216 F.3d 1049 (Fed. Cir. 2000), 99-5121, Demko & Penn Arms Inc. v. US

Docket Nº:99-5121
Citation:216 F.3d 1049
Party Name:THOMAS A. DEMKO AND PENN ARMS, INC., Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
Case Date:June 09, 2000
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1049

216 F.3d 1049 (Fed. Cir. 2000)

THOMAS A. DEMKO AND PENN ARMS, INC., Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

99-5121

United States Court of Appeals, Federal Circuit

June 9, 2000

Appealed from: United States Court of Federal Claims, Judge Christine O.C. Miller

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Richard E. Gardiner, of Fairfax, Virginia, argued for plaintiffs- appellants.

A. Wray Muoio, Attorney, Tax Division, Appellate Section, Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Loretta C. Argrett, Assistant Attorney General; and Ann B. Durney, Attorney. Of counsel was Rachel I. Wollitzer, Attorney.

Before NEWMAN, Circuit Judge, SMITH, Senior Circuit Judge, and SCHALL, Circuit Judge.

SMITH, Senior Circuit Judge.

Thomas A. Demko and Penn Arms, Inc., appeal from the decision of the Court of Federal Claims denying their motion for summary judgment and granting the United States' cross-motion for summary judgment. Specifically, the court held that the Bureau of Alcohol, Tobacco and Firearms ("ATF") had the authority to classify the Striker-12 shotgun as a "destructive device" as defined in 26 U.S.C §§ 5845(a)(8), (f)(2) (1994), and thus subject to a $200.00 transfer tax pursuant to 26 U.S.C. § 5811 (1994). See Demko v. United States, 44 Fed. Cl. 83 (1999). Because the Court of Federal Claims correctly found that the ATF had the authority to classify the Striker-12 shotgun as a "destructive device" within the meaning of the statute, we affirm.

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Issues

The two issues addressed in this appeal are (1) whether the CFC erred in holding that the ATF had the authority to classify the Striker-12 shotgun as a "destructive device"; and (2) whether the CFC correctly held that the standard "generally recognized as particularly suitable for sporting purposes" contained in 26 U.S.C. § 5845(f)(2) is a constitutional delegation of legislative power.

Background

The National Firearms Act ("NFA") provides for the taxation of manufacturers, importers and dealers in certain firearms and machine guns. See 26 U.S.C. §§ 5812, 5822, 5841, 5845(a)(8), (f)(2) (1994). The NFA is part of the Internal Revenue Code, and the Secretary of the Treasury has the authority to enforce and administer such provisions. See 26 U.S.C. § 7801(a) (1994). The NFA imposes a $200 tax on the transfer of firearms, which includes destructive devices.1 The Secretary of the Treasury has delegated the authority to enforce this transfer tax to the ATF. See Treasury Department Order No. 221, 1972-1 C.B. 777.

The Striker-12 shotgun has an eighteen-inch barrel with a bore of more than one-half inch in diameter. See Demko, 44 Fed. Cl. at 84. The shotgun uses a spring-driven revolving cylinder magazine with a capacity of twelve shotgun shells, which can be fired from the shotgun in three seconds or less. See id. The ATF ruled that the Striker-12 is a destructive device within the meaning of 26 U.S.C. § 5845(f) because its physical characteristics indicate that the gun is a military-type shotgun, rather than one suitable for sporting purposes. See ATF Rul. 94-2.

Facts

Penn Arms, Inc. applied to the ATF for permission to transfer a Striker-12 shotgun to Demko in his individual capacity. See Demko, 44 Fed. Cl. at 85. The ATF approved the transfer of the shotgun and pursuant to 26 U.S.C. § 5811, imposed a $200 tax. The tax was paid upon transfer, and Demko and Penn Arms timely filed a request for refund of the tax. The ATF did not render a decision on the refund request. Subsequently, Demko and Penn Arms filed a refund suit in the Court of Federal Claims. See Demko, 44 Fed. Cl. at 85.

On cross-motions for summary judgment, the Court of Federal Claims rejected Demko's and Penn Arms' claim that the ATF improperly classified the Striker-12 shotgun as a "destructive device" within the meaning of 26 U.S.C. § 5845(f)(2). See Demko, 44 Fed. Cl. at 86-87, 92. The statute defines the term "destructive device" to include the following:

any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes.

26 U.S.C. § 5845(f)(2) (1994) (emphasis added).

Demko and Penn Arms argued that the qualifying clause of the statute "which the Secretary finds is generally recognized as particularly suitable for sporting purposes" should be interpreted to only modify the term "shotgun shell," and thus exclude the word "shotgun" from the definition of a "destructive device." See Demko, 44 Fed. Cl. at 86, 89. The Court of Federal Claims concluded that the "plain meaning of the

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statute indicates that the qualifying language within the exclusionary clause is applicable to both shotgun and shotgun shell." Id. at 96. The court held that such a reading of the statutory language is consistent with Congress' goal in enacting the legislation requiring the tax on firearms, to achieve greater control and regulation of weapons that can be used in violent crimes. See id. at 92.

The court also found that the ATF properly had the authority to classify a shotgun and/or shotgun shells as not "generally recognized as particularly suitable for sporting purposes." See id. at 95-96. Specifically, the court found the grant of authority constitutionally sufficient because "Congress has provided an intelligible principle, which applies to limited circumstances and is capable of review in a proper proceeding." Id. at 96. Thus, the court denied Demko's and Penn Arms' motion for summary judgment, and granted summary judgment in favor of the United States ("Government"). See id. at 97.

Jurisdiction and Standards of Review

This court has jurisdiction over an appeal from a final judgment of the Court of Federal Claims. See 28 U.S.C. § 1295(a)(3) (1994). "We review a grant of summary judgment completely and independently, construing the facts in the light most favorable to the non-moving party." Good v. United States, 189 F.3d 1355, 1360 (Fed. Cir. 1999). The issue of statutory interpretation is a question of law, which we review completely and independently. See Cathy v. United States, 191 F.3d 1336, 1338 (Fed. Cir. 1999). Likewise, the issue of the constitutionality of a statute is also a question of law, which this court reviews completely and independently. See, e.g., Costain Coal, Inc....

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