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1934 Group Loses Appeal (LEO NFA Signatures)
Josey1
Member Posts: 9,598 ✭✭
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2002 Decided April 2, 2002
No. 01-5104
Kent A. Lomont, et al.,
Appellants
v.
Paul H. O'Neill, Secretary,
United States Department of the Treasury, and
Bradley A. Buckles, Director,
Bureau of Alcohol, Tobacco and Firearms,
Appellees
Appeal from the United States District Court
for the District of Columbia
(00cv01935)
Stephen P. Halbrook argued the cause for appellants.
With him on the briefs was James H. Jeffries, III.
Michael S. Raab, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern,
Attorney, U.S. Department of Justice.
Before: Edwards, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Regulations of the Department
of the Treasury, implementing the National Firearms Act of
1934, govern the manufacture, possession and transfer of
certain types of firearms. The issues in this appeal center on
the regulatory requirement that those seeking permission
from the Treasury Department to make or transfer these
firearms must obtain a certification from a law enforcement
official in the jurisdiction of their residence. There are nine
plaintiffs. Five are individuals who claim that although they
are eligible for a certification, they are unable to obtain one;
two are persons whose ability to sell or transfer these fire-
arms allegedly has been impaired by the inability of prospec-
tive purchasers to obtain certifications; two are local chief
law enforcement officers.
The emergence of organized crime as a major national
problem led to the enactment of the National Firearms Act of
1934. See David T. Hardy, The Firearms Owners' Protection
Act: A Historical and Legal Perspective, 17 Cumb. L. Rev.
585, 590 (1987). Representing the first major federal attempt
to regulate firearms, the Act concentrated on particularly
dangerous weapons and devices such as machine guns, sawed-
off shotguns and silencers. See United States v. Kenney, 91
F.3d 884, 890 (7th Cir. 1996); Sonzinsky v. United States, 300
U.S. 506, 511-12 (1937); Hardy, 17 Cumb. L. Rev. at 592-93.
(When we speak of firearms in this opinion we mean to
include only those currently covered by the Act.)1 The Act
__________
1 The Act defines the term "firearm" as follows:
The term "firearm" means (1) a shotgun having a barrel or
barrels of less than 18 inches in length; (2) a weapon made
from a shotgun if such weapon as modified has an overall
required the maintenance of a registry of firearms containing,
among other things, the name and address of the person
possessing the weapon, see National Firearms Act, ch. 757,
s 5(a), 48 Stat. 1236, 1238 (1934); it required persons seeking
the transfer of firearms to file an application with the Com-
missioner of Internal Revenue, see id. at s 4; and it imposed
a tax on firearm manufacturers, dealers and importers, as
well as on the transfer of firearms. Id. at ss 2, 3.
Under the Treasury Department's 1934 regulations, anyone
seeking permission to transfer a firearm had to support his
application with a "certificate of the local chief of police,
sheriff of the county, United States attorney, United States
marshal, or other such person whose certificate may in a
particular case be acceptable to the Commissioner [of the
Internal Revenue], that he is satisfied that the fingerprints
and photograph appearing on the application are those of the
applicant and that the firearm is intended by the applicant for
lawful purposes." U.S. Treasury Department, Bureau of
Internal Revenue, Regulations 88 Relating to Taxes on Cer-
tain Firearms and Machine Guns Under the National Fire-
arms Act, Chap. 4, Art. 65 (1934).2 For reasons described by
Justice Jackson, see Robert H. Jackson, The Struggle for
__________
length of less than 26 inches or a barrel or barrels of less than
18 inches in length; (3) a rifle having a barrel or barrels of less
than 16 inches in length; (4) a weapon made from a rifle if such
weapon as modified has an overall length of less than 26 inches
or a barrel or barrels of less than 16 inches in length; (5) any
other weapon, as defined in subsection (e); (6) a machinegun;
(7) any silencer (as defined in section 921 of title 18, United
States Code); and (8) a destructive device. The term "firearm"
shall not include an antique firearm or any device (other than a
machinegun or destructive device) which, although designed as
a weapon, the Secretary finds by reason of the date of its
manufacture, value, design, and other characteristics is primar-
ily a collector's item and is not likely to be used as a weapon.
26 U.S.C. s 5845(a).
2 The original regulation applied only to the transfer of firearms.
Today Treasury's regulations cover both the making and transfer of
firearms. See 27 C.F.R. ss 179.63, 179.85.
Judicial Supremacy 87-91 (1941), Congress passed the Feder-
al Register Act in 1935. See Federal Register Act, ch. 417, 49
Stat. 500 (1935). Treasury's regulations dealing with the
transfer of firearms first appeared in the Code of Federal
Regulations in 1938. See 26 C.F.R. s 307.65 (1938). The
regulations remained with minor changes until 1985, when the
Bureau of Alcohol, Tobacco and Firearms ("ATF")--to which
the Secretary had delegated his authority under 26 U.S.C.
ss 5812 and 5822--deleted the certification authority of Unit-
ed States Attorneys and United States Marshals because this
"required them to perform services outside their normal
operations." See 50 Fed. Reg. 41,680-81 (Oct. 15, 1985).
According to the government, a benefit of giving state and
local officials (rather than federal officials) certification pow-
ers is that local officials "are in a better position to know
about the particular status of an individual who seeks to make
or receive" a firearm and whether that transfer would be
consistent with state and local law. Brief for Appellees at 12.
Today applicants to make or transfer firearms can obtain a
certification only from "the local chief of police, sheriff of the
county, head of the State police, State or local district attor-
ney or prosecutor, or such other person whose certificate may
in a particular case be acceptable to the Director" of ATF.
See 27 C.F.R. s 179.63; 27 C.F.R. s 179.85. As in 1934, the
application form must contain a photograph of the applicant
and two completed cards of his fingerprints. Id. The officer
making the certification must state that he is satisfied that
the photograph and fingerprints are those of the applicant
and that he has "no information indicating that possession of
the firearm by the [applicant] would be in violation of State or
local law or that the [applicant] will use the firearm for other
than lawful purposes." Id. The tax, payable to the Treasury
by the transferor or, in the case of a manufacturer, by the
maker of the weapon, is currently set at $200 per firearm--
with the exception of firearms classified as "any other weap-
on" under s 5845(e), which are taxed at $5 per transfer. See
26 U.S.C. ss 5811, 5821.
The complaint was in four counts, each of which the district
court dismissed for failure to state a claim upon which relief
could be granted. Lomont v. Summers, 135 F. Supp. 2d 23
(D.D.C. 2001). The court rejected plaintiffs' claim that the
certification requirement violated the taxpayer privacy provi-
sion of 26 U.S.C. s 6103; the court reasoned that applicants
(not federal officials) are disclosing return information to
state officials. Id. at 25-26. Plaintiffs' Tenth Amendment
claim failed because state and local officials participate volun-
tarily in providing certifications. Id. at 26. The regulations
did not impinge upon the Secretary's duty to collect taxes:
the Secretary's "duty to collect a transfer tax arises only after
an application is approved and a transfer effected." Id. at 27.
On the fourth count, the court sustained the Secretary's
authority to issue the regulations under 26 U.S.C. ss 5812(a),
5822 and 7805(a), and held that regulations were not arbitrary
and capricious. Id. at 27-28.
I.
We will address first the contention that the certification
regulations violate the Tenth Amendment "by commandeer-
ing State and local officers to administer federal law but
without making them accountable to anyone." Brief for
Appellants at 35. Two of the plaintiffs, if not any of the
others, have standing to raise this claim.3 Plaintiff Dennis
__________
3 Whether the private plaintiffs have standing--an issue we do
not reach--is uncertain. Steward Machine Co. v. Davis, 301 U.S.
548, 585-90 (1937), decided the company's Tenth Amendment chal-
lenge to the Social Security Act without considering whether the
company had standing to raise the claim. On the other hand,
Tennessee Elec. Power Co. v. Tennessee Valley Auth., 306 U.S. 118,
144 (1939), held that the TVA had "no standing in this suit to raise
any question" under the Tenth Amendment. See generally Ara B.
Gershengorn, Note: Private Party Standing to Raise Tenth
Amendment Commandeering Challenges, 100 Colum. L. Rev. 1065,
1075 (2000). The Seventh Circuit held in Gillespie v. City of
Indianapolis, 185 F.3d 693, 700-02 (7th Cir. 1999), that later
Supreme Court decisions have undercut Tennessee Elec. Power Co.,
so that today Article III does not pose an absolute bar to private
parties bringing such claims. But see Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) ("If a
McClure is the sheriff of Orange County, Vermont,4 and
plaintiff Stephen L. Hose is the Chief of the Clinton, Indiana
Police Department. Fraternal Order of Police v. United
States, 173 F.3d 898, 904-05 (D.C. Cir. 1999), held that
because the Fraternal Order of Police had members who
were chief law enforcement officers, the organization had
Article III standing to bring a Tenth Amendment challenge
to amendments to the Gun Control Act. This much may
follow from Printz v. United States, 521 U.S. 898 (1997), in
which the Court reached the merits of a Tenth Amendment
challenge to the Brady Act in cases brought by county
sheriffs. Neither the majority opinion nor the opinions of the
five Justices who wrote separately questioned the sheriffs'
standing to sue. The government believes that "chief law
enforcement officers have standing only if they are authorized
by state law to act on behalf of the State." Brief for
Appellees at 34 n.9. But as the government recognizes, to
impose that prerequisite would be to depart from our decision
in the FOP case, and perhaps the Supreme Court's disposi-
tion of Printz.
On the merits, we agree with the district court that plain-
tiffs' Tenth Amendment claim fails. Unlike the Brady Act,
the certification regulations do not "command the States'
officers, or those of their political subdivisions, to administer
or enforce a federal regulatory program." Printz v. United
States, 521 U.S. at 935. Local and state officials have the
option of participating or not. See 53 Fed. Reg. 10,480,
10,488 (Mar. 31, 1988). There is no federal carrot to encour-
age participation, and no federal stick to discourage non-
participation. Printz did not hold that the federal govern-
__________
precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own deci-
sions."). The Seventh Circuit cited appellate and district court
cases on both sides of the issue. 185 F.3d at 700 n.3.
4 When this action was commenced, Samuel Frank was the sheriff
of Orange County, Vermont. Sheriff McClure has since replaced
Sheriff Frank. Plaintiffs filed a Notice of Substitution of Party
with the district court, which the district court granted.
ment is forbidden from setting up regulatory programs, such
as this one, in which state or local governments may volun-
tarily decide to assist in administering federal laws. See
Printz, 521 U.S. at 936 (O'Connor, J., concurring); United
States v. Nathan, 202 F.3d 230, 233 (4th Cir. 2000).
Chief of Police Hose alleges that citizens of his jurisdiction
have the impression that his refusal to participate in the
certification program "is injurious to such citizens." Com-
plaint p 23(E).5 Plaintiffs spell this out in their brief: local
and state officers who do not join in the program "offend
constituents who thereby cannot get their applications ap-
proved" and face pressure to issue certifications. Brief for
Appellants at 38. We will assume the allegation to be true,
although one wonders how large a constituency is involved in
transferring or making machine guns, silencers, sawed-off
shotguns and the like. In any event, we cannot see how this
affects the analysis of the Tenth Amendment question. The
pressure, whatever it is, comes not from the federal govern-
ment but from the frustration of those unable to obtain
certifications to transfer and receive or to make firearms.
State officers may experience pressure from citizens if they
do not (or perhaps if they do) participate in many federal
programs, such as state implementation plans to enforce
federal environmental laws. Yet the principle of the Tenth
Amendment articulated in Printz is that the federal govern-
ment may not direct, compel or commandeer state officials,
see Minnesota v. United States, 102 F. Supp. 2d 1115, 1121
(D. Minn. 2000), except perhaps when the federal law is one
of general applicability. See Printz, 521 U.S. at 932. No
such direction or compulsion can be attributed to the federal
government here. The certification regulations contemplate
voluntary participation on the part of state and local officials.
Nothing in Printz forbids cooperation between state and
federal governments. See Nathan, 202 F.3d at 233.
__________
5 Sheriff Frank, who has been replaced as a party by Sheriff
McClure, joined Chief of Police Hose in making these allegations in
the complaint.
II.
We turn next to plaintiffs' contention that the certification
regulations violate the taxpayer privacy provision. "Amend-
ed in 1976 in the wake of Watergate and White House efforts
to harass those on its 'enemies list,' [26 U.S.C. s 6103] now
restricts government officers and employees from revealing
'any return' or 'return information.' " Tax Analysts v. IRS,
117 F.3d 607, 611 (D.C. Cir. 1997). The gist of the argument
is that the ATF application forms to make firearms, which
require applicants to disclose to local officials personal infor-
mation such as their identity, address and the $200 tax, run
afoul of this provision in the Internal Revenue Code.
Apart from the other plaintiffs, Daniel J. Whelan--an
employee of a licensed firearms dealer--has standing to bring
this claim. He alleges that he cannot obtain ATF's permis-
sion to make a firearm because he refuses to reveal "return
information" to local or state officials, which he must do in
order to obtain a certification.
Whelan, like anyone else who seeks to make a firearm,
must include with his application a check or money order
made out to the Treasury Department for $200, representing
what ATF calls a "making tax."6 26 U.S.C. s 5821(b). The
completed form, at least once it is filed with ATF, constitutes
__________
6 Application forms for "transfers" are different than applications
to "make" a firearm. Transfer applications require the transferor
(i.e., the person seeking to transfer the firearm to another person)
to fill out the application and to pay the tax. See 26 U.S.C.
s 5811(b) (providing that the transfer tax shall be paid by the
transferor). The transferee (i.e., the person seeking to receive the
firearm) must supply a photograph and other information. But in
the end it is the transferor who actually pays the tax and files the
form. Because only the transferor (and not the transferee) could
attempt to claim the form as his tax return, Treasury instructions
state that any information about the status of a transfer application
may be given only to the transferor--not to the transferee. We
need not concern ourselves with whether the "transfer" form vio-
lates s 6103 because we are not presented with any such claim.
Rather, the sole issue before us is whether the "maker" form
violates s 6103.
a "return" and it contains what qualifies as "return informa-
tion." The term "return" means any "tax or information
return ... which is filed with the Secretary," 26 U.S.C.
s 6103(b)(1). An element of "return information" is that it be
"received by, recorded by, prepared by, furnished to, or
collected by the Secretary." 26 U.S.C. s 6103(b)(2). Yet
here state and local officers obtain the information from the
person seeking to make a firearm before the "return" is filed
with the Secretary. Thus, no employee of the federal govern-
ment is disclosing a "return" or "return information" "re-
ceived by, recorded by, prepared by, furnished to, or collected
by the Secretary" in violation of s 6103(b)(2). Cf. Stokwitz v.
United States, 831 F.2d 893, 894 (9th Cir. 1987).
III.
Count IV of the complaint7 charged that the certification
regulations are arbitrary and capricious under the Adminis-
trative Procedure Act and are otherwise unlawful.8 The
__________
7 Count III alleged that the regulations interfered with the
Secretary's duty to collect federal taxes, see 26 U.S.C. s 6301,
because the regulation allows state and local officials to "veto" the
collection of taxes on firearms by refusing to issue certifications.
See Brief for Appellants at 21-22. The district court rightly
dismissed the claim as "frivolous." See Lomont, 135 F. Supp. 2d at
27. It is doubtful whether s 6301, which provides that the Secre-
tary "shall collect the taxes imposed by the internal revenue laws,"
confers upon plaintiffs any judicially enforceable rights to challenge
the Secretary's alleged failure to collect taxes. Even if it did, the
Secretary's duty to collect a tax arises only after an application is
approved and a firearm is transferred or made. See 26 U.S.C.
s 5811(a) ("There shall be levied, collected, and paid on firearms
transferred a tax ... for each firearm transferred."); see also 26
U.S.C. s 5821(a) ("There shall be levied, collected, and paid upon
the making of a firearm a tax ... for each firearm made.").
8 We do not reach the claim that the certification regulations are
unlawful because "the Secretary has insulated from APA review his
own actions which are subject to APA review" by assigning his
duties to local officials, who are not covered by the APA. Brief for
Appellants at 24-26. Plaintiffs did not mention the claim in their
regulations are unlawful, plaintiffs argue, because the Secre-
tary lacked rulemaking authority to issue them. The govern-
ment responds by pointing to 26 U.S.C. ss 5812(a), 5822 and
7805(a). These provisions, according to the government, del-
egate broad authority to the Secretary to promulgate regula-
tions governing applications under the National Firearms
Act, a contention with which the district court agreed.
One of the provisions--s 7805--gives the Secretary author-
ity "to prescribe all needful rules and regulations for the
enforcement of this title." 26 U.S.C. s 7805(a). This is
nothing more than a general grant of interpretative rulemak-
ing power, and therefore cannot support the certification
regulations. See Stanley S. Surrey, The Scope and Effect of
Treasury Regulations under Income, Estate and Gift Taxes,
88 U. Pa. L. Rev. 556, 557-58 (1940) (concluding that regula-
tions issued under Treasury's general rulemaking grant are
merely interpretative and "do not possess the vital current of
legislative power"); Ellsworth C. Alvord, Treasury Regula-
tions and the Wilshire Oil Case, 40 Colum. L. Rev. 252, 257
(1940) (stating that specific rulemaking grants given to the
Commissioner of Internal Revenue authorize legislative rule-
making but that the general rulemaking grant authorizes only
interpretative rules to assist in the execution of the statute);
Michael Asimow, Public Participation in the Adoption of
Temporary Tax Regulations, 44 Tax Law. 343, 357 (1991)
("[T]ax authorities almost uniformly assume that regulations
adopted pursuant to the Treasury's general rulemaking pow-
er in section 7805(a) of the Code are interpretive and that
rules adopted pursuant to specific grants of rulemaking au-
thority are legislative."). The two other provisions--26
U.S.C. ss 5812 and 5822--are of a different sort. Section
5812, which deals with transferring firearms, gives the Secre-
tary broad authority to promulgate regulations governing
application forms, including regulations pertaining to the
__________
complaint and they presented no arguments about it to the district
court. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120 (1976); Dist.
of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir.
1984); cf. Yee v. Escondido, 503 U.S. 519, 533 (1992).
identification of the transferee, the transferor and the fire-
arm. See 26 U.S.C. s 5812(a).9 Similarly, s 5822 gives the
Secretary broad authority over the form of applications for
permission to make firearms. See 26 U.S.C. s 5822.10 Both
__________
9 The full text is as follows:
A firearm shall not be transferred unless (1) the transferor of
the firearm has filed with the Secretary a written application,
in duplicate, for the transfer and registration of the firearm to
the transferee on the application form prescribed by the Secre-
tary; (2) any tax payable on the transfer is paid as evidenced
by the proper stamp affixed to the original application form;
(3) the transferee is identified in the application form in such
manner as the Secretary may by regulations prescribe, except
that, if such person is an individual, the identification must
include his fingerprints and his photograph; (4) the transferor
of the firearm is identified in the application form in such
manner as the Secretary may by regulations prescribe; (5) the
firearm is identified in the application form in such manner as
the Secretary may by regulations prescribe; and (6) the appli-
cation form shows that the Secretary has approved the transfer
and the registration of the firearm to the transferee. Applica-
tions shall be denied if the transfer, receipt, or possession of
the firearm would place the transferee in violation of law.
26 U.S.C. s 5812(a) (emphasis added).
10 The full text is as follows:
No person shall make a firearm unless he has (a) filed with the
Secretary a written application, in duplicate, to make and
register the firearm on the form prescribed by the Secretary;
(b) paid any tax payable on the making and such payment is
evidenced by the proper stamp affixed to the original applica-
tion form; (c) identified the firearm to be made in the applica-
tion form in such manner as the Secretary may by regulations
prescribe; (d) identified himself in the application form in such
manner as the Secretary may by regulations prescribe, except
that, if such person is an individual, the identification must
include his fingerprints and his photograph; and (e) obtained
the approval of the Secretary to make and register the firearm
and the application form shows such approval. Applications
shall be denied if the making or possession of the firearm
would place the person making the firearm in violation of law.
26 U.S.C. s 5822 (emphasis added).
sections provide that applications "shall be denied" if the
transfer, receipt, making, or possession of the firearm would
place the transferee or person making the firearm in violation
of law, see 26 U.S.C. ss 5812(a), 5822, but neither restricts
the Secretary's broad power to grant or deny applications in
any other respect. The certification regulations thus fall well
within the Secretary's statutory authority.
As to the Administrative Procedure Act, plaintiffs complain
that the regulations allow local and state officials to act
arbitrarily in deciding whether to execute certifications. But
this is not enough to render the regulations invalid on their
face. "General rules need not work perfectly in all their
applications," Illinois Commerce Comm'n v. Interstate Com-
merce Comm'n, 776 F.2d 355, 359 (D.C. Cir. 1985). Accord-
ing to the complaint, there are some 30,000 state and local
officials who potentially may issue certifications. Plaintiffs
allege that two of these 30,000--one in Arlington, Virginia,
the other in Anchorage, Alaska--arbitrarily refused their
certification requests: the Arlington chief of police required
them to submit to a search of their home, or as they put it, to
waive their Fourth Amendment rights; the Anchorage chief
of police would execute certifications only for friends. Even
if these allegations are true, settled precedent in the Supreme
Court and in this court holds that a regulation is not itself
"arbitrary and capricious" merely because it might be applied
in an arbitrary fashion by those implementing it. Skinner v.
Ry. Labor Executives' *'n, 489 U.S. 602, 632 n.10 (1989);
American Hosp. *'n v. NLRB, 499 U.S. 606, 619 (1991);
Illinois Commerce Comm'n, 776 F.2d at 359. If the law were
otherwise hardly any regulation could be sustained. Most
rules and, for that matter, most statutes are susceptible to
capricious administration. So long as there is some discre-
tion, there is room for abuse. Bad faith, malfeasance, and
outright dishonesty are regrettably always a possibility. The
regulations say only that the local official must certify that he
is satisfied that the photograph and the fingerprints are those
of the transferee or maker, and that the official has no
information that possession of the firearm by such person
would place him in violation of law or that he will use the
firearm for unlawful purposes. On the face of the regula-
tions, there is nothing irrational or unreasonable about this
condition. Indeed it appears eminently reasonable to insure
that the person wanting to possess a machine gun is who he
says he is and that there is no indication he will break the
law. If local officials add conditions--in Anchorage, you must
be a friend of the chief of police, or in Arlington, you must
submit to a search of your home--they are doing so on their
own authority, not because the regulations confer this power
on them.
We therefore sustain the certification regulations as against
plaintiffs' * attack. We have not decided whether, in a
particular application, the regulations would be arbitrary and
capricious--for instance, when every qualified local and state
official has decided not to issue certifications for anyone
within their jurisdiction,11 or when unlawful conditions are
attached to the issuance of a certification. Cf. Amfac Resorts,
L.L.C. v. United States Dep't of the Interior, 2002 WL 312831
*10 (D.C. Cir. Mar. 1, 2002). The complaint alleged only that
the regulations were invalid on their face; allegations regard-
ing the specific circumstances of several plaintiffs were meant
to show as much. The district court construed the complaint
__________
11 One of the plaintiffs, Robert F. Grimes, Jr., may have found
himself in that situation. According to the complaint, Grimes "is
legally qualified in all respects to own and possess firearms."
Complaint p 21(A). In order to have a firearm transferred to him,
he sought a certification from the Sheriff of Suffolk County, Virgi-
nia, the Commonwealth's Attorney for Suffolk County, the three
circuit judges presiding in his judicial district, the Chief of Police of
the Suffolk Police Department, the Virginia State Police, and the
Attorney General of the Commonwealth of Virginia. Id. p 21(C).
The complaint alleges that each of these officials refused to execute
a certification for Grimes (presumably because they are not partici-
pating in the program) and that no other officials within Grimes'
jurisdiction are available or willing to execute a certificate. Id.
Grimes so informed ATF when he sent in his application without a
certification, but the agency never responded. Id. p 21(D).
as raising only a * challenge and decided the case accord-
ingly, without mentioning any as-applied challenge. See Lo-
mont, 135 F. Supp. 2d at 27-28. On appeal, plaintiffs' briefs
did not contest the district court's construction of their com-
plaint, nor did their briefs ever mention an as-applied claim.
As in the district court, plaintiffs argued only that the regula-
tion could not be upheld in any case. See Brief for Appellants
at 24; Reply Brief for Appellants at 12. In response to
questioning by the court at oral argument, plaintiffs' counsel
attempted to fit the case within the framework of an as-
applied challenge. But the effort came too late. See Tarpley
v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982).12
We therefore express no views on the merits of a com-
plaint, brought by a proper plaintiff, claiming that the certifi-
cation regulations were arbitrary and capricious as applied to
him. We hold only that on their face the regulations must be
sustained under the Administrative Procedure Act.
Affirmed.
__________
12 If plaintiffs had properly made an as-applied claim, we would
have expected them to argue that the "safety valve" in the regula-
tions was inadequate. When no local or state official will execute
certifications, or when by plaintiffs' lights those officials are impos-
ing unlawful conditions, the regulations still allow individuals to
seek the assistance of "such other person whose certificate may in a
particular case be acceptable to the Director" of ATF. 27 C.F.R.
ss 179.63, 179.85. Precisely who might qualify as "such other
person" is far from certain. ATF has given two examples: "State
attorneys general and judges of State courts having authority to
conduct jury trials in felony cases." See Federal Firearms Regula-
tions Reference Guide, Questions and Answers at M19 (2000). But
we do not know whether this short list is exhaustive.
http://pacer.cadc.uscourts.gov/common/opinions/200204/01-5104a.txt
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2002 Decided April 2, 2002
No. 01-5104
Kent A. Lomont, et al.,
Appellants
v.
Paul H. O'Neill, Secretary,
United States Department of the Treasury, and
Bradley A. Buckles, Director,
Bureau of Alcohol, Tobacco and Firearms,
Appellees
Appeal from the United States District Court
for the District of Columbia
(00cv01935)
Stephen P. Halbrook argued the cause for appellants.
With him on the briefs was James H. Jeffries, III.
Michael S. Raab, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern,
Attorney, U.S. Department of Justice.
Before: Edwards, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Regulations of the Department
of the Treasury, implementing the National Firearms Act of
1934, govern the manufacture, possession and transfer of
certain types of firearms. The issues in this appeal center on
the regulatory requirement that those seeking permission
from the Treasury Department to make or transfer these
firearms must obtain a certification from a law enforcement
official in the jurisdiction of their residence. There are nine
plaintiffs. Five are individuals who claim that although they
are eligible for a certification, they are unable to obtain one;
two are persons whose ability to sell or transfer these fire-
arms allegedly has been impaired by the inability of prospec-
tive purchasers to obtain certifications; two are local chief
law enforcement officers.
The emergence of organized crime as a major national
problem led to the enactment of the National Firearms Act of
1934. See David T. Hardy, The Firearms Owners' Protection
Act: A Historical and Legal Perspective, 17 Cumb. L. Rev.
585, 590 (1987). Representing the first major federal attempt
to regulate firearms, the Act concentrated on particularly
dangerous weapons and devices such as machine guns, sawed-
off shotguns and silencers. See United States v. Kenney, 91
F.3d 884, 890 (7th Cir. 1996); Sonzinsky v. United States, 300
U.S. 506, 511-12 (1937); Hardy, 17 Cumb. L. Rev. at 592-93.
(When we speak of firearms in this opinion we mean to
include only those currently covered by the Act.)1 The Act
__________
1 The Act defines the term "firearm" as follows:
The term "firearm" means (1) a shotgun having a barrel or
barrels of less than 18 inches in length; (2) a weapon made
from a shotgun if such weapon as modified has an overall
required the maintenance of a registry of firearms containing,
among other things, the name and address of the person
possessing the weapon, see National Firearms Act, ch. 757,
s 5(a), 48 Stat. 1236, 1238 (1934); it required persons seeking
the transfer of firearms to file an application with the Com-
missioner of Internal Revenue, see id. at s 4; and it imposed
a tax on firearm manufacturers, dealers and importers, as
well as on the transfer of firearms. Id. at ss 2, 3.
Under the Treasury Department's 1934 regulations, anyone
seeking permission to transfer a firearm had to support his
application with a "certificate of the local chief of police,
sheriff of the county, United States attorney, United States
marshal, or other such person whose certificate may in a
particular case be acceptable to the Commissioner [of the
Internal Revenue], that he is satisfied that the fingerprints
and photograph appearing on the application are those of the
applicant and that the firearm is intended by the applicant for
lawful purposes." U.S. Treasury Department, Bureau of
Internal Revenue, Regulations 88 Relating to Taxes on Cer-
tain Firearms and Machine Guns Under the National Fire-
arms Act, Chap. 4, Art. 65 (1934).2 For reasons described by
Justice Jackson, see Robert H. Jackson, The Struggle for
__________
length of less than 26 inches or a barrel or barrels of less than
18 inches in length; (3) a rifle having a barrel or barrels of less
than 16 inches in length; (4) a weapon made from a rifle if such
weapon as modified has an overall length of less than 26 inches
or a barrel or barrels of less than 16 inches in length; (5) any
other weapon, as defined in subsection (e); (6) a machinegun;
(7) any silencer (as defined in section 921 of title 18, United
States Code); and (8) a destructive device. The term "firearm"
shall not include an antique firearm or any device (other than a
machinegun or destructive device) which, although designed as
a weapon, the Secretary finds by reason of the date of its
manufacture, value, design, and other characteristics is primar-
ily a collector's item and is not likely to be used as a weapon.
26 U.S.C. s 5845(a).
2 The original regulation applied only to the transfer of firearms.
Today Treasury's regulations cover both the making and transfer of
firearms. See 27 C.F.R. ss 179.63, 179.85.
Judicial Supremacy 87-91 (1941), Congress passed the Feder-
al Register Act in 1935. See Federal Register Act, ch. 417, 49
Stat. 500 (1935). Treasury's regulations dealing with the
transfer of firearms first appeared in the Code of Federal
Regulations in 1938. See 26 C.F.R. s 307.65 (1938). The
regulations remained with minor changes until 1985, when the
Bureau of Alcohol, Tobacco and Firearms ("ATF")--to which
the Secretary had delegated his authority under 26 U.S.C.
ss 5812 and 5822--deleted the certification authority of Unit-
ed States Attorneys and United States Marshals because this
"required them to perform services outside their normal
operations." See 50 Fed. Reg. 41,680-81 (Oct. 15, 1985).
According to the government, a benefit of giving state and
local officials (rather than federal officials) certification pow-
ers is that local officials "are in a better position to know
about the particular status of an individual who seeks to make
or receive" a firearm and whether that transfer would be
consistent with state and local law. Brief for Appellees at 12.
Today applicants to make or transfer firearms can obtain a
certification only from "the local chief of police, sheriff of the
county, head of the State police, State or local district attor-
ney or prosecutor, or such other person whose certificate may
in a particular case be acceptable to the Director" of ATF.
See 27 C.F.R. s 179.63; 27 C.F.R. s 179.85. As in 1934, the
application form must contain a photograph of the applicant
and two completed cards of his fingerprints. Id. The officer
making the certification must state that he is satisfied that
the photograph and fingerprints are those of the applicant
and that he has "no information indicating that possession of
the firearm by the [applicant] would be in violation of State or
local law or that the [applicant] will use the firearm for other
than lawful purposes." Id. The tax, payable to the Treasury
by the transferor or, in the case of a manufacturer, by the
maker of the weapon, is currently set at $200 per firearm--
with the exception of firearms classified as "any other weap-
on" under s 5845(e), which are taxed at $5 per transfer. See
26 U.S.C. ss 5811, 5821.
The complaint was in four counts, each of which the district
court dismissed for failure to state a claim upon which relief
could be granted. Lomont v. Summers, 135 F. Supp. 2d 23
(D.D.C. 2001). The court rejected plaintiffs' claim that the
certification requirement violated the taxpayer privacy provi-
sion of 26 U.S.C. s 6103; the court reasoned that applicants
(not federal officials) are disclosing return information to
state officials. Id. at 25-26. Plaintiffs' Tenth Amendment
claim failed because state and local officials participate volun-
tarily in providing certifications. Id. at 26. The regulations
did not impinge upon the Secretary's duty to collect taxes:
the Secretary's "duty to collect a transfer tax arises only after
an application is approved and a transfer effected." Id. at 27.
On the fourth count, the court sustained the Secretary's
authority to issue the regulations under 26 U.S.C. ss 5812(a),
5822 and 7805(a), and held that regulations were not arbitrary
and capricious. Id. at 27-28.
I.
We will address first the contention that the certification
regulations violate the Tenth Amendment "by commandeer-
ing State and local officers to administer federal law but
without making them accountable to anyone." Brief for
Appellants at 35. Two of the plaintiffs, if not any of the
others, have standing to raise this claim.3 Plaintiff Dennis
__________
3 Whether the private plaintiffs have standing--an issue we do
not reach--is uncertain. Steward Machine Co. v. Davis, 301 U.S.
548, 585-90 (1937), decided the company's Tenth Amendment chal-
lenge to the Social Security Act without considering whether the
company had standing to raise the claim. On the other hand,
Tennessee Elec. Power Co. v. Tennessee Valley Auth., 306 U.S. 118,
144 (1939), held that the TVA had "no standing in this suit to raise
any question" under the Tenth Amendment. See generally Ara B.
Gershengorn, Note: Private Party Standing to Raise Tenth
Amendment Commandeering Challenges, 100 Colum. L. Rev. 1065,
1075 (2000). The Seventh Circuit held in Gillespie v. City of
Indianapolis, 185 F.3d 693, 700-02 (7th Cir. 1999), that later
Supreme Court decisions have undercut Tennessee Elec. Power Co.,
so that today Article III does not pose an absolute bar to private
parties bringing such claims. But see Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) ("If a
McClure is the sheriff of Orange County, Vermont,4 and
plaintiff Stephen L. Hose is the Chief of the Clinton, Indiana
Police Department. Fraternal Order of Police v. United
States, 173 F.3d 898, 904-05 (D.C. Cir. 1999), held that
because the Fraternal Order of Police had members who
were chief law enforcement officers, the organization had
Article III standing to bring a Tenth Amendment challenge
to amendments to the Gun Control Act. This much may
follow from Printz v. United States, 521 U.S. 898 (1997), in
which the Court reached the merits of a Tenth Amendment
challenge to the Brady Act in cases brought by county
sheriffs. Neither the majority opinion nor the opinions of the
five Justices who wrote separately questioned the sheriffs'
standing to sue. The government believes that "chief law
enforcement officers have standing only if they are authorized
by state law to act on behalf of the State." Brief for
Appellees at 34 n.9. But as the government recognizes, to
impose that prerequisite would be to depart from our decision
in the FOP case, and perhaps the Supreme Court's disposi-
tion of Printz.
On the merits, we agree with the district court that plain-
tiffs' Tenth Amendment claim fails. Unlike the Brady Act,
the certification regulations do not "command the States'
officers, or those of their political subdivisions, to administer
or enforce a federal regulatory program." Printz v. United
States, 521 U.S. at 935. Local and state officials have the
option of participating or not. See 53 Fed. Reg. 10,480,
10,488 (Mar. 31, 1988). There is no federal carrot to encour-
age participation, and no federal stick to discourage non-
participation. Printz did not hold that the federal govern-
__________
precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own deci-
sions."). The Seventh Circuit cited appellate and district court
cases on both sides of the issue. 185 F.3d at 700 n.3.
4 When this action was commenced, Samuel Frank was the sheriff
of Orange County, Vermont. Sheriff McClure has since replaced
Sheriff Frank. Plaintiffs filed a Notice of Substitution of Party
with the district court, which the district court granted.
ment is forbidden from setting up regulatory programs, such
as this one, in which state or local governments may volun-
tarily decide to assist in administering federal laws. See
Printz, 521 U.S. at 936 (O'Connor, J., concurring); United
States v. Nathan, 202 F.3d 230, 233 (4th Cir. 2000).
Chief of Police Hose alleges that citizens of his jurisdiction
have the impression that his refusal to participate in the
certification program "is injurious to such citizens." Com-
plaint p 23(E).5 Plaintiffs spell this out in their brief: local
and state officers who do not join in the program "offend
constituents who thereby cannot get their applications ap-
proved" and face pressure to issue certifications. Brief for
Appellants at 38. We will assume the allegation to be true,
although one wonders how large a constituency is involved in
transferring or making machine guns, silencers, sawed-off
shotguns and the like. In any event, we cannot see how this
affects the analysis of the Tenth Amendment question. The
pressure, whatever it is, comes not from the federal govern-
ment but from the frustration of those unable to obtain
certifications to transfer and receive or to make firearms.
State officers may experience pressure from citizens if they
do not (or perhaps if they do) participate in many federal
programs, such as state implementation plans to enforce
federal environmental laws. Yet the principle of the Tenth
Amendment articulated in Printz is that the federal govern-
ment may not direct, compel or commandeer state officials,
see Minnesota v. United States, 102 F. Supp. 2d 1115, 1121
(D. Minn. 2000), except perhaps when the federal law is one
of general applicability. See Printz, 521 U.S. at 932. No
such direction or compulsion can be attributed to the federal
government here. The certification regulations contemplate
voluntary participation on the part of state and local officials.
Nothing in Printz forbids cooperation between state and
federal governments. See Nathan, 202 F.3d at 233.
__________
5 Sheriff Frank, who has been replaced as a party by Sheriff
McClure, joined Chief of Police Hose in making these allegations in
the complaint.
II.
We turn next to plaintiffs' contention that the certification
regulations violate the taxpayer privacy provision. "Amend-
ed in 1976 in the wake of Watergate and White House efforts
to harass those on its 'enemies list,' [26 U.S.C. s 6103] now
restricts government officers and employees from revealing
'any return' or 'return information.' " Tax Analysts v. IRS,
117 F.3d 607, 611 (D.C. Cir. 1997). The gist of the argument
is that the ATF application forms to make firearms, which
require applicants to disclose to local officials personal infor-
mation such as their identity, address and the $200 tax, run
afoul of this provision in the Internal Revenue Code.
Apart from the other plaintiffs, Daniel J. Whelan--an
employee of a licensed firearms dealer--has standing to bring
this claim. He alleges that he cannot obtain ATF's permis-
sion to make a firearm because he refuses to reveal "return
information" to local or state officials, which he must do in
order to obtain a certification.
Whelan, like anyone else who seeks to make a firearm,
must include with his application a check or money order
made out to the Treasury Department for $200, representing
what ATF calls a "making tax."6 26 U.S.C. s 5821(b). The
completed form, at least once it is filed with ATF, constitutes
__________
6 Application forms for "transfers" are different than applications
to "make" a firearm. Transfer applications require the transferor
(i.e., the person seeking to transfer the firearm to another person)
to fill out the application and to pay the tax. See 26 U.S.C.
s 5811(b) (providing that the transfer tax shall be paid by the
transferor). The transferee (i.e., the person seeking to receive the
firearm) must supply a photograph and other information. But in
the end it is the transferor who actually pays the tax and files the
form. Because only the transferor (and not the transferee) could
attempt to claim the form as his tax return, Treasury instructions
state that any information about the status of a transfer application
may be given only to the transferor--not to the transferee. We
need not concern ourselves with whether the "transfer" form vio-
lates s 6103 because we are not presented with any such claim.
Rather, the sole issue before us is whether the "maker" form
violates s 6103.
a "return" and it contains what qualifies as "return informa-
tion." The term "return" means any "tax or information
return ... which is filed with the Secretary," 26 U.S.C.
s 6103(b)(1). An element of "return information" is that it be
"received by, recorded by, prepared by, furnished to, or
collected by the Secretary." 26 U.S.C. s 6103(b)(2). Yet
here state and local officers obtain the information from the
person seeking to make a firearm before the "return" is filed
with the Secretary. Thus, no employee of the federal govern-
ment is disclosing a "return" or "return information" "re-
ceived by, recorded by, prepared by, furnished to, or collected
by the Secretary" in violation of s 6103(b)(2). Cf. Stokwitz v.
United States, 831 F.2d 893, 894 (9th Cir. 1987).
III.
Count IV of the complaint7 charged that the certification
regulations are arbitrary and capricious under the Adminis-
trative Procedure Act and are otherwise unlawful.8 The
__________
7 Count III alleged that the regulations interfered with the
Secretary's duty to collect federal taxes, see 26 U.S.C. s 6301,
because the regulation allows state and local officials to "veto" the
collection of taxes on firearms by refusing to issue certifications.
See Brief for Appellants at 21-22. The district court rightly
dismissed the claim as "frivolous." See Lomont, 135 F. Supp. 2d at
27. It is doubtful whether s 6301, which provides that the Secre-
tary "shall collect the taxes imposed by the internal revenue laws,"
confers upon plaintiffs any judicially enforceable rights to challenge
the Secretary's alleged failure to collect taxes. Even if it did, the
Secretary's duty to collect a tax arises only after an application is
approved and a firearm is transferred or made. See 26 U.S.C.
s 5811(a) ("There shall be levied, collected, and paid on firearms
transferred a tax ... for each firearm transferred."); see also 26
U.S.C. s 5821(a) ("There shall be levied, collected, and paid upon
the making of a firearm a tax ... for each firearm made.").
8 We do not reach the claim that the certification regulations are
unlawful because "the Secretary has insulated from APA review his
own actions which are subject to APA review" by assigning his
duties to local officials, who are not covered by the APA. Brief for
Appellants at 24-26. Plaintiffs did not mention the claim in their
regulations are unlawful, plaintiffs argue, because the Secre-
tary lacked rulemaking authority to issue them. The govern-
ment responds by pointing to 26 U.S.C. ss 5812(a), 5822 and
7805(a). These provisions, according to the government, del-
egate broad authority to the Secretary to promulgate regula-
tions governing applications under the National Firearms
Act, a contention with which the district court agreed.
One of the provisions--s 7805--gives the Secretary author-
ity "to prescribe all needful rules and regulations for the
enforcement of this title." 26 U.S.C. s 7805(a). This is
nothing more than a general grant of interpretative rulemak-
ing power, and therefore cannot support the certification
regulations. See Stanley S. Surrey, The Scope and Effect of
Treasury Regulations under Income, Estate and Gift Taxes,
88 U. Pa. L. Rev. 556, 557-58 (1940) (concluding that regula-
tions issued under Treasury's general rulemaking grant are
merely interpretative and "do not possess the vital current of
legislative power"); Ellsworth C. Alvord, Treasury Regula-
tions and the Wilshire Oil Case, 40 Colum. L. Rev. 252, 257
(1940) (stating that specific rulemaking grants given to the
Commissioner of Internal Revenue authorize legislative rule-
making but that the general rulemaking grant authorizes only
interpretative rules to assist in the execution of the statute);
Michael Asimow, Public Participation in the Adoption of
Temporary Tax Regulations, 44 Tax Law. 343, 357 (1991)
("[T]ax authorities almost uniformly assume that regulations
adopted pursuant to the Treasury's general rulemaking pow-
er in section 7805(a) of the Code are interpretive and that
rules adopted pursuant to specific grants of rulemaking au-
thority are legislative."). The two other provisions--26
U.S.C. ss 5812 and 5822--are of a different sort. Section
5812, which deals with transferring firearms, gives the Secre-
tary broad authority to promulgate regulations governing
application forms, including regulations pertaining to the
__________
complaint and they presented no arguments about it to the district
court. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120 (1976); Dist.
of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir.
1984); cf. Yee v. Escondido, 503 U.S. 519, 533 (1992).
identification of the transferee, the transferor and the fire-
arm. See 26 U.S.C. s 5812(a).9 Similarly, s 5822 gives the
Secretary broad authority over the form of applications for
permission to make firearms. See 26 U.S.C. s 5822.10 Both
__________
9 The full text is as follows:
A firearm shall not be transferred unless (1) the transferor of
the firearm has filed with the Secretary a written application,
in duplicate, for the transfer and registration of the firearm to
the transferee on the application form prescribed by the Secre-
tary; (2) any tax payable on the transfer is paid as evidenced
by the proper stamp affixed to the original application form;
(3) the transferee is identified in the application form in such
manner as the Secretary may by regulations prescribe, except
that, if such person is an individual, the identification must
include his fingerprints and his photograph; (4) the transferor
of the firearm is identified in the application form in such
manner as the Secretary may by regulations prescribe; (5) the
firearm is identified in the application form in such manner as
the Secretary may by regulations prescribe; and (6) the appli-
cation form shows that the Secretary has approved the transfer
and the registration of the firearm to the transferee. Applica-
tions shall be denied if the transfer, receipt, or possession of
the firearm would place the transferee in violation of law.
26 U.S.C. s 5812(a) (emphasis added).
10 The full text is as follows:
No person shall make a firearm unless he has (a) filed with the
Secretary a written application, in duplicate, to make and
register the firearm on the form prescribed by the Secretary;
(b) paid any tax payable on the making and such payment is
evidenced by the proper stamp affixed to the original applica-
tion form; (c) identified the firearm to be made in the applica-
tion form in such manner as the Secretary may by regulations
prescribe; (d) identified himself in the application form in such
manner as the Secretary may by regulations prescribe, except
that, if such person is an individual, the identification must
include his fingerprints and his photograph; and (e) obtained
the approval of the Secretary to make and register the firearm
and the application form shows such approval. Applications
shall be denied if the making or possession of the firearm
would place the person making the firearm in violation of law.
26 U.S.C. s 5822 (emphasis added).
sections provide that applications "shall be denied" if the
transfer, receipt, making, or possession of the firearm would
place the transferee or person making the firearm in violation
of law, see 26 U.S.C. ss 5812(a), 5822, but neither restricts
the Secretary's broad power to grant or deny applications in
any other respect. The certification regulations thus fall well
within the Secretary's statutory authority.
As to the Administrative Procedure Act, plaintiffs complain
that the regulations allow local and state officials to act
arbitrarily in deciding whether to execute certifications. But
this is not enough to render the regulations invalid on their
face. "General rules need not work perfectly in all their
applications," Illinois Commerce Comm'n v. Interstate Com-
merce Comm'n, 776 F.2d 355, 359 (D.C. Cir. 1985). Accord-
ing to the complaint, there are some 30,000 state and local
officials who potentially may issue certifications. Plaintiffs
allege that two of these 30,000--one in Arlington, Virginia,
the other in Anchorage, Alaska--arbitrarily refused their
certification requests: the Arlington chief of police required
them to submit to a search of their home, or as they put it, to
waive their Fourth Amendment rights; the Anchorage chief
of police would execute certifications only for friends. Even
if these allegations are true, settled precedent in the Supreme
Court and in this court holds that a regulation is not itself
"arbitrary and capricious" merely because it might be applied
in an arbitrary fashion by those implementing it. Skinner v.
Ry. Labor Executives' *'n, 489 U.S. 602, 632 n.10 (1989);
American Hosp. *'n v. NLRB, 499 U.S. 606, 619 (1991);
Illinois Commerce Comm'n, 776 F.2d at 359. If the law were
otherwise hardly any regulation could be sustained. Most
rules and, for that matter, most statutes are susceptible to
capricious administration. So long as there is some discre-
tion, there is room for abuse. Bad faith, malfeasance, and
outright dishonesty are regrettably always a possibility. The
regulations say only that the local official must certify that he
is satisfied that the photograph and the fingerprints are those
of the transferee or maker, and that the official has no
information that possession of the firearm by such person
would place him in violation of law or that he will use the
firearm for unlawful purposes. On the face of the regula-
tions, there is nothing irrational or unreasonable about this
condition. Indeed it appears eminently reasonable to insure
that the person wanting to possess a machine gun is who he
says he is and that there is no indication he will break the
law. If local officials add conditions--in Anchorage, you must
be a friend of the chief of police, or in Arlington, you must
submit to a search of your home--they are doing so on their
own authority, not because the regulations confer this power
on them.
We therefore sustain the certification regulations as against
plaintiffs' * attack. We have not decided whether, in a
particular application, the regulations would be arbitrary and
capricious--for instance, when every qualified local and state
official has decided not to issue certifications for anyone
within their jurisdiction,11 or when unlawful conditions are
attached to the issuance of a certification. Cf. Amfac Resorts,
L.L.C. v. United States Dep't of the Interior, 2002 WL 312831
*10 (D.C. Cir. Mar. 1, 2002). The complaint alleged only that
the regulations were invalid on their face; allegations regard-
ing the specific circumstances of several plaintiffs were meant
to show as much. The district court construed the complaint
__________
11 One of the plaintiffs, Robert F. Grimes, Jr., may have found
himself in that situation. According to the complaint, Grimes "is
legally qualified in all respects to own and possess firearms."
Complaint p 21(A). In order to have a firearm transferred to him,
he sought a certification from the Sheriff of Suffolk County, Virgi-
nia, the Commonwealth's Attorney for Suffolk County, the three
circuit judges presiding in his judicial district, the Chief of Police of
the Suffolk Police Department, the Virginia State Police, and the
Attorney General of the Commonwealth of Virginia. Id. p 21(C).
The complaint alleges that each of these officials refused to execute
a certification for Grimes (presumably because they are not partici-
pating in the program) and that no other officials within Grimes'
jurisdiction are available or willing to execute a certificate. Id.
Grimes so informed ATF when he sent in his application without a
certification, but the agency never responded. Id. p 21(D).
as raising only a * challenge and decided the case accord-
ingly, without mentioning any as-applied challenge. See Lo-
mont, 135 F. Supp. 2d at 27-28. On appeal, plaintiffs' briefs
did not contest the district court's construction of their com-
plaint, nor did their briefs ever mention an as-applied claim.
As in the district court, plaintiffs argued only that the regula-
tion could not be upheld in any case. See Brief for Appellants
at 24; Reply Brief for Appellants at 12. In response to
questioning by the court at oral argument, plaintiffs' counsel
attempted to fit the case within the framework of an as-
applied challenge. But the effort came too late. See Tarpley
v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982).12
We therefore express no views on the merits of a com-
plaint, brought by a proper plaintiff, claiming that the certifi-
cation regulations were arbitrary and capricious as applied to
him. We hold only that on their face the regulations must be
sustained under the Administrative Procedure Act.
Affirmed.
__________
12 If plaintiffs had properly made an as-applied claim, we would
have expected them to argue that the "safety valve" in the regula-
tions was inadequate. When no local or state official will execute
certifications, or when by plaintiffs' lights those officials are impos-
ing unlawful conditions, the regulations still allow individuals to
seek the assistance of "such other person whose certificate may in a
particular case be acceptable to the Director" of ATF. 27 C.F.R.
ss 179.63, 179.85. Precisely who might qualify as "such other
person" is far from certain. ATF has given two examples: "State
attorneys general and judges of State courts having authority to
conduct jury trials in felony cases." See Federal Firearms Regula-
tions Reference Guide, Questions and Answers at M19 (2000). But
we do not know whether this short list is exhaustive.
http://pacer.cadc.uscourts.gov/common/opinions/200204/01-5104a.txt
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
(now I've got a migraine.:):):))
Did we win or lose?
Mudge the cross-eyed
I can't come to work today. The voices said, STAY HOME AND CLEAN THE GUNS!
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878