Umbert v. United States

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

         Defendants have moved to Dismiss in Part and for Severance of the Remaining Claims, ECF No. 12 (“Defs.' Mot.”).^[1] 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 Borquez's claims.

         I. BACKGROUND

         A. Legal Background

         Congress 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. § 922(t).

         A 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, ^[2]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.

         When 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.

         When 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. § 922(g)(1).

         A 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 (VAF), https://www.fbi.gov/services/cjis/nics/national-instant-criminal-background-check-system-nics-appeals-vaf (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. See id.

         Besides 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. § 925A.

         B. Plaintiffs' Claims

         On June 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.

         1. 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.

         Umbert 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.

         Eaton also applied for a suppressor using Form 4. See Id. ¶ 119. In May 2018, his application was “disapproved” after his status remained “open”^[3] 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.

         Bargeron 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. 10-11.

         Borquez attempted to transfer “various NFA registered items” to himself, ^[4] 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 at 1.

         Umbert, 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.

         2. Plai ...