DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF INVESTIGATION

UMBERT v. U.S.A., et al

Case No. 18-1336(U.S. District Court for D.C.)

ATF June 19, 2018 Letter

Excised Copy
 ll.S. Department of .Ju.,licc

.@ Bureau of /\l<.:ohol. Tobacco.

Firearms and Explosi,es

/:11/orc<'me11t />rogram., and SeJTice.\

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June 19, 2018

MEMORANDUM TO: NICS Section Chier

Criminal Justice Information Services Division
Federal Bureau of Investigation

fROM: Deputy Assistant Director

Enforcement Program Services
Bureau of Alcohol, Tobacco. Firearms and Explosives

SUBJECT: National instant Criminal Background Check System Appeals

Process

This letter is in response to an email received by the National Firearms /\cl (NF/\) Division of
the Bureau of Alcohol. Tobacco. Firearms. and Explosives (/\TF) from the Federal Bureau of
Investigation (FB I) National Instant Criminal Background Check System (NIC ) Section
through ATF Liaison Eric Moore on eptembcr 7. 20 17. Specilically. Mr. Moore stated:

The NJCS Sectiu11 will not process any appeal for the three branches of the ATF
1\tlorti11sb11rg. The responsihilityfor appeals/all 011 the respectil•e hranches ro
handle this area. Please ensure that your de11ial le11ers du nof reference
.rnln11illi11g an appeal to the NICS Section. The c11sto111er would need to appeal
back to your branch. if they wish lo challenge Ihe .final decisio11. I did spec(/ically
reiternte this i11 .June when I pro,·ided the NJCS prohibitor training to yo11r team.

;\s )OU are <man.:. the Gun Control /\ct, 18 U.S.C. Scction 921( t) general !) requ ires that a
Federal firearms licensee shall not transrcr a firearm to Ull) other person \\ho is a non-licensee.
unless th..: licensee contacts 0: ICS. Scc..:tion 103(g.) nl'th...: Brad) .\ct s...:i... out the "ltatutor)
r...:quin.:mcnt-. for appeals.

(g) ( 'orrect ion o/l:rroneou\· -~\s1em !11/(Jr11wt ion .... /.(lier an i11clil'idual i.\
i11/ormecl that po \.\<!r;sion o/ u /irearm H t)Jl/d \'iolate 18 l S ( · <)l] tg) or
<)]]fll}/ . .[tjhe prmpectire tran~fere<' 11w.1 \llh111ir t<> the . lllome1 General
111/(Jr111<1tio11 to correct. clur(/.i'. or supph•111c11t record., o/the .\\'.\fem 1rith respec;t
to the pro.,·pectin• trw1s/eree . . l/ier rec:ei11r o/,\11c'1 i11/omwtim1. the :lll<mn•r
Ge11eml ,Jiu/I i1111111!diure/y c:o11sicler 1he i11/hrmutio11. illl'<'\'ligllte the 11w11er .
.further. and c:orre<.'t llll e1Tv11eo11' Federal rec:ortf., relutin~ to rh<' prospectil'(!

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 trnn.~fereeand give notice ofthe error lo any Federal department or agency or
any State that was the source ofsuch erroneous recordv.

The Federal regulations for the National Firearms Act (NF A). 26 U.S.C. Chapter 53, requires, in
relevant part. that "[i]n "ddition to any other records checks that may be conducted lo determine
whether the lrnns.fer, receipt. or possession ofajirearm would place the transferee in violation
oflaw. the Director {ATF] shall contact the National Instant Criminal Background Check
System." 27 C.F.R. 479.86. Additionally, the AG has delegated certain specific authority to ATF
(28 C.F.R. 0.130), but has not delegated to ATF any functions or responsibility of conducting
background checks or maintaining a system of records under the Brady Act. 1

As you will recall, the FBiformally implemented the NICS appeals process, ina Federal
Register notice on June 4, 1998. Specifically, the FBI noted that:

If, as a result ofa NICS background check, an individual is unable to purchase a firearm,
the individual may request the reason(s) for the denial from tlte age11cv t/1at made tlte
determi11atio11 (eitlter t/1e FBI or tile POC>. The denying agency (either the FBI or the
POC) shall respond with the reasons for the denial within five business days ofreceipt of
the request. Tile individual mav c/1al/e11ge t/1e accuracv oft/1e record bv appealing to
tile state or local POC t/1at denied the transfer. the agencv tllat originated t/1e record.
or tile FBI. Ifa record is found to be erroneous, the data in the NICS shall be corrected
and the individual will be provided a written confirmation ofthe correction oferroneous
data lo present lo the FFL. Ifmore than 30 days have transpired since the initial check,
the FFL will recheck the NICS without a fee before allowing the sale lo continue. The
Brady Act also provides that an individual may contest the accuracy or validity ofa
disqualifying record by bringing "an action against the State or political subdivision
responsible for providing the erroneous information, or responsible for denying the
transfer, or against the United States, as the case may be, for an order directing that the
erroneous information be corrected or that the transfer be approved, as the case may be.

63 Fed. Reg. 30430, 30432-30433. (Emphases added).

The NICS regulations also define appeal to mean "a formal procedure to challenge the denial of
afirearm transfer." 28 C.F.R. 25.2. The regulation establishes this formal appeals process under
28 C.F.R. 25.10. Subsection (c) states, in relevant part, that

[i}fthe individual wishes lo challenge the accuracy ofthe record upon which the
denial is based, or ifthe individual wishes to assert that his or her rights to
possess a firearm have been restored, he or she may make application first to the

1
Under28 U.S.C. § 534(a), the Attorney General must "acquire, collect, classify, and preserve identification,
criminal identification, crime, and other records"; must "exchange such records and infonnation with, and for the
official use of, authorized officials of the Federal Government"; and under§ 534(c) may delegate such duties.
Pursuant lo regulations such as 28 C.F.R. §§ 0.85(b), 20.3 l(a) and 50.12, the Attorney General appears lo have
delegated such duties to the FBI. Lindems v. Mukasev, 530 F. Supp. 2d 1044, 1047 (E.D. Wis. Jan. 16, 2008)

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 denying agency. i.e•• eit/1er the FBI or t/1e POC. Ifthe denying agency is unable
to resolve the appeal, the denying agency will so notify the individual and shall
provide the name and address ofthe agency that originated the document
containing the information upon which the denial was based. (Emphasis added).

Subsection (d) continues that

As an alternative to the above procedure where a POC was the denying agency,
the individual may elect to direct his or her challenge to the accuracy ofthe
record, in writing. to the FBI••• Upon receipt ofthe information, the FBI will
i11vestigate t/1e matter by contacting the POC that denied the transaction or the
data source. The FBI will request the POC or the data source lo verify that the
record in question pertains lo the individual who was denied. or to verify or
correct the challenged record. The FBI will consider the information it receives
from the individual and the response it receives from the POC or the data source.
Ifthe record is corrected as a result ofthe challenge, t/1e FBI shall so notify the
individual, correct the erroneous information in the NICS, and give notice ofthe
error to any Federal department or agency or any slate that was the source of
such erroneous records. (Emphases added).

Based on the aforementioned and unambiguous statutory and regulatory authority, the FBI is the
agency that must act on appeals that result from NICS denials. There is no legal mechanism-
statutory or regulatory-through which ATF can process NICS appeals. The FBI maintains the
system per the NICS regulations at 28 C.F.R. 25. The NICS system is not managed by ATF.
Therefore, ATF cannot possibly process the appeals submitted for a NICS denial based on
erroneous NICS information. To proceed otherwise invites a likely successful challenge under
the Administrative Procedure Act (APA), 5 U.S.C. § 706, which permits a reviewing court in the
United States to hold unlawful, in part, "any agency action, findings, or conclusions found to be
- (A) arbitrary, capricious, an abuse ofdiscretion, or othe1wise not in accordance with the law."
Any deviation from the FBI's own regulations, in which ATF processes and investigates NICS
appeals would likely result a decision that is not in accordance with the regulations prescribed by
the AG to implement the Brady Act may well be in violation of the APA.

With all due respect, the statement by Mr. Moore that "the responsibility for appeals fall on the
respective branches," is in direct conflict with the law. This authority is granted specifically to
the FBI or POC states through the above-cited laws and to unilaterally attempt to assign it to
ATF is not appropriate. See Ghattas v. United States, 40 F.3d 281, 287 (8th Cir. 1994) (holding
the refusal of Department of Agriculture's Food and Nutrition Service to consider an alternative
monetary penalty, in which the Secretary has discretion to impose, frustrated Congressional
intent), Gilliland v. F.A.A., 48 F.3d 316, 318 ("When Congress grants a regulator discretion to
choose between suspension and revocation, and a respondent presents fact issues material to the
exercise of that discretion, the agency must hold a hearing and must articulate why it has chosen
to impose the more severe penalty, particularly when the respondent's livelihood is at stake.").
The guidance provided from the NICS Section also delegates said authority to ATF in
contravention of the regulations established by the Attorney General., The Attorney General

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through the regulations did not provide FBI authority to delegate powers to another agency to
implement the Brady Act.

In conclusion, ATF has neither the legal or regulatory authority to process appeals for the
correction of erroneous NICS system information. This authority is clearly and unambiguously
provided to the FBI. Therefore, the guidance provided by the NICS Section was erroneously
provided to ATF and should therefore be formally withdrawn. In any event, ATF will continue
to refer all formal appeals for delayed or denied transactions to the FBI NJCS Section as directed
by the regulation.

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