City of N.Y. v. U.S. Dep't of Def.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1699

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.

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: December 11, 2018 Decided: January 16, 2019
Before WILKINSON, AGEE, and THACKER, Circuit Judges.

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

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.

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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).

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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 (1997). As the law now stands, states are not

required to perform any functions associated with the Brady Act, although a state may

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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

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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)).

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 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 arrest dispositions, due to backlogs,”

the legislation imposed new reporting requirements and authorized new grants to assist

states. Id. §§ 101, 103-104. To improve inter-agency information sharing, the Act

imposed an affirmative duty on agencies to report disqualifying information on a

quarterly basis. Id. § 101(a) (codified at 34 U.S.C. § 40901(e)(1)(C)-(D)). To incentivize

compliance, the Attorney General is required to provide an annual report to Congress on

each agency’s success. Id. (codified at 34 U.S.C. § 40901(e)(1)(E)).

The Department of Defense (DOD) has long struggled to comply with the NIAA’s

affirmative reporting provision, a deficiency the department readily admits. Response Br.

at 1. The DOD Inspector General reviewed the program in 2015 and found that a

substantial percentage of required records were not being submitted to the FBI. U.S.

Dep’t of Def. Inspector Gen., Evaluation of Department of Defense Compliance with

Criminal History Data Reporting Requirements 9 (Feb. 12, 2015). Similar findings were

made again in 2017. U.S. Dep’t of Def. Inspector Gen., Evaluation of Fingerprint Card

and Final Disposition Report Submissions by Military Service Law Enforcement

Organizations (Dec. 4, 2017). On November 5, 2017, a gunman opened fire at a church in

Sutherland Springs, Texas, killing 26 people and injuring an additional 20. The gunman

was a former member of the military who had been convicted in court-martial

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proceedings. According to the municipal appellants, the gunman would not have been

able to obtain a firearm if DOD complied with its reporting obligations under the NIAA.

Following the devastating loss of life at Sutherland Springs, Congress again

amended the statute governing the NICS to improve inter-agency reporting. The Fix

NICS Act, Pub. L. No. 115-141, Div. S, Title VI (2018), required federal agencies with

disqualifying records to submit semiannual certification reports to the Attorney General

and develop compliance plans to improve their own performance. Id. § 602. Like the

earlier amendment, this law also includes measures designed to hold poor performers

accountable. First, the law requires that the Attorney General notify Congress of non-

compliant agencies and publish a list of those agencies on the DOJ website. Second, the

law makes political appointees at non-compliant agencies ineligible for bonus pay until

the agency improves. Id. § 602(1) (codified at 34 U.S.C. § 40901(e)(1)(F)-(I)).

In the time since the Sutherland Springs shooting, components of the Department

of Defense have taken a wide range of actions to correct their deficiencies. Efforts

include the creation of new task forces and compliance plans, as well as the development

of new technological processes to streamline reporting. See J.A. 302-16. For example,

the Army has, in recent months, provided new records for nearly 33,000 disqualified

persons to the NICS.

B.

The tragic shooting in Sutherland Springs also gave rise to this litigation. The

appellants are three municipalities, all of whom use the NICS database to fulfill their

requirements under state law. They brought this suit to compel DOD’s full reporting of

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disqualifying information to the Attorney General, as required by the NIAA. Since

neither the Brady Act nor the NIAA contemplated a separate cause of action to compel

performance with inter-agency reporting obligations, the municipal appellants brought

their claim under the general provision of the Administrative Procedure Act that allows

an aggrieved party to “compel agency action unlawfully withheld or unreasonably

delayed.” 5 U.S.C. § 706(1) (2012).

The district court granted the federal defendants’ motion to dismiss this claim,

finding that it lacked jurisdiction to hear the case. The court identified two independent

jurisdictional defects. First, the district court found that the municipal appellants had

failed “to allege[] a cognizable informational injury sufficient to confer standing.” J.A.

341. Second, the court held that the cities did not establish “jurisdiction under the APA

since they have not alleged a discrete agency action.” Id. As a consequence of the

dismissal, the court also denied the municipal appellants’ motion for a preliminary

injunction. Id. at 348.

This appeal followed. While federal courts must assure themselves that they have

jurisdiction before proceeding to the merits, see Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94-95 (1998), both of the infirmities identified by the district court go to the

question of jurisdiction. As such, this court can turn to either issue alone to resolve this

case. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999) (“[T]here is no

unyielding jurisdictional hierarchy.”). Our review is de novo.

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 II.

Because this court is not in “the habit of decid[ing] questions of a constitutional

nature unless absolutely necessary,” we turn first to the statutory question of whether the

municipal appellants have established subject matter jurisdiction under the

Administrative Procedure Act (APA). See Flue-Cured Tobacco Coop. Stabilization Corp.

v. EPA, 313 F.3d 852, 857 (4th Cir. 2002) (quoting Ashwander v. Tenn. Valley Auth., 297

U.S. 288, 347 (1936) (Brandeis, J. concurring)). At the outset, it is important to

understand the nature of appellants’ claim. Their challenge is not about access to the

NICS; it is instead about the quality of the information in that system. By their own

submission, each of the appellants accesses the NICS frequently to carry out their

obligations under state law. This is thus not a case where appellants have asked for access

provided for in the regulations and have been denied. Instead, the municipalities see their

existing access to the NICS as an invitation to compel any federal inter-agency legal

requirement that may affect the quality of the information they receive. On their view, the

APA authorizes a recipient of government information to initiate a private action to

compel governmental conduct that might improve that information’s accuracy or

comprehensiveness. As we explain below, there is simply no basis in the APA’s text for

such a broad incursion into internal agency management.

A.

The APA waives the federal government’s sovereign immunity for a limited set of

suits, brought by “a person suffering legal wrong because of agency action” to obtain

relief “other than money damages.” 5 U.S.C. § 702. It is well-established that

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“[s]overeign immunity is jurisdictional in nature” and “absent a waiver . . . shields the

Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475

(1994). Judicial review under the APA, moreover, is limited to “final agency actions.”

5 U.S.C. § 704.

As these provisions of the APA make plain, subject matter jurisdiction is lacking if

the plaintiff fails to challenge a particular “agency action” that is fit for review. See

Invention Submission Corp. v. Rogan, 357 F.3d 452, 460 (4th Cir. 2004). “The term

‘action’ as used in the APA is a term of art that does not include all conduct” on the part

of the government. Vill. of Bald Head Island v. U.S. Army Corps of Eng’rs, 714 F.3d 186,

193 (4th Cir. 2013). See also Hearst Radio v. FCC, 167 F.2d 225, 227 (D.C. Cir. 1948)

(“The difficulty with the appellant company’s position is that the Administrative

Procedure Act does not provide review for everything done by an agency.”). Instead, the

APA defines “agency action” to include “the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C.

§ 551(13).

This definition limits the scope of judicial review in two important respects. First,

each of the terms that comprise the definition of “agency action” is limited to those acts

that are “circumscribed” and “discrete.” Norton v. Southern Utah Wilderness Alliance

(SUWA), 542 U.S. 55, 62 (2004). When challenging agency action―whether it be a

particular action or a failure to act altogether―the plaintiff must therefore identify

specific and discrete governmental conduct, rather than launch a “broad programmatic

attack” on the government’s operations. Id. at 64. This distinction between discrete acts,

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which are reviewable, and programmatic challenges, which are not, is vital to the APA’s

conception of the separation of powers. Courts are well-suited to reviewing specific

agency decisions, such as rulemakings, orders, or denials. We are woefully ill-suited,

however, to adjudicate generalized grievances asking us to improve an agency’s

performance or operations. In such a case, courts would be forced either to enter a

disfavored “obey the law” injunction, see Int’l Longshoremen’s Ass’n, Local 1291 v.

Phil. Mar. Trade Ass’n, 389 U.S. 64, 76 (1967), or to engage in day-to-day oversight of

the executive’s administrative practices. Both alternatives are foreclosed by the APA, and

rightly so. The Supreme Court’s guidance on this point is worth considering in full:

If courts were empowered to enter general orders compelling compliance
with broad statutory mandates, they would necessarily be empowered, as
well, to determine whether compliance was achieved-which would mean
that it would ultimately become the task of the supervising court, rather
than the agency, to work out compliance with the broad statutory mandate,
injecting the judge into day-to-day agency management.

SUWA, 542 U.S. at 66-67. The requirement that the challenger identify a discrete act

keeps us from entering such a quagmire.

Second, the definition of “agency action” is limited to those governmental acts

that “determin[e] rights and obligations.” Clear Sky Car Wash LLC v. City of

Chesapeake, Va., 743 F.3d 438, 445 (4th Cir. 2014). This limitation ensures that judicial

review does not reach into the internal workings of the government, and is instead

properly directed at the effect that agency conduct has on private parties. To meet this

requirement, a party must demonstrate that the challenged act had “an immediate and

practical impact,” see Golden & Zimmerman LLC v. Domenech, 599 F.3d 426, 433 (4th

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Cir. 2010), or “alter[ed] the legal regime” in which it operates. See Bennett v. Spear, 520

U.S. 154, 178 (1997). It is not enough for plaintiffs to simply identify a governmental

action that ultimately affected them through the “independent responses and choices of

third parties,” or mere “coercive pressures.” Flue-Cured Tobacco, 313 F.3d at 859, 861.

This requirement applies fully to claims that an agency has failed to act, which is

“properly understood as a failure to take an agency action.” See Norton, 542 U.S. at 62.

Since “agency actions” must determine rights and obligations, claims to compel an

agency to take an action must seek such a determination as well.

These two requirements, which flow directly from the APA’s text, apply to all

challenges to agency action and accordingly limit judicial review generally. When a

plaintiff brings a claim to compel agency action, like the municipal appellants have here,

a further limit applies. Under the APA, actions that can be compelled are only those that

have been “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). As the

Supreme Court has explained, the text of § 706(1) requires that the plaintiff identify

action that is “legally required.” SUWA, 542 U.S. at 63. Just like the traditional

mandamus remedy from which this provision is derived, claims to compel agency action

are “limited to enforcement of ‘a specific, unequivocal command,’” over which an

official has no discretion. Id. (quoting ICC v. New York, N.H. & H.R. Co., 287 U.S. 178,

204 (1932)).

Taken together, the limitations imposed on claims to compel agency action under

the APA strike a balance between meaningful judicial review and the needs of effective

administration. Review is available only when acts are discrete in character, required by

13
law, and bear on a party’s rights and obligations. The result is a scheme allowing courts

to review only those acts that are specific enough to avoid entangling the judiciary in

programmatic oversight, clear enough to avoid substituting judicial judgments for those

of the executive branch, and substantial enough to prevent an incursion into internal

agency management. See SUWA, 542 U.S. at 64-65.

These principles guide our consideration of all claims to compel agency action,

regardless of the context. Claims involving government information are no exception.

Our court, just like our sister circuits, has had many occasions to consider how the

requirements of agency action apply to claims that the government has wrongfully

handled the information in its possession. In some cases, the claim is that the

government’s decision to disseminate information, such as an unfavorable report, was

unlawful. See Invention Submission Corp., 357 F.3d at 460; see also Flue-Cured

Tobacco, 313 F.3d at 859; Indus. Safety Equip. Ass’n, Inc. v. EPA, 837 F.2d 1115, 1118

(D.C. Cir. 1988). At other times, the claim was that the government improperly withheld

or mishandled personal information. See, e.g., Fanin v. U.S. Dep’t of Veterans Affairs,

572 F.3d 868, 871 (11th Cir. 2009). Informational harms may involve novel facts, but

they do not disrupt the legal principles set forth in the APA. See Golden & Zimmerman,

LLC, 599 F.3d at 431-32 (finding that an agency’s “reference guide” was not agency

action because it did not “impose new legal requirements”). As these cases aptly

demonstrate, a plaintiff’s burden remains constant and subject to the above requirements

throughout.

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 B.

Applying these well-established principles to the facts here, it is clear that the

municipal appellants have failed to establish subject matter jurisdiction under the APA.

Once again, the claim at issue arises from the appellants’ permissive use of the NICS,

afforded to them by regulation, for purposes explicitly “unrelated to the NICS

background checks required by the Brady Act.” 28 C.F.R. § 25.6(j). The regulation

affords the municipalities only “access to the NICS Index.” Id. On the view of the

municipal appellants, this access, which is not expressly contemplated either by the

Brady Act or subsequent legislation, allows a NICS user to reach into the federal

government and compel any legal obligations associated with developing the information

in the system. Such a broad theory of agency action is untethered from the APA’s text

and contravenes important limits that Congress has placed on judicial review.

First, the municipal appellants’ claim does not challenge a discrete agency action.

Instead appellants ask that we “supervise an agency’s compliance with [the] broad

statutory mandate” of the NIAA. Murray Energy Corp. v. EPA, 861 F.3d 529, 537 n.4

(4th Cir. 2017). By appellants’ own account, the DOD’s failure to provide disqualifying

conviction records for former service members is widespread and systemic. The

department has admitted as much and is engaged in extensive efforts to increase its

compliance. As all parties seem to agree, the road ahead is an arduous one, as DOD

attempts to improve on its partial and inconsistent reporting. This is the sort of public

policy problem that often requires reallocating resources, developing new administrative

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systems, and working closely with partners across government. Solving it will likely

require expertise in information technology and deep knowledge of how military needs

intersect with data collection. In other words, it is exactly the sort of “broad

programmatic” undertaking for which the APA has foreclosed judicial review. See

SUWA, 542 U.S. at 64.

Congress seems to be of the same view. Since the passage of the Brady Act,

Congress has on multiple occasions turned its attention to the severe challenge of

rampant gun violence. Twice, the legislative responses have been directed squarely at

agency compliance with NICS reporting obligations. Congress has included

accountability measures, designed to identify delinquent agencies and push them into

improving their performance. The most recent effort in this regard singles out executive

compensation at these agencies, limiting bonus pay for those who do not improve their

outcomes. See 34 U.S.C. § 40901(e)(1)(I) (providing that certain “political

appointee[s] . . . shall not be eligible for the receipt of bonus pay” until their department

improves its compliance). These measures signal that Congress sees this problem as one

ripe for legislative oversight and in need of attention by experts in the executive branch.

At no point, however, has Congress invited the federal courts into the process. Perhaps

cognizant of the judiciary’s inability to oversee and manage a complex scheme of inter-

agency collaboration, we have appropriately been left on the sideline.

The municipal appellants try to nonetheless force us onto the field by

characterizing their broad claim as simply an aggregation of many small claims, each one

seeking to compel the individual reports required by the NIAA. On this view, what the

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cities seek is not programmatic because each specific act that DOD has failed to perform

is discrete when considered on its own. But any limit on programmatic assessment would

be rendered meaningless if such an argument prevailed. All governmental programs are

the aggregation of individual decisions, many of which are required by law. The APA

ensures that it is the individual decisions that are assessed as agency action, rather than

the whole administrative apparatus.

The municipal appellants are surely correct that ongoing failures to carry out

discrete obligations can be subject to review. Government deficiencies do not become

non-reviewable simply because they are pervasive. This, however, does nothing to

obviate the fact that a discrete action is wholly lacking here. By the appellants’ own

estimate, full compliance with the NIAA may require DOD to obtain and transmit tens of

thousands of records. There is simply no way to achieve such a result without wholesale

improvements in the DOD’s reporting requirements, which take time and require the

expertise of senior civilian and military leaders.

If there were any doubt about the nature of the cities’ claim, the requested remedy

tells the real story. Their complaint “seeks immediate injunctive relief to compel

Defendants to repair this broken system and to cure once and for all the potentially

deadly gaps in the NCIC database.” J.A. 17. In their prayer for relief, the appellants ask

that the DOD, on “a schedule to be set by the Court,” “identify all records” in its

possession, provide the information contained in those records to the Attorney General,

“conduct a thorough review of [its] records and procedures,” “submit to the Court for

approval a compliance plan,” and provide “a monthly report to the Court detailing [its]

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progress.” Id. at 35-36. The requested relief would continue “until such time as the Court

is satisfied that Defendants have brought themselves into full compliance with 34 U.S.C.

§ 40901.” Id. at 36 (emphasis added). The APA’s discreteness requirement exists to avoid

placing the courts in this exact position. As we previously explained, “[t]he obvious

inability for a court to function in such a day-to-day managerial role over agency

operations is precisely the reason why the APA limits judicial review to discrete agency

actions.” Vill. of Bald Head Island, 714 F.3d at 194.

Moreover, the municipal appellants have failed to demonstrate that the DOD’s

reporting requirements in any way determine their rights and obligations. Accordingly,

they have not identified an act that can be compelled by this court under § 706(1). See

SUWA, 542 U.S. at 62 (finding that a failure to act under § 706(1) means “failure to take

an agency action”). The action challenged in this case is DOD’s obligation to provide

information only to another agency of the federal government: The Department of

Justice. See 34 U.S.C. § 40901(e)(1)(C). The regulation permitting local law enforcement

agencies to use the NICS refers only to access to the system, not to the particular

information provided to the FBI by other federal agencies. The transfer of information

between agencies does not, without more, alter the rights and obligations of any party.

That is especially true, as here, where outside access to the information is entirely

permissive and implicates none of the complaining party’s obligations under federal law.

We need not say here that information sharing can never constitute agency action.

We simply note that claims to compel an agency to provide information are held to the

same standard as any other. In arguing otherwise, the municipal appellants point to a

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string of cases, all from outside this circuit, holding that the government’s alleged misuse

of information was reviewable “agency action.” Our holding here, however, raises no

conflict with these decisions. The cases relied on by the appellants involve claims wholly

unlike the one that they have brought. For example, one case involves the government’s

legal obligations with respect to the plaintiffs’ personal medical information, see Vietnam

Veterans of Am. v. CIA, 811 F.3d 1068, 1078 (9th Cir. 2015) (finding that “the Army

[has] a duty to provide notice to prior test subjects of information regarding their well-

being”), while another examines the rights of federal employees under the civil service

system, see Hondros v. U.S. Civil Service Comm., 720 F.2d 278, 280 (3d Cir. 1983). Each

of these cases involved plaintiffs seeking information that was particular to them and

their own rights under federal law. As such, they tell us little about how to handle a case,

like this one, where the plaintiff seeks wholesale compliance with an entire

administrative scheme, based solely on the fact that the government has granted them

access to an information system.

C.

What the municipal appellants are ultimately asking for is a judicial decree making

the assistance of the federal government more useful to them than it is now. While their

motives for wanting to see improvement to the NICS are laudable, they point to no case

suggesting that the APA countenances such an action. And for good reason. If a party

could seek review any time the federal government’s alleged non-compliance made a

government program less useful than it might otherwise be, the possibilities for litigation

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would be endless. Followed to its logical conclusion, a recipient of the mail could sue the

Postal Service for improper employment practices, alleging that it caused inefficient

package deliveries. A disgruntled grant applicant could sue the National Institutes of

Health for violations of financial management laws, arguing that with more money in its

coffers more grants could be issued. The APA, however, is a creature of Congress; the

legislative branch has not put it to this sort of use, and we can discern no workable limits

in the appellants’ theory.

The implications of the appellants’ position are particularly troubling in the

context of voluntary information sharing. The federal government has access to a vast

amount of data that is of great use both to intergovernmental partners and to those in the

private sector. Information stored with the federal government is critical to many areas of

public policy, including, for example, homeland security and healthcare. See, e.g., Nat’l

Infrastructure Advisory Council, Intelligence Information Sharing: Final Report and

Recommendations ES-1 (Jan. 10, 2012) (“Information sharing is perhaps the most

important factor in the protection and resilience of critical infrastructure.”). The federal

government has recently taken steps to make more of its own information accessible to

the general public, aware of the innovative potential that such information can unleash.

See Exec. Order No. 13,642, 78 Fed. Reg. 28,111 (May 9, 2013); see generally Data.gov

(“The home of the U.S. Government’s open data.”). If we adopted the all-encompassing

definition of “agency action” asserted by the municipal appellants here, each of these

efforts to enhance public access would be checked by a fear that greater openness would

invite judicial scrutiny of any act that went into developing or disseminating the data.

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With an agency’s eye peeled towards these consequences, it is easy to imagine the federal

government pulling back from these salutary efforts, and instead choosing to silo its

information.

The adverse consequences of appellants’ theory would not just fall on the

government’s attempt to share information with the public; they would also compromise

the dissemination of information within the government itself. A rule that made inter-

agency information sharing justiciable by federal courts would undermine the whole

gamut of federal activities that require collaboration between agencies, of which military

preparedness and anti-terrorism efforts are only a part. Agencies dealing with public

health, environment conservation, and disaster response draw on entire bodies of

scientific work, and not all of the needed expertise will be located within a single agency

or department. To have internal information sharing haunted by the specter of judicial

oversight would weaken government operations in innumerable areas, both foreign and

domestic, and allow the prospect of litigation to erect barriers when other nations, both

our allies and our competitors, proceed unburdened by similar obstacles.

III.

The municipal appellants, like localities all over the country, are tasked with

keeping the public safe from horrific acts of violence, which far too often are committed

by those with firearms they had no lawful right to possess. The municipalities’ efforts to

combat these threats are commendable. The APA, however, does not permit their efforts

to include judicial supervision of the myriad programmatic workings of the federal

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government. No matter the asserted virtues of the intended intervention, we are simply

not equipped to perform such tasks and have no legal basis for doing so.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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