National Rifle Ass'n of America, Inc. v. Reno

cause of the contributing laws are labor that satisfy us quate ci- strike.”) marks and (internal quotation decisionmaking”)-8 reasoned engaged omitted). tation Petition Unions’ D. The NLRB with agree is for review petition employers’ prac labor an unfair commit did not

DNA is for review petition the union’s granted; change implementing unilaterally tice denied. agreement bargaining its collective So ordered. The Memorandum DTU. petitioner ar working only describes Agreement “perform is equipment, when

rangements juris work within room composing

ing jurisdiction That the Union.”

diction the Memorandum not in defined

was bargain collective but in

Agreement, bar the collective Since

ing agreement. could expired DNA OF had ASSOCIATION gaining agreement RIFLE NATIONAL jurisdic al., Appellants, to DTU’s AMERICA, et modification propose a INC. bargain DTU refused tion, and since im declare DNA could proposal over RENO, Janet it. This implement unilaterally passe and States, Appellee. United it does happened, exactly what practice. labor an unfair constitute No. 99-5270. Appeals, Court of States United III. Circuit. of Columbia District causa- of strike discussion The Board’s 17, 2000. March Argued opinion the ALJ’s sparse, but was prac- unfair labor purported suggests the July 2000. Decided were strike motivated the

tices which joint bar- engage decision DNA’s change of DTU's unilateral its

gaining, im- unilateral and the News’s

jurisdiction, failure and its pay merit

plementation See requests. information

comply with 77; at see I, No. 64 N.L.R.B.

Detroit III, No. 146 327 N.L.R.B.

also Detroit the Board’s determined Having

1. unfair committed that the News

conclusion erroneous legally practices

labor evidence, we, by substantial

unsupported order course, subsequent its reverse labor unfair to be the strikers

holding Alwin, F.3d

practice strikers. practice (A unfair labor is an strike employer’s violations “if the

strike had sub- Board think the we do not Because compiled it argues even had The News finding that support its evidence to employees, was under eligible it stantial a list of employees, per- eligible the Guild obligation divulge because News had list pro- exemption argument. labeling overtime alternate reach this sisted in need bargain over it. illegal refused posal cause argued Halbrook

Stephen P. was the briefs him on With appellants. for E. Gardiner. Richard Depart- Raab, Attorney, U.S. Michael S. ap- for Justice, cause argued the ment Og- David W. brief were pellee. On General, den, Acting Assistant Paeholski, L. Stern, and Susan B. Mark Lewis, At- A. U.S. Attorneys, Wilma torney. SENTELLE, TATEL and

Before: GARLAND, Judges. Circuit filed Circuit the Court Opinion TATEL. Judge by Circuit opinion filed Dissenting SENTELLE. Judge TATEL, Judge: Circuit chal- Rifle Association The National regulation Department lenges Justice of data retention temporary providing for background checks during generated purchasers, firearms prospective Handgun Violence Brady quired NRA, According to the Act. Prevention de- immediate requires Act relating information personal struction At- transactions. lawful firearm dif- interprets the statute torney General temporary retention ferently, arguing neces- months is at most six of data sys- check background sary to audit the accuracy priva- both its to ensure tem Brady Act nothing cy. Finding temporary prohibits unambiguously lawful about information retention of Attor- transactions, finding interpreted reasonably ney General infor- of such retention Act to permit purposes, mation for audit affirm A Department Justice regulation re- district complaint. quires court’s dismissal of the the FBI to retain records of all NICS background including . searches—

I. names and identifying other information prospective purchasers about gun an The Gun Control Act of —in 1968 makes automated “Audit Log.” 28 C.F.R. individuals, unlawful for certain including 25.9(b). According to the regulation, the felons, fugitives justice, convicted is “a chronological record of aliens, illegal possess firearms. See 18 system (computer) activities that enables §§ 922(g). U.S.C. Handgun the reconstruction and examination of the Violence Prevention of 1993 required sequence of events changes in an and/or General to establish “na- § Id. event.” 25.2. The regulation’s tional instant criminal background check preamble purpose describes the of the Au- NICS, system,” known as the to search the Log: dit backgrounds prospective of gun purchas- ers for criminal or other information that By auditing system, the the FBI can disqualify them possessing from identify instances in which the NICS is 103(b), § firearms. See Pub.L. No. 103- used for unauthorized purposes, such as 159, 107 Stat. 1536. A computerized sys- running checks of people other than ac- operated FBI, by tem the NICS transferees, gun tual protect and against searches for disqualifying information in the invasions privacy of that would re- (1) separate three databases: the “NICS sult from such misuse. Audits can also Index,” containing persons records on determine potential handgun disqualified known to be from possessing purchasers or [gun dealers] have stolen law; (2) firearms under federal the “Na- identity and unsuspect- innocent Center,” tional Crime Information contain- ing individuals or otherwise submitted

ing protective orders, records on deported information, false identification in order felons, (3) fugitives justice; from to thwart the system. name check The Index,” the “Interstate Identification con- Log Audit will also allow the FBI to taining history criminal records. perform quality control checks on the 25.6(c)(l)(iii). § C.F.R. system’s operation by reviewing the ac-

Before selling weapon, firearm dealers curacy of responses given must submit the prospective purchaser’s .NICS record gun examiners to dealers. name, sex, race, birth, date of and state of National Instant Background Criminal operations residence to the NICS center at System Regulation, Check 63 Fed.Reg. 25.7(a). § the FBI. Id. If the firearm (1998) (hereinafter, 58303-04 NICS dealer is in a state that has elected to Regulation)-, see also 28 C.F.R. “point serve as a for contact” NICS 25.9(b)(2). queries, the dealer must inqui- submit the ry the relevant agency. state Id. regulation The restricts use of the Audit o 25.6(d). Upon receiving an inquiry, Log. Information “pertaining t allowed FBI of state agency must immediately may only transfers be used the FBI for provide gun dealer with purpose one of three conducting audits of the use (1) responses: “proceed,” if performance no information NICS.” 28 C.F.R. system 25.9(b)(2). in the that a indicates firearm The Log “may Audit not be (2) unlawful; “denied,” transfer would be if by any department, officer, used agency, prospective purchaser may not legally employee of or the United States to estab (3) firearm; possess a or if “delayed,” fur- any system lish for the registration of ther research necessary. firearms, owners, Id. or firearm trans 25.6(c)(l)(iv); Brady 103(b), §Act dispositions. actions The Audit Log Stat. 1541. will be monitored and on a regu- reviewed Act: section provisions misuse any possible detect basis to

lar “de- system 922(t)(2)(C), requiring data.” NICS transactions; allowed stroy” records Rulemaking Proposed The Notice govern- 103(i)(l), prohibiting section relat- retaining information for called had any [NICS] “requiring] from ment Audit transfers ing to allowed at or transferred ... be recorded record Instant National months. eighteen for facility”; [government] Reg- System Check Background Criminal from 103(i)(2), government prohibiting (pro- Fed.Reg. ulations, 63 ... to estab- “us[ing] [NICS] “the 1998). Declaring that June posed registration any system lish for records period retention general 107 Stat. firearms.” mini- Log should NICS alleged that also complaint au- period performing reasonable mum exempt NICS authority no regulation the final system,”' on the dits agencies by state retained information to “in period retention reduced require- destruction Act’s Reg- -months.” than six more event “part of a ment, if that information even regu- at 58304. ulation, Fed.Reg. pur- and maintained created record “the FBI states preamble lation’s independent state law.” suant the retention reducing toward work shall period of practicable shortest to the period the interpreted allow will months that than six less time sec- neither arguing that differently, Id. the NICS.” audits of security basic 103(i)(l) pro- 922(t)(2)(C) section nor tion published has since Attorney General rec- of NICS temporary retention hibits the rule that shorten proposed a a is not Log ords, the and of allowed records for period tention the within registration” for “system In- days. ninety transfers National 103(i)(2). For authori- meaning section of System Background Check Criminal stant Log, the the Audit ty to create 10262, 10264 Fed.Reg. 64 . Regulation, obligations relied her 1999). 3, March .(proposed providing of capable system a to establish Log, per- of from Audit removed lawfulness on the When information accurate Act, allowed relating to trans- transactions, Brady information see sonal firearm 25.9(b)(1). 28 C.F.R. destroyed. protect and to 103(b), fers is at 107 Stat. relating to'denied security records of NICS. NICS privacy and ten in the Audit for kept 103(h), are Act, § 107 Stat. transfers Rec- to Federal a transferred years, then in the court, nothing finding The district agen- State storage. Id. for Center ords destruc- require immediate Brady Act in lieu checks background performing cies construc- Attorney General’s tion al- information on may FBI retain of reasonable, dismissed of the statute tion “part of are if records lowed transfers of Rule to Federal pursuant complaint maintained system created a record 12(b)(6). Renewing Procedure Civil regard- law independent state pursuant court, district it made arguments transactions.” firearms ing novo. is de review appeals. Our NRA (d)(2). 25.9(d)(1), 163, 167 Plant, F.3d See, v. e.g., Brown regulation became day the On (D.C.Cir.1997). Association of effective, Rifle the National America, Enforcement joined Law II. America, Inc., and four John Alliance challenges the NRA Because Does, the U.S. Dis- filed suit in Jane we agency, government Columbia, administered the District Court trict familiar accordance proceed of NICS temporary retention arguing that Inc. U.S.A test Chevron two-part three violates allowed transfers records Council, Inc., If receipt Natural Resources of a firearm would not [be Defense unlawful], 81 L.Ed.2d system 467 U.S. S.Ct. shall— (1984). ask first “whether We Con- (A) assign unique identification gress directly spoken precise to the transfer; number to the issue,” has, if question at it “that is the (B) provide the [firearms dealer] with court, matter; of the for the as well as end number; agency, give must effect to the unam- (C) destroy all records biguously expressed Congress.” intent of (other with respect to the call than the 842-43, Id. at 2778. If we find S.Ct. identifying number and the date the ambiguous the statute silent or with re- number assigned) was and all records issue, spect precise question to the we relating person to the proceed step second Chevron the transfer. analysis, asking agency’s “whether the an- permissible swer is based on a construc- 922(t)(2). 18-U.S.C. According to the tion of the statute.” Id. at 104 S.Ct. NRA, when says the statute all “destroy review, point 2778. At this in our records” it “destroy means all im- agen- afford substantial deference to the mediately,” not within six months. That is cy’s interpretation statutory language. certainly possible interpretation one of sec- 844, 104 See id. at S.Ct. 2778. 922(t)(2)(C). one, At step Chevron however, question is whether the stat- begin We with the NRA’s Chev unambiguously ute requires immediate ron one argument provisions that three destruction. think the answer is no. prohibit Act unambiguously Attorney General from retaining informa with, 922(t)(2)(C) To begin does tion about allowed transactions for say “destroy immediately”; says purpose, including auditing. In evaluating only “destroy.” Congress When wants arguments, these must “confine agency instruct an only to take certain examining particular [ourselves] to statu action, but to it immediately, take it knows tory provision in meaning— isolation. The how to example, do so. For once an ad- ambiguity phrases certain words or —of agency ministrative determines whether a may only placed become evident in when person requesting administrative records context.” FDA v. Brown & Williamson them, is Congress entitled to receive re- — -, Corp., Tobacco U.S. quires to “immediately notify 1291, 1300, (2000). 146 L.Ed.2d 121 We person making request of such must also “exhaust the traditional tools of 552(a)(6)(A)(i). § determination.” 5 U.S.C: construction,” Natural Re- Similarly, Equal Employment Oppor- Council, Browner, sources Inc. v. Defense tunity “immediately Commission must re- (D.C.Cir.1995) (internal 1125 System fer” to the Merits Protection omitted), quotation may marks and exam- finding Board decision that the Board ine legislative history the statute’s in order incorrectly interpreted governing law or light intent, to “shed new congressional unsupported issued a decision by record notwithstanding statutory language that 7702(b)(5)(B). § evidence. Congress appears superficially clear.” Id. at 1127 even used the “immediately” word else- (internal omitted). quotation marks Final- Brady Describing where in the Act. ly, “we must guided degree by be to a NICS and the obli- common sense as to the in which manner gation to make information available to Congress likely delegate policy is deci- dealers, Congress referred tó a firearms agency.” sion to an administrative supplied im- of information “to be Williamson, Brown & 120 S.Ct. at 1301. 103(b), mediately.” Brady Act 107 Stat. 922(t)(2)(C) provision

The first Act in 1541. Yet when section 922(t)(2): NRA relies on is section Congress directed the General to no destruc- tee, contained Brady bill information, speci- it did not “destroy” No. H.R.Rep. See at all. requirement in- absence The word’s “immediately.” fy (1993), reprinted not unam- 103-344 us that dicates to de- obligation U.S.C.C.A.N. destruction immediate required biguously during added was records stroy NICS records. NICS House, the passed As debate. floor context, that, argues read NRA “immedi- system.shall stated bill require 922(t)(2)(C) in fact does section trans- of -allowed all records” ately destroy of NICS destruction immediate H9098, Rec. Cong. See 139 actions. argument Its transfers. allowed lating to 1993). The Con- (daily ed. Nov. (1) Congress intended this: goes like however, adopted the Committee, ference “infor- database 'of as a function require- of the destruction version Senate’s immediately, on mation, supplied to be “immediately.” ment, did not contain which would be a firearm” receipt of ed. (daily Rec. H9123 Cong. Compare 108(b), law. prohibited (House version), 1993) with 139 Nov. added). (2) (emphasis at 1541 107 Stat: 19,1993) Nov. (daily ed. S16506 Cong. Rec. providing a under Because version). (Senate It was this .version gun signals number NICS identification and the President approved houses both see may proceed, that a transfer dealer signed. 922(t)(l)(B)(i), “assign” U.S.C. out, 922(t)(2)(A) sure, points NRA sections as the To be mandates “provide” the absence immediately. not list (B) Report executed did must Conference substantive (3) ‘destroy’ “immediately” among [of mandate “The this Senate 922(t)(2)(C) parcel House and part differences between ] Rep. 103-412 with that mandate No. compliance H.R. Conf. system, and bills. See Br. Appellants’ (1993), 1993 U.S.C.G.A.N. reprinted immediate.” also be must critical change the does not 2011. But this at 21. had “immediately,” which The word fact: steps two the first agree bill, missing from appeared House clearly re- The statute reasoning. NRA’s necessarily Although not Act. the final to be numbers quires NICS identification not to re intent congressional reflecting immediately. provided assigned both destruction, Ham see quire immediate 1541; 103(b), 107 Stat. Brady Act 1486, NLRB, montree .922(t)(l)(B)(i); but § 18 U.S.C. cf. (en.banc), sup (D.C.Cir.1991) this omission 25.6(c)(1)(h)(providing identifica- § C.F.R. in congressional ports our conclusion .that conducting back- prior to numbers us—the question before precise tent on the searches). of NICS Destruction ground inquiry one of Chevron sole focus —is in either records, plays no role however,. ambiguous. least trans- rejecting or firearm authorizing. 103(b) section action fers—-the significance debate the parties immediately. NICS to taken quires developments. legislative subsequent complete the can “as- record examiners, rider, re expressly appropriations Ah respond im- “provide” tasks and sign” and Log, would proposed to sponding immedi- mediately. gun dealers without on the funding have conditioned ately destroying information. all information” destruction “immediate not.“part is thus “destroy” mandate fire possess eligible relating persons “provide.” “assign” and parcel” of (daily ed. Cong. Rec. S8680 arms. See 1998) no. amendment 922(t)(2)(C) 21, (proposed July that section Our conclusion 3233). Brady Act As case require immediate unambiguously does deleted itself, “immediately” was word support finds of NICS destruction Consoli final act. Omnibus from See report- history. As legislative in the Act’s Ap- Supplemental Emergency dated Judiciary Commit- ed the House 621(2), § propriations ambiguously prevent Act of 1999 Pub.L. temporary retention 105-277; information, An Act Making No. see also Con of NICS for if the NRA is correct, Appropriations solidated For the Fiscal “that is the end of the matter.” 30, 2000, Chevron, 842, Ending September and For 467 U.S. at Year 104 S.Ct. 2778. 619(2), provisions The two Purposes appear Pub.L. 106- Other No. 103(i): Also, (using language). the same two Relating imposed

bills that would have criminal PROHIBITION to Establishment Registration Systems penalties government employees Respect who retain NICS records more than twen Firearms.

ty-four hours were introduced but never department, officer, agency, No or em- passed. 1998, See No Gun Tax Act of H.R. ployee of the United may— States 3949, Cong.; 105th Firearms Priva Owner (1) require that any portion record or cy Act of Cong. S. 105th generated thereof by the [NICS] be Heeding Supreme Court’s recent recorded or facility transferred to a warning, rely do not on Congress’ “[w]e owned, managed, or controlled dispositive failure to act” as evidence of any United States or political State or congressional intent. Brown & William thereof; subdivision or son, time, (2) 120 S.Ct. at 1312. At the same use the [NICS] to establish post-Brady legislative activity this re registration for the of fire- unambiguous arms, flects no congressional intent owners, firearm or require immediate destruction of NICS dispositions, transactions or except Indeed, records. im require the effort to with respect persons, prohibited law], mediate A goes [by destruction on: bill now receiving a firearm. pending in the again Senate once calls for 103(i), Brady Act 107 Stat. at 1542. records of allowed transfers to be de The NRA contends the Audit Log stroyed immediately. Right to Bear represents a “clear violation” of subsection Privacy Arms and Protection Act of (1) because the ‘any “constitutes rec- 5(b). S. 106thCong. ord portion thereof generated by’ NICS, is ‘recorded at or transferred dissenting colleague Our finds the to’ a facility.” Appellants’ federal Br. at “immediately” absence of in section 11-12. persuade Several considerations us 922(t)(2)(C) consequence of no because (1) that subsection is not so clear. To power “[i]n case has a court held that with, begin prohibition statute’s has been granted agency by to a federal against “recording]” “record” is inher- Congress’s failure to enact a limitation to a ently “record,” ambiguous. What is a directly contradictory com “recorded,” when has it been and what (Sentelle, J., Op. mand.” at 141 dissent kind of “record” cannot be “recorded?” ing). But the General does not name, operator When a NICS enters the claim Log regula the Audit purchaser a prospective system, into the tion from the “immediately,” absence of that a “record?” Has it been “recorded?” any congressional nor from other failure to not, does it when become “record” that If prohibit temporary retention of NICS rec cannot be “recorded?” Instead, ords. the Attorney General relies separate grants on two of affirmative au ambiguity addition inherent 103(b) ie., 103(h) words, 922(t)(2)(C) thority, sections speaks these section the Brady Act. Before we can “destroyfing] evaluate all records” relating al- the' transfers, reasonableness of the apparently Gener lowed assuming that interpretation sections, al’s of those two may records be created. about Asked this however, we must consider the argument, NRA’s re at oral NRA counsel conceded ie., maining arguments, Chevron one that lawfully kept that records could be provisions two other Brady days of the Act un- three business while research is un- may”— States of the United employee or response. “delayed” following dertaken text, in introductory in the 922(t)(ii); appears 28 C.F.R. § U.S.C. See 18 Congress Had the subsections. answer is text of If the NRA’s 25.6(c)(l)(iv)(B). § denied language excepting the- subsec- intended it is-—’then we think correct-^-and subsections, it apply to both prohibit the (1) transfers categorically cannot language that of NICS included making records would have from government written, the well. So introductory text as information. a firearm “If have read: would statute (1) Moreover, forbade if subsection unlawful, depart- be would not transfer infor- recording NICS government officer, employee of the ment, or agency, other with directly conflict mation, it would Indeed, that is may....” United States Brady Act. Subsection provisions 922(f)(2), Congress wrote section just how- portion record (1) “any [NICS] reaches receipt of a “If fire- phrase, in which expressly Act au- thereof,” yet unlawful],” precedes the not [be arm would certain to retain government thorizes requirements enumerated separately exam- For of NICS transactions. records “destroy.” Be- “provide,” “assign,” relating of records retention ple, permits it language ap- similarly qualifying cause transfers. firearm to denied 103(i)’sintroducto- in section pears neither (forbid- 103(i)(2), at 1542 Stat. (1), only we can nor subsection ry text a fire- to establish of the NICS ding use (1) reaches, as its subsection that conclude per- respect to “except with arm registry indicates, gener- “any record text plain receiving a [by law] from prohibited sons by the [NICS].” ated 922(f)(2) firearm”); (requiring 18 U.S.C. if only “re- of NICS destruction sub Claiming its [be would unlaw-

ceipt aof (1) with section ful]”). conflict respect to allowed trans- does not with section Even 922(t)(2)(C)’s 922(f)(2)(C) transaction permits requirement retention that fers, section retained, argues records. 18 the NRA of NICS portions numbers of certain 922(f)(2)(C) permanent general always (allowing Congress can “establish U.S.C. Appel numbers exceptions.” NICS identification then “make retention rule” and Congress numbers were as- Br. at 9. course Reply dates those Of lants’ the obli- to a exceptions limitations on particular These signed). may out carve destroy Indeed, NICS records gation to section general mandate. (1) that, barred meaning if subsection 922(f)(2)(C) requiring have no precisely does generated information recording of of allowed trans of all records destruction identifying NICS. number than the fers “other assigned.” number date the was and the inconsisten- of these To first avoid (1), 922(f)(2)(C). Subsection 18 U.S.C. into sub- cies, urges us to read NRA however, qualification. no similar contains (1) “except respect the clause section particular lan includes Congress “[W]here law], from [by persons, prohibited of a but omits one guage in firearm,” which appears ceiving a Act, it same another section (the (2) regis- no firearm end of subsection acts in presumed Congress generally [to answer “‘The short try provision). disparate tentionally purposely did is that this argument] ” Russello, 464 U.S. inclusion or exclusion.” way.’ Russello v. write the statute States 23, (quoting S.Ct. 296 United 104 16, 23, States, 464 U.S. United (5th 720, Bo, 722 472 F.2d Kim (1983) Wong 296, (quoting 17 United L.Ed.2d Cir.1972) (alteration original)). in Accord Naftalin, 441 U.S. States v. Congress presume when (1979)). ingly, we 60 L.Ed.2d S.Ct. subsec (1) language from qualifying excluded to both subsections applicable language officer, intentionally. (1), it did so (2) tion agency, department, and —-“No (1) Our conclusion that subsection does NICS and for quality control. The Audit unambiguously prohibit govern- Log regulation the expressly provides that recording ment from NICS information is the Log pertaining “[[Information Audit to allowed by may only by reinforced the fact that transfers be used purpose the FBI for plau- has advanced an alternative of conducting audits performance of the use and interpretation. Emphasizing sible of the 25.9(b)(2). NICS.” 28 C.F.R. “require,” argues word she that the statute To en- restriction, force this only “[t]he Audit prohibits government Log from re- will be monitored and reviewed on a regular quiring parties, third such as firearm deal- any possible basis to detect ers, misuse of the recording gov- from information at a data.” Id. facility. ernment Had intended (1) meaning subsection to have the moreover, Log, contains no The.Audit it, gives NRA General ar- information about “firearms” or “firearm gues, presumably the statute have dispositions.” transactions or Nor does it officer, department, read: “No agency, comprehensive contain a list of “firearm employee of the may (1) United States sure, owners.” To be the Log includes — any portion gen- record record or thereof persons names of approved buy fire- by [govern- erated ... at a [NICS] months, past arms in the six but as the ...” facility precisely . That ment] how observes, Attorney General “[t]he six- (2), which, Congress wrote subsection un- snapshot potential month firearms (1), directly prohibits like subsection transferees the audit log reveals virtual- government using from system as a ly nothing about the universe of firearms prohibit firearm registry; does not owners in the Appellee’s United States.” government from requiring that it be used Br. at 26. as such. owe no Though we deference to To illustrate the difference between the Log Audit and a registry, firearms statutory language stage at this of Chev- Attorney calls our attention to the analysis, plausibility ron of her view registry central guns machine estab- highlights ambiguity. the statute’s by lished the National Firearms Act. See Nofziger, United States v. gun U.S.C. 5841. The machine regis- (D.C.Cir.1989) (a 446^47 statute is ambigu- try contains information on all machine ous if it can be read more than one guns possessed States, by the United

way). including themselves, on weapons data registration, dates of and the names and (2), brings This us to subsection persons possess addresses of entitled to which government forbids 5841(a)(l)-(3). them. Far less com- “us[ing] the [NICS] estab prehensive, Log the Audit includes ad- any system lish registration for the persons approved buy dresses fire- firearms, owners, firearm or firearm trans arms, specific nor information dispositions.” actions or According to the weapons, nor approved gun even whether NRA, Log regulation the Audit violates purchasers actually completed a transac- this Log subsection because the Audit tion. And gun unlike the machine regis- registration.” Appellants’ itself “form of try, information in Log the Audit is rou- (2) Br. at 15. But subsection does not tinely purged after six months. The Audit prohibit all registration. pro forms of It Log represents only tiny therefore frac- only hibits “systemfs] registration for owners, the universe of firearm owners. firearms, or firearm dispositions.” follow, course, transactions or The Audit It does Log is not system. designed such a As could never function aas fire- General, the Attorney it functions as a registry. Log’s arm But the deficiencies system for protecting privacy as a make registering firearms

132 Chevron, 46 U.S. (quoting for that used would be that it unlikely it said, 2778). And, we have 104 S.Ct. allege Indeed, not NRA does the purpose. stays [Con- within agency as the long “[a]s Log for Audit the has'used FBI policy make it is free to delegation, gress’] “conducting of audits than other purposes statute, and the interpreting choices the NICST of performance use the to defer- are entitled interpretations 25.9(b)(2). argu- The NRA’s 28 C.F.R. Service Co. Public Arizona ence.” the fact on the that entirely ment rests (D.C.Cir. 1280, 1286-87 persons names of the EPA contains Audit omitted) (internal 2000) marks quotation past six firearms buy to approved long as (second original). So alteration the to convert enough This is not months. reasonable, is interpretation agency’s the registration” the “system for Log into there “regardless uphold we Log regulation Audit owners. reasonable, more even be other may by section prohibited not therefore Re- reasonable, Allied Local views.” 103(i)(2). Caucus v. gional EPA Manufacturers (internal (D.C.Cir.2000) quota- F.3d (cid:127) III. omitted). marks in either nothing Having found Attorney considering the Before 108(i) 922(t)(2)(C) or section Act, howev of the interpretation General’s temporary reten prohibits unambiguously er, contention address NRA’s we must transac of allowed tion of Attorney due to the deference “[n]o turn to an we purposes, audit tions for statutory pro grants affirmative of the examination privacy protect to intended visions Attorney General authority on which Attorney from the private rights of citizens Audit finds relies. She sup Br. at Appellants’ General.” provisions of the in two Log regulation ar port fox-guarding-the-henhouse of this 103(b), requires which Brady Act: section In Independent cites gument, NRA to establish a Attorney General America, v. Board Agents Inc. surance informa immediately providing capable of Sys Federal Reserve Governors of a firearm transfer tion on whether (2d Cir.1988), in tem, 627, 632 F.2d 103(h), re unlawful, which and section Circuit admonished: the Second which prescribe to Attorney General quires specif construing statutes enacted “Courts securi system’s protect to regulations ought to be agency action ically prohibit to provision neither Because ty privacy. ar allow dubious not to especially careful creation of directly to the an speaks ... agency guments advanced evaluate the Log, we with expressed intent congressional thwart step of to the second pursuant arguments de under the guise clarity, reasonable Au asking whether analysis, Chevron ” do expertise.... ferring agency permissible “a Log regulation reflects dit Agents Independent Insurance read Chevron, 467 statute.” construction anal anything new Chevron added have defer 2778. “Such U.S. at custom abandoned much less have ysis, ence,” recently ex Supreme Court al Courts deference. ary two Chevron responsi ‘the justified because plained, “is try “dubious” defer ways the wisdom of assessing bilities congressional “thwart” or to arguments, struggle resolving policy choices has acted Mindful intent. in public competing views between General’s.authority, to curtail ones,’ ... and be judicial terest are two ordinary Chevron proceed familiarity greater agency’s cause analysis. and circum ever-changing facts with the which provision on Brady Act first subjects regulat surrounding stances relies is section Williamson, 120 & S.Ct. ed.” Brown 103(b): Attorney General shall es- The audit log “[T]he enables the FBI to moni- tor a national instant criminal back- by tablish the NICS firearms use dealers, system states ground [gun serving points check as dealer] con- tact, information, personnel. and FBI may ... The FBI contact to be also examines immediately, receipt employees whether the FBI supplied on whether and contractors are making correct by prospective firearm transferee de- 103(b), terminations as to potential whether unlawful].” [be transferees disqualified, are to ensure According 107 Stat. at 1541. to the Attor- “proceed” responses General, are not being ney “Congress would not have 'supplied regard with persons who ordered her to establish the NICS without disqualified. are Decisions to allow a being system able to ensure that the [is] purchase fully are not i.e., automat- working,” in- performing Congress as ed, and thus officials must review and Appellee’s Br. tended. at 18. As ex- evaluate making records before a deci- plained in preamble to the regu- NICS sion. Review of decisions by made lation: NICS is necessary examiners to ensure In responsibility order to meet her that responsible individuals make cor- maintain integrity of Department rect decisions on whether a transfer is systems, ... General must permissible, supervisors and to enable adequate system establish an of over- provide training additional where sight review. Consequently, necessary. FBI proposed to retain records of (internal Appellee’s Br. at 16 citations approved log transactions an audit ' omitted). addition, In Log Audit is period solely limited of time for the (includ- “vital to ensuring purpose satisfying software) ing its working properly quirement of ensuring privacy standpoint.” a technical Appellee’s Br. at security proper NICS and the 3,7. . operation system. of the think posi- the Attorney General’s Regulation, NICS Fed.Reg. at 58303. tion represents a reasonable specifically, More can ... “[a]udits deter- 103(b)’s of section requirement potential mine whether purchas- handgun provide NICS “information” on whether ers or [gun have stolen the dealers] identi- firearm transfers would be unlawful. The ty of innocent and unsuspecting individuals Log, according Gen- or otherwise submitted false identification eral, is essential .ensuring accuracy information, in order to thwart the name of that Auditing “information.” enables system. check Log The Audit will also to learn whether the FBI perform quality allow control operators points and state of contact system’s operation checks on the by re- making are accurate determinations. viewing accuracy responses giv- short, the Attorney General uses the Audit en by NICS record gun examiners to accomplish very purpose dealers.” Id. at 58303-04. Reiterating Acts, i.e., Gun Control and to en- this point, pro- the March 1999 notice of sure that pos- individuals not authorized to posed rulemaking states that “[a]udits of purchase sess firearms are unable them. the use of the NICS are considered essen- tial to ensure that the oper- Disputing the need for an Audit ating in required the manner Brady Log, the NRA that quality contends con Act.” National Instant Criminal Back- trol measures can be undertaken contem ground- System Regulation, Check 64 Fed. poraneously- background checks. Reg. true, 10263. The Attorney may way This but we have no brief knowing contemporaneous describes function of the Audit quality n controlwould ensure that Log in more detail: oper- the NICS out for them Check the street. down is it our Nor required. ates unsettling. a little bit I find that is me.” judgment. “[I]t make that to

function courts, the that have not the agencies, the S16326, (daily ed. Rec. S16327 Cong. 139 authority political and expertise technical 1993) (statement Leahy). of 19, Sen. Nov. mandates.” Gener- out carry to EPA, 1327 F.3d interpreta- 53 "a different Co. offers al Elec. NRA The (D.C.Cir.1995). privacy to references the statute’s tion of it, the sees the NRA security. As and Log regu- the Audit that Our conclusion privacy of about the is concerned statute interpreta- a reasonable represents lation Appel- purchasers. lawful only 103(b) support from finds tion of section represents certainly 24. This Br. at lants’ for not unusual auditing is fact that the reasonable— quite possible indeed, one — For like the NICS. systems computerized 103(h). But be- interpretation of regulations Department example, Justice pre- nowhere identifies the cause da- computerized of another require audits protect- are privacy interests whose cisely Infor- History Record tabase, the Criminal Attorney General’s ed, the to we defer “verify adher- to in order System, mation reasonable. long as it is so law. 28 C.F.R. applicable ence” n. Chevron, at 843 467 U.S. & See the (stating § 20.1 20.21(e); also id. § see General, Here, Attorney 2778. S.Ct. regu- system). .The the CHRI purpose and establishing responsible the official “appropriate require further lations person- database a nationwide managing retained facilitate ... be information, that audit- determined al 20.21(e). no We thus have audits.” Id. system necessary to ensure that ing is Attorney Gener- reason to believe purposes. for unauthorized not used is Log for sinis- Audit some al maintains is mis- that this evidence concern Absent purpose. ter second-guess- have basis for (cid:127)placed, we no sec- also relies on Attorney Attorney judgment. The ing the 103(h): shall Attorney General “[T]he Gen- argues that The NRA privacy to ensure regulations prescribe investigate abuses eral lacks sys- of the the information security and dealers, out that pointing ” involving gun 103(h), Stat. Brady .... Act tem (which Gun Control enforcement preamble ex- regulation’s at The 1542. amended) in the Brady Act vested performs this Audit plains how Treasury. Gun Con- Secretary system, auditing “By function: 90-618, 103, Pub.L. No. trol'Act of which identify FBI instances can Act, how- 1226. 82 Stat. purposes, used for unauthorized NICS is General, not ever, requires the other people running checks such as Secretary, prescribe regu- Treasury transferees, protect gun' than actual system’s protect privacy. lations privacy that would the invasions against Regula- such misuse.” result from use of the contends that NRA next tion, During the Fed.Reg. 58303. uncover abuses Log to bill, Leahy Senator debates inspection “necessarily require warrantless way: put concern this on clear not based records] [gun dealers’ violate the thus every gun statutory grounds, giving I am concerned about Br. Appellants’ Amendment.” Fourth country people’s access to dealer claim, this to entertain Urging us not My concerns are lives.... private NRA that the argues background check access Fourth standing to assert [Sjomebody is a lacks may be abused.... dealers, that the gun rights Amendment really “I don’t care says, neighbor unripe, argument moved NRA’s people who too much those failed plead a Fourth Amendment NRA interim checks were to completed with- claim complaint. its in five business days possible, if 18 U.S.C. 922(s)(2) (held unconstitutional in Printz think- the Attorney General miscon- States, v. United 521 U.S. strues the argument. NRA’s As we un- 2365, 138 (1997)), L.Ed.2d 914 and records it, derstand the NRA asserts current of allowed transfers destroyed within violation, Fourth Amendment but urges us twenty days. business 18 U.S.C. adopt an interpretation of the Brady § 922(s)(6XB)(i).. Observing that “[t]he that, Act NRA, according is neces- generated under these [interim] sary to avoid constitutional doubt. Al- provisions were paper, computer rec- though courts certainly must construe “ ords [like capable NICS] of instant statutes to avoid ‘grave and doubtful con- ” destruction,” the NRA United, asserts that “[i]t is stitutional questions,’ Jones v. impossible to comprehend Congress in- States, 227, 239, 526 U.S. tending to allow ... federal employees (1999) 143 L.Ed.2d 311 (quoting United who could destroy computerized records States ex rel. Attorney v. Dela push with the of a button to keep them for Co., ware & Hudson 366, 408, 213 U.S. six months.” Appellants’ Br. at 22. S.Ct. (1909)), 53 L.Ed. 836 we have no basis for crediting- NRA’s assertion The answer to the argument NRA’s that the Attorney interpretation General’s that Congress given the Attorney Gen- Act raises questions. eral far more responsibility oversight with, begin To the March proposed implementation and of the background rulemaking explains that audits of firearm check than it given had CLEOs performed dealers will be conjunction who performed interim checks. CLEOs with the Alcohol, Bureau of Tobacco and were required to search “whatever State Firearms’ existing system inspection. and local recordkeeping systems [were al- National Instant Background Criminal ready] available and ... a national system Check System Regulation, 64 Fed.Reg. designated by the Attorney General.” 18 10263. Unless that already 922(s)(2). vio- U.S.C. By comparison, sec- lates the Fourth 103(b) Amendment —the NRA tion required the Attorney General never alleges that it does—we see no basis to establish a background check system for concluding that auditing capable of supplying information immedi- would suddenly produce constitutional vio- ately. 103(b), Brady Act 107 Stat. at lations. Nor does the NRA identify any Act gave CLEOs .no specific features of the auditing process affirmative oversight responsibilities. By implicate constitutionally protected comparison, 103(h) required the rights. short, In only speculates NRA “prescribe General to regulations government could not uncover to ensure the privacy and security of the abuses of privacy involving the NICS with- information of system.” Brady out violating the Fourth 103(h), Amendment. 107 Stat. at 1542. Performing 103(b) these 103(h) additional section and Our conclusion that the Log Audit regu- duties is why precisely the Attorney Gen- reasonably implements lation sections eral claims a temporarily need 103(b) retain 103(h) and disposes NRA’s NICS records. Having found the Attor- argument that retention of NICS records ney of these two for six months is when unreasonable com- provisions reasonable, we think it not all pared with another section of the Brady “impossible to comprehend” that' she Act providing for interim background would have authority to retain information checks during five-year period the longer than CLEOs. NICS was under development. Per- by formed state or local chief law enforce- by The cases relied on our dissenting officers, ment “CLEOs,” known as these colleague require do a different result. banc) (en (D.C.Cir.1994) 655, 671 F.3d Institute Petroleum EPA American original)). (first alteration (D.C.Cir.1995), invalidated statutory- in two criti- from API implemented differs This case regulation First, caused pollution respects. air reduce cal directive reg- re- for the regulation authority gasoline. claims reformulated explicit an absence oxygenates,” ulation of “renewable use quired word limitation, the fact energy such as conserving fossil which, though in section appear “immediately” does global providing perhaps sources Instead, sec- 922(t)(2)(C). she relies on make benefits, possibly “might warming inter- 103(h), it is her 103(b) au- For at 1119. tions worse.” quality air grants affirmative oxy- of those pretation of renewable use require thority to “ex- failure statute’s only on relied genates, —not of a claimed existence negate the gener- pressly gasoline reformulated implicates power” “prescribe administrative it to permitting provision al —that a Thus, “presume not dowe carry two. necessary to are Chevron as regulations solely on based power delegation 42 U.S.C. functions.” [its] out express an withhold- not that there fact 7601(a)(1). API, F.3d at power.” ing of such fossil fuel agency’s Finding that that Instead, we conclude au- its objectives exceeded warming global sec- interpreted reasonably has pur- sole that “[t]he thority, we observed 103(h) to authorize 103(b) and tions pro- gasoline] [reformulated pose even not we could question auditing —a API, 52 pollution.” reduce air is to gram determining first without reached have argued, EPA Although, F.3d at 1119. 922(t)(2)(C) pro- expressly section no- provision gasoline the reformulated auditing. hibits the renewable prohibited expressly where not does Second, Attorney General fact dispositive requirement, oxygenate empowering provision general rely on a the statute authorized nothing in that was necessary to regulations prescribe to her it: She functions. statutory her carry out Con- because argues that effect, EPA perform to Log regulation issued the its au- explicitly limited not gress has by sections authorized expressly functions oxy- renewable a promulgate thority to 103(h). “tak[ing] on 103(b) Far from its genate requirement, (Sentelle, J., Op. at 140 powers,” additional 7545(k)(l) passes thus Chevron’s section Attorney General dissenting), defer must then court step, and this first tasks that merely out carried interpretation of -expansive to its her. delegated expressly step. second Chevron’s under Halverson distinguishable, Equally however, step Chevron “that suggest, To (D.C.Cir.1997), in- Slater, does a statute any time implicated two Department a challenge a volved a the existence'of expressly negate cer- delegating regulation Transportation (i.e. when power administrative claimed the Great under responsibilities tain shaft written ‘thou is not the statute Law- Saint Pilotage Act Lakes terms), flatly unfaithful is both not’ Corporation. Development Seaway rence ..., law of administrative principles regulation, authority to issue For Thus, we by precedent.” and refuted general had relied Secretary delegation power presume will not responsi- delegate secretarial fact that there is solely on the based that a Secretary argued bilities. power. withholding of such express an expressly au- statute, one different Pilotage Act delegation Execu- thorized Railway Labor (quoting at 1120 officials, did Guard Bd., to Coast sponsibilities Mediation- v. National tives’ Ass’n prohibit delegation Corpo- Acknowledging “‘[w]hen ration nothing because that statute limits a thing to be done in particular “expressly prohibited] delegation mode, it negative includes a other powers and [these] duties to a mode,’” non-Coast the Court found that the “thing Guard official.” Id. at 186. Invalidating be done” by provision relevant was delegation, we concluded that “the not the same accomplished task absence express of an proscription ... challenged policy. Id. at 1660-61 (quoting provides green light ignore Raleigh Reid, & R. Gaston Co. v. 13 Wall. proscription necessarily implied by 269, 270, (1872) (alteration 20 L.Ed. 570 limiting language of [the Coast Guard original)). The statutory provision .does Id. at 187. statute].” not “se[t] forth the exclusive method” of implementing FLSA’s compensatory leave Our dissenting colleague, arguing that provisions; it is instead “more properly this case also involves “a statute confer- read as a guarantee” minimal that em- ring specific powers upon a cabinet offi- ployees may receive compensatory leave i.e., “assign,” “provide,” and' “de- cer”— upon request. Id. at 1661. stroy” the Audit Log —concludes regulation Congress’ exceeds grant au- 922(t)(2) So too here. Section does not thority. (Sentelle, Op. J., at 140 dissent- forth “set the exclusive method” by which ing). Halverson, This however, case and the Attorney may satisfy her stat quite are different. The two statutes at utory obligations; is “more properly issue in Halverson regulated precisely read as a guarantee” minimal that transac the same secretarial delegation tion provided numbers will be approved function— of authority. Obviously, specific the more transfers and that records relating to here, controlled. But section those transfers will be destroyed. Id. at 922(t)(2) and provisions the two relied on 1661. This the Attorney General has by the Attorney General concern entirely done. As to our dissenting dis colleague’s different functions. We Christensen, thus have no cussion we do rely 922(t)(2)’s reason to believe that section the case for the proposition that “legisla “assign,” “provide,” “destroy” di- empowered tive silence federal implicitly rectives restrict Attorney Op. (Sentelle, J., act.” at 141 1n. dissent authority implement sections ing); 129, 131-32, 136. see supra at 103(b) 103(h). up, To sum keeping mind Chevron Supreme

The Court recently faced a highly standard, two’s deferential we find similar situation Christensen v. Harris that the Audit Log regulation represents a — -, County, U.S. “permissible construction” of sections 621, (2000). There, 103(b) L.Ed.2d 103(h). county Chevron, 467 U.S. at employees challenged a county policy re- 104 S.Ct. 2778. thinkWe it “common Williamson’s, quiring them to paid schedule leave as sense”—Brown & Chevron compensation for overtime in lieu of cash one words that equally applicable seem compensation. They argued provi- that a Congress, Chevron two—that having di- sion of the Fair Labor Standards Act re- the Attorney rected General to establish a quiring eligible employees granted for- preventing disqualified persons paid leave within a reasonable time of re- firearms, from purchasing expect questing “provide[d] exclusive Attorney General to ensure that of utilizing means accrued time.” Id. at system produces accurate information and words, 1659. In other guards because FLSA against Indeed, by misuse. limit- did not expressly allow employers ing retention of NICS information “the quire leave in compensation, lieu of cash period minimum performing reasonable the employees argued, the County could system,” audits on the the Attorney Gener- not do Supreme so. The disagreed. Court obeyed al has “destroy” the- command requires 922(t)(2)(C) fulfilling state law or allows the reten- while her sec- checks, 103(b) 103(h) responsibilities. tion of the records of those state's retention of records of the con- Regulation, Fed.Reg.

NICS at 58304. performance current of a NICS check Iv. would not add more information argu gun ownership We turn to the NRA's final about than the state al- Attorney ready ment: that the General has im retains under its own law. properly exempted agencies state from the Regulation, Fed.Reg. NICS at 58304. Brady require Act's record destruction long interprets So as the agencies ment. Because state and local regulation permitting as POCs to re may "points (POCs) serve as of contact" only kept pursuant tain data that would be purpose processing quer for the ies, law, regulation to state does not con 25.2, gun see 28 C.F.R: dealers in flict with the Act. See Buffalo inquiries POC states must submit NICS Stone, Transp. Crushed Inc. v. Surface agency, the relevant state not to the FBI. Bd., (D.C.Cir.1999) ("An 25.6(d). See id. agency's interpretation regula of its own gveater General has determined tion merits even deference than its require- Act's destruction of the statute that it adi'nin- apply isters."). ment does not to information re- governments "part tained state that is judgment of the district court is of a record created and maintained affirmed. pursuant independent state law." Id. So ordered. 25.9(d)(1), (d)(2). argues The NRA General lacks SENTELLE, Judge, dissenting: exemption. Circuit "[t]he create this But because may NRA does not contend that states part Brady Handgun background systems have their own check Act, Violence Prevention Pub.L. No. 103- (with their own record destruction or re- (1993) ("Brady Act"), 107 Stat. 1536 requirements) tention or that federal law Congress empowered Attorney the Gener- preempts subject," Appel- state law on this al to "establish a national instant criminal Reply lants' Br. at we understand the background system" ("NICS") check for claiming only Attorney NRA to be determining purchasers of fire- authority exempt General has no POCs lawfully arms from federal licensees are require- from the Act's destruction purchases. entitled to make such regard ment with to information not main- 103(b), 107 Stat. at 1541. Under the pursuant tained to state law. authorizing statute, respect legal with regulation permitted firearms, "system" If the retention of transfers of the initi- gathered pursuant law, by Attorney "(A) data not to state ated assign the General is to agree unique we would with the NRA that identification number to transfer; (B) provide would violate the Act's destruction the the licensee with requirement. number; (C) destroy But is not how the the all records of Attorney interprets regula- system respect (other with to the call it, regulation merely identifying tion. As she sees than the number and the date clarifies that state record retention re- assigned) the number was and all records quirements preempted by system relating person are not federal or the 922(t)(2) (1994). law: transfer." 18 U.S.C. purported statutory pro-

The reason for this clarification is to In reliance on the vision, promul- interfering regulation General has avoid with state gathd regulations require performing gun which the Feder- firearms. If a state is eligibility law, Investigation ("FBI") check under state and al Bureau of maintain an log above, automated audit of all requires that the NICS “shall incoming and outgoing pass- transactions assign unique identification number ... ing through system including records [;] provide the number; licensee with the “type of transaction ..line num- ... destroy all records of system ber, time, header, inquiry, date of message .(other with respect to the call than [the key, ORI [originating identification assigned date])” number and the along number], (in- and inquiry/response data with “all system records of the relating to cluding the name and other identifying person- or the transfer.” 18 U.S.C. information about prospective transfer- 922(t)(2) added). (emphasis Nothing in and the ee NTN [NICS num- transaction the Brady Act empowers the Attorney ),” 25.9(b)(1) inter ber] alia. 28 C.F.R. do more than these three (1999). In transfers, the case of lawful things respect with to lawful transfers of regulations require the FBI to.retain (1) (2) firearms: (3) assign, provide, and the audit log for six months she, destroy. When after the date of each such transfer. See which she has delegated authority, Association, id. The National Rifle adds to those three retaining instead of America, Law Enforcement Alliance of destroying, she and exceed the various John and Jane (collectively Does statutory grant authority. regula- NRA”) enjoin “the operation sued tion requiring the reténtion the “audit regulations. these The District Court log” excess; is such an unlawful; it is granted summary judgment in favor of the enjoined. it should be General. Because the General in the promulgation regu- of these The Attorney General’s authori- claimed lations only has not authority exceeded the ty her power unlawful accretion of granted her under the cited FBI and the the regulation is statute, but express has also violated pro- her “responsibility for .administering the hibitions sections, of other statutory I National Instant Criminal Background would reverse. system.” Check Br. Appellee at 11. general This reliance on authority to ad- I. Statutory Authorization minister an area of regulation The Attorney to deal (cid:127) cannot sustain a federal reaching actor’s subject preclearance matter of of beyond eongressionally granted authority. handgun purchasers depends entirely upon have repeatedly, held that federal congressional grant. She does not and agencies cannot additional seize powers by any cannot claim power inherent over the substituting their own determination of the subject matter from constitutional or other appropriate means for accomplishing stat- Therefore, sources. unless the Act utory goals place in of that by determined empowers her to done, do what she has Congress. the regulations the are invalid. American Cf. API, example, For v. the Environmental Inst. United States Envtl. Petroleum. Agency Protection 1113, Protection had Agency, empowered been 52 F.3d 1119-20 (D.C.Cir.1995) by (“API”); Congress to promulgate Railway regulations Labor for use, gasoline Executives’ v. reformulated Ass’n National Mediation in “nonat- Bd., (D.C.Cir.1994) (en 29 F.3d 670-71 tainment areas.” 52 F.3d at 1115 banc). 7545(k)(l) (1988 The 42 (quoting § statute is unambiguously limit- U.S.C. & 1993)). ed in Supp. the extent of grant the of V authority The empowering statute General, to the provided and authority to that regulations the were to “re- delegated be to NICS over quire greatest transfers to reduction emissions lawfully citizens entitled to receive fire- of ozone forming volatile organic com- arms. That authority ..., is set forth in 18 pounds taking into consideration the 922(t)(2) which, U.S.C. expressed cost of achieving reductions, such emission General), (the and an net officer air-quality and other nonair-quality any NICS) (the officer. under that impacts agency environmental lated health power add limitless cannot goals 42 U.S.C. General requirements.” energy by delegated Con- power in its limited to the 7545(k)(l). EPA included The inclusion for the gress. the-mandate regulations in the reformu- oxygenates” of “renewable to bol- attempts Attorney General The this justification As gasoline.

lated the statu- beyond power of her claim ster authority regulatory of assertion additional analytical to by repair tory grant other duty to achieve its EPA asserted Nat- v. Inc. U.S.A of Chevron framework We struck Air Act. the Clean goals under Inc., Council, 467 Resources ural Defense holding regulations, challenged down the 694 81 L.Ed.2d U.S. grant of general broad (1984). familiar rubric Under to mandate EPA “authorize not did in- agency’s an decision, review we when for- precise or compliance manner to entrusted of a statute terpretation ex- without additional compliance mula for administration, undertake we agency's API, F.3d at authority.” plicit first “determine step analysis. two explicitly au- Congress has here. Just so pre- to the spoken Congress has regulate Attorney General thorized Halverson, 129 at issue.” question cise fash- in a certain citizens the activities Resources (quoting Natural at 184 F.3d authority to administer general Her ion. Browner, Council, v. Inc. Defense statutory programs created (D.C.Cir.1995) Chev- (applying take on empower her Act do ron)). must interpretation If so “that not dele- citizens over powers additional is, not, “[i]f If given effect.” legislature. by her gated to ambiguous with the statute silent Slater, 129 F.3d Also, Halverson issue, court specific then to the respect (D.C.Cir.1997), we considered the con- 'permissible will defer Secretary of authority of claimed Id. The Attor- statute.” of the struction delegate -to Transportation Department, that, the sec- under ney contends under Great responsibilities certain Chevron, uphold her we should step of ond 1960, 46 U.S.C. Pilotage Act Lakes establish and power to assertion Seaway St. Lawrence seq.,. et citizens conduct of on lawful retain records statute, the Corporation. By Development do of the statute words where the “delegate empowered Secretary was her theory that power grant rele [the conferred powers duties permissi- ais of the statute officer, employee, or vant] subtitle one. say a reasonable one, that is ” ble e th Coast Guard.... member reach however, not even fact, should 2104(a) (1994). statute did That U.S.C. absence stage of Chevron. the second Secretary delegate empower an is not statutory power grant of a anyone powers to outside such duties question on the or silence ambiguity Secretary relied Guard. Coast pow- a granted such Congress has in delegation 49 grant upon general a argu- that line of disposed of have er. We 322(b) assert U.S.C. we stated past. As repeatedly ment or em any officer power that delegate Labor Executives’Association: Railway in more, we department. Once ployee of actor] [government suggest, as the To goals statutory general held that does, step two effectively that Chevron limiting lan cannot “override grants does not a statute any time is implicated specifically empower a guage” of statute of a the existence expressly negate Halverson, agency to act. ing federal (i.e. when power administrative claimed pres in Again, 187. 129 F.3d ‘thou shall in is not written the statute us a stat controversy, have before ent terms), flatly both unfaithful is not’ upon a cabi- specific powers conferring ute principles of administrative law ... department, officer, No agency, or em- by precedent.... and refuted Were ployee of the may— United States presume delegation power courts to of (1) require any that portion record or express withholding an of absent thereof generated estab- power, agencies enjoy virtually would lished under this section be recorded at hegemony, plainly limitless a result out or a facility owned, transferred to man- keeping with quite likely Chevron aged, or by controlled the United States with the Constitution well. or State or political subdivision (citations omitted); 29 F.3d at 671 see also thereof.... Natural Resources Council v. Defense (D.C.Cir.1993) Reilly, 983 F.2d words, By its clear this statute estab- (“[I]t only is legislative delegate intent lishes that Congress has unambiguously such authority that entitles an agency to told the Attorney General that she shall advance its own construction for do doing not what she is regulations. review under the deferential second prong is, That she is forbidden to require the Chevron.”) added) (emphasis (quoting FBI, NICS, or any department, other City v. Department Housing Kansas officer, agency, employee United Dev., and Urban 191-92 require States to generated (D.C.Cir.1991)); API, F.3d at 1120.1 by the NICS be recorded at or transferred ambiguous The statute is not on whether to any facility. exception There is no it grants Attorney power log, an audit exception there is no to retain the records which grace period. a six-month Congress has empowers her to destroy. The statute simply forbidden her do it. doing She is simply does not grant power. her that anyway. it The regulation must fall. Indeed, power the denial of is even strong- ambiguity There calling for the invo- er than that considered in the cited cases. cation of Chevron. Those statutes did not include “thou shall The Attorney argues provisions. not” The Brady Act does. an “[w]ithout audit FBI log, the above, the cases discussed the federal simply incapable achieving the level seizing power was not granted by oversight Here, by deemed Congress. essential the At- General is torney only Appellee General.” Br. for making such an at 17. unauthorized power I fail grab, but to see the taking action of that expressly argu- relevance by Congress. forbidden Congress, ment. Gener- al, makes the laws. did not au- II. “Thou Shall Not” thorize the log maintenance of an audit explicit violation its command not to express pro- contains an vision headed retain records. Neither did empower Relating “Prohibition to Es- tablishment of Registration Systems place General to take its Respect to Firearms.” making Pub.L. No. of law any 103- time she deems 159, 103(i), 107 Stat. at 1542. That sec- a level oversight essential neither re- provides permitted nor quired statute. by County,- U.S. -, Christensen v. Harris ty asserting a power, limitation on federal (2000), L.Ed.2d cited asserting grant pow- as the federal actor majority, contrary. is not to the In er. See id. at 1659. Because the statute in deed, majority’s analysis question sue, turns ambiguous Christensen was silent or on the is- Supreme its only head. The regulated Court not did entity did ability not lose an legislative empowered not decide that silence inherently that was its See id. at own. 1660- act, is, agency quite federal oppo did ambiguous it 62. That the silent or statute County, ability The site. whose empower to control did not the federal actor to do that scheduling question, ap leave time inwas which expressly was not forbidden to it. Just peared regulated before the Court enti- so here. destroy records I have to say that not Conclusion . III. empowered I am Therefore immediately. fallback ultimate Attorney General’s Gen- records.” retain the Congress is that argument reminiscent me as strikes position eral’s the adverb not include but did have could hair. her pulling sister’s child petulant “destroy” verb “immediately” before her, pull “Don’t tells mother Her all “destroy her to commanded

when right, “All says, The child baby’s hair.” respect to system” hair. the infant’s Mama,” pulls again but transfers lawful in the case contact “Mama, say I is, you didn’t defense Her 922(t)(2). Specifi- 18 U.S.C. firearms. now.” stop right had an adopt that it did cally, notes she Repre- House offered amendment com- parent’s think that I do including effect to the sentatives that of nor ambiguous, child mand avails her this I fail to see word. I do General. Congress to draw “to reluctant are Courts anything. reasonable; response child’s find the act,” failure to Congress’ inferences Attorney General. is that of nor Co., 485 Pipeline ANR Schneidewind decision from the dissent respectfully I L.Ed.2d 293, 306, S.Ct. U.S. uphold the colleagues to my held (1988). a court case has regulations. to a federal granted power been failure enact by Congress’s contradictory statu- directly to a limitation said, “destroy Congress tory command. said, “re- do not records.” all recorded.” any record quire that 103(i), 1542. The 107 Stat. asserts, did “Congress Attorney General

Case Details

Case Name: National Rifle Ass'n of America, Inc. v. Reno

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 11, 2000

Citation: 216 F.3d 122

Docket Number: 99-5270

Court Abbreviation: D.C. Cir.