The United States Law Week

DOD Wins Suit Over Derelict Gun Data Reporting

Jan. 17, 2019, 2:54 PM

Three cities failed to compel the Department of Defense to promptly comply with its obligations to report information needed for gun background checks.

The suit under the Administrative Procedure Act by New York, Philadelphia, and San Francisco was properly dismissed for lack of jurisdiction, the U.S. Court of Appeals for the Fourth Circuit said Jan. 16.

The Brady Handgun Violence Prevention Act established the National Instant Criminal Background Check System (NICS to be used for federal background checks during gun purchases.

DOD is statutorily required to provide data to the system, but has always struggled to meet its obligations.

The cities filed their suit after a mass shooting in Texas by a former military member, who wouldn’t have been allowed to purchase guns if his DOD record was in NICS.

The APA waives federal immunity if a person suffers a legal wrong because of an agency action, the opinion by Judge J. Harvie Wilkinson III said. But plaintiffs can’t launch a broad attack on government conduct, they must identify specific and discrete conduct, it said.

The cities don’t challenge a discrete agency action, the court said. Instead, they asked the court to supervise DOD’s compliance with its statutory mandate in order to make federal assistance more useful, it said.

Though their motives are laudable, the APA doesn’t countenance such an action, the court said.

Judges G. Steven Agee and Stephanie D. Thacker joined the opinion.

Pullsbury Winthrup Shaw Pittman LLP represented the cities. DOJ represented the government.

The case is City of New York v. DOD, 2019 BL 14650, 4th Cir., No. 18-1699, 1/16/19.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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