United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2000 Decided July 11, 2000
No. 99-5270
National Rifle Association of America, Inc. et al.,
Appellants
v.
Janet Reno, Attorney General of the United States,
Appellee
Appeal from the United States District Court
for 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 chal-
lenges a Justice Department regulation providing for tempo-
rary 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 At-
torney General interprets the statute differently, arguing that
temporary retention of data for at most six months is neces-
sary 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 Gen-
eral has reasonably interpreted the Act to permit retention of
such information for audit purposes, we affirm the district
court's dismissal of the complaint.
I.
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.
ss 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 purchas-
ers for criminal or other information that would disqualify
them from possessing firearms. See s 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 Informa-
tion Center," containing records on protective orders, deport-
ed felons, and fugitives from justice; and (3) the "Interstate
Identification Index," containing criminal history records. 28
C.F.R. s 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. s 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. s 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. s 25.6(c)(1)(iv); Brady Act s 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 pur-
chasers--in an automated "Audit Log." 28 C.F.R. s 25.9(b).
According to the regulation, the Audit Log is "a chronological
record of system (computer) activities that enables the recon-
struction and examination of the sequence of events and/or
changes in an event." Id. s 25.2. The regulation's preamble
describes the purpose of the Audit Log:
By auditing the system, the FBI can identify instances in
which the NICS is used for unauthorized purposes, such
as running checks of people other than actual gun trans-
ferees, and protect against the invasions of privacy that
would result from such misuse. Audits can also deter-
mine whether potential handgun purchasers or [gun deal-
ers] have stolen the identity of innocent and unsuspecting
individuals or otherwise submitted false identification
information, in order to thwart the name check system.
The Audit Log will also allow the FBI to perform quality
control checks on the system's operation by reviewing
the accuracy of the responses given by the NICS record
examiners to gun dealers.
National Instant Criminal Background Check System Regu-
lation, 63 Fed. Reg. 58303, 58303-04 (1998) (hereinafter,
NICS Regulation); see also 28 C.F.R. s 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 perfor-
mance of the NICS." 28 C.F.R. s 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 transac-
tions 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 retain-
ing information relating to allowed transfers in the Audit Log
for eighteen months. National Instant Criminal Back-
ground Check System Regulations, 63 Fed. Reg. 30430, 30432
(proposed June 4, 1998). Declaring that "the general reten-
tion 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 Back-
ground 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.
s 25.9(b)(1). NICS records relating to denied firearm trans-
fers 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 indepen-
dent state law regarding firearms transactions." Id.
s 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 rec-
ords 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 [govern-
ment] facility"; and section 103(i)(2), prohibiting the govern-
ment 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, argu-
ing that neither section 922(t)(2)(C) nor section 103(i)(1) pro-
hibits 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 accu-
rate information on the lawfulness of firearm transactions, see
Brady Act, s 103(b), 107 Stat. at 1541, and to protect the
privacy and security of the NICS. See Brady Act, s 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 com-
plaint 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).
II.
Because the NRA challenges a statute administered by a
government agency, we proceed in accordance with the famil-
iar 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 ques-
tion 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 interpretation of statutory lan-
guage. See id. at 844.
We begin with the NRA's Chevron one argument that three
provisions of the Brady Act unambiguously prohibit the At-
torney General from retaining information about allowed
transactions for any purpose, including auditing. In evaluat-
ing these arguments, we must not "confine [ourselves] to
examining a particular statutory provision in isolation. The
meaning--or ambiguity--of certain words or phrases may
only become evident when placed in context." FDA v. Brown
& Williamson Tobacco Corp., 120 S. Ct. 1291, 1300 (2000).
We must also "exhaust the traditional tools of statutory
construction," Natural Resources Defense Council, Inc. v.
Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995) (internal quota-
tion marks omitted), and may examine the statute's legislative
history in order to "shed new light on congressional intent,
notwithstanding statutory language that appears superficially
clear." Id. at 1127 (internal quotation marks omitted). Fi-
nally, "we must be guided to a degree by common sense as to
the manner in which Congress is likely to delegate a policy
decision ... to an administrative agency." Brown & Wil-
liamson, 120 S. Ct. at 1301.
The first Brady Act provision the NRA relies on is section
922(t)(2):
If receipt of a firearm would not [be unlawful], the
system shall--
(A) assign a unique identification number to the trans-
fer;
(B) provide the [firearms dealer] with the number;
and
(C) destroy all records of the system with respect to
the call (other than the identifying number and the
date the number was assigned) and all records of the
system relating to the person or the transfer.
18 U.S.C. s 922(t)(2). According to the NRA, when the
statute says "destroy all records" it means "destroy all rec-
ords immediately," not within six months. That is certainly
one possible interpretation of section 922(t)(2)(C). At Chev-
ron step one, however, the question is whether the statute
unambiguously requires immediate destruction. We think
the answer is no.
To begin with, section 922(t)(2)(C) does not say "destroy
immediately"; it says only "destroy." When Congress wants
to instruct an agency not only to take certain action, but to
take it immediately, it knows how to do so. For example,
once an administrative agency determines whether a person
requesting administrative records is entitled to receive them,
Congress requires the agency to "immediately notify the
person making such request of such determination." 5 U.S.C.
s 552(a)(6)(A)(i). Similarly, the Equal Employment Opportu-
nity Commission must "immediately refer" to the Merits
System Protection Board any decision finding that the Board
incorrectly interpreted governing law or issued a decision
unsupported by record evidence. Id. s 7702(b)(5)(B). Con-
gress even used the word "immediately" elsewhere in the
Brady Act. Describing the NICS and the Attorney General's
obligation to make information available to firearms dealers,
Congress referred to a system of information "to be supplied
immediately." Brady Act s 103(b), 107 Stat. at 1541. Yet
when in section 922(t)(2)(C) Congress directed the Attorney
General to "destroy" the information, it did not specify "im-
mediately." The word's absence indicates to us that Con-
gress has not unambiguously required immediate destruction
of NICS records.
The NRA argues that, read in context, section 922(t)(2)(C)
does in fact require immediate destruction of NICS records
relating to allowed transfers. Its argument goes like this: (1)
Congress intended the NICS to function as a database of
"information, to be supplied immediately, on whether receipt
of a firearm" would be prohibited by law. Brady Act
s 103(b), 107 Stat. at 1541 (emphasis added). (2) Because
under the statute, providing a NICS identification number
signals a gun dealer that a transfer may proceed, see 18
U.S.C. s 922(t)(1)(B)(i), the "assign" and "provide" mandates
of sections 922(t)(2)(A) and (B) must be executed immediate-
ly. (3) "The 'destroy' mandate [of section 922(t)(2)(C)] is part
and parcel of this system, and compliance with that mandate
must also be immediate." Appellants' Br. at 21.
We agree with the first two steps of the NRA's reasoning.
The statute clearly requires NICS identification numbers to
be both assigned and provided immediately. See Brady Act
s 103(b), 107 Stat. at 1541; 18 U.S.C. s 922(t)(1)(B)(i); but cf.
28 C.F.R. s 25.6(c)(1)(ii) (providing identification numbers
prior to conducting background searches). Destruction of
NICS records, however, plays no role in either authorizing or
rejecting firearm transfers--the action that section 103(b)
requires to be taken immediately. NICS record examiners
can complete the "assign" and "provide" tasks and respond
immediately to gun dealers without immediately destroying
the information. The "destroy" mandate is thus not "part
and parcel" of "assign" and "provide."
Our conclusion that section 922(t)(2)(C) does not unambigu-
ously require immediate destruction of NICS records finds
support in the Act's legislative history. As reported to the
House by the Judiciary Committee, the Brady bill contained
no destruction requirement at all. See H.R. Rep. No.
103-344 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The
obligation to destroy NICS records was added during floor
debate. As passed by the House, the bill stated that the
system shall "immediately destroy all records" of allowed
transactions. See 139 Cong. Rec. H9098, 9123, 9144 (daily ed.
Nov. 10, 1993). The Conference Committee, however,
adopted the Senate's version of the destruction requirement,
which did not contain "immediately." Compare 139 Cong.
Rec. H9123 (daily ed. Nov. 10, 1993) (House version), with 139
Cong. Rec. S16506 (daily ed. Nov. 19, 1993) (Senate version).
It was this version that both houses approved and the Presi-
dent signed.
To be sure, as the NRA points out, the Conference Report
did not list the absence of "immediately" among the substan-
tive differences between the House and Senate bills. See
H.R. Conf. Rep. No. 103-412 (1993), reprinted in 1993
U.S.C.C.A.N. 2011. But this does not change the critical fact:
The word "immediately," which had appeared in the House
bill, is missing from the final Act. Although not necessarily
reflecting congressional intent not to require immediate de-
struction, see Hammontree v. NLRB, 925 F.2d 1486, 1492
(D.C. Cir. 1991) (en banc), this omission supports our conclu-
sion that congressional intent on the precise question before
us--the sole focus of Chevron one inquiry--is at least ambig-
uous.
The parties debate the significance of subsequent legisla-
tive developments. An appropriations rider, expressly re-
sponding to the proposed Audit Log, would have conditioned
NICS funding on the "immediate destruction of all informa-
tion" relating to persons eligible to possess firearms. See 144
Cong. Rec. S8680 (daily ed. July 21, 1998) (proposed amend-
ment no. 3233). As in the case of the Brady Act itself, the
word "immediately" was deleted from the final act. See
Omnibus Consolidated and Emergency Supplemental Appro-
priations Act of 1999 s 621(2), Pub. L. No. 105-277; see also
An Act Making Consolidated Appropriations For the Fiscal
Year Ending September 30, 2000, and For Other Purposes
s 619(2), Pub. L. No. 106-113 (using the same language).
Also, two bills that would have imposed criminal penalties on
government employees who retain NICS records for more
than twenty-four hours were introduced but never passed.
See No Gun Tax Act of 1998, H.R. 3949, 105th Cong.; Fire-
arms Owner Privacy Act of 1998, S. 2175, 105th Cong. s 2.
Heeding the Supreme Court's recent warning, "[w]e do not
rely on Congress' failure to act" as dispositive evidence of
congressional intent. Brown & Williamson, 120 S. Ct. at
1312. At the same time, this post-Brady Act legislative
activity reflects no unambiguous congressional intent to re-
quire immediate destruction of NICS records. Indeed, the
effort to require immediate destruction goes on: A bill now
pending in the Senate once again calls for records of allowed
transfers to be destroyed immediately. See Right to Bear
Arms Privacy and Protection Act of 2000, S. 2270, 106th Cong.
s 5(b).
Our dissenting colleague finds the absence of "immediate-
ly" in section 922(t)(2)(C) of no consequence because "[i]n no
case has a court held that power has been granted to a
federal agency by Congress's failure to enact a limitation to a
directly contradictory statutory command." Slip Op. at 7
(Sentelle, J., dissenting). But the Attorney General does not
claim authority for the Audit Log regulation from the absence
of "immediately," nor from any other congressional failure to
prohibit temporary retention of NICS records. Instead, the
Attorney General relies on two separate grants of affirmative
authority, i.e., sections 103(b) and 103(h) of the Brady Act.
Before we can evaluate the reasonableness of the Attorney
General's interpretation of those two sections, however, we
must consider the NRA's remaining Chevron one arguments,
i.e., that two other provisions of the Brady Act unambiguous-
ly prevent temporary retention of NICS information, for if
the NRA is correct, "that is the end of the matter." Chevron,
467 U.S. at 842. The two provisions appear in section 103(i):
Prohibition Relating to Establishment of Registration
Systems with Respect to Firearms.
No department, agency, officer, or employee of the Unit-
ed States may--
(1) require that any record or portion thereof generat-
ed by the [NICS] be recorded at or transferred to a
facility owned, managed, or controlled by the United
States or any State or political subdivision thereof; or
(2) use the [NICS] to establish any system for the
registration of firearms, firearm owners, or firearm
transactions or dispositions, except with respect to
persons, prohibited [by law], from receiving a firearm.
Brady Act s 103(i), 107 Stat. at 1542.
The NRA contends that the Audit Log represents a "clear
violation" of subsection (1) because the Log "constitutes 'any
record or portion thereof generated by' NICS, and it is
'recorded at or transferred to' a federal facility." Appellants'
Br. at 11-12. Several considerations persuade us that sub-
section (1) is not so clear. To begin with, the statute's
prohibition against "record[ing]" a "record" is inherently am-
biguous. What is a "record," when has it been "recorded,"
and what kind of "record" cannot be "recorded?" When a
NICS operator enters the name of a prospective purchaser
into the system, is that a "record?" Has it been "recorded?"
If not, when does it become a "record" that cannot be
"recorded?"
In addition to the inherent ambiguity of these words,
section 922(t)(2)(C) speaks of "destroy[ing] all records" relat-
ing to allowed transfers, apparently assuming that records
may be created. Asked about this at oral argument, NRA
counsel conceded that records could lawfully be kept for three
business days while research is undertaken following a "de-
layed" response. See 18 U.S.C. s 922(t)(ii); 28 C.F.R.
s 25.6(c)(1)(iv)(B). If the NRA's answer is correct--we think
it is--then subsection (1) cannot categorically prohibit the
government from making records of NICS information.
Moreover, if subsection (1) forbade the government from
recording NICS information, it would directly conflict with
other provisions of the Brady Act. Subsection (1) reaches
"any [NICS] record or portion thereof," yet the Brady Act
expressly authorizes the government to retain certain records
of NICS transactions. For example, it permits retention of
records relating to denied firearm transfers. See Brady Act
s 103(i)(2), 107 Stat. at 1542 (forbidding use of the NICS to
establish a firearm registry "except with respect to persons
prohibited [by law] from receiving a firearm"); 18 U.S.C.
s 922(t)(2) (requiring destruction of NICS records only if
"receipt of a firearm would not [be unlawful]"). Even with
respect to allowed transfers, section 922(t)(2)(C) permits re-
tention of certain portions of NICS records. 18 U.S.C.
s 922(t)(2)(C) (allowing permanent retention of NICS identifi-
cation numbers and the dates those numbers were assigned).
These limitations on the obligation to destroy NICS records
would have no meaning if subsection (1) barred recording of
any information generated by the NICS.
To avoid the first of these inconsistencies, the NRA urges
us to read into subsection (1) the clause "except with respect
to persons, prohibited [by law], from receiving a firearm,"
which appears at the end of subsection (2) (the no firearm
registry provision). " 'The short answer [to this argument] is
that Congress did not write the statute that way.' " Russello
v. United States, 464 U.S. 16, 23 (1983) (quoting United
States v. Naftalin, 441 U.S. 768, 773 (1979)). The language
applicable to both subsections (1) and (2)--"No department,
agency, officer, or employee of the United States may"--
appears in the introductory text, not in the text of the
subsections. Had Congress intended the language excepting
denied transfers to apply to both subsections, it would have
included that language in the introductory text as well. So
written, the statute would have read: "If a firearm transfer
would not be unlawful, no department, agency, officer, or
employee of the United States may...." Indeed, that is just
how Congress wrote section 922(t)(2), in which the phrase, "If
receipt of a firearm would not [be unlawful]," precedes the
separately enumerated requirements to "assign," "provide,"
and "destroy." Because similarly qualifying language ap-
pears neither in section 103(i)'s introductory text nor in
subsection (1), we can only conclude that subsection (1)
reaches, as its plain text indicates, "any record ... generated
by the [NICS]."
Claiming its interpretation of subsection (1) does not con-
flict with section 922(t)(2)(C)'s requirement that transaction
numbers be retained, the NRA argues that Congress can
always "establish a general rule" and then "make exceptions."
Appellants' Reply Br. at 9. Of course Congress may carve
out particular exceptions to a general mandate. Indeed,
section 922(t)(2)(C) does precisely that, requiring destruction
of all records of allowed transfers "other than the identifying
number and the date the number was assigned." 18 U.S.C.
s 922(t)(2)(C). Subsection (1), however, contains no similar
qualification. "[W]here Congress includes particular lan-
guage in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Con-
gress acts intentionally and purposely in the disparate inclu-
sion or exclusion." Russello, 464 U.S. at 23 (quoting United
States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)
(alteration in original)). Accordingly, we presume that when
Congress excluded qualifying language from subsection (1), it
did so intentionally.
Our conclusion that subsection (1) does not unambiguously
prohibit the government from recording NICS information is
reinforced by the fact that the Attorney General has ad-
vanced an alternative plausible interpretation. Emphasizing
the word "require," she argues that the statute only prohibits
the government from requiring third parties, such as firearm
dealers, from recording information at a government facility.
Had Congress intended subsection (1) to have the meaning
the NRA gives it, the Attorney General argues, the statute
presumably would have read: "No department, agency, offi-
cer, or employee of the United States may--(1) record any
record or portion thereof generated by the [NICS] ... at a
[government] facility . ..." That is precisely how Congress
wrote subsection (2), which, unlike subsection (1), directly
prohibits the government from using the system as a firearm
registry; it does not prohibit the government from requiring
that it be used as such. Though we owe no deference to the
Attorney General's interpretation of statutory language at
this stage of Chevron analysis, the plausibility of her view
highlights the statute's ambiguity. See United States v.
Nozfiger, 878 F.2d 442, 446-47 (D.C. Cir. 1989) (a statute is
ambiguous if it can be read in more than one way).
This brings us to subsection (2), which forbids the govern-
ment from "us[ing] the [NICS] system ... to establish any
system for the registration of firearms, firearm owners, or
firearm transactions or dispositions." According to the NRA,
the Audit Log regulation violates this subsection because the
Audit Log is itself a "form of registration." Appellants' Br.
at 15. But subsection (2) does not prohibit all forms of
registration. It prohibits only "system[s] for the registration
of firearms, firearm owners, or firearm transactions or dispo-
sitions." The Audit Log is not such a system. As designed
by the Attorney General, it functions as a system for protect-
ing the privacy of the NICS and for quality control. The
Audit Log regulation expressly provides that "[i]nformation
in the Audit Log 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. s 25.9(b)(2).
To enforce this restriction, "[t]he Audit Log will be monitored
and reviewed on a regular basis to detect any possible misuse
of the NICS data." Id.
The Audit Log, moreover, contains no information about
"firearms" or "firearm transactions or dispositions." Nor
does it contain a comprehensive list of "firearm owners." To
be sure, the Log includes names of persons approved to buy
firearms in the past six months, but as the Attorney General
observes, "[t]he six-month snapshot of potential firearms
transferees in the audit log reveals virtually nothing about
the universe of firearms owners in the United States." Ap-
pellee's Br. at 26.
To illustrate the difference between the Audit Log and a
firearms registry, the Attorney General calls our attention to
the central registry of machine guns established by the
National Firearms Act. See 26 U.S.C. s 5841. The machine
gun registry contains information on all machine guns not
possessed by the United States, including data on the weap-
ons themselves, dates of registration, and the names and
addresses of persons entitled to posses them. Id.
s 5841(a)(1)-(3). Far less comprehensive, the Audit Log in-
cludes no addresses of persons approved to buy firearms, nor
any information on specific weapons, nor even whether ap-
proved gun purchasers actually completed a transaction.
And unlike the machine gun registry, information in the Audit
Log is routinely purged after six months. The Audit Log
therefore represents only a tiny fraction of the universe of
firearm owners.
It does not follow, of course, that the Audit Log could never
function as a firearm registry. But the Log's deficiencies as
a system for registering firearms make it unlikely that it
would be used for that purpose. Indeed, the NRA does not
allege that the FBI has used the Audit Log for purposes
other than "conducting audits of the use and performance of
the NICS." 28 C.F.R. s 25.9(b)(2). The NRA's argument
rests entirely on the fact that the Audit Log contains the
names of persons approved to buy firearms in the past six
months. This is not enough to convert the Log into a
"system for the registration" of firearm owners. The Audit
Log regulation is therefore not prohibited by section 103(i)(2).
III.
Having found nothing in either section 922(t)(2)(C) or sec-
tion 103(i) that unambiguously prohibits temporary retention
of NICS records of allowed transactions for audit purposes,
we turn to an examination of the affirmative grants of author-
ity on which the Attorney General relies. She finds authority
for the Audit Log regulation in two provisions of the Brady
Act: section 103(b), which requires the Attorney General to
establish a system capable of immediately providing informa-
tion on whether a firearm transfer would be unlawful, and
section 103(h), which requires the Attorney General to pre-
scribe regulations to protect the system's security and priva-
cy. Because neither provision speaks directly to the creation
of an Audit Log, we evaluate the Attorney General's argu-
ments pursuant to the second step of Chevron analysis,
asking whether the Audit Log regulation reflects "a permissi-
ble construction of the statute." Chevron, 467 U.S. at 843.
"Such deference," the Supreme Court recently explained, "is
justified because 'the responsibilities for assessing the wisdom
of ... policy choices and resolving the struggle between
competing views of the public interest are not judicial ones,'
... and because of the agency's greater familiarity with the
ever-changing facts and circumstances surrounding the sub-
jects regulated." Brown & Williamson, 120 S. Ct. at 1300
(quoting Chevron, 467 U.S. at 866). And, as we have said,
"[a]s long as the agency stays within [Congress'] delegation, it
is free to make policy choices in interpreting the statute, and
such interpretations are entitled to deference." Arizona
Public Service Co. v. EPA, 211 F.3d 1280, ___, 2000 WL
493047,*5 (D.C. Cir. 2000) (internal quotation marks omitted)
(second alteration in original). So long as the agency's
interpretation is reasonable, we uphold it "regardless whether
there may be other reasonable, or even more reasonable,
views." Allied Local and Regional Manufacturers Caucus v.
EPA, No. 98-1526, ___ F.3d ___, ___, 2000 WL 737750, *7
(D.C. Cir. 2000) (internal quotation marks omitted).
Before considering the Attorney General's interpretation of
the Act, however, we must address the NRA's contention that
"[n]o deference is due to the Attorney General in interpreta-
tion of statutory provisions intended to protect the privacy
rights of private citizens from the Attorney General." Appel-
lants' Br. at 30. In support of this fox-guarding-the-henhouse
argument, the NRA cites Independent Insurance Agents of
America, Inc. v. Board of Governors of the Federal Reserve
System, 838 F.2d 627, 632 (2d Cir. 1988), in which the Second
Circuit admonished: "Courts construing statutes enacted spe-
cifically to prohibit agency action ought to be especially
careful not to allow dubious arguments advanced by the
agency ... to thwart congressional intent expressed with
reasonable clarity, under the guise of deferring to agency
expertise...." We do not read Independent Insurance
Agents to have added anything new to Chevron analysis,
much less to have abandoned customary Chevron two defer-
ence. Courts always try not to defer to "dubious" agency
arguments, or to "thwart" congressional intent. Mindful that
Congress has acted to curtail the Attorney General's authori-
ty, we proceed with ordinary Chevron two analysis.
The first Brady Act provision on which the Attorney Gen-
eral relies is section 103(b): "[T]he Attorney General shall
establish a national instant criminal background check system
that any [gun dealer] may contact ... for information, to be
supplied immediately, on whether receipt of a firearm by a
prospective transferee would [be unlawful]." Brady Act
s 103(b), 107 Stat. at 1541. According to the Attorney Gen-
eral, "Congress would not have ordered her to establish the
NICS without being able to ensure that the system [is]
working," i.e., performing as Congress intended. Appellee's
Br. at 18. As explained in the preamble to the NICS
regulation:
In order to meet her responsibility to maintain the
integrity of Department systems ... the Attorney Gen-
eral must establish an adequate system of oversight and
review. Consequently, the FBI has proposed to retain
records of approved transactions in an audit log for a
limited period of time solely for the purpose of satisfying
the statutory requirement of ensuring the privacy and
security of the NICS and the proper operation of the
system.
NICS Regulation, 63 Fed. Reg. at 58303. More specifically,
"[a]udits can ... determine whether potential handgun pur-
chasers or [gun dealers] have stolen the identity of innocent
and unsuspecting individuals or otherwise submitted false
identification information, in order to thwart the name check
system. The Audit Log will also allow the FBI to perform
quality control checks on the system's operation by reviewing
the accuracy of the responses given by the NICS record
examiners to gun dealers." Id. at 58303-04. Reiterating this
point, the March 1999 notice of proposed rulemaking states
that "[a]udits of the use of the NICS are considered essential
... to ensure that the system is operating in the manner
required by the Brady Act." National Instant Criminal-
Background Check System Regulation, 64 Fed. Reg. at
10263. The Attorney General's brief describes the function of
the Audit Log in more detail:
The audit log enables the FBI to monitor the use of the
NICS by firearms dealers, states serving as points of
contact, and FBI personnel. The FBI also examines
whether the FBI employees and contractors are making
correct determinations as to whether potential transfer-
ees are disqualified, to ensure that "proceed" responses
are not being supplied with regard to persons who are
disqualified. Decisions to allow a firearm purchase are
not fully automated, and thus officials must review and
evaluate records before making a decision. Review of
decisions made by NICS examiners is necessary to en-
sure that responsible individuals make correct decisions
on whether a transfer is permissible, and to enable
supervisors to provide additional training where neces-
sary.
Appellee's Br. at 16 (internal citations omitted). In addition,
the Audit Log is "vital to ensuring that the system (including
its software) is working properly from a technical standpoint."
Appellee's Br. at 17.
We think the Attorney General's position represents a
reasonable interpretation of section 103(b)'s requirement that
the NICS provide "information" on whether firearm transfers
would be unlawful. The Audit Log, according to the Attorney
General, is essential to ensuring the accuracy of that "infor-
mation." Auditing enables the Attorney General to learn
whether NICS operators and state points of contact are
making accurate determinations. In short, the Attorney Gen-
eral uses the Audit Log to accomplish the very purpose of the
Gun Control and Brady Acts, i.e., to ensure that individuals
not authorized to possess firearms are unable to purchase
them.
Disputing the need for an Audit Log, the NRA contends
that quality control measures can be undertaken contempora-
neously with background checks. This may be true, but we
have no way of knowing whether contemporaneous quality
control would ensure that the NICS operates as Congress
required. Nor is it our function to make that judgment.
"[I]t is the agencies, not the courts, that have the technical
expertise and political authority to carry out statutory man-
dates." General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C.
Cir. 1995).
Our conclusion that the Audit Log regulation represents a
reasonable interpretation of section 103(b) finds support from
the fact that auditing is not unusual for computerized systems
like the NICS. For example, Justice Department regulations
require audits of another computerized database, the Crimi-
nal History Record Information System, in order to "verify
adherence" to applicable law. 28 C.F.R. s 20.21(e); see also
id. s 20.1 (stating the purpose of the CHRI system). The
regulations further require that "appropriate records ... be
retained to facilitate such audits." Id. s 20.21(e). We thus
have no reason to believe that the Attorney General main-
tains the Audit Log for some sinister purpose.
The Attorney General also relies on section 103(h): "[T]he
Attorney General shall prescribe regulations to ensure the
privacy and security of the information of the system...."
Brady Act s 103(h), 107 Stat. at 1542. The regulation's
preamble explains how the Audit Log performs this function:
"By auditing the system, the FBI can identify instances in
which the NICS is used for unauthorized purposes, such as
running checks of people other than actual gun transferees,
and protect against the invasions of privacy that would result
from such misuse." NICS Regulation, 63 Fed. Reg. at 58303.
During the debates on the Brady bill, Senator Leahy put the
concern this way:
I am concerned about giving every gun dealer in the
country access to people's private lives.... My con-
cerns are that access to the background check system
may be abused.... [S]omebody is a neighbor and says,
"I really don't care too much for those people who moved
down the street. Check them out for me." I find that a
little bit unsettling.
139 Cong. Rec. S16326, S16327 (daily ed. Nov. 19, 1993)
(statement of Sen. Leahy).
The NRA offers a different interpretation of the statute's
references to privacy and security. As the NRA sees it, the
statute is concerned about the privacy of only lawful firearm
purchasers. Appellants' Br. at 24. This certainly represents
one possible, indeed, quite reasonable interpretation of sec-
tion 103(h). But because the statute nowhere identifies pre-
cisely whose privacy interests are protected, we defer to the
Attorney General's interpretation so long as it is reasonable.
See Chevron, 467 U.S. at 843 & n.11. Here, the Attorney
General, the official responsible for establishing and manag-
ing a nationwide database of personal information, has deter-
mined that auditing is necessary to ensure that the system is
not used for unauthorized purposes. Absent evidence that
this concern is misplaced, we have no basis for second-
guessing the Attorney General's judgment.
The NRA argues that the Attorney General lacks authority
to investigate abuses involving gun dealers, pointing out that
enforcement of the Gun Control Act (which the Brady Act
amended) is vested in the Secretary of the Treasury. See
Gun Control Act of 1968 s 103, Pub. L. No. 90-618, 82 Stat.
1213, 1226. The Brady Act, however, requires the Attorney
General, not the Treasury Secretary, to prescribe regulations
to protect the system's privacy.
The NRA next contends that use of the Audit Log to
uncover system abuses would "necessarily require warrant-
less inspection of [gun dealers' records] not based on clear
statutory grounds, and thus violate the Fourth Amendment."
Appellants' Br. at 36. Urging us not to entertain this claim,
the Attorney General argues that the NRA lacks standing to
assert the Fourth Amendment rights of gun dealers, that the
NRA's argument is unripe, and that the NRA failed to plead
a Fourth Amendment claim in its complaint.
We think the Attorney General misconstrues the NRA's
argument. As we understand it, the NRA asserts no current
Fourth Amendment violation, but urges us to adopt an inter-
pretation of the Brady Act that, according to the NRA, is
necessary to avoid constitutional doubt. Although courts
certainly must construe statutes to avoid " 'grave and doubt-
ful constitutional questions,' " Jones v. United States, 526
U.S. 227, 239 (1999) (quoting United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)),
we have no basis for crediting the NRA's assertion that the
Attorney General's interpretation of the Brady Act raises
such questions. To begin with, the March 1999 proposed
rulemaking explains that audits of firearm dealers will be
performed in conjunction with the Bureau of Alcohol, Tobacco
and Firearms' existing system of inspection. National In-
stant Criminal Background Check System Regulation, 64
Fed. Reg. at 10263. Unless that system already violates the
Fourth Amendment--the NRA never alleges that it does--we
see no basis for concluding that auditing the NICS would
suddenly produce constitutional violations. Nor does the
NRA identify any specific features of the auditing process
that implicate constitutionally protected rights. In short, the
NRA only speculates that the government could not uncover
abuses of privacy involving the NICS without violating the
Fourth Amendment.
Our conclusion that the Audit Log regulation reasonably
implements sections 103(b) and 103(h) disposes of the NRA's
argument that retention of NICS records for six months is
unreasonable when compared with another section of the
Brady Act providing for interim background checks during
the five-year period the NICS was under development. Per-
formed by state or local chief law enforcement officers, known
as "CLEOs," these interim checks were to be completed
within five business days if possible, 18 U.S.C. s 922(s)(2)
(held unconstitutional in Printz v. United States, 521 U.S. 898
(1997)), and records of allowed transfers destroyed within
twenty business days. 18 U.S.C. s 922(s)(6)(B)(i). Observ-
ing that "[t]he records generated under these [interim] provi-
sions were paper, not computer records [like the NICS]
capable of instant destruction," the NRA asserts that "[i]t is
impossible to comprehend Congress intending to allow ...
federal employees who could destroy computerized records
with the push of a button to keep them for six months."
Appellants' Br. at 22.
The answer to the NRA's argument is that Congress has
given the Attorney General far more responsibility for over-
sight and implementation of the background check system
than it had given CLEOs who performed interim checks.
CLEOs were required to search "whatever State and local
recordkeeping systems [were already] available and ... a
national system designated by the Attorney General." 18
U.S.C. s 922(s)(2). By comparison, section 103(b) required
the Attorney General to establish a background check system
capable of supplying information immediately. Brady Act
s 103(b), 107 Stat. at 1541. The Brady Act gave CLEOs no
affirmative oversight responsibilities. By comparison, section
103(h) required the Attorney General to "prescribe regula-
tions to ensure the privacy and security of the information of
the system." Brady Act s 103(h), 107 Stat. at 1542. Per-
forming these additional section 103(b) and 103(h) duties is
precisely why the Attorney General claims a need temporarily
to retain NICS records. Having found the Attorney Gener-
al's interpretation of these two provisions reasonable, we
think it not at all "impossible to comprehend" that she would
have authority to retain information longer than CLEOs.
The cases relied on by our dissenting colleague do not
require a different result. In American Petroleum Institute
v. EPA, 52 F.3d 1113 (D.C. Cir. 1995), we invalidated a
regulation that implemented a statutory directive to reduce
air pollution caused by reformulated gasoline. The regulation
required use of "renewable oxygenates," which, though con-
serving fossil energy resources and perhaps providing global
warming benefits, "might possibly make air quality worse."
Id. at 1119. For authority to require use of renewable
oxygenates, the agency relied only on the reformulated gaso-
line statute and a general provision permitting it to "pre-
scribe such regulations as are necessary to carry out [its]
functions." 42 U.S.C. s 7601(a)(1).
Finding that the agency's fossil fuel and global warming
objectives exceeded its authority, we observed that "[t]he sole
purpose of the [reformulated gasoline] program is to reduce
air pollution." API, 52 F.3d at 1119. Although, as EPA
argued, the reformulated gasoline provision nowhere express-
ly prohibited the renewable oxygenate requirement, the dis-
positive fact was that nothing in the statute authorized it:
In effect, EPA argues that because Congress has not
explicitly limited its authority to promulgate a renewable
oxygenate requirement, its interpretation of section
7545(k)(1) thus passes Chevron's first step, and this court
must then defer to its expansive interpretation of the
section under Chevron's second step. To suggest, how-
ever, "that Chevron step two is implicated any time a
statute does not expressly negate the existence of a
claimed administrative power (i.e. when the statute is not
written in 'thou shalt not' terms), is both flatly unfaithful
to the principles of administrative law ..., and refuted
by precedent." Thus, we will not presume a delegation
of power based solely on the fact that there is not an
express withholding of such power.
Id. at 1120 (quoting Railway Labor Executives' Ass'n v.
National Mediation Bd., 29 F.3d 655, 671 (D.C. Cir.1994) (en
banc) (first alteration in original)).
This case differs from API in two critical respects. First,
the Attorney General claims no authority for the Audit Log
regulation from the absence of an explicit limitation, such as
the fact that the word "immediately" does not appear in
section 922(t)(2)(C). Instead, she relies on sections 103(b)
and 103(h), and it is her interpretation of those affirmative
grants of authority--not the statute's failure to "expressly
negate the existence of a claimed administrative power"--that
implicates Chevron two. Thus, we do not "presume a delega-
tion of power based solely on the fact that there is not an
express withholding of such power." API, 52 F.3d at 1120.
Instead, we conclude that the Attorney General has reason-
ably interpreted sections 103(b) and 103(h) to authorize NICS
auditing--a question we could not even have reached without
first determining whether section 922(t)(2)(C) expressly pro-
hibits auditing.
Second, the Attorney General does not rely on a general
provision empowering her to prescribe regulations necessary
to carry out her statutory functions. She issued the Audit
Log regulation to perform functions expressly authorized by
sections 103(b) and 103(h). Far from "tak[ing] on additional
powers," Slip Op. at 3 (Sentelle, J., dissenting), the Attorney
General has merely carried out the tasks that Congress
expressly delegated to her.
Equally distinguishable, Halverson v. Slater, 129 F.3d 180
(D.C. Cir. 1997), involved a challenge to a Department of
Transportation regulation delegating certain responsibilities
under the Great Lakes Pilotage Act to the Saint Lawrence
Seaway Development Corporation. For authority to issue
the regulation, the Secretary had relied on general statutory
authority to delegate secretarial responsibilities. The Secre-
tary argued that a different statute, one that expressly autho-
rized delegation of Pilotage Act responsibilities to Coast
Guard officials, did not prohibit the delegation to the Corpo-
ration because nothing in that statute "expressly prohibit[ed]
delegation of [these] powers and duties to a non-Coast Guard
official." Id. at 186. Invalidating the delegation, we conclud-
ed that "the absence of an express proscription ... provides
no green light to ignore the proscription necessarily implied
by the limiting language of [the Coast Guard statute]." Id. at
187.
Our dissenting colleague, arguing that this case also in-
volves "a statute conferring specific powers upon a cabinet
officer,"--i.e., "assign," "provide," and "destroy"--concludes
that the Audit Log regulation exceeds Congress' grant of
authority. Slip Op. at 4 (Sentelle, J., dissenting). This case
and Halverson, however, are quite different. The two stat-
utes at issue in Halverson regulated precisely the same
secretarial function--delegation of authority. Obviously the
more specific statute controlled. But here, section 922(t)(2)
and the two provisions relied on by the Attorney General
concern entirely different functions. We thus have no reason
to believe that section 922(t)(2)'s "assign," "provide," and
"destroy" directives implicitly restrict the Attorney General's
authority to implement sections 103(b) and 103(h).
The Supreme Court recently faced a similar situation in
Christensen v. Harris County, No. 98-1167, Slip Op. (U.S.
2000). There, county employees challenged a county policy
requiring them to schedule paid leave as compensation for
overtime in lieu of cash compensation. They argued that a
provision of the Fair Labor Standards Act requiring that
eligible employees be granted paid leave within a reasonable
time of requesting it "provide[d] the exclusive means of
utilizing accrued time." Id. at 4. In other words, because
the FLSA did not expressly allow employers to require leave
in lieu of cash compensation, the employees argued, the
County could not do so. The Supreme Court disagreed.
Acknowledging that " '[w]hen a statute limits a thing to be
done in a particular mode, it includes a negative of any other
mode,' " the Court found that the "thing to be done" by the
relevant provision was not the same task accomplished by the
challenged policy. Id. at 6-7 (quoting Raleigh & Gaston R.
Co. v. Reid, 13 Wall. 269, 270 (1872) (alteration in original)).
The statutory provision does not "se[t] forth the exclusive
method" of implementing FLSA's compensatory leave provi-
sions; it is instead "more properly read as a minimal guaran-
tee" that employees may receive compensatory leave upon
request. Id. at 7.
So too here. Section 922(t)(2) does not "set forth the
exclusive method" by which the Attorney General may satisfy
her statutory obligations; it is "more properly read as a
minimal guarantee" that transaction numbers will be provided
for approved transfers and that records relating to those
transfers will be destroyed. Id. at 7. This the Attorney
General has done. As to our dissenting colleague's discussion
of Christensen, we do not rely on the case for the proposition
that "legislative silence empowered a federal agency to act."
Slip Op. at 5 n. 1 (Sentelle, J., dissenting); see supra at 10,
15, 23.
To sum up, keeping in mind Chevron two's highly deferen-
tial standard, we find that the Audit Log regulation repre-
sents a "permissible construction" of sections 103(b) and
103(h). Chevron, 467 U.S. at 843. We think it "common
sense"--Brown & Williamson's Chevron one words that
seem equally applicable at Chevron two--that Congress, hav-
ing directed the Attorney General to establish a system for
preventing disqualified persons from purchasing firearms,
would expect the Attorney General to ensure that the system
produces accurate information and guards against misuse.
Indeed, by limiting retention of NICS information to "the
minimum reasonable period for performing audits on the
system," the Attorney General has obeyed the "destroy"
command of section 922(t)(2)(C) while fulfilling her section
103(b) and 103(h) responsibilities. NICS Regulation, 63 Fed.
Reg. at 58304.
IV.
We turn to the NRA's final argument: that the Attorney
General has improperly exempted state agencies from the
Brady Act's record destruction requirement. Because state
and local agencies may serve as "points of contact" (POCs)
for the purpose of processing NICS queries, see 28 C.F.R.
s 25.2, gun dealers in POC states must submit NICS inqui-
ries to the relevant state agency, not to the FBI. See id.
s 25.6(d).
The Attorney General has determined that the Brady Act's
destruction requirement does not apply to information re-
tained by state governments that is "part of a record system
created and maintained pursuant to independent state law."
Id. s 25.9(d)(1), (d)(2). The NRA argues that the Attorney
General lacks authority to create this exemption. But be-
cause "[t]he NRA does not contend that states may not have
their own background check systems (with their own record
destruction or retention requirements) or that federal law
preempts state law on this subject," Appellants' Reply Br. at
16, we understand the NRA to be claiming only that the
Attorney General has no authority to exempt POCs from the
Brady Act's destruction requirement with regard to informa-
tion not maintained pursuant to state law.
If the regulation permitted retention of data not gathered
pursuant to state law, we would agree with the NRA that it
would violate the Brady Act's destruction requirement. But
that is not how the Attorney General interprets the regula-
tion. As she sees it, the regulation merely clarifies that state
record retention requirements are not preempted by federal
law:
The reason for this clarification is to avoid interfering
with state regulation of firearms. If a state is perform-
ing a gun eligibility check under state law, and state law
requires or allows the retention of the records of those
checks, the state's retention of records of the concurrent
performance of a NICS check would not add any more
information about gun ownership than the state already
retains under its own law.
NICS Regulation, 63 Fed. Reg. at 58304. So long as the
Attorney General interprets the regulation as permitting
POCs to retain only data that would be kept pursuant to state
law, the regulation does not conflict with the Brady Act. See
Buffalo Crushed Stone, Inc. v. Surface Transp. Bd., 194 F.3d
125, 128 (D.C. Cir. 1999) ("An agency's interpretation of its
own regulation merits even greater deference than its inter-
pretation of the statute that it administers.").
The judgment of the district court is affirmed.
So ordered.
Sentelle, Circuit Judge, dissenting: In 1993, as part of
the Brady Handgun Violence Prevention Act, Pub. L. No.
103-159, 107 Stat. 1536 (1993) ("Brady Act"), Congress em-
powered the Attorney General to "establish a national instant
criminal background check system" ("NICS") for determining
whether purchasers of firearms from federal licensees are
lawfully entitled to make such purchases. Id. s 103(b), 107
Stat. at 1541. Under the authorizing statute, with respect to
legal transfers of firearms, the "system" initiated by the
Attorney General is to "(A) assign a unique identification
number to the transfer; (B) provide the licensee with the
number; and (C) destroy all records of the system with
respect to the call (other than the identifying number and the
date the number was assigned) and all records of the system
relating to the person or the transfer." 18 U.S.C. s 922(t)(2)
(1994). In purported reliance on the statutory provision, the
Attorney General has promulgated regulations which require
the Federal Bureau of Investigation ("FBI") to maintain an
automated audit log of all incoming and outgoing transactions
passing through the system including records of the "type of
transaction ..., line number, time, date of inquiry, header,
message key, ORI [originating agency identification number],
and inquiry/response data (including the name and other
identifying information about the prospective transferee and
the NTN [NICS transaction number])," inter alia. 28 C.F.R.
s 25.9(b)(1) (1999). In the case of lawful transfers, the
regulations require the FBI to retain such records in the
audit log for six months after the date of each such transfer.
See id. The National Rifle Association, the Law Enforcement
Alliance of America, and various John and Jane Does (collec-
tively "the NRA") sued to enjoin the operation of these
regulations. The District Court granted summary judgment
in favor of the Attorney General. Because the Attorney
General in the promulgation of these regulations has not only
exceeded the authority granted her under the cited section of
the statute, but has also violated express prohibitions of other
statutory sections, I would reverse.
I. Statutory Authorization
The Attorney General's authority to deal with the subject
matter of preclearance of handgun purchasers depends en-
tirely upon congressional grant. She does not and cannot
claim any inherent power over the subject matter from
constitutional or other sources. Therefore, unless the Brady
Act empowers her to do what she has done, the regulations
are invalid. Cf. American Petroleum Inst. v. United States
Envtl. Protection Agency, 52 F.3d 1113, 1119-20 (D.C. Cir.
1995) ("API"); Railway Labor Executives' Ass'n v. National
Mediation Bd., 29 F.3d 655, 670-71 (D.C. Cir. 1994) (en banc).
The statute is unambiguously limited in the extent of the
grant of authority to the Attorney General, and authority to
be delegated to the NICS over transfers to citizens lawfully
entitled to receive firearms. That authority is set forth in 18
U.S.C. s 922(t)(2) which, as expressed above, requires that
the NICS "shall ... assign a unique identification number
... [;] provide the licensee with the number; and ...
destroy all records of the system with respect to the call
(other than [the assigned number and the date])" along with
"all records of the system relating to the person or the
transfer." 18 U.S.C. s 922(t)(2) (emphasis added). Nothing
in the Brady Act empowers the Attorney General to do more
than these three things with respect to lawful transfers of
firearms: (1) assign, (2) provide, and (3) destroy. When she,
or the system to which she has delegated the authority, adds
to those three by retaining instead of destroying, she and the
system exceed the statutory grant of authority. The regula-
tion requiring the retention in the "audit log" is such an
excess; it is unlawful; and it should be enjoined.
The Attorney General's claimed authority for her unlawful
accretion of power to the FBI and the NICS in the regulation
is her "responsibility for administering the National Instant
Criminal Background Check system." Br. for Appellee at 11.
This reliance on general authority to administer an area of
statutory regulation cannot sustain a federal actor's reaching
beyond congressionally granted authority. We have re-
peatedly held that federal agencies cannot seize additional
powers by substituting their own determination of the appro-
priate means for accomplishing statutory goals in place of
that determined by the Congress.
For example, in API, the Environmental Protection Agency
had been empowered by Congress to promulgate regulations
for reformulated gasoline for use in "nonattainment areas."
See 52 F.3d at 1115 (quoting 42 U.S.C. s 7545(k)(1) (1988 &
Supp. V 1993)). The empowering statute provided that the
regulations were to "require the greatest reduction in emis-
sions of ozone forming volatile organic compounds ..., taking
into consideration the cost of achieving such emission reduc-
tions, any nonair-quality and other air-quality related health
and environmental impacts and energy requirements." 42
U.S.C. s 7545(k)(1). The EPA included in its regulations the
mandate for the inclusion of "renewable oxygenates" in the
reformulated gasoline. As justification for this additional
assertion of regulatory authority EPA asserted its duty to
achieve other goals under the Clean Air Act. We struck
down the challenged regulations, holding that the broad
general grant of authority did not "authorize EPA to mandate
the manner of compliance or the precise formula for compli-
ance without additional explicit authority." API, 52 F.3d at
1121. Just so here. Congress has explicitly authorized the
Attorney General to regulate the activities of citizens in a
certain fashion. Her general authority to administer the
statutory programs created by the Brady Act do not empow-
er her to take on additional powers over citizens not delegat-
ed to her by the legislature.
Also, in Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997),
we considered the claimed authority of the Secretary of the
Department of Transportation to delegate certain responsibil-
ities under the Great Lakes Pilotage Act of 1960, 46 U.S.C.
s 9301 et seq., to the St. Lawrence Seaway Development
Corporation. By statute, the Secretary was empowered to
"delegate the duties and powers conferred by [the relevant]
subtitle to any officer, employee, or member of the Coast
Guard...." 46 U.S.C. s 2104(a) (1994). That statute did not
empower the Secretary to delegate such duties and powers to
anyone outside the Coast Guard. The Secretary relied upon
a general delegation grant in 49 U.S.C. s 322(b) to assert the
authority to delegate that power to any officer or employee of
the department. Once more, we held that general statutory
goals and grants cannot "override the limiting language" of a
statute specifically empowering a federal agency to act. Hal-
verson, 129 F.3d at 186, 187. Again, in the present controver-
sy, we have before us a statute conferring specific powers
upon a cabinet officer (the Attorney General), and an agency
(the NICS) under that officer. General goals cannot add
limitless power to the limited power delegated by Congress.
The Attorney General attempts to bolster her claim of
power beyond the statutory grant by a repair to the analytical
framework of Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Under the famil-
iar rubric of that decision, when we review an agency's
interpretation of a statute entrusted to the agency's adminis-
tration, we undertake a two step analysis. We first "deter-
mine whether Congress has spoken to the precise question at
issue." Halverson, 129 F.3d at 184 (quoting Natural Re-
sources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1125
(D.C. Cir. 1995) (applying Chevron)). If so "that interpreta-
tion must be given effect." Id. If not, that is, "[i]f ... the
statute is silent or ambiguous with respect to the specific
issue, then the court will defer to a permissible agency
construction of the statute." Id. The Attorney General
contends that, under the second step of Chevron, we should
uphold her assertion of the power to establish and retain
records on lawful conduct of citizens where the words of the
statute do not grant that power on the theory that her
interpretation of the statute is a permissible one, that is to
say a reasonable one. In fact, however, we should not even
reach the second stage of Chevron. The absence of a grant of
statutory power is not an ambiguity or silence on the question
of whether Congress has granted such a power. We have
disposed of that line of argument repeatedly in the past. As
we stated in Railway Labor Executives' Association:
To suggest, as the [government actor] effectively does,
that Chevron step two is implicated any time a statute
does not expressly negate the existence of a claimed
administrative power (i.e. when the statute is not written
in 'thou shall not' terms), is both flatly unfaithful to the
principles of administrative law ... and refuted by pre-
cedent.... Were courts to presume a delegation of
power absent an express withholding of such power,
agencies would enjoy virtually limitless hegemony, a
result plainly out of keeping with Chevron and quite
likely with the Constitution as well.
29 F.3d at 671 (citations omitted); see also Natural Re-
sources Defense Council v. Reilly, 983 F.2d 259, 266 (D.C.
Cir. 1993) ("[I]t is only legislative intent to delegate such
authority that entitles an agency to advance its own statutory
construction for review under the deferential second prong of
Chevron.") (emphasis added) (quoting Kansas City v. Depart-
ment of Housing and Urban Dev., 923 F.2d 188, 191-92 (D.C.
Cir. 1991)); API, 52 F.3d at 1120.1
The statute is not ambiguous on whether it grants the
Attorney General the power to retain the records which the
statute empowers her to destroy. The statute simply does
not grant her that power. Indeed, the denial of power is even
stronger than that considered in the cited cases. Those
statutes did not include "thou shall not" provisions. The
Brady Act does. In the cases discussed above, the federal
agency was seizing power not granted by Congress. Here,
the Attorney General is not only making such an unautho-
rized power grab, but is taking action expressly forbidden by
Congress.
__________
1 Christensen v. Harris County, 120 S. Ct. 1655 (2000), cited by
the majority, is not to the contrary. Indeed, the majority's analysis
turns Christensen on its head. The Supreme Court not only did not
decide that legislative silence empowered a federal agency to act, it
did quite the opposite. The County, whose ability to control leave
time scheduling was in question, appeared before the Court as the
regulated entity asserting a limitation on federal power, not as the
federal actor asserting a grant of power. See id. at 1659. Because
the statute in question was silent or ambiguous on the issue, the
regulated entity did not lose an ability that was inherently its own.
See id. at 1660-62. That is, the silent or ambiguous statute did not
empower the federal actor to do that which was not expressly
forbidden to it. Just so here.
II. "Thou Shall Not"
The Brady Act contains an express provision headed "Pro-
hibition Relating to Establishment of Registration Systems
with Respect to Firearms." Pub. L. No. 103-159, s 103(i),
107 Stat. at 1542. That section provides that
No department, agency, officer, or employee of the Unit-
ed States may--
(1) require that any record or portion thereof generat-
ed by the system established under this section be
recorded at or transferred to a facility owned, managed,
or controlled by the United States or any State or
political subdivision thereof....
Id. By its clear words, this statute establishes that Congress
has unambiguously told the Attorney General that she shall
not do what she is doing in the regulations. That is, she is
forbidden to require the FBI, the NICS, or any other depart-
ment, agency, officer, or employee of the United States to
require that records generated by the NICS be recorded at
or transferred to any facility. There is no exception for an
audit log, and there is no exception for a six-month grace
period. Congress has simply forbidden her to do it. She is
doing it anyway. The regulation must fall. There is no
ambiguity calling for the invocation of Chevron.
The Attorney General argues that "[w]ithout an audit log,
the FBI would simply be incapable of achieving the level of
oversight deemed essential by the Attorney General." Br.
for Appellee at 17. I fail to see the relevance of that
argument. Congress, not the Attorney General, makes the
laws. Congress did not authorize the maintenance of an audit
log in violation of its explicit command not to retain records.
Neither did it empower the Attorney General to take its place
in the making of law any time she deems essential a level of
oversight neither required nor permitted by statute.
III. Conclusion
The Attorney General's ultimate fallback argument is that
Congress and the statute could have but did not include the
adverb "immediately" before the verb "destroy" when it
commanded her to "destroy all records of the system" with
respect to the contact in the case of lawful transfers of
firearms. 18 U.S.C. s 922(t)(2). Specifically, she notes that
it did not adopt an amendment offered in the House of
Representatives to the effect of including that word. I fail to
see that this avails her anything. Courts are reluctant "to
draw inferences from Congress' failure to act," Schneidewind
v. ANR Pipeline Co., 485 U.S. 293, 306 (1988). In no case
has a court held that power has been granted to a federal
agency by Congress's failure to enact a limitation to a directly
contradictory statutory command. Congress said, "destroy
all records." Congress said, do not "require that any record
... be recorded." Brady Act s 103(i), 107 Stat. at 1542.
The Attorney General asserts, "Congress did not say that I
have to destroy the records immediately. Therefore I am
empowered to retain the records." The Attorney General's
position strikes me as reminiscent of a petulant child pulling
her sister's hair. Her mother tells her, "Don't pull the baby's
hair." The child says, "All right, Mama," but again pulls the
infant's hair. Her defense is, "Mama, you didn't say I had to
stop right now."
I do not think that the parent's command to the child is
ambiguous, nor that of Congress to the Attorney General. I
do not find the child's response reasonable; nor is that of the
Attorney General.
I respectfully dissent from the decision of my colleagues to
uphold the Attorney General's regulations.