IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROBERT I. LANDIES ) 327 Allynd Boulevard ) Chardon, Ohio 44024, and ) ) NUARMCO, LIMITED ) 366 Main Street ) Staten Island, New York 10307, ) ) Plaintiffs ) ) v. ) CIVIL ACTION NO. ) JOHN W. MAGAW, Director, ) 95-CV-476 (LFO) Bureau of Alcohol, Tobacco ) and Firearms ) [Filed 3/9/95] U.S. Department of the ) Treasury ) 650 Massachusetts Avenue, N.W. ) Washington, D.C. 20226, and ) ) UNITED STATES OF AMERICA, ) ) Defendants. ) COMPLAINT FOR REVIEW OF AGENCY ACTIONS UNDER THE ADMINISTRATIVE PROCEDURE ACT, FOR DECLARATORY JUDGMENTS, AND FOR WRITS OF MANDAMUS Now come the plaintiffs, Robert I. Landies and Nuarmco, Limited, and for their causes of action state as follows: 1. This is an action for review of agency actions under the Administrative Procedure Act, for declaratory judgments, and for writs of mandamus to compel the Bureau of Alcohol, Tobacco and Firearms (hereafter "BATF") to permit the importation of certain firearms and firearms magazines. Parties 2. The plaintiff, Robert I. Landies, doing business as Collector's Corner, is a duly licensed federal firearms dealer, importer and manufacturer under 18 U.S.C. section 923, a special occupational taxpayer under 26 U.S.C. section 5801, and a duly registered importer of U.S. Munitions Import List articles under Section 38 of the Arms Export Control Act of 1976, 22 U.S.C. section 2778. Plaintiff Landies' principal place of business is located at 327 Allynd Boulevard, Chardon, Ohio 44024. 3. The plaintiff, Nuarmco, Limited, a New York corporation, is a duly licensed federal firearms dealer and importer under 18 U.S.C. section 923, and a duly registered importer of U.S. Munitions Import List articles under Section 38 of the Arms Export Control Act of 1976, 22 U.S.C. section 2778. Plaintiff, Nuarmco, Limited, is a closely-held Subchapter S corporation whose shares are not publicly held and whose principal place of business is located at 366 Main Street, Staten Island, New York 10307. 4. The defendant, John W. Magaw, is the Director of the BATF, an agency of the United States Department of the Treasury, and is a duly authorized delegate of the Secretary of the Treasury pursuant to Treasury Decision Delegation Order 221 of July 1, 1972, 37 Federal Register 11696 (July 28, 1972), with offices at 650 Massachusetts Avenue, Northwest, Washington, D.C. 20226, within the jurisdiction of the Court. The defendant, John W. Magaw, exercises executive authority over the BATF and is responsible for all actions, failures to act, and refusals to act by the officers, agents and employees of BATF within the scope of their official duties. 5. The defendant, United States of America, is a body politic and the national sovereign and may be found within the jurisdiction of this Court. Jurisdiction 6. The jurisdiction of the Court is found in Article III, Section 2 of the United States Constitution and in 28 U.S.C. section 1331, in that this is a case arising under the Constitution and laws of the United States and is a controversy to which the United States is a party; in 5 U.S.C. section 702 in that judicial review is sought of wrongful acts, failures to act, and refusals to act by an agency, and officers and employees thereof, of the United States; in 28 U.S.C. section 2201 in that declaratory judgments are sought; and in 28 U.S.C. section 1361 in that writs of mandamus are sought to compel officers or employees of the United States to perform duties owed to the plaintiffs. Venue 7. Venue for this action is proper in this Court by virtue of the provisions of 28 U.S.C. section 1391(e). COUNT ONE 8. Paragraphs 1 through 7, above, are realleged and incorporated herein by reference. 9. On or about June 8, 1994, the plaintiff, Robert I. Landies, contracted for and purchased approximately 15,000 firearms magazines from a company located in Israel. 10. On or about June 29, 1994, plaintiff Landies submitted to BATF a BATF Form 6, "Application and Permit for Importation of Firearms, Ammunition and Implements of War," seeking authorization to import the firearms magazines described in paragraph 9, above. 11. On or about July 15, 1994, plaintiff Landies' BATF Form 6 was approved by Carmen L. Lewis, Chief of BATF's Firearms and Explosives Imports Branch, and a delegate of the defendant, John W. Magaw. Import approval was necessary because firearms magazines are defined as "implements of war" by the Arms Export Control Act of 1976, 22 U.S.C. section 2778. 12. After approval of his BATF Form 6, plaintiff Landies had the firearms magazines shipped from Israel to Cleveland, Ohio, where they arrived on or about November 1, 1994. 13. At the port of Cleveland, Ohio, the United States Customs Service, an agency of the defendant United States of America, refused to permit entry of the firearms magazines into the United States, based upon a prohibitory general directive issued by the defendant, John W. Magaw, as Director of BATF. 14. BATF's refusal to permit entry of firearms magazines was purportedly to enforce compliance with Section 110103 of the Violent Crime Control and Law Enforcement Act of 1994, Public Law No. 103-322, 108 Stat. 1796, 2125 (1994) (amending Sections 921 and 922 of Title 18 of the United States Code), which became effective on September 13, 1994. 15. Plaintiff Landies was given the alternatives by the Customs Service of either re-exporting the magazines (he had no place to export them to), destroying them, or placing them in temporary (30-day) bond with the Customs Service, where the accumulation of daily demurrage fees would have quickly exceeded the value of the goods. The Customs Service disavowed its own agency authority to permit the magazines to be stored in a bonded warehouse while the matter was resolved. However, intercession by BATF caused the Customs Service to permit storage in a bonded warehouse where the magazines are presently in the technical custody and control of the defendant, the United States. 16. Prior to September 13, 1994, firearms magazines and other firearms ammunition feeding devices physically located within the United States were not subject to any prohibition, regulation or control under federal law. Their importation into the United States was governed by the Arms Export Control Act of 1976, 22 U.S.C. section 2778, which required the importer's registration as an importer of "U.S. Munitions Import List Articles." 17. On September 13, 1994, the Violent Crime Control and Law Enforcement Act of 1994, Public Law No. 103-322, 108 Stat. 1796, 2125 (1994), became effective. Section 110103 of the Act amended Section 922 of Title 18 of the United States Code by adding a section banning the transfer or possession of "large capacity ammunition feeding device[s]." (18 U.S.C. section 922(w)(1).) A large capacity ammunition feeding device is defined by the Act as "a magazine, belt, drum, feed strip, or similar device manufactured after the date of enactment of the Violent Crime Control and Law Enforcement Act of 1994 that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition." (18 U.S.C. section 921(a)(31); emphasis added). 18. As is manifest from the plain language of the statutory definition of "large capacity ammunition feeding device," plaintiff Landies' magazines are not within the purview of the Act, having been manufactured long before the effective date of the Act, and, indeed, having been legally acquired and approved for import before the effective date of the Act. 19. Alternatively, on September 13, 1994, the effective date of the Violent Crime Control and Law Enforcement Act of 1994, plaintiff Landies' magazines were already in his constructive possession by virtue of the fact that they were his sole property and were in the custody of his agents for the purpose of being transported to him. The Act, therefore, does not bar his lawful possession of the magazines. 20. Beginning in November 1994 and continuing to the present, the defendant, John W. Magaw, through his authorized delegates, has been requested to release the plaintiff's magazines from custody. The defendant, John W. Magaw, has failed and refused to act in any manner with respect to plaintiff Landies' magazines, or, on information and belief, with respect to those of all other importers in similar circumstances. Defendant's failure to act is a constructive revocation of plaintiff Landies' duly authorized import permit and constitutes a taking of property without due process of law. 21. The defendant, John W. Magaw, has arbitrarily and capriciously and without foundation in law or fact or reason, prevented the entry into the United States of all firearms ammunition feeding devices, including those which clearly fall outside the purview of the Violent Crime Control and Law Enforcement Act of 1994 because of their preexistence to that Act. This refusal to act has continued through the date of filing of this complaint. COUNT TWO 22. Paragraphs 1 through 7, above, are realleged and incorporated herein by reference. 23. In approximately May of 1993 plaintiff Nuarmco, Limited, purchased a 90 millimeter cannon from a company in Israel. The cannon was to be rendered unserviceable by the plaintiff Nuarmco, Limited, before importation into the United States by complying with the requirements of formal written guidance from BATF dated July 7, 1977. 24. On or about May 21, 1993, plaintiff Nuarmco, Limited, submitted to BATF a BATF Form 6, "Application and Permit for Importation of Firearms, Ammunition and Implements of War," seeking authorization to import the unserviceable cannon described in paragraph 23, above, as a curio. Import approval was necessary because cannons are defined as "implements of war" by the Arms Export Control Act of 1976, 22 U.S.C. section 2778. 25. Curios are defined in Section 178.11 of Title 27 of the Code of Federal Regulations as "Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories: "(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof; "(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; and "(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less." 26. On or about June 3, 1993, plaintiff Nuarmco, Limited's BATF Form 6 was approved by Carmen L. Lewis, Chief of BATF's Firearms and Explosives Imports Branch, and a delegate of the defendant, John W. Magaw. 27. In approximately July of 1993 plaintiff Nuarmco, Limited, purchased four more cannons (one 76mm, one 85mm, one 90mm and one 122mm) from the same company in Israel. The cannons were to be rendered unserviceable by complying with the requirements of formal written guidance from BATF dated July 7, 1977. 28. On or about July 18, 1993, plaintiff Nuarmco, Limited, submitted to BATF a BATF Form 6, "Application and Permit for Importation of Firearms, Ammunition and Implements of War," seeking authorization to import the four unserviceable cannons described in paragraph 27, above, as curios. 29. On or about September 7, 1993, plaintiff Nuarmco, Limited's BATF Form 6 was approved for "conditional importation" by A. Virginia Alford, acting for Carmen L. Lewis, Chief of BATF's Firearms and Explosives Imports Branch, and a delegate of the defendant, John W. Magaw. The cover letter returning the plaintiff's "approved" BATF Form 6 stated that "[i]n order for the cannons to be imported, the complete breechrings/receivers must be severed (cut) off. The rest of the cannon parts may then be imported. The destruction of the breechrings/receivers must be accomplished prior to importation. The breechrings/ receivers must be left in the foreign country." 30. When plaintiff Nuarmco, Limited, protested that this destruction as a condition of importation was contrary of BATF's previous written guidance of July 7, 1977, and inconsistent with the importation approval received on June 3, 1993, with respect to the first cannon, it was informed by letter dated September 27, 1993, that the first approval was in error and was being cancelled. 31. BATF's position was and is that rendering the cannons unserviceable pursuant to its written guidance of July 7, 1977, sufficed to remove the weapons from the purview of the National Firearms Act of 1934 (that is, as "destructive devices"), but that the cannons still constitute "firearms" for purposes of the Gun Control Act of 1968, and are ineligible for importation under that statute because they are "surplus military firearms" not "generally recognized as particularly suitable for or readily adaptable to sporting purposes," under 18 U.S.C. section 925(d)(3). 32. Plaintiff Nuarmco, Limited, contended in a series of communications to BATF commencing in October 1993 that the unserviceable cannons were importable under the authority of 18 U.S section 925(d)(2) which provides in pertinent part that "the Secretary shall authorize a firearm ... to be imported ... into the United States ... if the firearm ... is an unserviceable firearm ... imported or brought in as a curio or museum piece." 33. By letter dated October 12, 1994, a year later, BATF denied permission to import the unserviceable cannons under the authority of 18 U.S.C. section 925(d)(2) because "the statute has not been applied to authorize the importation of firearms for sale in ordinary commercial channels. ATF would approve a Form 6 for importation of the cannon if you can establish that it is of historical interest and is being imported pursuant to a purchase order of a museum acquiring the weapon for display." 34. The defendant, John W. Magaw, and his officers, agents and employees, have continued to deny the plaintiff, Nuarmco, Limited, permission to import the unserviceable cannons at issue through the date of filing of this complaint. On information and belief the defendant Magaw, and his officers, agents and employees have denied and are denying permission to import unserviceable military curios to all other applicants. 35. The unserviceable cannons sought to be imported by plaintiff Nuarmco, Limited, are curios as defined by 27 C.F.R. section 178.11 by virtue of their age or their novelty and rarity, or both. 36. BATF's refusal to permit importation of the unserviceable cannons at issue is arbitrary and capricious and without foundation in law or fact. Defendant, John W. Magaw, has illegally, arbitrarily and capriciously altered the plain meaning of a statute by adding an unwritten condition which Congress did not impose or require. Such action denies the plaintiff, Nuarmco, Limited, and all others similarly situated due process of law. WHEREFORE, plaintiffs, Robert I. Landies and Nuarmco, Limited, pray the Court to: 1. Review the actions of the Bureau of Alcohol, Tobacco and Firearms, and its Director, John W. Magaw, in refusing to permit the entry into the United States of firearms ammunition feeding devices which are clearly outside the purview of the ban imposed by the Violent Crime Control and Law Enforcement Act of 1994, and in refusing to permit the importation of unserviceable curio cannons under 18 U.S.C. section 925(d)(2) without imposing conditions not authorized by Congress. 2. Enter a declaratory judgment declaring that the actions of the Bureau of Alcohol, Tobacco and Firearms, and its Director, John W. Magaw, in refusing to permit the entry into the United States of firearms ammunition feeding devices which are clearly outside the purview of the ban imposed by the Violent Crime Control and Law Enforcement Act of 1994, are arbitrary and capricious and without foundation in law. 3. Enter a declaratory judgment declaring that the actions of the Bureau of Alcohol, Tobacco and Firearms, and its Director, John W. Magaw, in refusing to permit the entry into the United States of unserviceable curio cannons pursuant to 18 U.S.C. section 925(d)(2), are arbitrary and capricious and without foundation in law. 4. Issue a writ of mandamus compelling the defendant, John W. Magaw, and all other officers and agents of the Bureau of Alcohol, Tobacco and Firearms, to release the plaintiff Landies' firearms magazines from the custody and control of the United States Customs Service, and permitting the lawful importation of all firearms ammunition feeding devices whose manufacture predates the effective date of the Violent Crime Control and Law Enforcement Act of 1994. 5. Issue a writ of mandamus compelling the defendant, John W. Magaw, and all other officers and agents of the Bureau of Alcohol, Tobacco and Firearms, to permit the importation into the United States of unserviceable curio cannons under 18 U.S.C. section 925(d)(2) without conditions not imposed or authorized by Congress. 6. Award the plaintiffs' their reasonable attorneys' fees and costs. 7. Grant such other and further relief as is just and proper. JAMES H. JEFFRIES, III (North Carolina Bar No. 18502) 3019 Lake Forest Drive Greensboro, North Carolina 27408 Telephone: (910) 282-6024 ROBERT E. SANDERS (D.C. Bar No. 382566) 7125 Sixteenth Street, Northwest Washington, D.C. 20012 Telephone: (202) 723-2998 Counsel for Plaintiffs [Note: After this suit was filed the Department of Justice conceded that the magazines were legally importable and the suit was dismissed. The suit caused BATF to change its official position on large-capacity pre-ban magazines sought to be imported and resulted in the issuance of new regulations to permit their importation.]