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The City of New York v. The United States Department of Defense

United States Court of Appeals, Fourth Circuit

January 16, 2019

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.

          Argued: December 11, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-01464-CMH-MSN)

         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.

          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. ยง 102(b). To implement the statute, the Attorney General ...


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