IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA KENNETH W. DAVIS, JR., Plaintiff, vs. CIVIL NO. 75-C-356 ERNST ERDMANN, PORT DIRECTOR, (PORT OF TULSA, OKLAHOMA) BUREAU OF CUSTOMS, DEPARTMENT OF THE TREASURY, and REX D. DAVIS, DIRECTOR, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DEPARTMENT OF THE TREASURY, Defendants. BRIEF IN SUPPORT OF MOTION TO DISMISS The petitioner has brought this action in the nature of mandamus alleging jurisdiction pursuant to 28 U.S.C. section 1361 to compel defendants to perform a duty owed to the plaintiff. In the alternative, petitioner asserts that this action is brought pursuant to 5 U.S.C. section 702 to obtain judicial review of agency action which adversely affected and aggrieved him. The facts, about which there will be little dispute, are that on October 18, 1973, petitioner submitted a Form 6 (Firearms), Application and Permit for Importation of Firearms, Ammunition and Implements of War, to the Bureau of Alcohol, Tobacco and Firearms requesting permission to import a .22 caliber knife-pistol manufactured by the United States Small Arms Company. On October 31, 1973, petitioner's application was denied and returned to petitioner accompanied by the Bureau's letter on November 26, 1973, explaining the basis of the denial. By letter dated December 7, 1973, petitioner requested information as to why his application to import the .22 caliber knife-pistol was denied, and asked for reconsideration of his application. By telegram dated January 15, 1974, petitioner [new page] requested prompt action on his application. The Bureau, by letter dated January 29, 1974, informed the petitioner of the basis of the denial of his application to import the .22 caliber knife-pistol, and informed him that his application could not be approved as the firearm was a National Firearms Act firearm as defined in 26 U.S.C. section 5845 and thus prohibited by the Gun Control Act of 1968 from being imported. By letter dated February 6, 1974, petitioner requested information relative to the knife-pistol. Petitioner, by telegram dated April 11, 1974, requested response to his letter of February 6, 1974. The Bureau responded by letter dated April 22, 1974, indicating that the requested information could not be furnished. By letters dated April 29, 1974, and April 30, 1974, petitioner requested a review of the classification of the knife- pistol as a National Firearms Act firearm and included several exhibits which he felt supported reclassification. The Bureau responded, by letter dated June 7, 1974, indicating why the knife-pistol manufactured by the United States Small Arms Company could not be removed ("reclassified") from the purview of the National Firearms Act. By letter dated June 13, 1974, petitioner requested explanation of certain items in the Bureau's June 7, 1974, letter and requested the statutory authority upon which the denial of the importation application was based. The Bureau responded, by letter dated August 26, 1974, advising the petitioner of the statutory authority for the application denial. By letter dated October 14, 1974, Mr. Robert S. Travis, attorney for petitioner, requested clarification of the basis of the Bureau's disapproval of the application to import the knife- pistol and also submitted a request for a classification of the knife-pistol as not under the National Firearms Act and asked that his letter be treated as a resubmission of the application for importation of the knife-pistol. The Bureau responded by letter dated December 10, 1974, disapproving the application to import the knife-pistol, explaining the basis of the -2- disapproval, and explaining why the knife-pistol could not be removed from the purview of the National Firearms Act. The statutes pertinent to this matter are 18 U.S.C. section 921 (a) (3) which provides: "The term 'firearm' means (A) any weapon...which will or is designed to or may readily be converted to expel a projectile by the action of any explosive; *** 18 U.S.C. section 922(l): "Except as provided in section 925(d) of this chapter, it shall be unlawful for any person knowingly to import or bring into the United States or any possession thereof any firearm or ammunition; and it shall be unlawful for any person knowingly to receive any firearm or ammunition which has been imported or brought into the United States or any possession thereof in violation of the provisions of this chapter." 18 U.S.C. section 925(d): "The Secretary may authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the person importing or bringing in the firearm or ammunition establishes to the satisfaction of the Secretary that the firearm or ammunition-- (1) is being imported or brought in for scientific or research purposes, or is for use in connection with competition or training pursuant to chapter 401 of title 10; (2) is an unserviceable firearm other than a machinegun as defined in section 5845(b) of the Internal Revenue Code of 1954 (not readily restorable to firing condition), imported or brought in as a curio or museum piece; (3) is of a type that does not fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1954 and is generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms; or (4) was previously taken out of the United States or a possession by the person who is bringing in the firearm or ammunition. ***." 26 U.S.C. section 5845(a): "For the purposes of this chapter--... The term 'firearm' means *** (5) any other weapon, -3- as defined in subsection (e); ***. 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 or his delegate finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon." 26 U.S.C. section 5845(e): "The term 'any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or revolver having a rifled bore,...." 26 U.S.C. section 5844: "No firearm shall be imported or brought into the United States or any territory under its control or jurisdiction unless the importer establishes, under regulations as may be prescribed by the Secretary or his delegate, that the firearm to be imported or brought in is-- (1) being imported or brought in for the use of the United States or any department, independent establishment, or agency thereof or any State or possession or any political subdivision thereof; or (2) being imported or brought in for scientific or research purposes; or (3) being imported or brought in solely for testing or use as a model by a registered manufacturer or solely for use as a sample by a registered importer or registered dealer; ***." The regulations pertinent to the matter are 27 C.F.R. section 178.113(a) which provides: "*** Therefore, no firearm or ammunition shall be imported or brought into the United States or a possession thereof by any licensee other than a licensed importer unless the Director issues a permit authorizing the importation of the firearm or ammunition." 27 C.F.R. section 178.113(b): "An application for a permit, Form 6 (Firearms), to import or bring a firearm or -4- ammunition into the United States or a possession thereof by a licensee, other than a licensed importer, shall be filed, in triplicate, with the Director [Bureau of Alcohol, Tobacco and Firearms]. *** If the Director approves the application, such approved application shall serve as the permit to import the firearm or ammunition described therein. The Director shall furnish the approved application (permit) to the applicant and retain two copies thereof for administrative use. If the Director disapproves the application, the applicant shall be notified of the basis for the disapproval." 27 C.F.R. section 178.113(c): "A firearm or ammunition imported or brought into the United States or a possession thereof under the provisions of this section may be released from Customs custody to the licensee importing the firearm or ammunition upon his showing that he has obtained a permit from the Director for the importation." 27 C.F.R. section 179.111(a): "No firearm shall be imported or brought into the United States...unless the person importing or bringing in the firearm establishes to the satisfaction of the Director that the firearm to be imported or brought in is being imported or brought in for: (1) The use of the United States or any department, independent establishment, or agency thereof or any State or possession or any political subdivision thereof; or (2) Scientific or research purposes; or (3) Testing or use as a model by a registered manufacturer or solely for use as a sample by a registered importer or registered dealer. The burden of proof is affirmatively on any person importing or bringing the firearm into the United States...to show that the firearm is being imported or brought in under one of the above subparagraphs. Any person desiring to import or bring a firearm into the United States under this paragraph shall file with the Director an application on Form 6 (Firearms)***. The person seeking to import or bring in the firearm will be notified of the approval or disapproval of his application. *** Customs officers will not permit release of a firearm from Customs custody, -5- except for exportation, unless covered by an application which has been approved by the Director and which is currently effective. ***." 27 C.F.R. section 179.111(b): "Part 178 of this chapter also contains requirements and procedures for the importation of firearms into the United States. A firearm may not be imported into the United States under this part unless those requirements and procedures are also complied with by the person importing the firearm." 27 C.F.R. section 179.25: "The Director shall determine in accordance with section 5845(a), I.R.C., whether a firearm or device, which although originally designed as a weapon, is by reason of the date of its manufacture, value, design, and other characteristics primarily a collector's item and is not likely to be used as a weapon. ***." We believe the Complaint is subject to a motion for dismissal on several grounds. First, there is no jurisdiction under which an action in mandamus can be based in this matter as the Director, Bureau of Alcohol, Tobacco and Firearms, has already performed the statutory duty owed to the petitioner in denying the application to import the knife-pistol. This action in mandamus is rather, an attempt by petitioner to obtain judicial review of the Director's determination that the knife-pistol cannot be removed from the purview of the National Firearms Act. This determination is a discretionary act on the part of the Director for which an action in mandamus may not lie. Second, judicial review under 5 U.S.C. section 702 of the Director's refusal to remove the knife-pistol from the purview of the National Firearms Act is precluded under 5 U.S.C. section 701(a)(2) as this agency action is committed to agency discretion by law. The petitioner filed a Form 6 (Firearms), application for a permit to import a .22 caliber knife-pistol, manufactured by the U.S. Small Arms Company, on October 18, 1973. This application was denied on October 31, 1973. From this date until -6- December 10, 1974, the petitioner has corresponded with the Bureau of Alcohol, Tobacco and Firearms (hereinafter referred to as the Bureau) on several occasions indicating why he felt the knife- pistol should be allowed to be imported. The Bureau responded to each of the petitioner's letters and set forth the basis of the original denial. The Bureau's letter of December 10, 1974, which treated petitioner's October 14, 1974, letter as a resubmission of his application to import the knife-pistol, again denied the application and set out at length the basis for this denial. Briefly, the basis for the denial of petitioner's application to import the knife-pistol was that the firearm did not meet one of the statutory requirements in 26 U.S.C. section 5844 for importation. The knife-pistol is a "firearm" as that term is defined in section 921(a) (3) of Title I of the Gun Control Act of 1968, Chapter 44, Title 18, U.S.C., and is also a "firearm" as that term is defined in section 5845(a) of the National Firearms Act (as amended by Title II of the Gun Control Act of 1968), Chapter 53, Title 26, U.S.C. The knife-pistol must, therefore, meet the importation requirements of both Chapter 44 and Chapter 53. Although the knife-pistol may be considered a "curio or relic" as defined in the regulations implementing Chapter 44 (Title 27, C.F.R., Part 178) such as to be a "curio or museum piece" which is importable if unserviceable under Chapter 44, it does not meet the requirements for importation provided in Chapter 53 (26 U.S.C. section 5844). The petitioner's reliance on 28 U.S.C. section 1361 is ill-founded as there is no basis for the issuance of mandamus in this matter. Section 1361 provides jurisdiction for the district court to compel an officer of any agency of the United States to perform a duty owed to the plaintiff. To qualify for importation, the knife-pistol in question had to meet the requirements specified in both 18 U.S.C. section 925(d) and 26 U.S.C. section 5844. The knife-pistol did not meet the requirements of section 5844 of the National Firearms Act for -7- importation and the Director properly denied the application and informed the petitioner of the denial and the basis therefor. The Director has, therefore, clearly performed the duty he owed the Petitioner by denying the application. We believe petitioner actually attempts in this action to seek judicial review of the Director's decision that the knife- pistol cannot be removed from the purview of the National Firearms Act at this time. Section 5845(a) of the Act and 27 C.F.R. section 179.25 authorize the Director to remove from the purview of the Act those firearms which, although designed as a weapon, the Director finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon. These provisions vest total discretion in the Director to determine which firearms may be removed from the purview of the National Firearms Act. The Director evaluated the .22 caliber knife-pistol manufactured by U.S. Small Arms Company, including the information furnished by petitioner in his various correspondence with the Bureau, and determined that the knife-pistol would be likely to be used as a weapon if removed from the purview of the National Firearms Act, and further determined that the knife-pistol could not be considered to be primarily a collector's item as the knife-pistol could be easily duplicated and counterfeited and is not readily distinguished from other knife pistols as there are many .22 caliber knife-pistols manufactured by the U.S. Small Arms Company without serial numbers and other distinguishing marks. Section 1361 gives the district courts jurisdiction only where mandamus is available under the general principles of law. Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1969). "Mandamus is proper only to command an official to perform a ministerial act. *** [citing cases) An act is ministerial only if it is a positive command and so plainly prescribed as to be free from doubt." United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1960). Mandamus "cannot be -8- used to compel or control a duty in the discharge of which by law...[an official]...is given discretion." Work v. United States Ex. Rel. Rives, 267 U.S. 175 (1925). Generally, judicial review of agency action in a mandamus proceeding is limited to determining if the action was capricious or arbitrary. Hall v. Payne, 254 U.S. 343. In this matter, the Director did not owe the petitioner a duty to allow importation of the firearm or to remove the knife-pistol from the purview of the National Firearms Act. Nor did the Director's judgment in denying importation and refusing to remove the knife-pistol from the purview of the National Firearms Act go "so far beyond any rational exercise of discretion as to call for mandamus." Casarino v. United States, 431 F.2d 775 (2d Cir. 1970). See also: Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973), cert. denied, 412 U.S. 949 (1973). Mandamus does not grant jurisdiction to the courts to control the substance of a decision absent a showing that the decision was arbitrary, capricious or beyond any rational exercise of the official's discretion. Smith v. United States Air Force, 280 F. Supp. 478 (D.C. Penn. 1968); Hill v. United States Bd. of Parole, 257 F. Supp. 129 (D.C. Penn. 1966). Clearly, the Director acted within his authority in refusing to remove the knife-pistol from the purview of the National Firearms Act and his action was not arbitrary and capricious but based upon an evaluation of the firearm involved and the statutory guidance provided for removal found in 26 U.S.C. section 5845(a). The district court, therefore, has no jurisdiction under 28 U.S.C. section 1361 to consider this matter. The district court does not have jurisdiction under 5 U.S.C. section 702 to review the denial of the application of petitioner to import the knife-pistol. Chapter 7 of Title 5, U.S.C., hereinafter referred to by its popular name, the Administrative Procedure Act, merely establishes guidelines for review rather than being a grant of jurisdiction to the courts to review agency action. Barnes v. United States, 205 F. Supp. 97 (D.C. Mont. 1962); Ove Guftavsson Contracting Co. v. Floebe, 278 -9- F.2d 912 (2d Cir 1960). The Administrative Procedure Act "is not a blanket grant of jurisdiction to the Federal District Courts to review all agency action." Sugarman v. Forbragd, 267 F. Supp. 817, (D.C. Calif. 1967), aff'd, 405 F.2d 1189 (9th Cir. 1968), cert. denied, 395 U.S. 960 (1969). Further, the Administrative Procedure Act itself in section 701(a)(2) specifically excludes from judicial review agency action "committed to agency discretion by law." Thus, where agency action is by law committed to agency discretion, the provisions of the Administrative Procedure Act providing for judicial review are inapplicable. United States v. Walker 409 F.2d 477 (9th Cir. 1969). For similar holdings, see also: Luckenbach Steamship Co. v. United States, 179 F. Supp. 605 (D.C. Del. 1959), aff'd in part, vacated in part on other grounds 364 U.S. 280 (1960); Sellers v. Kirk, 200 F.2d 217 (9th Cir. 1952), cert. denied, 345 U.S. 940 (1953); Lehr v. United States, 139 F.2d 919 (5th Cir. 1943); Shilling v. Rogers, 363 U.S. 666 (1960); Panama Canal Co. v. Grace Lines Inc., 356 U.S. 309 (1958). There need not be an express statement that agency action is committed to agency "discretion" for judicial review to be precluded. "Where the overall statutory scheme indicates discretion on the part of an administrator, it is committed to the discretion of the officer or agency within the meaning of the statute." Gregory Electric Co. v. United States Department of Labor, 268 F. Supp. 987, 991 (D.C. S.C. 1967), citing Panama Canal Company v. Grace Lines, Inc., 356 U.S. 309 (1958). Chapter 44 of Title 18, U.S.C., in section 925(d) provides, "The Secretary may authorize a firearm ... to be imported." (Emphasis added). This language clearly vests discretionary authority in the Secretary and his delegate, the Director, Bureau of Alcohol, Tobacco and Firearms. See: United States v. Walker 409 F.2d 477 (9th Cir. 1960). We feel the Secretary's discretionary power to allow importations of firearms is the same as the discretionary power given the Secretary to allow remission or mitigation of penalties (19 U.S.C. section 1618 which reads -10- in part, "... the Secretary of the Treasury, if he finds [stating general conditions) ..., may remit or mitigate ....). Action by the Secretary under section 1618 has been held judicially unreviewable by the courts from which review has been sought. United States v. One 1957 Buick Roadmaster, 167 F. Supp. 597 (D.C. Mich. 1958); United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964); Associates Investment Co. v. United States, 220 F.2d 885 (5th Cir. 1955); United States of America v. One 1971 Buick Riviera, et al., 463 F.2d 1168 (5th Cir. 1972), cert. denied, 409 U.S. 980 (1972). Petitioner seeks to reach by this action a judicial review of the Director's refusal to remove the .22 caliber knife-pistol manufactured by U.S. Small Arms Company from the purview of the National Firearms Act. The authority granted the Secretary of the Treasury and his delegate in 26 U.S.C. section 5845(a) to remove a firearm from the Act is totally discretionary and was a recognition on the part of Congress of the particular expertise of the Secretary and his delegate in such matters. The action taken by the Director is, therefore, agency action committed to agency discretion by law, as provided in 5 U.S.C. section 701(a)(2), and precluded from judicial review. (See aforementioned supporting case law). Assuming arguendo, that jurisdiction does lie for review of this agency action, such review would be limited to a determination of whether the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. (5 U.S.C. section 706(2)(A)). The United States Supreme Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1970), stated, "To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. ... [citing cases] ... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. *** the final -11- inquiry is whether the Secretary's action followed the necessary procedural requirements." Generally, the test of whether agency action was "arbitrary and capricious" is whether the action taken was reasonable under the circumstances--that is, was the action taken without reason. "Only if the administrative decision is so clearly erroneous that it has no rationally supportable basis may the court rule that it is arbitrary and capricious." Daly v. Volpe, 350 F. Supp. 252 (D.C. Wash. 1972). It is further well held that in order to warrant judicial interference, the unreasonableness or unlawfulness of the administrative action must be so clearly established as to show that the action was taken maliciously and in bad faith. Turner v. United States, 56 F. Supp. 798 (D.C. N.C. 1944), aff'd, 323 U.S. 674 (1944); Groghan v. United States, 89 F. Supp. 1002 (Ct. Cl. 1950), cert, denied, 340 U.S. 854 (1950). Where a court finds there is a rational basis for the conclusions of the administrative agency, then the judicial function is exhausted. DiCostanzo v. Willard, 165 F. Supp. 533 (D.C. N.Y. 1958). We believe that there is clearly shown a reasonable basis for denying petitioner's application for importation and also a reasonable basis for refusing to remove the knife-pistol from the purview of the National Firearms Act. This agency action cannot, therefore, be classified as arbitrary and capricious, nor is there any indication of a "clear error of judgment." Absent a clear showing of bad faith or improper behavior, the court should not inquire or speculate on the motivations or mental processes of the decisionmakers. United States v. Morgan, 313 U.S. 409 (1941); see also: Gaines v. Martinet, 393 F. Supp. 780 (N.D. Texas 1972). UNITED STATES OF AMERICA NATHAN G. GRAHAM United States Attorney ROBERT P. SANTEE Assistant United States Attorney November 18, 1975.