Cite as Steele v. N.F.A. Branch, No. 82-2013-CIV (S.D.Fla. March 28, 1983), remanded, 755 F.2d 1410 (11th Cir. 1985). UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA EUGENE STEELE, Plaintiff, vs. NATIONAL FIREARMS ACT BRANCH, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, et al., Defendants. CASE NO. 82-2013-Civ-SMA ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS THIS MATTER comes before the Court upon the Motion to Dismiss filed by federal defendants in this action. The Court has reviewed the record, consulted the applicable law, examined the submissions of the parties, and being otherwise fully advised in the premises, it is accordingly ORDERED AND ADJUDGED that the Motion to Dismiss be, and the same is, hereby GRANTED as to all federal Defendants. Plaintiff Eugene Steele is a federally licensed firearms dealer, authorized to sell National Firearms Act weapons pursuant to Title 26, United States Code, Section 5801 et seq. National Firearms Act weapons are defined as short-barreled rifles, short- barreled shotguns, and machine guns. 26 U.S.C. section 5845 (1980). He has filed this action for declaratory judgment, pursuant to Title 28, United States Code, Section 2201, requesting this Court to determine that certain law enforcement certification, required under 27 C.F.R. section 179.85, is invalid as beyond statutory authorization to the Secretary of the Treasury in 26 U.S.C. section 5812(a). Plaintiff further requests the Court to find that the practice of Defendants CRUZ, MARCUS, and RENO, in refusing to sign the certification form prepared pursuant to 27 C.F.R. section 179.85, is arbitrary, capricious, and improper. Title 26, United States Code, Section 5812(a) provides: (a) Application. - A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary; (2) any stamp tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; (5) the firearm is identified in such manner as the Secretary may by regulations prescribe; and (6) the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law. (Emphasis supplied). The regulation, 27 C.F.R. section 179.85, provides: If the transferee is an individual, he shall attach to each copy of the application, Form 4 (Firearms), a properly executed Form 4539, Identification of Transferee or Maker of Firearm, containing an individual photograph of himself, taken within one year prior to the date of such application, and shall affix his fingerprints to the form. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them. The Form 4539 must be supported by a certificate of the local chief of police, sheriff of the county, U.S. Attorney, U.S. Marshal or such other person whose certificate may in a particular case be acceptable to the Director certifying that he is satisfied that the fingerprints and the photograph appearing on the Form 4539 are those of the transferee and that he has no information indicating that the firearm would place the transferee in violation of State or local law or that the transferee will use the firearm for other than lawful purposes. (Emphasis supplied). The essence of Plaintiff's first claim is that the required law enforcement certification is beyond the scope of the statutory requirement contained in 26 U.S.C. section 5812(a). In support thereof, Plaintiff refers to the repeal of former section 5847, of Title 26, as evidence that the regulation is unfounded. This section provided the Secretary with specific authority to promulgate regulations under the National Firearms Act ("NFA"). It was repealed at the time of the complete revision of the NFA in 1968. Nevertheless, it is apparent that specific authority as to the NFA is unnecessary in light of the broad grant of authority to the Secretary to prescribe rules and regulations for the enforcement of Title 26 in toto. Section 7805(a) of Title 26 provides as follows: (a) Authorization. -- Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary of his delegate shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue. This rule-making authority is expressly delegated by Congress, and regulations promulgated under this authority, if found to implement the Congressional mandate "in some reasonable manner" must be upheld. United States v. Cartwright, 411 U.S. 546, 550 (1973). These regulations are valid legislative rules if they are "(a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable." Continental Equities, Inc. v. Commissioner, 551 F.2d 74, 82 (5th Cir. 1977). In Mourning v. Family Publication Service, 411 U.S. 356, 369 (1973), the Supreme Court was required to determine whether certain agency rules and regulations exceeded the authority delegated to the agency under its enabling legislation. The Court held it well established that [w]here the empowering provision of a statute states simply that the agency may 'make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,' we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' [citations omitted]. Id. Moreover, it is well established that "an agency's own inter- pretation of a statute or regulation is entitled to be given great weight by a court unless plainly erroneous or patently inconsistent with the regulation." Eastern Air Lines v. Mobil Oil Corp., 512 F. Supp. 1231, 1241 (S.D. Fla. 1981). See Udall v. Tallman, 380 U.S. 1, 17 (1965). Accord Delta Metalforming Co., Inc. v. Commissioner, 632 F.2d 442, 449 (5th Cir. 1980). In the instant case, and bearing in mind the above standards to be used in determining the validity of a regulation, it cannot be said that the certification requirements of 27 C.F.R. section 179.85 are unreasonable, unrelated to the purpose of the enabling legislation, or outside the power granted to the Secretary of the Treasury. Section 7805(a) of Title 26 clearly provides the Secretary with the authority to prescribe regulations necessary to effectuate the purposes of Title 26. Section 5812(a)(6) gives the Secretary discretionary power to approve the transfer of a NFA firearm. The statute further provides that "[a]pplications shall be denied if transfer . . . would place the transferee in violation of law." (emphasis supplied). The certification requirement of section 179.85, mandating the certification of a local law enforcement officer that transfer of the firearm would not place the transferee in violation of state or local law or that the transferee will use the firearm for other than lawful purposes, is a clear outgrowth of the statute's mandate that "applications shall be denied . . ." if transfer would violate law. (emphasis supplied.) Thus, in view of the above, and the Congressional purpose apparent from the legislative history of the statute -- to deter transfer of dangerous weapons to the criminally inclined, see H. Rep. No. 1780, 73d Cong. 2d Sess. 1 (1934), Plaintiff's contention that the regulation is unauthorized is simply without merit. The regulation clearly meets the requirement that it be reasonably related to the purposes of the enabling legislation, Mourning, 411 U.S. at 369, and, accordingly, it is hereby found to be a valid exercise of the Secretary's authority. Plaintiff additionally argues that the regulation imposes a duty on Federal, State, or local officials to perform the affirm- ative act of signing the certification form. This is an incorrect reading of the regulation. The sole burden imposed by section 179.85 is upon the transferee to obtain the certification. No requirement is imposed on any law enforcement officer by virtue of the regulation; action by a law enforcement officer in this setting is purely discretionary, he may certify the transfer or he may refuse to do so. Accordingly, Plaintiff's assertions that the regulation is an unconstitutional violation of state sovereignty under the Tenth Amendment are without foundation. No duty upon any State official is imposed, and the requirement that a transferee under Federal law obtain a certification from a State official, inter alia, does not infringe upon any power "reserved to the States respectively." U.S. Const., amend. X. See also Sipes v. United States, 321 F.2d 174 (8th Cir. 1963) (requirements of NFA do not violate Tenth Amendment). Plaintiff's second argument maintains that the Defendants' refusal to sign the certification forms is "capricious, arbitrary and improper" because the reasons asserted by Defendants for their refusal to sign are not those that would disqualify the transferee under law. Implicit in this count of the Complaint is an apparent request for a writ of mandamus to issue, requiring the Defendants to certify the transfer form or show why, within the reasons of the regulation, they refuse to do so. See Composite Exhibit C to the Complaint, Alternative Writ of Mandamus in Buxton v. Mims, No. GC-G-79-2901 (Fla. 10th Cir. Ct. Nov. 20, 1979). Where federal officials have a clear obligation to perform a ministerial duty owed to the plaintiff, a writ of mandamus may issue to compel such action. National Wildlife Federation v. United States, 626 F.2d 917 (D.C. Cir. 1980). However, this is only true when the duty to be performed is ministerial, and the obligation to act is peremptory and so plainly defined as to be free from doubt. Jackson v. McCall, 509 F. Supp. 504 (D.D.C. 1981). Mandamus does not apply where the act to be compelled is discretionary rather than ministerial and mandatory. Ortiz v. United States, 661 F.2d 826 (10th Cir. 1981); Ross v. U.S. Attorney's Office, 511 F.2d 924 (9th Cir.) cert. denied 423 U.S. 831 (1975); Drew v. Lawrimore, 380 F.2d 479 (4th Cir.) cert. denied 389 U.S. 974 (1967). It is apparent from the statute and the regulation that signing, or refusing to sign, the certification form is an act of discretion in the law enforcement officer not susceptible to mandamus. A court, however, may require the performance of some decision involving discretion and judgment. Parrott v. Cary, 234 F. Supp. 572, 574 (D. Colo. 1964). But it may not compel exercise of discretion in a particular way. Multiple Use, Inc. v. Morton, 353 F. Supp. 184 (D. Ariz.) aff'd 504 F.2d 448 (9th Cir. 1972). Once the Defendants have considered the transferee's certification form and made a decision, to sign or not, the Court's power to compel their action is at an end. Moreover, with regard to the federal defendant an additional encumbrance further prohibits action by the Court. Under United States v. Cox, 342 F.2d 167 (5th Cir. 1965), courts are forbidden as an incident of constitutional separation of powers "to interfere with the free exercise of the discretionary powers of the attorneys of the United States . . . ." Id. at 171. Thus, under the reasoning of Cox, neither the U.S. Attorney nor the U.S. Marshal, as executive branch officers, may be compelled to sign a certification which, in the exercise of their discretion, they have refused thus far to sign. It must be further noted in this case that the regulation's requirement and the refusal of qualified signers to certify the firearm transfer do not constitute a violation of property rights under the Fifth Amendment. Thus, Plaintiff's present inability to transfer his stock of NFA firearms does not rise to the level of an unconstitutional taking. Regulations that bar trade in certain goods have time and again been upheld against Fifth Amendment deprivation of property challenges. Everard's Breweries v. Day, 265 U.S. 545 (1924). And Justice Brandeis, in Jacob Ruppert, Inc. v. Caffey, dismissed a takings challenge, stating that "there was no appropriation of private property, but merely a lessening of value due to a permissible restriction imposed upon its use." 251 U.S. 264, 303 (1920). More recently, significant restrictions on the use of property have been upheld where the most profitable use of property has been prevented. See Andrus v. Allard, 444 U.S 51 (1979); Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978). Thus, whether anticipated economic gain is prevented by land use regulation, Penn Central, supra, by prohibition of commercial transactions in avian artifacts, Allard, supra, or by inability to transfer firearms without a certification, such prevention does not constitute an unconstitutional taking. In view of all the foregoing, the Federal Defendants' Motion to Dismiss is hereby Granted. DONE AND ORDERED in Chambers at Miami, Florida, this 28 day of March, 1983. Sidney M. Aronovitz UNITED STATES DISTRICT JUDGE cc: Eugene Steele, Esq. Ralph Rocheteau, Esq. U.S. Attorney's Office