Gilbert Equipment Co., Inc. v. Higgins, Civ. A. No. 88-0242-P.

• Decision Date: 07 March 1989
• Docket Number: Civ. A. No. 88-0242-P.
• Citation: 709 F. Supp. 1071
• Parties: GILBERT EQUIPMENT COMPANY, INC., Plaintiff, v. Stephen E. HIGGINS, Director, Bureau of Alcohol, Tobacco, and Firearms, U.S. Department of the Treasury, Defendant.
• Court: U.S. District Court — Southern District of Alabama

709 F. Supp. 1071

GILBERT EQUIPMENT COMPANY, INC., Plaintiff, v. Stephen E. HIGGINS, Director, Bureau of Alcohol, Tobacco, and Firearms, U.S. Department of the Treasury, Defendant.

Civ. A. No. 88-0242-P.

United States District Court, S.D. Alabama, S.D.

March 7, 1989.

COPYRIGHT MATERIAL OMITTED

Stephen Halbrook, Fairfax, Va., Alex F. Lankford, III, Hand, Arendall, Bedsole, Greaves & Johnston, Blane Crutchfield, Mobile, Ala., for plaintiff.

Andrea Newmark, Dept. of Justice, Sandra Schraibman, Washington, D.C., Eugene Seidel, Asst. U.S. Atty., Mobile, Ala., for defendant.

ORDER ADOPTING THE RECOMMENDATION OF THE MAGISTRATE

PITTMAN, Senior District Judge.

After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the magistrate made under 28 U.S. C. § 636(b)(1)(B) is ADOPTED as the opinion of this court.

An analysis considering the plaintiff's objections and the reasons for this court adopting the magistrate's recommendation are set forth herein.

ANALYSIS:

1. Gilbert argues that the magistrate improperly bootstraps standards under "arbitrary-capricious" review onto the mandamus count. Gilbert bases this argument on the magistrate's statement that "inasmuch as this court has already decided that the agency's decision that the USAS-12 is not particularly suitable or readily adaptable to sporting purposes is not arbitrary and capricious, the magistrate certainly cannot find that there was a clear duty on the part of the defendant to grant Gilbert a permit to import the firearm." According to plaintiff, a mandamus claim is irrelevant to whether an APA claim survives a deferential "rational-relation" test, and the magistrate erred in equating the two. Gilbert's contention is without merit. Mandamus is an extraordinary writ which may not properly issue unless three elements co-exist: (1) a clear right to the relief sought; (2) a clear duty on the part of the defendant to do the act in question, and (3) no other adequate remedy available. District Lodge No. 166, International Association of Machinist and Aerospace Workers v. TWA Services, Inc., 731 F.2d 711, 717 (11th Cir.1984).

18 U.S.C. § 925(d)(3) does not grant Gilbert a clear right to import arms into this country. In fact, § 925(d)(3) allows for the importation of firearms only after it has first been determined that the weapon is particularly suitable or readily adaptable to a sporting purpose. In the case sub judice, the bureau concluded that due to the weight, size, bulk, designed magazine capacity, configuration, and other factors, the USAS-12 is not particularly suitable for or readily adaptable to a sporting purpose. This decision was reviewed by the magistrate under the arbitrary and capricious standard, and was affirmed. Although the magistrate did not specifically so state, the decision and affirmation in fact establishes that the plaintiff had no clear right to import firearms, and that bureau had no duty to issue the permit. With these two elements lacking, a writ of mandamus is not proper.

2. Plaintiff argues that the magistrate applied the "rational basis" test to the contrary to law portion of Count Two when the "rational basis" test is only appropriate for a claim of arbitrariness and capriciousness. While the magistrate's recommendation is devoid of any discussion of the contrary to law standard, a review of 18 U.S.C. § 925(d)(3) and its legislative history, reveals that the bureau's action is in accordance with it. § 925, as initially enacted, was designed to keep firearms out of the hands of those not legally entitled to possess them (Magistrate's Recommendation (hereafter MR) p. 5). An amendment in 1986 sought to liberalize importation by providing that the Secretary of the Treasury shall, as opposed to may, authorize the importation of firearms generally recognized as particularly suitable for or readily adaptable to sporting purposes (MR p. 10). In addition, the importer's burden of establishing this fact to the Secretary was eliminated. As the magistrate notes however, the Secretary retains the obligation to determine whether specific firearms satisfy this test (MR p. 10). The bureau denied Gilbert's permit request due to the firearm's weight, size, bulk, designed magazine capacity, configuration, and other facts. In light of the fact that § 925(d)(3) provides the Secretary with little guidance in making this determination, there are no facts to indicate that these were not proper factors for the bureau to consider in reaching its decision. Accordingly, it cannot be said that the bureau's decision was contrary to law.

3. Gilbert argues that by disregarding the statutory "generally recognized" component, the agency applied the wrong legal standard in making its decision, and this cannot be corrected by the court. Gilbert bases its argument on that portion of the bureau's decision that reads "the USAS-12 semiautomatic shotgun is not particularly suitable for or readily adaptable for sporting purposes." (Admin. Rec. p. 22). Gilbert also notes that the court may not supply a reasoned basis for any agency's action which the agency has not given. While this is true, the Supreme Court in Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973), held that if the agency fails to explain its actions so that effective judicial review is frustrated, the reviewing court must either (1) obtain from the agency, through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary, or (2) remand to the agency for further amplification. Here, the agency provided the magistrate with additional explanation of the reasons for its decision through the declarations of Edward Owen, Jr. and William Drake (MR p. 15, n. 13). The declaration of Mr. Owen included an in-depth discussion of the agency's position on the "generally recognized" component. According to Mr. Drake, the bureau takes the position that the "generally recognized" component requires both that the firearm itself or the "type" of firearm to which the subject firearm is being compared, has attained general recognition as being particularly suitable for or readily adaptable to sporting purpose, and that a particular use of a firearm has attained general recognition as having a "sporting purpose," or that an event has attained general recognition as being a "sport" before those uses and/or events can be "sporting purposes" or "sports" under § 925(d)(3) (Drake declar. p. 3). Thus, contrary to Gilbert's assertion, the "generally recognized" component was indeed utilized by the bureau in reaching its decision. The magistrate's recommendation also includes a discussion on the bureau's position regading the "generally recognized" component.

4. Gilbert argues that the magistrate gave deference to the agency's opinion of contested questions of law, whereas the deference rule only applies to contested questions of fact within the special expertise of the agency. Gilbert asserts that the issues of whether the USAS-12 is sporting and whether formal target competitions are sports, are legal questions, thus the agency's opinion of these issues was not entitled to deference. Whether these questions are deemed legal, factual or mixed questions of law, the determination of what is a sporting gun and what constitutes a sport clearly involves construction of § 925(d)(3). Generally, the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong. Florida Gas Transmission Co. v. FERC, 741 F.2d 1307, 1309 (11th Cir.1984). If the rule was otherwise, target shooting could be deemed a sport by some courts, yet not recognized as such by others. As there is nothing in the record to indicate that the bureau's construction is wrong, it is entitled to deference from this court.

5. Gilbert contends that as a matter of law, no rational basis exists in the administrative record for the agency's decision. The bureau's two denial letters were indeed short and curt as noted by the magistrate; however, the bureau provided the court with further elucidation of its reasons for denying Gilbert's application for a permit. The magistrate correctly determined that those reasons provide a rational basis for the agency's decision. The bureau determined that the USAS-12 weighed 12.4 pounds unloaded, and this weight makes the gun extremely awkward to carry for extended periods, as used in hunting, and cumbersome to lift repeatedly to fire at multiple small moving targets, as used in skeet and trap shooting (Owen declar. p. 13). The bureau also determined that the USAS-12 contains detachable magazines which permit more rapid reloading. A large magazine capacity and rapid reloading are military features, according to the bureau. The bureau also opined that the overall appearance of the weapon was radically different from traditional sporting shotguns, and strikingly similar to shotguns designed specifically for or modified for combat/law enforcement/anti-personnel use (Owen declar. p. 14). Further, the bureau determined that the activities that the USAS-12 was designed for, various police combat competitions, have not attained "general recognition" as shotgun sports. These reasons provide a rational basis for the bureau's decision. The magistrate correctly noted that it is of no moment that the administrative record might also support the opposite conclusion, as the court needs only determine that a rational basis exists for the agency's decision.

6. Gilbert argues that the magistrate's decision is based on the bureau's post hoc litigation rationalizations, and has no basis in the administrative record.

7. Gilbert also contends that the post hoc litigation affidavits relied on by the magistrate should not have been...