Reply Brief — National Rifle Ass'n of America, Inc. v. Ashcroft

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No. 00-1332 JUN 4 2005

CLERK

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INTHE *—

SUPREME COURT OF THE UNITED STATES

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC.,

LAW ENFORCEMENT ALLIANCE OF AMERICA, INC.,

JANE DOES | and II, and JOHN DOES I, III, and IV

Petitioners

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES, |

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

STEPHEN P. HALBROOK*

Richard E. Gardiner

10560 Main Street, Suite 404

Fairfax, Virginia 22030

(703) 352-7276 |

Attorneys for Petitioner

*Counsel of Record

TABLE OF CONTENTS

TABLE OP AUTTIIORE Ee oc neice ce B

CONCLUSION ......

li

TABLE OF AUTHORITIES

CASES Page

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, dc... 467 US. 957 CRO ok oc hvac éncess 7

Christensen v. Harris County, 529 U.S. 576 (2000) .... 10

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 120 S. Ct. 1291 (2000) ......... AS

Federal Energy Administration v. Algonquin

Svey, Inc., 426: U.S. SUR CEPR | oie ae iia eeanee 7

Fourco Glass Co. v. Transmirra Corp.,

353 US. 22 1S Sa ee ee Te ee 4

Motor Vehicle Manufacturers Association v.

State Farm Mutual, 463 U.S. 29 (1983)... 2.2.6.6... 4

National Rifle Association v. Brady,

914 F.2d 475 (4th Cir. 1990), cert. denied,

SOUS. MOG ee ees 2

United States v. Biswell, 406 U.S. 311 (1972) ......... 5

United States v. Gonzales, 520 U.S. 1 (1997) ........ 6-7

Whitman v. American Trucking Associations, Inc.,

$31 UG. 457, 120 & GE FR Re bi cece ssc cte een 9

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CONSTITUTION

U.S. Const., AmendmentIV ....................... 5

STATUTES

Section 103(i), P.L. 103-159, 107 Stat. 1536

gr i) Als Sra) 3 ee 1,2,3,8

Section 103(i)(1), P.L. 103-159, 107 Stat. 1536

TERNS C6 Ot oe ae 1,4

Section 103(i)(2), P.L. 103-159, 107 Stat. 1536

| AS RS Reet Cah Seer CE PES

18 U.S.C. § 922(s)(6)(B)(i)

Rr OS ooo cc nkk ck

S03. {40

REGULATIONS

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LEGISLATIVE MATERIALS

Ss 6a eed Ae hae abet oe ‘ae S

OTHER AUTHORITIES

Breyer, Judicial Review of Questions of Law and

Policy, 38 ADMIN. L. REV. 363 (1986) .............. 8

Webster's New World Dictionary (1988) .............. 6

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ARGUMENT

1. Section 103(i)(1) of the Brady Act provides that no

federal agency may “require that any record or portion thereof

generated by the system established under this section be

recorded at or transferred to” a government facility. The

records thus protected are those “generated by the system,” i.e.,

the records the dealer transmits to the NICS for an instant

background check and which the regulation at issue directs shall

be recorded as an “audit log.”

Ignoring that § 103(i) addresses the records “generated

by the system,” Respondent asserts that “the provision prohibits

the Attorney General from imposing additional reporting

requirements on firearms dealers,” which could be used to

“establish a federal firearms registry.” Br. 14. It is unclear why

such “additional” records would be more susceptible to use for

a registry than would the NICS-generated records kept by the

government. But the argument is foreclosed by the fact that §

103(i) prohibits recordation of the records “generated by the

system,” the very records which compose the “audit log.”

Respondent argues: “Section 103(i) does not prohibit

the government or its agents from recording NICS records at

a government facility.”’ Br. 13. The drafters beg to differ:

“This legislation would prevent any Department, agency,

' “The statute does not expressly preclude the agency from

retaining NICS-generated records. . . . [T]he statute by its terms merely

bars the government from requiring others to retain records.” Br. 16 n.3.

In other words, a statute which prohibits the government from retaining

certain records is transformed into one which prohibits anyone but the

government from retaining the records.

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officer, or employee of the United States from compiling or

recording any record obtained through the instantaneous

check.” 139 Cong. Rec. H2829 (May 8, 1991) (Armey-

Staggers colloquy). Nothing about the word “require” prevents

the prohibition on recordation from applying to the government,

for the Attorney General through the regulation is “requir[ing]

that any record or portion thereof generated by the system

established under this section be recorded at” the NICS facility

by NICS employees.

According to Respondent, the word “require” means

that § 103(i) only bars “the government from requiring third

parties, such as firearms dealers, from recording information at

a federal or state government facility.” Br. 8. This oddly

presupposes that a dealer would have access to the government

facility and is prohibited from recording information in the

government computers.”

To be sure, § 103(i) prohibits the Attorney General from

“requiring” anyone (whether government employee or dealer)

to “transfer” NICS-generated records to a government facility --

with the obvious exception that information is transmitted by

the dealer for the instant check and is destroyed on approval of

? National Rifle Ass'n v. Brady, 914 F.2d 475, 483-84 (4th Cir.

1990), cert. denied, 499 U.S. 959 (1991), invalidated a BATF regulation

about dealers with the words, “Congress could hardly have been more clear

in its direction that ‘no other recordkeeping shall be required.””

Respondent denies any parallel between this sweeping language and §

103(i), but then suggests that the substance is the same: “In both this case

and that one, Congress was concerned with the information the agency

might require others to record.” Br. 16 n.3. Yet the statute in NR4 v.

Brady explicitly prohibited the agency from requiring other recordkeeping

of dealers, while the statute here makes no reference to any third parties.

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the transfer. The regulation violates this prohibition by

requiring the dealer to transfer such records to a government

facility for an extraneous purpose - the creation and

maintenance of investigative files euphemistically termed an

“audit log.”

By prohibiting the Attorney General from “requiring”

the transfer to or recordation of records at a government

facility, the Act prohibits requiring either dealers or government

employees to participate in the amassing of information on

lawful transferees at a government facility. No amount of

semantics about the word “require” can disguise the fact that

the Attorney General, through the regulation, is “requiring”

dealers to “transfer” records “generated by the system” to a

government facility for use as an “audit log” for six months (not

just for an instant check) and is “requiring” NICS employees to

“record” the information in the audit log.

Respondent sees § 103(i) as “laden with ambiguity”

because the Act includes exceptions. Br. 8, citing panel

decision. These exceptions include records on disallowed

transfers as well as the identification numbers and dates of

allowed transfers. Yet the very listing of those exceptions

demonstrates what is not excepted from the destruction

requirement — recerds on the identity of approved transferees.

“A court must . . . interpret the statute ‘as a symmetrical

and coherent regulatory scheme,’ . . . and ‘fit, if possible, all

parts into an harmonious whole... .”” FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 120 S. Ct. 1291,

1300-01 (2000). Respondent argues that harmonization here

would require “judicially transplanting exceptions” because

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“those exceptions do not appear in Section 103(i)(1) itself.” Br.

15. Yet Congress may enact a statute with a general rule in one

section and exceptions in other sections.» Respondent's

“alternative construction” which “eliminates the conflict” is

nothing more than “appellate counsel’s post hoc

rationalizations,” Motor Vehicle Mfrs. Assn. v. State Farm

Mutual, 463 U.S. 29, 50 (1983).

Respondent otherwise makes policy arguments that

should be made to Congress, not to this Court. Respondent

claims that, without the “audit log,”- there is no way to

guarantee that dealers are not requesting background checks for

improper purposes. Br. 11-12. No supporter of the Brady Act

suggested such a hypothesis. Instead, its proponents explained

that if the government is allowed to keep NICS records, there

is no way of guaranteeing that the government will not use the

records other than for the determination of whether a transferee

has a legal disability. Record destruction provides an

institutional barrier to guarantee that the government makes no

other use of the records. The Act relies on structural checks-

and-balances, not on lofty declarations in regulations, to prevent

governmental misuse of information.

Respondent gives reason after reason why the records

are supposedly needed,* Br. 11-12, but the argument is really a

> “However inclusive may be the general language of a statute, it

‘will not be held to apply to a matter specifically dealt with in another part

of the same enactment.’” Fourco Glass Co. v. Transmirra Corp., 353 U.S.

222, 228-29 (1957).

“For instance, supervisors must conduct spot checks to ensure that

examiners have made the right decisions. This after-the-fact “audit”

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list of excuses about why the Attorney General did not wish to

operate NICS in the manner mandated by Congress. The

criminal code punishes the making of false statements, which

Congress intended to be ferreted out using traditional law

enforcement methods.* Nullifying statutory provisions intended

to protect privacy under the plea of “necessity” is no more

legitimate than are Fourth Amendment violations committed in

the purported interest of law enforcement.

2. Section 103(i)(2) provides that no federal agency

shall “use the system established under this section to establish

any system for the registration of firearms, firearm owners, or

firearm transactions, except with respect to” persons who are

prohibited by law from receiving firearms. The character of the

“audit log” as a registration system according to ordinary

linguistic usage is not ameliorated by the regulation’s Orwellian

self-declaration that the “audit log” registry of firearm owners

may not be used to establish a registry of firearm owners. Br.

17, quoting 28 C.F.R. § 25.9(b)(2).

The statute prohibits registration of “firearm owners, or

firearm transactions,” but Respondent claims no violation exists

allows mistakes to be made and firearms to be transferred unlawfully. Spot

checks conducted while the examiner is making the decision would prevent

such mistakes and remove any supposed need for an “audit log.”

* While chanting the mantra “audit,” the actual use of the registry

is said to be the enforcement of Gun Control Act prohibitions on false

Statements. However, Congress did not intend that the FBI use NICS

records to investigate already-approved transferees, and the FBI has no

lawful power to inspect dealer records, see United States v. Biswell, 406

U.S. 311, 315 (1972) (“the legality of the search depends . . . on the

authority of a valid statute”).

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because addresses are not required. Br. 17. Surely “firearm

owners” are identified by name, sex, race, date of birth, and

State of residence, all of which NICS requires, together with

permissible requests of one’s Social Security number, military

number, height, weight, eye and hair color, and place of birth.

28 C.F.R. § 25.7. The fact that the identities of all firearm

owners or transactions are not permanently kept does not mean

that the Log, during the time it is maintained, is not “a record or

list of names . . . kept by an official appointed to do so.”

Webster's New World Dictionary 1130 (1988) (defining

“register”).°

3. Section 922(t)(2), 18 U.S.C., provides that if receipt

of a firearm would not violate the law, the system shall:

(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.

(Emphasis added.)

Respondent relies on lack of the word “immediate,” Br.

° Respondent writes that “unlike the machine gun registry, the

audit log may be used oniy for” specified purposes. Br. 17. Actually,

machine gun registration records are tax records strictly protected from

disclosure by the tax privacy provisions of 26 U.S.C. § 6103.

7 “Given the straightforward statutory command, there is no

reason to resort to legislative history.” United States v. Gonzales, 520 U.S.

7

18-19, yet ignores the unqualified nature of the command to

“destroy” and the irreconcilability thereof with its antonym,

“maintain.” See 28 C.F.R. § 25.9(b) (“the FBI will maintain an

automated NICS Audit Log”). Once the transferee passes the

instant check, Congress delegated no authority to the Attorney

General to do anything with the records other than to “destroy”

them.

The Act’s Interim Provision granted a 20-day grace

period for destruction of the background-check records by local

law enforcement. 18 U.S.C. § 922(s)(6)(B)(i). Respondent

argues that “Congress knew how to include express deadlines,”

Br. 19-20, but ignores that, without an explicit grace period, the

term “destroy” on its face negates any act of retention.

4. Petitioners do not argue, as Respondent suggests,

that Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), is inapplicable. Br. 20-21.

FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291

(2000), refined the Chevron test to explain that, even in the

absence of statutory clarity, the courts should not recognize an

implied delegation of power to an agency where the issue is of

great public magnitude. “Congress could not have intended to

1, 6 (1997). Even if it is considered, no one contradicted Senator Craig’s

explanation of the Senate version, which did not include the word

“immediate,” thus: “It is a matter of law that they [the records] should not

stand once the background check is done,-so that there not be a fear that

somebody were compiling a master list of guns and gunowners.” 139

Cong. Rec. $16328 (Nov. 19, 1993). “As a statement of one of the

legislation's sponsors, this explanation deserves to be accorded substantial

weight in interpreting the statute.” Federal Energy Administration v.

Algonquin Sng, Inc., 426 U.S. 548, 564 (1976).

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delegate a decision of such economic and political significance

to an agency in so cryptic a fashion.”* Jd. at 1315.

Again and again, decade after decade, Congress has

rejected the concept that the government keep any lists of

lawful owners of firearms. The privacy provisions at issue here

join a long line of other provisions with the same fundamental

objective. Like tobacco, the firearms issue “has its own unique

political history,” and “we are obliged to defer not to the

agency’s expansive construction of the statute, but to Congress’

consistent judgment to deny .. . this power.” Jd.

The Brady Act was an historic compromise in which

law-abiding firearm owners would submit to a background

check in exchange for the promise that the government would

not keep any records on their identities."° The very suggestion

*“A court may also ask whether the legal question is an important

one. Congress is more likely to have focused upon, and answered, major

questions, while leaving interstitial matters to answer themselves in the

course of the statute’s daily administration.” /d. at 1314, quoting Breyer,

Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363,

370 (1986).

* Respondent states that the court of appeals accorded the agency

no deference on most issues, Br. 22 n.5, but the court stated: “[B]ecause the

statute nowhere identifies precisely whose privacy interests are protected;

we defer to the Attorney General’s interpretation... .” App. 24a.

'°Enactment of § 103(i) guaranteed that the Brady bill would not

“authorize the Federal Government to compile a database of firearm

purchase using information collected through the instantaneous computer

check.” 135 Cong. Rec. H2828-29 (May 8, 1991) (Armey-Staggers

colloquy). “The amendment specifically prohibits keeping any records

about lawful sales.” /d. at S8934 (June 27, 1991) (statement of Senator

Stevens). “This instant check system will be used by licensed dealers to

=...

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that the government could keep records on firearm owners for

such duration as the Attorney General pleased would have

wrecked passage of the Act. Yet Respondent embraces the

“amplicit delegation” argument and finds this to be a case where

“Congress declines to speak to the question and instead

delegates to an agency the responsibility of filling the statutory

gap....” Br. 22-23 n.6.

However, Congress “does not alter the fundamental

details of a regulatory scheme in vague terms or ancillary

provisions — it does not, one might say, hide elephants in

mouseholes.” Whitman v. American Trucking Associations,

Inc., 531 U.S. 457, 121 S. Ct. 903, 909-10 (2001). There, this

Court “refused to find implicit in ambiguous sections of the

CAA [Clean Air Act] an authorization to consider costs that has

elsewhere, and so often, been expressly granted.” 1215S. Ct. at

909-10. Here, the Act explicitly prohibits retaining records on

lawful transferees and expressly grants the power to retain

records on denied transferees. And here, as in American

Trucking, “the agency’s interpretation goes beyond the limits of

what is ambiguous and contradicts what in our view is quite

clear.” Jd. at 916-17. An agency “may not construe the statute

in a way that completely nullifies textually applicable provisions

meant to limit its discretion.” /d. at 918-19.

Like Brown & Williamson, this Court’s decision in

American Trucking disdains implied or cryptic delegations of

power involving issues of great significance:

check the eligibility of purchasers of all firearms and no records of

legitimate purchasers may be kept.” /d at $9080 (June 28, 1991)

(statement of Senator Thurmond).

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We find it implausible that Congress would give to the

EPA through these modest words the power to

determine whether implementation costs should

moderate national air quality standards. . . . “The

implausibility of Congress’s leaving a highly significant

issue unaddressed (and thus ‘delegating’ its resolution

to the administering agency) is assuredly one of the

factors to be considered in determining whether there is

ambiguity.”

Id. at 910, quoting Christensen v. Harris County, 529 U.S. 576,

590, n. (2000) (Scalia, J., concurring).

The decision of the court below is in conflict with the

above fundamental principles. Granting this petition for

certiorari would give this Court an opportunity to develop

further its jurisprudence concerning the presumption against

“cryptic delegations” as well as to correct a decision that

adversely affects the privacy nights of millions of Americans.

CONCLUSION

This Court should grant this petition for a wnt of

certioran to review the judgment of the U.S. Court of Appeals

for the District of Columbia Circuit.

STEPHEN P. HALBROOK*

Richard E. Gardiner

10560 Main Street, Suite 404

Fairfax, Virginia 22030

(703) 352-7276

Attorneys for Petitioners

*Counsel of Record