City of New York v. U.S. Dep’t of Defense (P)

Three municipalities who use the National Instant Criminal Background Check System to carry out their obligations under state law lacked standing to compel the Department of Defense and its constituent military departments to comply more thoroughly with the System’s requirements.

The Department of Defense has long struggled to comply with the System’s affirmative reporting provision. But since the mass shooting at Sutherland Springs, Texas, components of the Department 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.

The municipalities’ challenge is not about System access; it is instead about the quality of the information in that System. Each appellant accesses the System frequently to carry out their obligations under state law. The municipalities see their existing access to the System as an invitation to compel any federal inter-agency legal requirement that may affect the quality of the information they receive. Courts are woefully ill-suited to adjudicate generalized grievances asking us to improve an agency’s performance or operations.

The municipal appellants’ claim does not challenge a discrete agency action. Moreover, the municipal appellants have failed to demonstrate that the Department’s reporting requirements in any way determine their rights and obligations. The court 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. 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.  But they point to no case suggesting that the Administrative Procedures Act countenances such an action. And for good reason.


City of New York v. U.S. Dep’t of Defense (P), No. 18-1699, Jan. 16, 2019. 4th Cir. (Wilkinson) from EDVA at Alexandria (Hilton).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published


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