Gun South, Inc. v. Brady
| Decision Date | 30 June 1989 |
| Docket Number | No. 89-7339,89-7339 |
| Citation | 877 F.2d 858 |
| Parties | GUN SOUTH, INC., Plaintiff-Appellee, v. Nicholas BRADY, Secretary of the Treasury; Stephen E. Higgins, Director of the Bureau of Alcohol, Tobacco and Firearms; William Von Rabb, Commissioner of the United States Customs Service, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Mark B. Stern, Office of Atty. Gen., Civil Div., Washington, D.C., for defendants-appellants.
James C. Barton, Johnston, Barton, Proctor, Swedlaw & Naff, Robert S. Vance, Jr., Ralph H. Smith, Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before FAY and HATCHETT, Circuit Judges, and HOFFMAN *, Senior District Judge.
The Secretary of the Treasury, the Director of the Bureau of Alcohol, Tobacco and Firearms, and the Commissioner of the United States Customs Service (collectively "the Government") appeal the district court's grant of an injunction to Gun South, Inc. ("GSI"). The district court ordered the Government to deliver to GSI rifles which had been approved for importation, but held by Customs upon arrival at the Birmingham, Alabama Airport. 711 F.Supp. 1054. For the reasons discussed below, we reverse the district court's decision and vacate the injunction.
GSI is a wholesale gun dealer which the Bureau of Alcohol, Tobacco and Firearms ("the Bureau") has licensed to import firearms. In September, 1988, and February, 1989, GSI applied for permits to import Steyr-Mannlicher AUG semi-automatic rifles (AUG-SA rifles) because GSI learned that the Bureau had previously approved the importation of these rifles as firearms with a sporting purpose. Pursuant to its practice of routinely granting permits for previously imported firearms, the Bureau issued GSI two permits. On October 4, 1988, the Bureau granted GSI a permit to import 1,700 AUG-SA rifles, and on February 22, 1989, the Bureau approved GSI's application to import an additional 3,000 AUG-SA rifles.
On January 23, 1989, GSI ordered 800 AUG-SA rifles and certain accessories under its October 4 permit. GSI obligated itself to pay $700,000 toward a larger total purchase price, and GSI's bank guaranteed these funds.
On March 21, 1989, William Bennett, Director of the Office of National Drug Policy, speaking for the Secretary of the Treasury, announced a temporary suspension on the importation of five "assault-type" weapons, including the AUG-SA rifle. On March 29, 1989, the Bureau expanded the scope of the suspension to cover all assault-type weapons "indistinguishable in design, appearance and function to the original five." The Government imposed the temporary suspension to allow the Bureau to reassess its approval of several applications to import the suspended rifles. Under an accelerated review, the Bureau will review each permit to determine if it erroneously concluded that the rifles are "generally suitable for a sporting purpose." The Bureau will not revoke the permits before giving the affected importers notice and an opportunity to respond.
GSI requested a clarification of whether the suspension applied to weapons purchased under preexisting permits. In response to this inquiry, the Bureau informed GSI, at least twice, that the ban did not apply to weapons purchased under preexisting permits, but rather, the suspension only prevented the issuance of new permits. Despite these assurances, the Customs Service interdicted GSI's shipment of
AUG-SA rifles at the Birmingham Airport even though GSI purchased such rifles under a permit issued prior to the suspension. Although the Government agreed to allow GSI to obtain custody of the AUG-SA rifles if GSI posted a bond guaranteeing that it would not resell or distribute such weapons, GSI declined such offer and brought this action.
On March 30, 1989, GSI filed this action in the Northern District of Alabama seeking a declaratory judgment, and preliminary and permanent injunctive relief. GSI sought to enjoin the Government from interfering with the delivery of firearms imported under its permits issued prior to the temporary suspension. On April 7, 1989, the district court consolidated GSI's preliminary injunction motion with a final adjudication of the merits of GSI's claims pursuant to Fed.R.Civ.P. 65(a)(2). Both sides provided further evidence and legal briefs.
On April 26, 1989, the district court denied the Government's summary judgment motion and issued a permanent injunction "enjoin[ing] any interference with the routine delivery of any and all weapons ordered by Gun South, Inc. in accordance with the terms and conditions of permits issued by [the Bureau] prior to the promulgation of the notice or notices of suspension purporting to affect the importation of the [firearm in question]." The district court found that the Government failed to present any evidence that the AUG-SA is not "generally recognized as particularly suitable or readily adaptable to sporting purposes." The court also found that the evidence demonstrated that the AUG-SA has the design of a sporting weapon. Based on these findings, the district court held that section 925(d)(3) of the Gun Control Act precluded the temporary suspension. See 18 U.S.C.A. Sec. 925(d)(3) (West 1976) (). After the district court concluded that GSI lacked an adequate legal remedy to redress any harm incurred from the suspension, the court ordered the Customs Service to release GSI's weapons for immediate delivery. Because the district court found the suspension unlawful, the court did not address GSI's constitutional challenges to the Government's actions.
On April 28, 1989, the district court denied the Government's motion for a stay pending appeal. On the same day, this court granted a temporary emergency stay pending the court's further action. On May 3, we extended the stay pending appeal and expedited the Government's appeal.
The Government contends that the district court erred by concluding that the Bureau did not lawfully suspend the importation of the AUG-SA rifle for ninety days. The Government contends that section 925(d)(3) does not preclude it from temporarily suspending the importation of firearms while it conducts an accelerated reassessment of the importability of such firearms. In addition, the Government maintains that it did not act arbitrarily or capriciously because the suspension is rationally related to fulfilling its mandate of precluding the importation of unauthorized firearms.
The Government further contends that even if GSI has a vested property interest in the permits, the temporary suspension does not violate GSI's constitutional rights. According to the Government, the temporary import suspension does not violate GSI's due process rights because the strong public interest in immediate action outweighs the limited impact on GSI's alleged property interest. Moreover, the Government contends that GSI cannot establish a valid taking claim because: (1) this court lacks jurisdiction over GSI's equitable claim to enjoin the alleged taking; and (2) the Government's temporary deprivation of the rifles does not constitute a compensable taking.
GSI contends that the district court properly concluded that section 925(d)(3) prevents the Government from suspending the Even if the Government has the authority to suspend the importation of the AUG-SA rifles, GSI alternatively contends that the Government arbitrarily and capriciously imposed the suspension by making an uninformed decision without any supporting evidence. Finally, GSI contends that the Bureau's imposition of the suspension violates its fifth amendment procedural due process rights and constitutes an unconstitutional taking.
importation of the AUG-SA rifle because the Bureau previously classified this rifle as a sporting firearm, and the Government has failed to present any evidence to demonstrate that this classification is erroneous. Beyond the Gun Control Act, GSI contends that the Act's implementing regulations also preclude the suspension.
The sole issue which the Government raises on appeal is whether the district court improperly enjoined the Government from temporarily suspending the importation of GSI's AUG-SA rifles purchased under permits which the Bureau approved prior to the Government's announcement of the import suspension.
We begin our analysis by emphasizing the deferential standard of review that we must apply when examining an agency's action. We may set aside the Bureau's temporary import suspension of AUG-SA rifles only if we find that such action: (1) exceeds the Bureau's statutory authority, (2) violates a constitutional right, or (3) constitutes an "arbitrary" or "capricious action," or "an abuse of discretion" or an action "otherwise not in accordance with law." Administrative Procedure Act, 5 U.S.C.A. Sec. 706(2)(A), (B), and (C) (West 1977). Under this deferential standard, we cannot substitute our judgment for the Bureau's judgment, but rather, we must presume the import suspension's validity. Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691 (11th Cir.1986). With this standard in mind, we address GSI's multipronged attack of the temporary import suspension.
The district court enjoined the Government's actions because it concluded that the Gun Control Act and its implementing regulations prohibit the Bureau from temporarily suspending the importation of the AUG-SA rifles. GSI contends that the district court properly interpreted the Gun Control Act and its regulations. In contrast, the Government contends that its temporary import suspension does not exceed the Gun Control Act or its implementing...
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