Nat'l Rifle Assoc. of Am. v. Reno

Decision Date11 July 2000
Docket NumberNo. 99-5270,99-5270
Citation216 F.3d 122
Parties(D.C. 2000) National Rifle Association of America, Inc. et al.,Appellants v. Janet Reno, Attorney General of the United States, Appellee
CourtU.S. Court of Appeals — District of Columbia Circuit

[Copyrighted Material Omitted] Appeal from the United States District Courtfor the District of Columbia(No. 98cv02916)

Stephen P. Halbrook argued the cause for appellants. With him on the briefs was Richard E. Gardiner.

Michael S. Raab, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were David W. Ogden, Acting Assistant Attorney General, Mark B. Stern, and Susan L. Pacholski, Attorneys, and Wilma A. Lewis, U.S. Attorney.

Before: Sentelle, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Sentelle.

Tatel, Circuit Judge:

The National Rifle Association challenges a Justice Department regulation providing for temporary retention of data generated during background checks of prospective firearms purchasers, as required by the Brady Handgun Violence Prevention Act. According to the NRA, the Brady Act requires immediate destruction of personal information relating to lawful firearm transactions. The Attorney General interprets the statute differently, arguing that temporary retention of data for at most six months is necessary to audit the background check system to ensure both its accuracy and privacy. Finding nothing in the Brady Act that unambiguously prohibits temporary retention of information about lawful transactions, and finding that the Attorney General has reasonably interpreted the Act to permit retention of such information for audit purposes, we affirm the district court's dismissal of the complaint.


The Gun Control Act of 1968 makes it unlawful for certain individuals, including convicted felons, fugitives from justice, and illegal aliens, to possess firearms. See 18 U.S.C. 922(g). The Brady Handgun Violence Prevention Act of 1993 required the Attorney General to establish a "national instant criminal background check system," known as the NICS, to search the backgrounds of prospective gun purchasers for criminal or other information that would disqualify them from possessing firearms. See 103(b), Pub. L. No. 103-159, 107 Stat. 1536. A computerized system operated by the FBI, the NICS searches for disqualifying information in three separate databases: (1) the "NICS Index," containing records on persons known to be disqualified from possessing firearms under federal law; (2) the "National Crime Information Center," containing records on protective orders, deported felons, and fugitives from justice; and (3) the "Interstate Identification Index," containing criminal history records. 28 C.F.R. 25.6(c)(1)(iii).

Before selling a weapon, firearm dealers must submit the prospective purchaser's name, sex, race, date of birth, and state of residence to the NICS operations center at the FBI.Id. 25.7(a). If the firearm dealer is in a state that has elected to serve as a "point of contact" for NICS queries, the dealer must submit the inquiry to the relevant state agency.Id. 25.6(d). Upon receiving such an inquiry, the FBI or state agency must immediately provide the gun dealer with one of three responses: (1) "proceed," if no information in the system indicates that a firearm transfer would be unlawful;(2) "denied," if the prospective purchaser may not legally possess a firearm; or (3) "delayed," if further research is necessary. Id. 25.6(c)(1)(iv); Brady Act 103(b), 107 Stat. at 1541.

A Justice Department regulation requires the FBI to retain records of all NICS background searches--including names and other identifying information about prospective gun purchasers--in an automated "Audit Log." 28 C.F.R. 25.9(b).According to the regulation, the Audit Log is "a chronological record of system (computer) activities that enables the reconstruction and examination of the sequence of events and/or changes in an event." Id. 25.2. The regulation's preamble describes the purpose of the Audit Log:

By auditing the system, the FBI can identify instances inwhich the NICS is used for unauthorized purposes, suchas running checks of people other than actual gun trans-ferees, and protect against the invasions of privacy thatwould result from such misuse. Audits can also deter-mine whether potential handgun purchasers or [gun deal-ers] have stolen the identity of innocent and unsuspectingindividuals or otherwise submitted false identificationinformation, in order to thwart the name check system.The Audit Log will also allow the FBI to perform qualitycontrol checks on the system's operation by reviewingthe accuracy of the responses given by the NICS recordexaminers to gun dealers.

National Instant Criminal Background Check System Regulation, 63 Fed. Reg. 58303, 58303-04 (1998) (hereinafter, NICS Regulation); see also 28 C.F.R. 25.9(b)(2).

The regulation restricts use of the Audit Log. Information "pertaining to allowed transfers may only be used by the FBI for the purpose of conducting audits of the use and performance of the NICS." 28 C.F.R. 25.9(b)(2). The Audit Log "may not be used by any department, agency, officer, or employee of the United States to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions. The Audit Log will be monitored and reviewed on a regular basis to detect any possible misuse of the NICS data." Id.

The Notice of Proposed Rulemaking had called for retaining information relating to allowed transfers in the Audit Log for eighteen months. National Instant Criminal Background Check System Regulations, 63 Fed. Reg. 30430, 30432 (proposed June 4, 1998). Declaring that "the general retention period for records ... in the NICS Audit Log should be the minimum reasonable period for performing audits on the system," the final regulation reduced the retention period to "in no event more than six months." NICS Regulation, 63 Fed. Reg. at 58304. The regulation's preamble states that "the FBI shall work toward reducing the retention period to the shortest practicable period of time less than six months that will allow basic security audits of the NICS." Id. The Attorney General has since published a proposed rule that would shorten the retention period for records of allowed transfers to ninety days. National Instant Criminal Background Check System Regulation, 64 Fed. Reg. 10262, 10264 (proposed March 3, 1999).

When removed from the Audit Log, personal information relating to allowed transfers is destroyed. 28 C.F.R. 25.9(b)(1). NICS records relating to denied firearm transfers are kept in the Audit Log for ten years, then transferred to a Federal Records Center for storage. Id. State agencies performing background checks in lieu of the FBI may retain information on allowed transfers if the records are "part of a record system created and maintained pursuant to independent state law regarding firearms transactions." Id. 25.9(d)(1), (d)(2).

On the day the NICS regulation became effective, the National Rifle Association of America, joined by the Law Enforcement Alliance of America, Inc., and four John and Jane Does, filed suit in the U.S. District Court for the District of Columbia, arguing that temporary retention of NICS records of allowed transfers violates three provisions of the Brady Act: section 922(t)(2)(C), requiring that the system "destroy" records of allowed transactions; section 103(i)(1), prohibiting the government from "requir[ing] that any [NICS] record ... be recorded at or transferred to a [government] facility"; and section 103(i)(2), prohibiting the government from "us[ing] the [NICS] system ... to establish any system for the registration of firearms." 107 Stat. at 1540, 1542. The complaint also alleged that the Attorney General has no authority to exempt NICS information retained by state agencies from the Brady Act's destruction requirement, even if that information is "part of a record system created and maintained pursuant to independent state law."

The Attorney General interpreted the Act differently, arguing that neither section 922(t)(2)(C) nor section 103(i)(1) prohibits temporary retention of NICS records, and that the Audit Log is not a "system for ... registration" within the meaning of section 103(i)(2). For authority to create the Audit Log, the Attorney General relied on her statutory obligations to establish a system capable of providing accurate information on the lawfulness of firearm transactions, see Brady Act,103(b), 107 Stat. at 1541, and to protect the privacy and security of the NICS. See Brady Act,103(h), 107 Stat. at 1542.

The district court, finding nothing in the Brady Act to require immediate destruction and the Attorney General's construction of the statute reasonable, dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Renewing the arguments it made in the district court, the NRA appeals. Our review is de novo. See, e.g., Brown v. Plaut, 131 F.3d 163, 167 (D.C. Cir. 1997).


Because the NRA challenges a statute administered by a government agency, we proceed in accordance with the familiar two-part test of Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We ask first "whether Congress has directly spoken to the precise question at issue," for if it has, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43.If we find the statute silent or ambiguous with respect to the precise question at issue, we proceed to the second step of Chevron analysis, asking "whether the agency's answer is based on a permissible construction of the statute." Id. at 843. At this point in our review, we afford substantial deference to the agency's...

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