United States District Court, District of Columbia
Daniel A. Umbert et al., Plaintiffs,
United States et al., Defendants.
S. CHUTKAN, UNITED STATES DISTRICT JUDGE
have moved to Dismiss in Part and for Severance of the
Remaining Claims, ECF No. 12 (“Defs.'
Mot.”). For the reasons explained below, the court
will GRANT the motion to dismiss Plaintiffs Chodosh, Bickel,
and Stewart's claims as moot, and will DENY the motion to
sever Plaintiffs Umbert, Eaton, LeComte, Bargeron, and
enacted the Gun Control Act of 1968, Pub. L No. 90-618, 82
Stat. 1213, “to keep firearms away from the persons
Congress classified as potentially irresponsible and
dangerous.” Barrett v. United States, 423 U.S.
212, 218 (1976). In 1993, the Brady Handgun Violence
Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536, amended
the Gun Control Act by requiring individuals seeking to
obtain a firearm or other regulated piece of equipment to
pass a background check. See 18 U.S.C. §
person seeking to obtain a firearm may do so by purchasing
one from a Federal Firearm Licensee (FFL)-someone who can
legally participate in the sale of firearms, See 18
U.S.C. § 923(a), or, by filing an application, known as
Form 4, with the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) to complete a National Firearms Act (NFA)
transfer of a firearm. See 27 C.F.R. § 479.86.
someone attempts to purchase a firearm from an FFL, the FFL
sends information about the purchaser to the Federal Bureau
of Investigation (FBI), which conducts a background check
using the National Instant Criminal Background Check System
(NICS). See 34 U.S.C. § 40901(b)-(c). If an
individual seeks to obtain a firearm by filing Form 4 with
the ATF, the ATF contacts the FBI to conduct the background
check. See 27 C.F.R. § 479.86. After the
background check is completed, the ATF decides whether to
transfer the firearm to the individual or to deny the
request. See id.
the FBI conducts an NICS background check, it searches three
databases: (1) the NICS Index, (2) the National Crime
Information Center (NCIC), and (3) the Interstate
Identification Index (III). See 28 C.F.R. §
25.6(c)(iii). Next, the FBI NICS Operations Center determines
if the transaction can “proceed, ” if the
application should be “denied, ” or if the
transaction should be “delayed” to give the FBI
more time to investigate the applicant. 28 C.F.R. §
25.6(c)(iv). A person may be denied if he “has been
convicted in any court of . . . a crime punishable by
imprisonment for a term exceeding one year.” 18 U.S.C.
person who believes he or she has been erroneously denied or
delayed in purchasing a firearm can file an appeal with the
FBI. See FBI, Appeals and Voluntary Appeal File
(last visited Sept. 11, 2019). The VAF is a system maintained
by the FBI that stores an individual's record of past
acceptances, denials, delays, and appeals. See Id.
An individual can apply to the VAF to request that his
records be kept in the system. See Id. An applicant
who is accepted and entered into the VAF is given a Unique
Personal Identification Number (UPIN) that allows him to
access his records to expedite a future transaction. See
Id. After the FBI reviews an appeal, it deletes the
record of the transaction unless the applicant is in the VAF.
filing an appeal, a person who is not prohibited from owning
a firearm under 18 U.S.C. § 922(g) and is denied after a
background check “may bring an action against the State
or political subdivision responsible for providing the
erroneous information . . . or against the United States . .
. for an order directing that the erroneous information be
corrected or that the transfer be approved.” 18 U.S.C.
5, 2018, Daniel Umbert, Troy Chodosh, Erroll Eaton, Chase
Bickel, and Gary LeComte filed their original Complaint, ECF
No. 1. On July 1, 2018, they filed an Amended Complaint, ECF
No. 6, adding Justin Bargeron, Kevin Borquez, and Charles
Stewart's claims. Each Plaintiff had tried to obtain a
firearm or a suppressor-a piece of equipment that can be
attached to a firearm to dampen its sound-but did not pass
the background check. Plaintiffs allege that Defendants
improperly prevented them from purchasing firearms and
violated their Second Amendment and statutory rights under 18
U.S.C. § 925A. See Id. ¶¶ 158-167.
Plaintiffs further allege that the FBI violated their Fifth
Amendment procedural due process rights by not processing
their appeals. See id. ¶¶ 175-191.
Plaintiffs Umbert, Eaton, Bargeron, and Borquez Four
Plaintiffs-Umbert, Eaton, Bargeron, and Borquez-allege that
they filed Form 4 with the ATF, which subsequently denied
their requests. See Id. ¶¶ 61-62.
submitted Form 4 on August 1, 2017 to purchase a suppressor.
See Am. Compl. ¶¶ 88-90; Ex. 2 at 1. He
alleges that the ATF denied his request in a form letter on
March 13, 2018 without explaining why he did not pass his
background check. See id.
also applied for a suppressor using Form 4. See Id.
¶ 119. In May 2018, his application was
“disapproved” after his status remained
“open” on the FBI's website for eighty-eight
days. See id. ¶ 120; Ex. 7 at 2. Although Eaton
had been found guilty of marijuana possession in 2003, the
Municipal Court of the City of Starkville, Mississippi
expunged his record on July 10, 2008. See Id.
¶¶ 116-17; Ex. 6. Eaton claims that his expunged
record means that he is not a “prohibited
person.” Am. Compl. ¶¶ 118, 121.
also applied for a suppressor by filing Form 4 with the ATF,
but the ATF denied his transfer after he failed his NICS
background check. See id. ¶¶ 135-37.
Bargeron had previously pleaded guilty to a crime, but he
alleges that his conviction was “discharged” in
2009, and that he should therefore be able legally to
purchase a firearm. Am. Compl. ¶¶ 138, 140-41, Exs.
attempted to transfer “various NFA registered
items” to himself,  but the FBI denied his transfer.
Id. ¶ 147. Although Borquez had been convicted
of a crime in 2007, the Los Angeles Superior Court dismissed
his conviction in 2010. See Am. Compl. ¶¶
142-43; Ex. 12. On May 8, 2019, Borquez filed a Notice with
this court, stating that he had successfully appealed the
FBI's denial of a more recent attempt to purchase a
non-NFA related firearm. See Borquez Notice at 1,
ECF No. 19; DOJ Letter, ECF No. 19-1. Borquez argues that,
given this earlier approval, he was improperly denied
permission to transfer the items. See Borquez Notice
Bargeron, and Borquez allege that they sought to appeal their
denials, but that the FBI told them it does not process
appeals for NFA background checks. See Am. Compl.
¶¶ 92, 136, 148.