Cite as Westfall v. Miller, Case No. 4:93CV273 (E.D.Tx. March 28, 1995) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION ROBERT LEE WESTFALL, Plaintiff, v. WAYNE MILLER, CHIEF, NATIONAL FIREARMS ACT BRANCH, DEPARTMENT OF THE TREASURY and THE UNITED STATES OF AMERICA, Defendants. Case No. 4:93CV273 MEMORANDUM OPINION and ORDER Before the Court is Defendants' Motion to Dismiss. The Court having reviewed the motion, response, reply, and supplemental material, is of the opinion that Defendants' motion should be granted. INTRODUCTION Plaintiff, Robert Lee Westfall ("Westfall"), filed this suit against Wayne Miller, the Department of the Treasury, and the United States (collectively, the "Defendants") after unsuccessfully attempting to have ownership of a machinegun transferred to him under the National Firearms Act ("NFA"), 26 U.S.C. section 5801, et seq. Specifically, Westfall complains that he could not get certification of his ATF Form 4 by an official listed in 27 C.F.R. section 179.85. Because Westfall did not obtain the required certification, the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms (the "ATF") would not process his application for transfer of the desired machinegun. Westfall maintains that the provisions of 27 C.F.R. section 179.85 requiring official certification by law enforcement personnel is unconstitutional. Moreover, Westfall contends that he is entitled to a mandamus directing the ATF to approve his application for transfer of the machinegun. Finally, Westfall argues that he is entitled to his attorney's fees and costs of this action. In their motion to dismiss, the Defendants maintain that Westfall lacks standing to challenge the certification requirement because he has failed to exhaust his options for certification under that regulation. The Defendants further argue that no Constitutional rights of Westfall are infringed by the opposed regulation and that mandamus is not a proper remedy in this action. Finally, the Defendants contend that jurisdiction is not proper under the Adminiscrative Procedures Act, 5 U.S.C. section 701, et seq. The Court agrees with the Defendants and finds that the motion to dismiss should be granted. A. Lack of Standing Article III of the United States Constitution limits the jurisdiction of the federal courts by allowing the courts to adjudicate only actual cases and controversies. Therefore, in order to properly come before a federal court, a litigant must have "standing." To show standing, a plaintiff has the burden of pleading: (1) actual or threatened injury; (2) a causal link between the defendant's conduct and the injury suffered or threatened; alid' (3) the relief reque4ted by the plaintiff is likely to redress the alleged injury or harm. Steele v. National Flrearma Ace Branch, 755 F.2d 1410, 1413-14 (11th Cir. 1985) . In order to properly transfer a firearm regulated by the NFA, the transferee. must complete and submit to the Treasury Department an ATF Form 4. See 26 U.S.C. section 5812(a). As a part of this form, the transferee must obtain certification by the local police chief, sheriff of the county, head of the state police, state or local district attorney or prosecutor, or such other person as may be acceptable to the ATF. 27 C.F.R. section 179.85. The required certification states: that the certifying official is satisfied that the finger- prints and photograph accompanying the application are those of the applicant and that the certifying official has no information indicating that the receipt or possession of 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. Id. From the evidence before the Court, it is clear Westfall failed to exhaust his certification options before filing this suit and thus fails to show the causation required for standing. Specifically, Westfall failed to apply for certification by the head of the Texas state police. The ATF presented this option to Westfall when it returned his ATF Form 4 due to its incompleteness. Westfall argues that requiring him to seek options other than those already attempted amounts to an impermissible expansion of the list of officials for certification. See Steele, 755 F.2d at 1415, fn. 4. The regulation is clear, however, that the head of the state police is another certification option, and therefore, the court cannot find that this is a situation where the ATF is expanding the list in an attempt to delay Westfall's case. The Court finds that Westfall has failed to exhaust his options for certification under the regulation and, therefore, Westfall lacks standing to bring this suit. The Court is of the opinion that Defendants' motion to dismiss should be granted. B. Mandamus is an Improper Remedy Even if Westfall could successfully meet his burden in pleading proper standing, he is not entitled to mandamus as a form of relief. Under 28 U.S.C. S 1361, mandamus is only available when (1) the plaintiff demonstrates a clear right to the relief sought, (2) the defendant official or agency owes a specific duty to the plaintiff, and (3) the plaintiff has no other adequate remedy available to him. Rush v. Parham, 625 F.2d 1150, 1154 (5th Cir. 1980) . Westfall has failed to demonstrate that the ATF owes him a specific duty in relation to the processing of his form for transfer of the machinegun. The ATF's duty arises only upon submission of a properly completed ATF Form 4, as described in 27 C.F.R. sections 179.84 and 179.85. 27 C.F.R. section 179.86; see 26 U.S.C. section 5812(a-b). As previously discussed, Westfall did not obtain the required law enforcement certification for his form prior to submitting it to the ATF. Thus, the ATF's duty to act never arose. The Court is of the opinion that the Defendants, motion to dismiss as it relates to Westfall's request for mandamus relief should also be granted. C. Constitutional Claims Westfall contends that the law enforcement certification requirement of 27 C.F.R. section 179.85 violates his rights under the Tenth, Fifth and Fourteenth Amendments to the United States Constitution. The Defendants argue that Westfall's rights under these amendments are not violated, and that these claims should be dismissed under Fed.R.Civ.P. 12 (b) (6). Even assuming that Westfall could show that he has standing to assert his claims, the Court agrees with the Defendants that Westfall's claims should be dismissed under Fed.R.Civ.P. 12(b) (6). 12(b)(6) standard Prior decisions of both the United States Supreme Court and the Fifth Circuit Court of Appeals have made it clear that motions to dismiss for failure to state a claim upon which relief can be granted should not be granted lightly. For a complaint to be dismissed for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 78 S.Ct. 99, 102 (1957); Reeves v. City of Jackson, Mississippi, 532 F.2d 491 (5th Cir. 1976). Absent a claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss, thereby denying the plaintiff an opportunity to develop facts to support his complaint. Moreover, sufficient procedures are available to defendants to seek summary disposition of a lawsuit after plaintiff has been afforded some opportunity to develop facts to support his complaint. Reeves, 532 F.2d at 494. 1. The Tenth Amendment Westfall contends that the law enforcement certification requirement cf 27 C.F.R. section 179.85 violates the Tenth Amendment because it "impermissibly assigns responsibility for certification to State officials who are under no duty to act." As expressed by the Supreme Court in New York v. United States, 112 S.Ct. 2408, 2420 (1992), Congress may not directly compel a state to enact and enforce federal regulatory programs. Westfall notes in his brief, that under 27 C.F.R. section 179.85, state officials are under no duty to act and the decision on whether to certify the ATF Form 4 is entirely discretionary. While Westfall contends that the New York decision is applicable to this case, the Court finds it distinguishable on the grounds that in New York, the federal government was actually mandating that states take possession of radioactive waste as a part of a Congressional scheme to dispose of the waste. New York, 112 S.Ct. at 2415-17. Westfall's situation is merely one where the state official is in the best position to make a certification as to those items called for in 27 C.F.R. section 179.85 and moreover, unlike the New York case, the state official is under no duty to affirm or deny the certification. The Court is of the opinion that 27 C.F.R. section 179.85 does not violate the Tenth Amendment and that Defendants' motion should be granted as to that claim. 2. The Fifth Amendment In his First Amended Complaint, Westfall argues as an alternative to his Tenth Amendment argument that 27 C.F.R. section 179.85 violates his right to due process under the Fifth Amendment. In order to state a due process claim under the Fifth Amendment, a plaintiff must aver that he has been deprived of life, liberty or property without due process. Federal Deposit Ins. Corp. v. Morrison, 747 F.2d 610, 613 (11th Cir. 1984), cert. denied, 106 S. Ct. 568 (1985). The Supreme Court has cautioned, however, that a plaintiff may not state a claim for deprivation of a right to which he is not legitimately entitled. Board of Regents v. Roth, 92 S. Ct. 2701, 2705-07 (1972). The right to bear arms contained in the Second Amendment is limited to those arms necessary for the maintenance of a well regulated Militia. See U.S. v. Hale, 978 F.2d 1016, 1018 (8th Cir 1992), cert. denied, 113 S.Ct. 1614 (1993) outside of this context, the ownership of a firearm is a privilege, not a right. See Id. at 1018-19. [footnote 1] Thus, Westfall fails to show that he is legitimately entitled to the possession of the desired machinegun. The Court is of the opinion that Defendants' motion as it relates to Westfall's claims under the Fifth Amendment should be granted. 3. The Fourteenth Amendment Westfall maintains that 27 C.F.R. section 179.85 deprives him of his Fourteenth Amendment right to due process. The Fourteenth Amendment is only applicable to states and state action. Shelley v. Kraemer, 68 S. Ct. 836, 840-43 (1948); Thompson v. Aland, 639 F.Supp. 724, 727 (N.D. Tex. 1986). The Court finds that there is no allegation of state action present in this case. See, e.g. , Brewer v. Purvis, 816 F. Supp. 1560, 1575 (M.D. Ga. 1993), aff'd, 44 F.3d 1008 (11th Cir. 1995) (listing criteria for determining presence of state action). Thus, the Court is of the opinion that Defendants, motion to dismiss, as it relates to Westfall's claims under the Fourteenth Amendment, should be granted. D. Jurisdiction under the APA Finally, Westfall relies upon the Administrative Procedure Act, 5 U.S.C. section 701, et seq., (the "APA"), as a basis for this Court's jurisdiction over this case. In order for a court to gain jurisdiction under the APA, a plaintiff must show that (1) the issues presented are purely legal; (2) the challenged agency action constituted a "final agency action"; (3) the challenged action has or will have a direct and immediate impact upon the plaintiff; and (4) the resolution of the issues presented will foster rather than impede effective enforcement and administration by the agency. State of Texas v. United States Dept. of Energy, 764 F.2d 278, 283 (5th Cir. 1985), cert. denied, 106 S.Ct. 531 (1985). The Court cannot find that there has been any action by the ATF in relation to Westfall that can be characterized as a "final agency action." Westfall argues that the ATF's refusal to consider his application as submitted amounted to a denial. The Court will not find that any action other than approval amounts to a denial constituting a final action by the agency. Rather, the Court finds that the ATF's refusal to consider Westfall's incomplete application and the accompanying letter did not amount to a denial constituting "final agency action" and thus is of the opinion that the Defendants' motion to dismiss for lack of jurisdiction under the APA should be granted. IT IS SO ORDERED. Signed this 28 day of March, 1995. Paul Brown UNITED STATES DISTRICT JUDGE FOOTNOTES 1. The Court wishes to note that the fact that the desired weapon has potential military applications is of no aid to Westfall. See Hale, 978 F.2d at 1018-19 (discussing the history of a citizen's "right to bear arms" and the need to regulate military style weapons in today's society).