Cite as Oefinger v. Baker, No. 86-1396 (D.D.C. October 29, 1986) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DOUGLAS L. OEFINGER, d/b/a D.L.O. MANUFACTURING AND IMPORTING, et al., Plaintiffs, v. Civil Action Number 86-1396 JAMES A. BAKER, III, Secretary of the Treasury, et al., Defendants. MEMORANDUM This matter came before the court on defendant's motion to dismiss on a variety of jurisdictional grounds. I. Background Plaintiffs are three manufacturers and/or sellers of guns. They are challenging the validity of an amendment to the Gun Control Act, 18 U.S.C. section 921 et seq., which was enacted on May 19 of this year. The amendment provides that: (o)(1) Except as provided in paragraph (2),it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to - (A) a transfer to or by, or possession by or under the authority of, the United States or a department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. Plaintiffs filed their original complaint on may 20, 1986, one 1 day after the statute was enacted, alleging (1) that the statute is beyond the power of Congress under the Commerce clause; (2) that it usurps powers reserved to the States under the Tenth Amendment; (3) that it deprives the plaintiffs of liberty and property without due process of law in violation of the Fifth Amendment; and (4) that it infringes on the right of plaintiffs to keep and bear arms guaranteed under the Second Amendment. Plaintiffs seek both injunctive and declaratory relief from this court. First Amended Complaint paras. 13-21 at 5-7. In addition to the original plaintiffs, the National Rifle Association ("NRA") has been permitted to enter this action as plaintiff-intervenor. Oefinger v. Baker, No. 86-1396, Memorandum Order (D.D.C. Aug. 29, 1986). NRA alleges that its members are injured by the amended statute, and seeks similar relief. NRA also alleges that the statute will injure it as an entity by interfering with its ability to obtain machineguns for its museum. Complaint of NRA para. 2 at 1-2. Plaintiffs and plaintiff-intervenor allege that they have been "informed by employees of Defendants, that the Defendants will not approve the transfer to a private individual of any machinegun manufactured after the date of enactment." First Amended Complaint para. 11; Complaint of NRA, para. 11. Neither party alleges that applications for transfer have in fact been submitted and denied. The statute as amended provides criminal penalties for transfers of machineguns that are not authorized by the Gun 2 Control Act. 18 U.S.C. sections 922, 924. Plaintiffs and plaintiffintervenors do not allege that they have been threatened with prosecution under these provisions, nor do they allege any facts which would particularize their injury beyond that of any citizen whose activities might be proscribed by the Act. Defendants Secretary of the Treasury and the Director of the Bureau of Alcohol, Tobacco, and Firearms ('BATF") now move to dismiss, on the grounds (1) that plaintiffs may not enjoin a criminal statute on the facts as alleged; (2) that they have failed to allege a "case or controversy" within the meaning of Article III of the U.S. Constitution; (3) that the issue is not yet ripe for judicial action; and (4) that plaintiffs and plaintiff-intervenors lack standing. Defendants' Memorandum in Support of Motion to Dismiss at 1-3 [hereinafter "Defendants' Memorandum"]. Each of these grounds for dismissal is essentially a claim that plaintiffs' action was brought prematurely, too soon for plaintiffs to have stated a cause of action that is presently justiciable. A discussion of each of defendants' assertions follows. II. Enjoining a Criminal Statute Defendants rely on the case of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), for the principle that equity will not interfere with the enforcement of a criminal statute. The relief which plaintiffs seek is equitable in nature (declaratory and injunctive), and the statute is one which provides criminal 3 penalties for its violation. Thus under Younger, defendants argue, a pre-enforcement challenge to such a statute should not ordinarily be heard. Defendant's Memorandum at 5-10. Because defendants have not yet acted either to interpret the statute or to prosecute under it, defendants are correct that plaintiffs' action is prematurely brought. The United States Supreme Court has consistently held that it is not the task of the judiciary "to survey the statute books and pass judgment on laws before the courts are called upon to enforce them." Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 754 (1971). Instead, courts may review criminal statutes only when there are "special circumstances" warranting judicial intervention, and such circumstances are rarely presented. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209 (1974) (permitting declaratory judgment action where plaintiff handbill distributor had twice been threatened with arrest and prosecution under challenged statute, and plaintiff's companion had already been arrested); Poe v. Ullman, 367 U.S. 497, 504, 81 S.Ct. 1752, 1756 (1961) (denying equitable relief to plaintiffs challenging Connecticut ban on contraceptives, noting that "plaintiff must be immediately harmed or immediately threatened with harm" to obtain relief.). Where, as here, no enforcement action has yet begun, plaintiff must show "a genuine threat of enforcement" under a criminal statute in order to obtain relief. Steffel v. Thompson, 415 U.S. 452, 475, 94 S.Ct. 1209, 1224. This is so "whether an attack is made on the constitutionality of the statute on its 4 face or as applied." Id. At a minimum, this means that a plaintiff must allege that he has or will engage in the proscribed conduct, and that he has been threatened with sanctions. See Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752 (1961). No such allegations appear in either plaintiffs' or plaintiff-intervenor's complaints. Instead, plaintiffs allege that they, as dealers and collectors of machineguns, are among those persons who may be affected by the Gun Control Act as amended. Neither the original plaintiffs nor NRA make any allegations as to a specific transfer which they are about to or have effected which BATF has denied. There is no allegation in either complaint of the sort of "genuine threat of prosecution" which the Steffel Court held to be an essential prerequisite to relief. 415 U.S. 452, 94 S.Ct. 1209. The closest plaintiffs come to the kind of allegations that might give this court jurisdiction to pass on the validity of the Gun Control Act in-this pre-enforcement context is the allegation that: Plaintiff has been informed by defendant's employees in the National Firearms Branch of the Bureau of Alcohol, Tobacco, and Firearms of the Department of the Treasury, that the defendants will immediately enforce a "machinegun prohibition" to preclude absolutely and totally any transfer to or possession by a private individual of any machinegun manufactured after May 19, 1986. Complaint of NRA para. 24, at 8-9. See also First Amended Complaint Ill at 4. This is simply too general and too speculative a basis for attacking the statute. "[T]he mere existence of a statute, 5 regulation, or articulated policy is ordinarily not enough to sustain a judicial challenge, even by one who reasonably believes that the law applies to him and will be enforced against him according to its terms." National Student Association v. Hershey, 412-F.2d 1103, 1110 (D.C. Cir. 1969). The above discussion of the allegations necessary to invoke this court's jurisdiction to review a criminal statute is thus really a discussion of a special type of standing. The language of plaintiffs' allegations, in the future tense, as well as the absence of any allegations of immediate or past harm to the specific parties now before the court, preclude this court from taking jurisdiction under both Article III of the Constitution and the Declaratory Judgment Act, 28 U.S.C. section 2201 (incorporating Article III's "case or controversy" language). See Gladstone, Realtors v. Village of Bellwood, 441 U.S.91, 99, 99 S.Ct. 1601, 1608 (1979) (plaintiff must show "that he actually suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197 (1975) (plaintiff must show "a distinct and palpable injury to himself"). The Supreme Court in Laird v. Tatum reiterated "the established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining, a direct injury as the result of that action." 408 U.S. 1, 13, 92 S.Ct. 2318, 2325 6 (1972), quoting Ex Parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1 (1937). Even taking plaintiffs' allegations as true, as this court must do on a motion to dismiss, Doe v. Department of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985), the factual allegations which are prerequisite to this court's jurisdiction are simply lacking. Accordingly, defendants' motion to dismiss is granted. III. Ripeness Defendants assert in their motion that this action is not ripe for judicial review. Ripeness is a prudential doctrine which aids the judiciary in avoiding premature adjudication of issues in the interest of both judicial administration and protection of administrative agencies in their capacity as policymakers. It is "in part an expression of the court's inherent discretion when declaratory or injunctive relief is sought." Martin Tractor Co. v. Federal Election Commission, 627 F.2d 375, 379 (D.C. Cir. 1980). See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16 (1967); Duke Power v; Carolina Environmental Study Group, Inc., 438 U.S. 59, 81-82, 98 S.Ct. 2620, 2634-5 (1978). Thus even where a plaintiff has met the jurisdictional threshold by stating a case or controversy in his complaint, a court may still decline to hear the case until the issues have ripened sufficiently. To the extent that this case involves agency action, the ripeness doctrine is relevant. Defendants assert that there has been no final agency action with respect to the amended statute, 7 and that the court should, in the exercise of its discretion, dismiss the case.. Defendants argue that because plaintiffs have not yet filed an application to transfer a machinegun, and BATF has not yet denied such application, "the harm asserted has [not] matured sufficiently to warrant judicial intervention." Defendant's Memorandum at 16, quoting Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct- 2197, 2205 n.10 (1975). In the absence of such proceedings at the agency level, there can be no "detailed factual record upon which a court might limit, frame, and perhaps avoid a constitutional decision." Martin Tractor, 627 F.2d at 380. In light of this, defendants urge the court to dismiss the action as unripe.* It seems clear on the facts of the instant case that plaintiffs' allegations are not ripe for review. Such a finding is fully consistent with the discussion, above, of the insufficiency of plaintiffs' complaint as a pre-enforcement attack on a criminal statute. A determination of ripeness requires the court to "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of witholding court consideration.' Abbott Laboratories v. Gardner, 387 U.S. at 149, 87 S.Ct. at 8 1515. The first prong of the Abbott Labs test permits the court to consider any institutional interests that either the court.or the agency may have for postponing judicial review. State Farm Mutual Automobile Insurance Co. v. Dole, No. 84-1301, Slip Op. at 10 (D.C. Cir. Sept. 18, 1986). In this case, strong factors militate in favor of postponement. As discussed above, plaintiffs have not alleged past or immediate injury, nor have they alleged threats of prosecution under the statute. They have not presented the court with a case or controversy that it may constitutionally adjudicate, nor one that the court could narrowly decide upon a detailed factual record. Thus, institutional interests of the judiciary counsel against adjudication based upon the allegations as set forth in the complaint. It is important to stress that plaintiffs' challenges to the statute are exclusively on constitutional grounds. To adjudicate such cases there must be a "concrete factual setting that sharpens the deliberative process especially demanded for constitutional decision." Martin Tractor, 627-F.2d at 380, quoting U.S. v. U.A.W., 352 U.S. 567, 591, 77 S.Ct 529, 541 (1957). Where that setting is lacking, the court should refrain from adjudication. As to the second prong of the Abbott Labs test, plaintiffs have not alleged facts indicating that delay would pose a hardship for them. Unlike plaintiffs in the Abbott Labs case, who were compelled by defendant agency's action to change their 9 conduct immediately, affirmatively, and at great expense, see 387 U.S. at 152-153, 87 S.Ct. at 1517, plaintiffs here have alleged no such immediate harm. Accordingly, this action should be dismissed as unripe for this court's review. IV. Conclusion For the above reasons, dismissal is proper: plaintiffs ask that this court rule not on the statute as interpreted or applied by BATF to their injury, but rather on the statute on its face, before anyone has been made subject to its terms. This is beyond the permissible and appropriate task of the judiciary, and their motion for an evidentiary hearing should accordingly be denied. An appropriate Order accompanies this Memorandum. [signed, Thomas A. Flannery] United States District Judge 10 FOOTNOTES * Defendants had initially contended that there was no final agency action suitable for judicial review, but have since conceded that BATF's interpretation of the challenged statute has crystallized. Defendants' Reply to Plaintiffs' Opposition at 9. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DOUGLAS L. OEFINGER, d/b/a D.L.O. MANUFACTURING AND IMPORTING, et al., Plaintiffs, v. Civil Action Number 86-1396 JAMES A. BAKER, III, Secretary of the Treasury, et al., Defendants. ORDER This matter came before the court on defendant's Motion to Dismiss. For the reasons stated in the accompanying Memorandum, after consideration of the defendant's Motion, the oppositions thereto, and the entire record herein, it is by the court this 29th day of October, 1986 ORDERED that Defendant's Motion for a Protective Order is denied; and it is further ORDERED that the Motion of plaintiff-intervenor the National Rifle Association for Discovery and an Evidentiary Hearing is denied; and it is further ORDERED that defendant's Motion to Dismiss is granted; and it is further ORDERED that this action be, and hereby is, dismissed. [signed, Thomas A. Flannery] United States District Judge 1