United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion for
Summary Judgment (Dkt. 14) and the Defendants United States,
William Barr, and the Federal Bureau of
Investigation's (“FBI”) (collectively
“United States”) Motion for Summary Judgment
(Dkt. 17). The Court has considered the pleadings filed in
support of and in opposition to the motions and the file
21, 2018, the Plaintiff filed this case asserting that the
United States violated his constitutional rights when the
National Instant Criminal Background Check System
(“NICS”) improperly indicated that he was a
person prohibited from possessing or receiving a firearm.
Dkt. 1. The parties file cross motions for summary judgment.
Dkts. 14 and 17. For the reasons provided below, the
Plaintiff's motion (Dkt. 14) should be denied and the
United States' motion (Dkt. 17) should be granted.
LEGISLATIVE BACKGROUND, FACTS AND PROCEDURAL
THE GUN CONTROL ACT OF 1968
United States regulates firearm manufacture and distribution
through the Gun Control Act of 1968, 18 U.S.C. § 921,
et. al., (“GCA”). The GCA prohibits
certain categories of people, including those convicted of
certain felonies, from shipping, transporting, possessing, or
receiving firearms or ammunition. 18. U.S.C. § 922(g).
As amended by The Brady Handgun Violence Prevention Act, Pub.
L. 103-105, 107 Stat. 1536 (“Brady Act”), the GCA
requires firearms dealers to contact the FBI to conduct
background checks of persons attempting to purchase firearms.
18 U.S.C. §§ 922(t)(1)-(2). The FBI uses NICS to
conduct the checks. 28. C.F.R. § 25.1. The Brady Act
empowered the Attorney General to create NICS regulations;
those regulations are set forth in 28 C.F.R. §§25.1
UNDISPUTED FACTS FOR PURPOSES OF THESE MOTIONS
the record in this case is rather scant, the following facts
are undisputed for purposes of these motions. Dkts. 14 and
17. In October of 2013, the Plaintiff applied for, and was
denied, a firearm purchase after a background check done by
NICS, under NICS transaction numbers 2F6B-252 and 2FCV-HK2.
Dkt. 1, at 5. In April of 2016, the Plaintiff was denied a
transfer of a firearm pursuant to a NICS check, transaction
number 36TR-5G2. Id.
Plaintiff maintains in his Complaint that he has, and in
September of 2017 renewed, a Washington State license to
carry a concealed pistol. Dkt. 1, at 5. He asserts that to
qualify for this state license, he had to pass background
checks, including a NICS search, to ensure that he wasn't
prohibited from possessing a firearm under either Washington
or federal law. Id.
18, 2016, the Plaintiff filed an appeal of the denials with
the United States and enclosed documentation, including two
“rolled fingerprint cards;” an
“Authorization to Release Criminal History Information
and Limitation of Liability, ” a “[Voluntary
Appeal File (“VAF”)] Application Form, ”
and a photocopy of Plaintiff's “State of Washington
License to Carry Concealed Pistol.” Dkt. 1, at 9.
27, 2016, the United States responded and indicated that the
Plaintiff's appeal and VAF requests had been forwarded
for further processing. Dkt. 1, at 10. It also indicated that
they were “currently processing cases received in July
United States did not issue a decision for months and so, on
November 27, 2017, the Plaintiff (through counsel), wrote the
United States inquiring on the status of the appeal. Dkt. 1,
at 11. On December 8, 2017, the United States responded,
indicated that no decision had been made, and that they were
working on appeals from November of 2015. Dkt. 1, at 12.
21, 2018, the Plaintiff filed this case. Dkt. 1. He asserts
that by failing to process his appeal, the United States
violated its “obligations under Federal Law and
Regulations.” Dkt. 1, at 7. He requests that this
(1) Order Defendants to correct their records on Plaintiff to
reflect that he is not forbidden to purchase, receive, or
possess a firearm;
(2) Order that Defendants allow the transfer of the firearm
under NTN 36TR-5G2; and
(3) Order Defendants to issue Plaintiff a UPIN [Unique
Personal Identification Number “for future
(4) That Plaintiff be awarded his costs and attorneys'
fees and any and all other relief the Court deems
Dkt. 1, at 8. The case proceeded.
August 2, 2018, the United States, by letter to counsel,
notified the Plaintiff that his firearm background check was
in a “delay status.” Dkt. 14, at 11. The
The fingerprints your client submitted are identical with
those in a record that was used in the evaluation of his
firearm purchase or pawn redemption. Based on further review
and investigation, the original prohibitive information has
been resolved. However, your client's FBI identification
record currently contains a potentially prohibitive arrest
lacking final judgment and sentence.
The FBI Criminal Justice Information Services Division's
NICS Section was unable to nullify the potential
prohibitor(s) or obtain the necessary documentation. The
agency and the arrest data for the potential prohibition are:
Tacoma County Sheriff's Office Date of Arrest: August 4,
1972 Offense: Possession Stolen Property
If you have or can obtain documentation that was available at
the time of the arrest/court proceedings, please provide the
court documentation containing the final disposition, level
of conviction, and/or convicting statute and subsection;
documentation containing information that your firearm rights
were restored, a pardon was received, or the case was
When you have obtained ALL of the
requested documentation listed above, please submit it to our
office. Please be advised, a “no record found”
document is not sufficient ...