CITY OF NEW YORK v. U.S. DEPT. OF DEFENSE

No. 18-1699.

913 F.3d 423 (2019)

The CITY OF NEW YORK; The City of Philadelphia; The City and County of San Francisco, Plaintiffs - Appellants, v. The UNITED STATES DEPARTMENT OF DEFENSE; The United States Department of the Air Force; The United States Department of the Navy; The United States Department of the Army; James N. Mattis, in His Official Capacity as United States Secretary of Defense; Heather A. Wilson, in Her Official Capacity as United States Secretary of the Air Force; Richard V. Spencer, in His Official Capacity as United States Secretary of the Navy; Dr. Mark T. Esper, in His Official Capacity as United States Secretary of the Army; Dermot F. O'Reilly, in His Official Capacity as Director of the Defense Criminal Investigative Service; Colonel Kirk B. Stabler, in His Official Capacity as Commander of the Air Force Office of Special Investigations; Andrew L. Traver, in His Official Capacity as Director of the Naval Criminal Investigative Service; Major General David P. Glaser, in His Official Capacity as Commanding General of the United States Army Criminal Investigation Command; Rear Admiral John B. Nowell, in His Official Capacity as Commander of the Navy Personnel Command And Deputy Chief of Naval Personnel, Defendants - Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: January 16, 2019.


Attorney(s) appearing for the Case

ARGUED: Matthew Jeffrey MacLean , PILLSBURY WINTHROP SHAW PITTMAN LLP, Washington, D.C., for Appellants. Tyce R. Walters , UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Laura B. LoBue , Jeetander Dulani , Washington, D.C., Kenneth W. Taber , Matthew F. Putorti , Nicholas M. Buell , PILLSBURY WINTHROP SHAW PITTMAN LLP, New York, New York, for Appellants. Eric Proshansky , Melanie C.T. Ash , Eric Lee , Claude S. Platton , Zachary W. Carter , CORPORATION COUNSEL OF THE CITY OF NEW YORK, NEW YORK CITY LAW DEPARTMENT, New York, New York, for Appellant City of New York. Dennis J. Herrera , Yvonne R. Mere , Owen J. Clements , SAN FRANCISCO CITY ATTORNEY'S OFFICE, San Francisco, California, for Appellant City and County of San Francisco. Marcel S. Pratt , Eleanor N. Ewing , Benjamin H. Field , CITY OF PHILADELPHIA LAW DEPARTMENT, Philadelphia, Pennsylvania, for Appellant City of Philadelphia. Joseph H. Hunt , Assistant Attorney General, Mark B. Stern , Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger , United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Michael J. Fucci , Associate General Counsel, UNITED STATES DEPARTMENT OF DEFENSE, Washington, D.C., for Appellees.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Thacker joined.


Appellants are three municipalities who use the National Instant Criminal Background Check System to carry out their obligations under state law. This system, known as the NICS, is managed by the Federal Bureau of Investigation. The Department of Defense (DOD) is required under...

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