Fattahi v. Bureau of Alcohol ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FARROKH FATTAHI, 
Plaintiff-Appellant,
v.
 No. 02-1586
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-01-1094-A)
Argued: February 27, 2003
Decided: April 30, 2003
Before WILKINS, Chief Judge, MOTZ, Circuit Judge,
and C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Motz and Senior Judge Beam joined.
COUNSEL
ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appellant.
Brian David Miller, Assistant United States Attorney, Alexandria,
Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Appellee.
2 FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
OPINION
WILKINS, Chief Judge:
Farrokh Fattahi appeals a district court order granting summary
judgment against him in his Privacy Act suit against the Bureau of
Alcohol, Tobacco, and Firearms (ATF). See 5 U.S.C.A. § 552a (West
1996 & Supp. 2003). Finding no error, we affirm.
I.
Fattahi applied to ATF for a federal firearms license (FFL) in Sep-
tember 2000. His application indicated that he intended to sell hand-
guns, rifles, and shotguns from his Virginia condominium. Fattahi’s
application was forwarded to ATF’s Richmond field office, which
commenced its investigation into Fattahi’s suitability to receive an
FFL.
In late November 2000, ATF Inspector Michael Atkins contacted
Fattahi’s condominium association and obtained a copy of the condo-
minium rules and regulations, which prohibited the operation of a
business in a residential unit. Atkins then contacted Fattahi, informed
him of the prohibition, and told him that he needed to find another
location or withdraw his license application. Fattahi contacted Atkins
approximately three weeks later and told him that he had discussed
the issue with his attorney and determined that the rules and regula-
tions should not affect his suitability to receive an FFL. In late
December, Atkins informed Richmond-area ATF supervisor Robert
Angelo of these facts. Angelo subsequently talked to Fattahi about the
restrictions in the rules and regulations and similar restrictions in the
condominium bylaws.1 Fattahi continued to maintain, however, that
neither the rules and regulations nor the bylaws should affect ATF’s
FFL decision.
Soon after his conversation with Fattahi, Angelo contacted the con-
dominium association’s legal counsel ("the association’s counsel")
and asked whether a firearms dealer could operate out of one of the
1
The rules and regulations clarified and supplemented the bylaws.
FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS 3
condominium units. The association’s counsel informed Angelo that
commercial activities were generally prohibited in residential units
absent special permission, and if Angelo told him which specific unit
was at issue, he could let him know whether special permission had
been granted. Angelo then provided Fattahi’s name and unit number.
The association’s counsel subsequently informed Angelo that the con-
dominium board had not granted anyone special permission to sell
firearms from a residential unit, and if Fattahi’s FFL were granted, the
condominium association would seek to enjoin operation of his busi-
ness.
Fattahi subsequently filed this suit, alleging that Angelo’s disclo-
sure of Fattahi’s application to the association’s counsel violated the
Privacy Act. After Angelo was deposed, ATF moved for, and was
granted, summary judgment. See Fattahi v. Bureau of Alcohol,
Tobacco & Firearms, 186 F. Supp. 2d 656 (E.D. Va. 2002) (Fat-
tahi I). The district court later denied Fattahi’s motion for reconsider-
ation. See Fattahi v. Bureau of Alcohol, Tobacco & Firearms, 195 F.
Supp. 2d 745 (E.D. Va. 2002) (Fattahi II).
II.
Fattahi contends that the district court erred in granting summary
judgment against him. "We review the grant of summary judgment de
novo, and we must affirm if the undisputed facts establish that [ATF]
was entitled to judgment as a matter of law." Miller v. AT&T Corp.,
250 F.3d 820, 830 (4th Cir. 2001); see also Covert v. Harrington, 876
F.2d 751, 754 (9th Cir. 1989) (explaining that whether a particular
disclosure violated the Privacy Act is a legal question).
Except under certain circumstances, the Privacy Act prohibits fed-
eral agencies from disclosing personal information that the agencies
have compiled. As is relevant here, disclosure is allowed "for a rou-
tine use." 5 U.S.C.A. § 552a(b)(3). For a disclosure to qualify as a
"routine use," it must be compatible with the purpose for which the
agency collected the personal information, see 5 U.S.C.A.
§ 552a(a)(7), and be in accordance with a routine use the agency has
published in the Federal Register, see 5 U.S.C.A. § 552a(e)(4)(D).2
2
These requirements serve to "discourage the unnecessary [disclosure]
of information to another person or to agencies who may not be as sensi-
4 FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
The district court concluded that the disclosure here was for a rou-
tine use because the disclosure was made to determine whether Fat-
tahi satisfied the licensing requirement that the operation of the
applicant’s business in the listed premises would not violate state law.
See 18 U.S.C.A. § 923(d)(1)(F)(i) (West 2000) (requiring applicant to
certify that "the business to be conducted under the license is not pro-
hibited by State or local law in the place where the licensed premise
is located"); Va. Code Ann. § 55-79.53(A) (Michie Supp. 2002) (stat-
ing that "every unit owner . . . shall comply with . . . all provisions
of the condominium instruments"); Va. Code Ann. § 55-79.41(Michie Supp. 2002) (defining "condominium instruments" to include
"bylaws . . . recorded pursuant to the provisions of this chapter"). The
district court determined that ATF’s purpose for disclosing Fattahi’s
application—to determine his suitability for a license—was compati-
ble with the purpose for which the information was collected. See
Fattahi I, 186 F. Supp. 2d at 661; Notices, 63 Fed. Reg. 69,716,
69,754 (Dec. 17, 1998) (stating that purpose of obtaining license
application is to evaluate an applicant’s "suitability, eligibility or
qualifications" for a license). The court also concluded that the disclo-
sure was in accordance with a routine use published in the Federal
Register allowing a record to be disclosed to "any third party to the
extent necessary to collect or verify information pertinent to the
Bureau’s decision to grant . . . a license." 63 Fed. Reg. at 69,754. The
court determined that the disclosure was necessary because the asso-
ciation’s counsel told Angelo that he needed to know the particular
unit at issue to determine whether operation of a firearms business
would be allowed. See Fattahi I, 186 F. Supp. 2d at 662.
A.
On appeal, Fattahi first argues that in reviewing whether disclosure
was "necessary" for Angelo to collect information pertinent to his
investigation—and therefore in accordance with a routine use pub-
lished in the Federal Register—we must limit ourselves to Angelo’s
tive to the collecting agency’s reasons for using and interpreting the
material" and to notify citizens of the ways their information may be
used by the collecting agency. Britt v. Naval Investigative Serv., 886 F.2d
544, 548, 550 (3d Cir. 1989) (internal quotation marks omitted).
FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS 5
theory of why a bylaw prohibition would be pertinent. Fattahi notes
that Angelo testified that his investigation of the bylaws was not to
determine whether the business would violate state law, but to deter-
mine whether Fattahi satisfied the license requirement that he have
business premises from which he intended to sell firearms. See 18
U.S.C.A. § 923(d)(1)(E)(i) (West 2000) (stating that to be eligible to
receive a license, a person must have "premises from which . . . he
intends to conduct" his firearm-sales business). As support for his
proposed limitation, Fattahi cites the doctrine that "a reviewing court,
in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency." SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). The basis for this rule is that if a
reviewing court were to affirm an administrative action on a ground
not relied on by the agency, the court "would propel [itself] into the
domain which Congress has set aside exclusively for the administra-
tive agency." Id. This doctrine does not apply here, however, because
we are not reviewing an agency decision, but instead, are determining
whether an agency employee violated the Privacy Act. And, by look-
ing beyond Angelo’s theory of why the condominium bylaws were
pertinent to Fattahi’s suitability for an FFL, we are not making a judg-
ment that Congress intended ATF to make. Thus, we reject the notion
that Angelo’s subjective analysis of why the bylaws were pertinent
constrains our review.
B.
Fattahi also maintains that even if the condominium bylaws were
pertinent to his suitability to receive an FFL, Angelo’s disclosure was
not "necessary" because there were several actions Angelo could have
taken that could have allowed him to avoid disclosing the identity of
the FFL applicant he was investigating. Fattahi’s arguments require
us to determine the meaning of "necessary" in this context. In this
regard, Fattahi points us to Congress’ statement of the purpose of the
Privacy Act. In particular, he refers us to the congressional finding
that "the right to privacy is a personal and fundamental right protected
by the Constitution" and to Congress’ statement that agencies should
"permit exemptions from the requirements with respect to records
provided in [the Privacy] Act only in those cases where there is an
important public policy need for such exemption as has been deter-
6 FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
mined by specific statutory authority." 5 U.S.C.A. § 552a note (inter-
nal quotation marks omitted). Based on these pronouncements,
Fattahi urges that "necessary" be construed strictly to mean "abso-
lutely necessary." ATF, on the other hand, asserts that "necessary"
means "reasonably necessary." We agree with ATF.
Initially, we note that the routine use provision appears in a Privacy
Act subsection separate from those addressing the granting of "ex-
emptions" from the general rules. See 5 U.S.C.A. § 552a(j), (k). Thus,
it appears that Congress envisioned routine-use disclosures as com-
plying with the general rules rather than being exempt from those
rules. In any event, we have no reason to doubt that the need to effi-
ciently determine whether applicants are suitable to receive permits
is an important policy need. Indeed, Congress underscored the need
for efficiency by requiring that ATF grant or deny FFL applications
within 60 days. See 18 U.S.C.A. § 923(d)(2) (West 2000).
Additionally, as the district court correctly recognized, courts have
held that "necessary" need not mean absolutely necessary. See, e.g.,
NLRB v. United States Postal Serv., 128 F.3d 280, 283 (5th Cir. 1997)
(stating that "the inquiry into whether the records were ‘needed’ for
purposes of [a particular routine use] is similar to the inquiry for
determining whether records are ‘relevant’"); see also Price v. John-
ston, 334 U.S. 266, 278-79 (1948) (holding that statutory authoriza-
tion of writs "necessary" for the exercise of jurisdiction does not
require that use of the writ be essential, but only that it be reasonably
necessary in the interest of justice (internal quotation marks omitted));
United States v. Moore, 917 F.2d 215, 230 (6th Cir. 1990) (holding
that a "necessary" witness within the meaning of the criminal sub-
poena rule is one who is "relevant, material and useful to an adequate
defense"); Federal Labor Relations Auth. v. United States Dep’t of
the Treasury, 884 F.2d 1446, 1449-50 (D.C. Cir. 1989) (explaining
that "[n]ecessity is a matter of degree, and in many contexts courts
have found a statutory requirement of necessity satisfied even when
alternative means were feasible"); Int’l Trading Co. v. Comm’r, 275
F.2d 578, 585 (7th Cir. 1960) (holding that "necessary" business
expenses under income tax statute are those expenses that are "appro-
priate and helpful" to the business (internal quotation marks omit-
ted)). Especially in light of the tight time constraints to which ATF
is subject, we agree with the district court that ATF’s routine use must
FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS 7
be given "a practical reading" such that disclosures are in accordance
with the routine use when they are "reasonably necessary to verify
pertinent information, [and] not just [when] verification cannot con-
ceivably be obtained by any other means." Fattahi I, 186 F. Supp. 2d
at 663.
1.
Having identified the standard to be applied, we now turn to Fat-
tahi’s arguments that the disclosure of his identity was not necessary.
Fattahi first argues that the disclosure was not necessary because the
condominium bylaws themselves would have sufficiently demon-
strated that Fattahi’s operation of a firearms business from his resi-
dential unit was prohibited. The record refutes this assertion. When
Angelo spoke with the association’s counsel, he was informed that the
condominium bylaws would generally prohibit operation of a fire-
arms business. He was also told, however, that special exceptions
could be granted by the condominium board to individual units and
therefore that disclosure of the FFL applicant’s unit number was nec-
essary to determine whether that unit had received special permission.
2.
Fattahi also contends that Angelo could have asked him, rather
than the association’s counsel, whether the bylaws would preclude
Fattahi from operating a firearms business in his residential unit. Fat-
tahi further maintains that Angelo could also have inquired whether,
in light of the bylaws, Fattahi would like to withdraw or amend his
application, thereby obviating the need for further investigation or
disclosure. The record reflects, however, that Atkins and Angelo had
both already spoken to Fattahi concerning condominium restrictions
prior to Angelo’s discussing the matter with the association’s counsel,
and that Fattahi took the position that any condominium restrictions
were not pertinent to his suitability for a license. Thus, Angelo had
no reason to believe that further discussion with Fattahi would be pro-
ductive.
8 FATTAHI v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
3.
Finally, Fattahi argues that had Angelo made the appropriate inves-
tigation, he would have discovered that the condominium bylaws had
not been properly recorded, and therefore, lacked the force of state
law. See Va. Code Ann. § 55-79.53(A) (stating that "every unit owner
. . . shall comply with . . . all provisions of the condominium instru-
ments"); Va. Code Ann. § 55-79-41 (defining "condominium instru-
ments" to include "bylaws . . . recorded pursuant to the provisions of
this chapter"). Assuming arguendo that an investigation into, and a
legal analysis regarding, the propriety of the recording of the bylaws
would have led ATF to that conclusion, we hold that ATF was not
required to pursue that line of inquiry. As the district court recog-
nized, "condominium bylaws generally are valid and binding legal
documents in Virginia, and it would be unreasonable to require an
investigating ATF agent in every instance to make a legal determina-
tion concerning whether technical recording requirements have been
met." Fattahi II, 195 F. Supp. 2d at 749.3
For all of these reasons, we hold that the district court properly
concluded that the disclosure here satisfied the routine use exception
to the Privacy Act disclosure provision.
III.
In sum, we affirm the district court order granting summary judg-
ment to ATF.
AFFIRMED
3
Fattahi also maintains that even properly recorded condominium
bylaws are not "state law" within the meaning of the licensing require-
ments because, although Virginia law compels unit owners to comply
with properly recorded bylaws, those bylaws may be enforced by private
action only. Even assuming that Fattahi is correct that bylaws may only
be privately enforced, the federal licensing statute makes no distinction
between state laws that may be publicly enforced and those that may not.