to request records from other agencies that may possess disqualifying information. Id. § 103(e) (codified at 34 U.S.C. § 40901(e) (2018) ).

As originally designed, state law enforcement agencies were required to administer the Brady Act’s background checks on a temporary basis while the new national background check system was established. The division of responsibility envisioned by Congress was altered by the Supreme Court’s decision in Printz v. United States , which found that "[t]he Federal Government may [not] command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). As the law now stands, states are not required to perform any functions associated with the Brady Act, although a state may voluntarily play a role. For states that elect to participate, a "point of contact" is designated to "serv[e] as the intermediary between [a dealer] and the federal databases checked by the NICS." 28 C.F.R. § 25.2 (2017).

This does not mean that state and local governments have no use of the information stored in the NICS. To the contrary, many states require law enforcement agencies to carry out a range of functions designed to prevent guns from reaching dangerous hands. Depending on the particulars of state law, a local law enforcement agency may perform checks associated with issuing permits and licenses, or may review disqualifying information before transferring a gun that is in the state’s possession. For example, the City of Philadelphia, a party to this case, is required to process applications for licenses to carry firearms under Pennsylvania law. See 18 Pa. Cons. Stat. § 6109. The other municipal appellants have similar obligations.

The Attorney General has long permitted state and local agencies, including the appellants, to access the NICS for these purposes. In 1998, the FBI promulgated a rule allowing state and local law enforcement to use the NICS when "issu[ing] a firearm-related or explosives-related permit or license," including concealed-carry permits. See National Instant Criminal Background Check System Regulation, 63 Fed. Reg. 58,303, 58,309 (Oct. 30, 1998) (codified at 28 C.F.R. § 25.6(j)(1) ). In 2014, a new rule further expanded NICS access, allowing state and local agencies to access the system when disposing of firearms in their possession. See National Instant Criminal Background Check System Regulation, 79 Fed. Reg. 69,047, 69,048 (Nov. 20, 2014) (codified at 28 C.F.R. § 25.6(j)(3) ). The regulations clearly state that these uses of the NICS are permissive, intended as a service, and "unrelated to NICS background checks required by the Brady Act." 28 C.F.R. § 25.6(j).

At times, local law enforcement officials have pushed for even greater access. For instance, the FBI’s 1998 rulemaking noted that some local agencies wanted permission to access the database to determine if a person was in "unlawful possession of a firearm." 63 Fed. Reg. at 58,305. The FBI resisted these requests. In the FBI’s view, such expanded use would potentially run afoul of federal privacy laws. Id. Moreover, the FBI noted that the Brady Act only required agency reporting for the purpose of carrying out the federal background check provisions, rather than for a wider range of law enforcement activities. Id. The permissive use regulations therefore account for the requirements of federal law, the informational needs of local law enforcement, and the privacy concerns of the affected individuals. In arriving at the scheme in place today, the FBI has shown a willingness to expand NICS access to support local partners, but has apparently not gone as far as some of those partners may desire.

The comprehensiveness and accuracy of the NICS has been a subject of frequent debate and attention. See, e.g. , U.S. Gov’t Accountability Office, GAO/T-GGD-00-163, Gun Control: Improving the National Instant Criminal Background Check System (June 21, 2000). At the federal level, many agencies possess disqualifying information that would be relevant to a background check. Under the original Brady Act, federal agencies were required to furnish information to the Attorney General upon request. See Pub. L. No. 103-159, § 103(e)(1) (1993) (codified as amended at 34 U.S.C. § 40901(e)(1) ).

Following the fatal shooting of 32 students and faculty at Virginia Tech in 2007, Congress enacted new legislation to improve the NICS. See NICS Improvement Amendments Act of 2007 (NIAA), Pub. L. No. 110-180, 121 Stat. 2559 (2008). Finding that "nearly 21,000,000 criminal records are not accessible by NICS and millions of criminal records are missing critical data, such as...