United States District Court, E.D. Virginia
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Plaintiffs' Motion for a
Preliminary Injunction and Defendants' Motion to Dismiss.
Plaintiffs the City of New York, the City of Philadelphia,
and the City and County of San Francisco brought this action
against the U.S. Department of Defense ("DoD"), the
three Departments of the Armed Forces, and multiple
high-level military officials. The complaint was filed in the
wake of the tragic shooting incident at a church in
Sutherland Springs, Texas, that occurred on November 5, 2017.
That shooting was perpetrated by Devin Kelley, a former Air
Force service member who had received a bad-conduct discharge
after being court-martialed and convicted of assault against
his wife and stepson. Plaintiffs contend that Kelley should
have been blocked from obtaining a gun based on his
conviction and discharge, but that Defendants' systemic
failure to properly report such records as required by
statute allowed Kelley to obtain the weapon he used in the
1998, the U.S. Department of Justice established the National
Instant Criminal Background Check System ("NICS").
It is a background check database housing records of criminal
activity so that individuals disqualified by law from
possessing or carrying firearms can be properly identified.
Federal law disqualifies, among other categories, people who
have been convicted of certain crimes or who have been
dishonorably discharged from the Armed Forces. 18 U.S.C.
later enacted the NICS Improvement Act ("NIAA"),
codified at 34 U.S.C. § 40901(e)(1), which mandates that
any Federal department or agency that has a record
demonstrating that a person falls within a statutory category
of persons to whom the sale or disposition of firearms is
prohibited must provide that information to the U.S. Attorney
General "not less frequently than quarterly, " and
as required by the Attorney General, "as is necessary to
enable the [NICS] system to operate." Plaintiffs argue
that Defendants have engaged in an "admitted, systemic
and long-standing failure to comply" with the NIAA. They
recite multiple instances of testimony by Defendants
admitting that their compliance procedures have not been
fully followed, including reports of the DoD Inspector
General and the Senate testimony of Secretary of the Air
Force Heather Wilson.
bring this suit pursuant to the Administrative Procedure Act.
Plaintiffs seek to have the Court compel the Defendants to
locate, identify, and report all records in their control
that are required to be reported to the Attorney General
under § 40901(e) (1), to conduct a thorough review of
their records and compliance procedures, and to submit to the
Court for approval a Compliance Plan to ensure that all such
records are timely and accurately reported to the Attorney
General. Plaintiffs also seek to compel Defendants to submit
monthly reports to the Court detailing Defendants'
progress in conducting this review and implementing the
filed their Motion for a Preliminary Injunction on December
22, 2017, arguing that the relief requested in their
Complaint should be mandated preliminarily. Defendants filed
a Motion to Dismiss on March 5, 2018. Both motions were
argued on April 6, 2018, and the matter was taken under
argue that Plaintiffs' APA claim fails for two reasons:
first, because Plaintiffs have not alleged a cognizable
informational injury sufficient to confer standing, and
second, because they do not have jurisdiction under the APA
since they have not alleged a discrete agency action. The
jurisdiction of the federal courts is limited to "Cases
and Controversies." U.S. Const, art. III. The plaintiff
bears the burden of establishing Article III standing.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).
The Supreme Court has identified three constitutionally
required elements of standing: "[t]he plaintiff must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision." Id. (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)). At the pleading
stage, "the plaintiff must clearly . . . allege facts
demonstrating' each element" of standing.
Id. (quoting Warth v. Seldin, 422 U.S. 490,
518 (1975)). Regarding the first prong, "[t]o establish
injury in fact, a plaintiff must show that he or she suffered
'an invasion of a legally protected interest' that is
'concrete and particularized' and ''actual or
imminent, not conjectural or hypothetical.'"
Id. at 1548 (quoting Lujan, 504 U.S. at
have not alleged that they have suffered an injury in fact.
First, they cannot rely merely on the fact that the
Defendants are in violation of the NIAA to establish injury
in fact. The Supreme Court has held that "Article III
standing requires a concrete injury even in the context of a
statutory violation." Id. at 1549. Plaintiffs
must instead plausibly allege a concrete and particularized
injury in fact to their proprietary interests as municipal
governments that is traceable to Defendants' alleged
violations of the NIAA. In an attempt to do this, Plaintiffs
allege that their reliance on NICS checks results in a
concrete injury, because the incompleteness of the databases
"interferes directly and specifically with the
Plaintiffs' governmental responsibilities to run
effective background checks" and to issue firearm
permits only to qualified applicants. They allege that the
incomplete databases may cause (and may have already caused)
Plaintiffs to "unwittingly issue[ ] permits or licenses
... to individuals who should not have received them."
thrust of these allegations is the assertion of an
"informational injury" resulting from
Plaintiffs' reliance on the incomplete databases. See
Fed. Election Comm'n v. Akins, 524 U.S. 11, 24-25
(1998). The Fourth Circuit has held that an informational
injury alone is not enough to constitute a concrete injury
for standing purposes: instead, "a constitutionally
cognizable informational injury requires that a person lack
access to information to which he is legally entitled
and that the denial of that information creates a
"real' harm with an adverse effect." Dreher
v. Experian Information Solutions, Inc., 856 F.3d 337,
345 (4th Cir. 2017).
are two problems with Plaintiffs' argument that their
reliance on the incomplete NICS databases creates a
cognizable informational injury. First, Plaintiffs are not
legally entitled to the information that the NIAA requires
Defendants to report quarterly. The NIAA obligates certain
federal agencies (each of the agency Defendants) to transmit
information to another agency (the Attorney General). 34
U.S.C. § 40901(e)(1). The provision does not create
rights in the Plaintiffs. See Salt Inst, v. Leavitt,
440 F.3d 156, 159 (4th Cir. 2006) (concluding that a statute
governing quality of information disseminated by agencies
"create[d] no legal rights in any third parties");
see also Lujan, 504 U.S. at 573-77 (explaining that
an "interest in proper application of the Constitution
and laws" does not confer standing).
even if Plaintiffs were legally entitled to the information,
Plaintiffs have not plausibly alleged a cognizable
"'real' harm with an adverse effect."
Dreher, 856 F.3d at 345. Plaintiffs assert that the
real harm resulting from their denial of access to
information they are entitled to is that they may have issued
(or may in the future issue) permits or licenses to
prohibited persons. This allegation is simply too speculative
to satisfy Article Ill's requirement that an alleged
injury must be "actual or imminent, not conjectural or
hypothetical." Lujan, 504 U.S. at 560. As
Defendants point out, the allegation requires a chain of
speculative assumptions, including that DoD's delay in
reporting has caused or will cause relevant information to be
absent at the specific time of Plaintiffs' inquiry
regarding an unknown applicant, that the relevant FBI
databases queried by the NICS contain no other disqualifying
records for that applicant, that Plaintiffs' own
investigations return no other disqualifying information, and
that the applicant is otherwise entitled to issuance of the
permit or license under state and local laws. Plaintiffs are
required to satisfy "the well-established tenet that a
threatened injury must be 'certainly impending' to
constitute an injury-in-fact, " Beck v.
McDonald, 848 F.3d 262, 272 (4th Cir. 2017), and cannot
rest "on a highly attenuated chain of
possibilities" or "mere speculation."
Clapper v. /Amnesty Int'l USA, 568 U.S. 398,
410-11 (2013) . Plaintiffs have failed to meet that standard
here, and therefore lack standing to bring this suit.
addition to failing to allege a sufficient injury in fact to
confer standing, Plaintiffs also fail to plead subject matter
jurisdiction under the APA because they do not allege a
discrete "agency action unlawfully withheld" that
they seek to compel, but instead challenge Defendants'
systematic compliance with a statutory mandate.
"does not provide judicial review for everything done by
an administrative agency." Invention Submission
Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir. 2004).
Instead, the APA requires a plaintiff to allege a discrete
agency action "that affects him in [a] specified
fashion." Lujan v. Nat'1 Wildlife
Fed' n, 497 U.S. 871, 882 (1990) . Furthermore,
agency action in this context is limited to
"circumscribed, discrete agency actions, " and a
"failure to act" is "properly understood as a
failure to take an agency action" that is
similarly "limited . . . to a discrete
action." Norton v. S. Utah Wilderness All., 542
U.S. 55, 62-63 (2004). "[A] claim under § 706(1)
can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is
required to take, " and thus a "broad
programmatic attack" is precluded. Id. at 64.
challenge to Defendants' NIAA compliance is not a proper
challenge to a discrete agency action. Instead, it is a
"broad programmatic attack" on Defendants'
compliance with a statute. Id. Plaintiffs allege
that Defendants "have systematically failed, and
continue to systematically fail to provide all [relevant]
records to the Attorney General, and, in a significant number
of instances to provide such records at all." These
allegations do not identify any specific and discrete agency
action withheld, but instead seek to have this Court
supervise and oversee Defendants' programs and procedures
for compliance with the NIAA by compelling Defendants to
provide the Court with a compliance plan and monthly reports.
However, the APA "do[es] not empower a court to
supervise an agency's compliance with a broad statutory
mandate." Murray Energy ...