Bingham, Ltd. v. U.S.

Citation724 F.2d 921
Decision Date09 February 1984
Docket NumberNo. 82-8588,82-8588
PartiesBINGHAM, LTD., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Joseph H. King, Jr., Atlanta, Ga., for plaintiff-appellant.

Myra H. Dixon, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and CLARK, Circuit Judges, and SWYGERT *, Senior Circuit Judge.

CLARK, Circuit Judge:

Appellant ("Bingham"), a licensed manufacturer of small arms ammunition, see 18 U.S.C. Sec. 921 et seq., appeals the district court's denial of declaratory relief under 28 U.S.C. Sec. 2201. The sole issue on appeal is whether the district court was correct in determining on a motion for summary judgment that the manufacturer of an exploding bullet which contains a canister of highly explosive lead azide must comply with the explosive licensing requirements of Title XI of the Organized Crime Control Act of 1970, 18 U.S.C. Secs. 841-847 ("OCCA" or "Act"). We have jurisdiction. 28 U.S.C. Sec. 1291.

I.

In response to the rash of terrorist bombings during the late 1960s, Congress enacted Title XI of the OCCA "to protect interstate and foreign commerce against interference and interruption by reducing the hazard to persons and property arising from misuse and unsafe or insecure storage of explosive materials." Sec. 1101, Pub.L. 91-452, reprinted in [1970] U.S.Code Cong. & Ad.News 1109. To effect this purpose, Congress made it unlawful for any person "to engage in the business of importing, manufacturing, or dealing in explosive materials without a license...." 18 U.S.C. Sec. 842(a)(1). The broad definition of "explosive materials" made this proscription virtually all-inclusive. See 18 U.S.C. Sec. 841(c), (d).

Notwithstanding this all-inclusive definition, Congress expressly stated that "[i]t is not the purpose of [Title XI] to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, storage, or use of explosive materials for ... lawful purposes, or to ... [impose] procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title." Sec. 1101, Pub.L. 91-452, reprinted in [1970] U.S.Code Cong. & Ad.News 1109. Accordingly, Congress enacted several exemptions from the Act. One of those exemptions provides that the Act shall not apply to "small arms ammunition and components thereof." 18 U.S.C. Sec. 845(a)(4). The scope of that exemption is the subject of this appeal.

II.

Beginning in early 1979, appellant manufactured and sold "Devastator" ammunition, a .22 caliber cartridge designed to explode on impact. Like conventional ammunition, the "Devastator" contains an explosive charge in the base of the shell to propel the bullet into flight when fired. Unlike conventional small arms ammunition, the "Devastator" contains an additional explosive charge in the tip of its cartridge. This additional explosive charge is the subject of this litigation.

The tip of each "Devastator" cartridge contains a small canister of lead azide, a highly explosive material. Upon impact, the canister explodes, causing the bullet to fragment and thereby prevents the bullet from passing through or ricocheting off the object it strikes. Although Bingham does not manufacture the lead azide canisters, the canisters are designed and made specifically for use in "Devastator" ammunition, and Bingham inserts the canister into the projectile during the manufacturing process.

Before this litigation, Bingham enjoyed considerable success in marketing the "Devastator" ammunition. 1 These profits waned, however, when, pursuant to a letter from the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury ("Bureau" or "ATF"), appellant ceased marketing the "Devastator" ammunition to the general public. 2 This letter of October 6, 1981, informed Bingham that lead azide canisters were explosives regulated by the OCCA and, therefore, until Bingham obtained an explosives license, the Bureau would deem any sale of "Devastator" ammunition a "willful violation" of the OCCA.

On March 5, 1982, appellant brought a declaratory judgment action, maintaining that, although the canister in the tip of the bullet admittedly contains explosive material, the canister is merely a "component" of "small arms ammunition" and is, therefore, exempt from regulation pursuant to 18 U.S.C. Sec. 845(a)(4). After a hearing on cross motions for summary judgment, the district court concluded that the "small arms ammunition and components thereof" exemption did not countenance appellant's exploding bullet, because the OCCA's legislative history reveals that this exemption applies only to parts traditionally used in ammunition for sporting arms. Bingham, Ltd. v. United States, 545 F.Supp. 987, 991 (N.D.Ga.1982). On appeal, Bingham challenges that summary judgment ruling.

III.

Disposition of a summary judgment motion in a declaratory judgment action is governed by the same basic principles that generally rule the grant or denial of such a motion. See 6 Moore's Federal Practice Sec. 56.17. Before rendering summary judgment, the district court must determine "that there is no genuine issue as to any material fact" and "that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c); Shahid v. Gulf Power Co., 291 F.2d 422, 423-24 (5th Cir.1961), rehearing denied, 298 F.2d 793 (1962). The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. See Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). The district court must view the inferences to be drawn from materials submitted in support of that motion, however, in a light "most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176, 177 (1962). Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983).

Once the movant sustains its burden of demonstrating the absence of genuine factual issues, summary judgment may still be inappropriate. First, even if the material factual issues are not in dispute, they must furnish an adequate basis for the court to apply the proper legal principles in resolving a difficult question of law. See United States v. Perry, 431 F.2d 1020, 1023 (9th Cir.1970) (statutory construction). See also Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976) (constitutional law); Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228, 231 (4th Cir.1955) (insurance policy interpretation) (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)); Smith v. City of Manchester, 460 F.Supp. 30, 36 (E.D.Tenn.1978) (constitutional law); Rypkema v. Bowers, 66 F.R.D. 564, 569 (N.D.W.Va.1974) (same). See generally Moore's Federal Practice, Sec. 56.15[1.-0], 56-398. Second, the opponent may rebut the movant's showing of the nonexistence of a genuine issue of material fact by producing countervailing evidence. See Brennan v. D.J. McNichol Co., 439 F.Supp. 499 (E.D.Pa.1977).

In the instant case, the district court granted summary judgment in favor of the government because the legislative history of Sec. 845(a)(4) demonstrated that the exemption in question did not apply to Bingham's ammunition. Specifically, the court concluded that Congress clearly intended to limit the "small arms ammunition and components thereof" exemption to conventional sporting ammunition. In reviewing that conclusion, we apply the same legal principles which govern the district court's summary judgment ruling. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981).

IV.

Affirming the district court's opinion would require us to overcome two hurdles, both of which are presented because this is a summary judgment action. The first problem relates to the adequacy of the established factual basis upon which the district court resolved a difficult question of statutory construction. The second problem arises from the rebuttal evidence offered by appellant at the summary judgment hearing.

A. The Factual Basis

The OCCA is a criminal statute imposing punishment of up to a $10,000 fine or ten years' imprisonment for the sale of explosives without a license. 18 U.S.C. Sec. 844(a). "The first interpretative principle and one to which the Supreme Court has repeatedly paid tribute provides that 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' " United States v. Grissom, 645 F.2d 461, 466 (5th Cir.1981), quoting United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488, 496 (1971) (adopting the narrower reading of a statute where legislative history is ambiguous). See Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 1753, 64 L.Ed.2d 381, 389 (1980); United States v. Dudley, 581 F.2d 1193, 1197 (5th Cir.1978). This familiar rule of statutory construction applies even though we construe the OCCA in a declaratory judgment action, a civil context. See FCC v. American Broad. Co., 347 U.S. 284, 296, 74 S.Ct. 593, 600-01, 98 L.Ed. 699, 709 (1954) (strictly construing a criminal statute in a civil action); Schwartz v. Romnes, 495 F.2d 844, 849 (2d Cir.1974) (applying the rule of strict construction in a stockholder's derivative suit); Briggs v. American Air Filter Co., 455 F.Supp. 179, 182 (N.D.Ga.1978) (following "basic due process principles of criminal statutory construction" in a civil damage action), aff'd, 630 F.2d 414 (5th Cir.1980). Applying this rule, we do not consider Congress' intent so clear as to entitle the government to judgment as a matter of law upon the factual record as developed thus far.

First, one aspect of the congressional history discussed by the trial court, 545 F.Supp. at 990, seems to cut against the court's...

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