UNITED STATES COURT OF APPEALS TENTH CIRCUIT WILLIAM M. YORK dba YORK ARMS COMPANY, Plaintiff-Appellants, vs. Civil No. 84-1370 SECRETARY OF THE TREASURY, STEPHEN E. HIGGINS, Director of Bureau of Alcohol, Tobacco and Firearms (BATF) and JOHN DOES one through Twenty, agents of BATF, Defendants-Appellees. BRIEF OF APPELLEES Appeal from Motion for Summary Judgment of the United States District Court For the District of Utah, Central Division Honorable Aldon J. Anderson, Presiding BRENT D. WARD, United Loni F. DeLand States Attorney Herschel Bullen BARBARA W. RICHMAN, Assistant McRAE & DeLAND United States Attorney 132 South 600 East P. O. Box 2750 Salt Lake City, Utah 84102 Salt Lake City, Utah 84110 (801) 364-1333 (801) 524-5682 Attorneys for Appellant Attorneys for Appellees [new page] TABLE OF CONTENTS PAGE ISSUES PRESENTED FOR REVIEW. . .. . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT I. THE ADMINISTRATIVE ACTION IN CLASSIFYING THE FIREARM AS A MACHINEGUN WAS NEITHER ARBITRARY, CAPRICIOUS, NOR AN ABUSE OF DISCRETION . . . . . . . . 4 A. SCOPE AND STANDARD OF REVIEW . . . . . . . . . . . 4 1. ATF's Interpretation of Section 5845(b) Is Not "Plainly Erroneous" . . . . . . . . . . . . 6 2. ATF's Conclusion That the STEN Is a "Machinegun" Was Based Upon Relevant Factors and Rests Upon a Rational Basis . . . . . . 10 II. THERE HAS BEEN NO VIOLATION OF APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS TO DUE PROCESS AND/OR EQUAL PROTECTION . . . . . . . . . . . . 11 A. DUE PROCESS WAS AFFORDED . . . . . . . . . . . . . . 11 B. EQUAL PROTECTION . . . . . . . . . . . . . . . . . . . 12 III. PLAINTIFF IS NOT ENTITLED TO DE NOVO REVIEW . . . . . . . 14 IV. APPELLANT WAS ENTITLED TO NEITHER A TEMPORARY RESTRAINING ORDER NOR A PERMANENT INJUNCTION . . . . . . . 17 A. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . 17 B. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . 18 1. No Probability of Success on The Merits . . . . . 18 2. No Immediate Irreparable Injury . . . . . . . . . 18 3. Balancing of the Equities Favors the Denial of the Injunction . . . . . . . . . . . . . . . 19 4. The Injunction Would Have Been Adverse To The Public Interest . . . . . . . . . . . . . . . . 19 SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . 20 -i- TABLE OF CASES AND AUTHORITIES Cases Cited Allen v. Bergland, 661 F.2d 1001, 1007 (4th Cir. 1981) . . 16 American Postal Workers Union, AFL-CIO v. United States Postal Service, 707 F.2d 548, 559 (D.C. Cir. 1983). . . . . 16 Barton v. Malley, 626 F.2d 151, 155 (10th Cir. 1980). . . . 13 Board of Dir., Forbes Fed. Credit Union v. NCUA, 477 F.2d 777, 784 (10th Cir. 1983) . . . . . . . . . 6 Chamber of Commerce of United States v. Occupational Safety and Health Administration, 636 F.2d 464, 468 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . 17 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) . . . . . . . . . . . . . . . . . . 6 Davis v. Erdmann, 607 F.2d 917, 918 (10th Cir. 1979) . . . . . . 15 Delaware Citizens for Clean Air v. Administrator of EPA, 480 F.2d 972 (3rd Cir. 1972) . . . . . . . . . . . . 10 Door v. Donaldson, 195 F.2d 764, 766 (D.C. Cir. 1952) . . . . . 12 Dow Chemical, USA v. Consumer Product Safety Commission, 459 F. Supp. 378, 393 (W.D. La. 1978) . . . . . . . . . . . 16 Ethyl Corp. v. EPA, 541 F.2d 1, 31 n.64 (D.C. Cir. 1976) cert. denied, 426 U.S. 941 (1976) . . . . . . . . . . . . . 10 Federal Power Commission v. Florida Power and Light Co., 404 U.S. 453, 463 (1972) . . . . . . . . . . . . . . . . . 5 General Electric Co. v. Gilbert, 429 U.S. 1251 141 (1976). . . . 6 Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . 16 Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) . . . . . . . . . 12 Goss v. Lopez, 419 U.S. 565, 577 (1975) . . . . . . . . . . . . 11 GTE Corporation v. Williams, Slip Op. No. 83-1545 (10th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . 18 -ii- Gulf Oil Corp. v. Hickel, 435 F.2d 440, 444 (D.C. Cir. 1970) . . . . . . . . . . . . . . . . . . . . . 6 Hoover and Bracken Energies, Inc. v. United States Department of the Interior, 723 F.2d 1488, 1489 (10th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . 6 Independent Meat Packers Ass'n, v. Butz, 526 F.2d 228, 238 (8th Cir. 1975) . . . . . . . . . . . . . 5 Jersey Arms Work, Inc, v. Secretary of the Treasury, a 1983 unreported decision (R., 97) . . . . . . . . . . . . 9 Joseph v. United States Service Commission, 554 F.2d 1140, 1153 (D.C. Cir. 1977) . . . . . . . . . . . . 17 Kaiser Trading Co. v. Associated Metals and Minerals Corp., 321 F. Supp. 923 (N.D. Cal. 1970) Appeal Dismissed 443 F.2d 1364 (9th Cir. 1971) . . . . . . 19 Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980) . . . . . 18 Morrisey v. Brewer, 408 U.S. 471, 481 (1972) . . . . . . . . . . 11 Oyler v. Boles, 368 U.S. 448, 456 (1962) . . . . . . . . . . . . 13 R.P.B. Industries, Inc. Secretary of the Treasury, a 1979 unreported decision (R.r 108) . . . . . . . . . . . 9 Saint Francis Memorial Hospital v. Weinberger, 413 F. Supp. 323, 327 (N,D. Cal. 1976) . . . . . . . . . . 16 Sampson v. Murray, 415 U.S. 61, 67 (1974) . . . . . . . . . . . 19 Udall v. Tallman, 380 U.S. 1, 16 (1964) . . . . . . . . . . . . 6 United States v. Bennett, 539 F.2d 45, 54 (10th Cir. 1976), cert. denied, 429 U.S. 925 (1976) . . . . . . . . . . . . . 13 United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983) . 13 Williams Exploration Co. v. U.S. Department of Energy 561 F. Supp. 465 (N.D. Okla. 1980) . . . . . . . . . . . . . . 19 Other Authorities Cited U.S. Code Cong. & Admin. News at 4434 . . . . . . . . . . . . . 10 -iii- Statutes Cited 27 C.F.R. 71.41 . . . . . . . . . . . . . . . . . . . . . . 15,17 5 U.S.C. section 553 . . . . . . . . . . . . . . . . 16, 17, 21 5 U.S.C. section 554 . . . . . . . . . . . . . . . . . . 11, 15 5 U.S.C. section 706 . . . . . . . . . . . . . . . . . . 4, 5 26 U.S.C. section 580 . . . . . . . . . . . . . . . . . . . 20 26 U.S.C. section 5845 . . . . . . . . . . . . . . . 4, 5, 7 26 U.S.C. section 7805 . . . . . . . . . . . . . . . . . . . 14 28 U.S.C. section 5945 . . . . . . . . . . . . . . . . . . . 10 -iv- UNITED STATES COURT OF APPEALS TENTH CIRCUIT WILLIAM M. YORK dba YORK ARMS COMPANY, plaintiff-Appellants, vs. Civil No. 84-1370 SECRETARY OF THE TREASURY, STEPHEN E. HIGGINS, Director of Bureau of Alcohol, Tobacco and Firearms (BATE) and JOHN DOES one through Twenty, agents of BATF, Defendants-Appellees, BRIEF OF APPELLEES ISSUES PRESENTED FOR REVIEW I. Did the lower Court err in refusing to grant injunctive relief in favor of appellant against appellees, upon plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure? II. Did the lower Court err in granting appellees' Motion for Summary Judgment, dismissing appellant's Complaint with prejudice? III. Did the lower Court err in ruling that administrative action in this case, appellee BATF's classifying a certain firearm marketed and sold by appellant, as a machinegun, was -1- not, as a matter of law, arbitrary, capricious, nor an abuse of discretion? IV. Did the lower Court err in ruling that there had been no violation of appellant's constitutionally protected rights to due process of law and/or equal protection? V. Did the lower Court err in ruling that appellant is not entitled to a de novo review in District Court of BATF's administrative action? STATEMENT OF THE CASE Appellant seeks review of the order of the District Court which granted summary judgment against plaintiff and denied injunctive relief. STATEMENT OF FACTS For the purposes of this brief the appellees will rely on the facts as recited in Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment. (R., 52-56) The Court is hereby referred to the facts stated in the aforementioned memorandum which is part of the record transmitted in this appeal. Briefly, the facts of this case can be summarized as follows: The Bureau of Alcohol, Tobacco and Firearms (ATF) learned in December, 1982 that a firearm apparently possessing the same design features as the World War II British STEN sub-machinegun -2- was being offered for sale by the Shepard and Turpin Distributing Company. ATF determined that Mr. William York was apparently doing business as Shepard and Turpin Distributing Company. ATF requested that a sample of the firearm be provided for inspection, but no sample was submitted. ATF then acquired a sample through commercial channels. During the same period of time Mr. York wrote ATF requesting general information about federal firearms laws and regulations but made no mention of the STEN. ATF responded that because of the voluminous nature of the request ATF was unable to send every possible publication and suggested Mr York contact ATF with specific questions. ATF proceeded to inspect the STEN and determined the STEN to be a machinegun and advised Mr. York to recover any STENS that he had sold. ATF also notified purchasers of the STEN of this classification. Mr. York wrote the purchasers and advised them not to return the firearms and not to turn them over to the ATF. The ATF then informed Mr. York that it would have to investigate purchasers who had not returned the guns to Mr. York or had not contacted the ATF concerning them. A meeting was held at York's place of business with representatives of ATF at Mr. York's request. However, Mr. York again refused to cooperate and refused to provide the ATF with samples of other firearms that he was selling; Mr. York has continued to demand administrative hearings for unspecified purposes. -3- ARGUMENT I. THE ADMINISTRATIVE ACTION IN CLASSIFYING THE FIREARM AS A MACHINEGUN WAS NEITHER ARBITRARY, CAPRICIOUS, NOR AN ABUSE OP DISCRETION. A. SCOPE AND STANDARD OF REVIEW. On August 3, 1983, the Bureau of Alcohol, Tobacco and Firearms determined that the STEN firearm sold by Mr. York was a machinegun as defined in 26 U.S.C. section 5845(b). The standard of judicial review of that determination is governed by the Administrative Procedure Act, 5 U.S.C. section 706 which provides in relevant part that the reviewing court shall: (2) hold unlawful and set aside agency action, findings, and conclusions found to be -- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law. Appellant contends that the court may inquire into the facts of the case in order to make an independent determination regarding the Agency's judgment. On page 10 of his brief appellant states that appellees conceded in the lower court that where an allegation is made . . . that an administrative action is violative of 5 U.S.C. section 706, that the court may make a full inquiry into the facts of the case -4- in order to make its own determination, findings and conclusions regarding the Agency's judgment. No such concession has been made by appellees. 5 U.S.C. section 706 defines the scope of review to be utilized by the court. In the answer filed by appellees the only thing that was admitted was that 5 U.S.C. section 706 does, in fact, describe the proper scope of review. At no time did appellees admit that the administrative action herein was itself violative of 5 U.S.C. section 706. The arbitrary, capricious, or abuse of discretion standard of 5 U.S.C. section 706 applies to the court's review of the factual conclusions and the Bureau's choice of legally available remedies. However, in its review the court is not empowered to substitute its own judgment for that of an expert agency, Independent Meat Packers Ass'n. v. Butz, 526 F.2d 228, 238 (8th Cir, 1975). Rather, the court is to consider only whether there was a clear error of judgment, or whether or not the decision was based on consideration of all relevant factors. Id. This is particularly true where the factual questions involve technical, engineering, or scientific considerations. Federal Power Commission v. Florida Power and Light Co., 404 U.S. 453, 463 (1972). Here, appellant alleges that ATF's interpretation of 26 U,S.C, section 5845(b) is contrary to the statute, and that ATF's action denied Mr. York due process and equal protection of the law. While the scope of judicial review is somewhat broader -5- when questions of law are involved, the courts should still show great deference to the agency's interpretation, General Electric Co. v. Gilbert, 429 U.S. 125, 141 (1976); Udall v. Tallman, 380 U.S. 1, 16 (1964). Clearly, courts should not overturn an administrative interpretation of a statute by the agency charged with administering it unless it can be found that the interpretation is "plainly erroneous." Board of Dir., Forbes Fed. Credit Union v. NCUA, 477 F.2d 777, 784 (10th Cir. 1983); Gulf Oil Corp. v. Hickel, 435 F.2d 440, 444 (D.C. Cir. 1970). Indeed, when an agency is interpreting its own regulations, the courts have given added deference to the agency' s construction. Hoover and Bracken Energies, Inc, v. United States Department of the Interior, 723 F.2d 1488, 1489 (10th Cir. 1983). The standard for review in cases of the type at bar is clear. An administrative decision should not be overturned unless it is found to be clearly erroneous. Further, in reviewing the agency's decision of how to deal with the classification question, the court is limited to determining whether the agency's decision was based upon relevant factors and whether there is a rational basis for the action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). 1. ATF's Interpretation of Section 5845(b) Is Not "Plainly Erroneous" -6- Appellant contends that the ATF's determination that the STEN weapon is a machinegun as defined in section 5845(b) is "plainly erroneous." Appellant bases this contention on the fact that he "modified" the gun to render it semi-automatic. Further, appellant asserts that many other firearms are similar to the STEN MK II and have not been classified by ATF as "machineguns". The National Firearms Act defines "machinegun" as follows: The term 'machinegun' means any weapon which shoots, is designed shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun which can be assembled if such parts are in the possession or under the control of a person. 26 U.S.C. section 5845(b). Appellant argues that because the weapon in question is a reproduction of a firearm which was originally designed to fire automatically but does not do so as modified means that it is not "designed to shoot automatically". In making such a claim appellant reads the statute too narrowly and ignores the purpose behind it. A common sense reading of this statute plainly indicates that Congress was concerned not only with actual machineguns, but also with weapons that can be restored or converted to automatic weapons. -7- ATF Rulings 82-2, 82-8 and 83-5 (R, 83-85) interpret the "designed to shoot automatically" language as follows: The 'shoots automatically' definition covers weapons that will function automatically. The 'readily restorable' definition defines weapons which previously could shoot automatically but will not in their present condition. The 'designed' definition includes those weapons which have not previously functioned as machineguns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts. The statutory language "designed to shoot . . . automatically" has been interpreted to refer to the basic, underlying plan, purpose, conception, or layout for the weapon. The "design" of a machinegun would not be changed by minor modifications which may prevent automatic fire, but which can be so easily removed and circumvented so as to render the weapon capable of automatic fire. This interpretation gives separate meaning to the various definitions of the term machinegun. Obviously, the "shoots automatically" definition covers weapons that will function automatically; the "readily restorable" definition defines weapons which previously could shoot automatically but will not in their present condition. The wording of the ATF Rulings is precise and clear. There is no question whatsoever that the STEN falls under the purview of this statute. An interpretation which does not recognize this defies common sense and the intention of Congress in regulating this type of weapon. -8- An argument virtually identical to that of appellant was addressed in Jersey Arms Work, Inc. v. Secretary of the Treasury, a 1983 unreported decision (Rr 97). Plaintiff's reading of the statute would have Congress evince concern for: (1) weapons which fire (and which always have fired) automatically; (2) weapons which can be readily restored to fire automatically ; and (3) combinations of parts from which a machinegun can be assembled but not (4) weapons which, with a modicum of effort, can be made to fire automatically. This is plainly inconsistent. Furthermore, plaintiff's reading would permit the evasion of a "machinegun" classification through simple subterfuges, whereas the second sentence of section 5845(b) and the statute's "readily restorable" clause demonstrate that the statute is designed to thwart such subterfuges. Taken as a whole, section 5845(b) is aimed not simply at machineguns, per se, but at the threat or prospect of machineguns, in their incipient or hidden forms. The Bureau's construction of the statute is in harmony with this regulatory aim; the plaintiff's construction is not. Jersey Arms Works, Inc. v. Secretary of the Treasury. This same rationale was adopted by a Georgia District Court in R.P.B. Industries, Inc. v Secretary of the Treasury, an unreported 1979 decision. (R., 108.) . . . although ATF Ruling 82-8 imposes new requirements on the plaintiffs it does so by interpreting the meaning of already binding statutes rather than by creating any new regulations which would require public notice . . . . . . the ATF's issuance of ATF Ruling 82-8 was not arbitrary, capricious, or an abuse of discretion, as plaintiff -9- suggests, nor is the Bureau's administrative interpretation of 28 U.S.C. section 5945(b) plainly erroneous. The Bureau's issuance of Ruling 82-8 was in accordance with prior Bureau action when faced with similar facts (e.g. the KG-9) [ATF Ruling 82-2], and was in response to a distinct problem with the subject firearms with respect to their being converted to automatic firearms for use in criminal activities. Id., Slip Op. at 7. Easy avoidance of the machinegun classification was not intended by Congress. There is a need to regulate not only traditional weapons such as machineguns, but also parts and devices that serve to convert a weapon to a machinegun. Conference Report No. 1956, 1968 U.S. Code Cong. & Admin. News at 4434. Based upon the foregoing it is only reasonable to conclude that the STEN gun in question here was legitimately and properly classified as a machinegun by the ATF pursuant to Section 5845(b) and that the agency's action was not "plainly erroneous." 2. ATF's Conclusion That the STEN Is a "Machinegun" Was Based Upon Relevant Factors and Rests Upon a Rational Basis. When making a determination of this nature the federal agency is entitled to the presumption of validity and regularity of its actions, Ethyl Corp. v. EPA, 541 F.2d 1, 31 n. 64 (D.C. Cir), cert. denied, 426 U.S. 941 (1976), which must be upheld when supported by a rational consideration of the relevant factors, id.; Delaware Citizens for Clean Air v. Administrator of EPA, 480 F.2d 972 (3rd Cir. 1972). -10- Letters and actual ATF rulings 83-85) set forth the reasons for the classification, The Administrative Record 102-171) shows that ATF officials thoroughly examined the issues and the classification determination clearly reflects that all relevant factors were considered and that a rational basis exists for the ATF's finding. II. THERE HAS BEEN NO VIOLATION OF APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS TO DUE PROCESS AND/OR EQUAL PROTECTION. A. DUE PROCESS WAS AFFORDED. Appellant asserts that he has been denied due process in connection with the classification of the STEN as a machinegun in that he was not afforded a hearing at which he could have submitted information regarding the decision to classify the STEN as a machinegun. Appellant concedes that ATF's action in this matter is exempt from the procedural requirements of the Administrative Procedure Act, 5 U.S.C. section 554(a) (3), because it involved "proceedings in which decisions rest solely on inspections, tests or elections." (Complaint, Paragraph 7; R., 2). Even assuming arguendo that appellant was denied his Fifth Amendment rights to due process, the amount of process afforded appellant in this matter was "due". [footnote 1] The analysis of how much process is adequate is made by balancing the appellant's interest in avoiding a grievous loss against the interests ---------------------- 1 See, Goss v. Lopez, 419 U.S. 565, 577 (1975) (discussing at length the question of "what process is due.") -11- which the government seeks to promote by using summary proceedings. See, Morrisey v. Brewer, 408 U.S. 471, 481 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970). It has long been recognized under this calculus that only limited procedural requirements are applicable to decisions which turn either upon physical facts as to which there is little room for difference of opinion, or else upon technical facts like the quality of tea or the condition of airplanes. Door v. Donaldson, 195 F.2d 764, 766 (D.C. Cir. 1952). This was just such a case. As stated in the facts and as appears in the record it is clear appellant was contacted by ATF both personally and through letters concerning the STEN. No cooperation was forthcoming from him. Appellant was afforded numerous opportunities to receive advice and conform the STEN to proper design but rejected all agency attempts. Appellant would place the responsibility upon the agency to provide him with an acceptable design for a firearm. This clearly is not within the purview of an administrative agency. Rather, the agency can only monitor the marketplace for compliance with the law. Compliance need not be forced upon appellant in order for due process standards to be met. Under the facts and circumstances of this easer sufficient due process was afforded appellant. B. EQUAL PROTECTION. Appellant further contends that his constitutional right of -12- equal protection was violated by alleged selective enforcement of the law by the ATF. Selective enforcement is not, in itself, a constitutional violation. Oyler v. Boles, 368 U.S. 448, 456 (1962). "Moreover, there is a presumption that prosecution for violation of the criminal law is in good faith." United States v. Bennett, 539 F.2d 45, 54 (10th Cir. 1976), cert. denied, 429 U.S. 925 (1976); accord, Barton v. Malley, 626 F.2d 151, 155 (10th Cir. 1980), It is clear that merely alleging selective enforcement is not sufficient to establish that the presumption has been overcome. It order to prevail on his charge of selective prosecution, defendant must prove, first, that he has been singled out for prosecution while others similarly situated generally have not been proceeded against for the type of conduct forming the basis for the charge against him; and second, that the governments selection of him for prosecution was invidious or in bad faith and was based on impermissible considerations such as race, religion, or the desire to prevent the exercise of constitutional rights. United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983). Appellant fails to satisfy either prong of the test. The burden is clearly on appellant to do so. One of the two requirements needed to satisfy the first prong of this test is that others must be "similarly situated". Appellant repeatedly alleges that other manufacturers distribute weapons similar to the STEN. However, no affidavits -13- in opposition to the Motion for Summary Judgment were submitted by appellant to substantiate this position. Mere allegations do not meet the burden of proof. The second requirement to establish the first prong is the necessity of showing that appellant was "singled out." It is alleged that the motive behind the prosecution was that the ATF was "out to get Mr. York". Such a claim is without basis in fact. The ATF merely did what it is supposed to do and that is to enforce the national firearms laws. Appellant must show that he was "singled out"; a mere allegation is not enough. The burden of appellant has not been met. The second prong of the test requires a bad faith selection for prosecution because of race, religion or the desire to prevent the exercise of constitutional rights. Id. There is no factual basis for any of these unlawful considerations. Race and religion are factors not alleged. Appellant claims his constitutional rights have been violated but makes no substantiated claim that the ATF desired to deprive him of any constitutional rights. Clearly, appellant has not met his burden of proof in showing he was a victim of selective enforcement. As such, he has no cause of action based upon denial of equal protection. III. PLAINTIFF IS NOT ENTITLED TO DE NOVO REVIEW. The authority of the ATF for issuing its rulings is derived from 26 U.S.C. section 7805 of the Internal Revenue Service Code. -14- Congress has delegated the administration of the National Firearms Act and the Gun Control Act of 1968 to the Department of the Treasury of the United States, which acts through the Bureau of Alcohol, Tobacco and Firearms, Davis v, Erdmann, 607 F.2d 917, 918 (10th Cir. 1979) . "The objectives and standards for publication of ATF rulings .. ." are described in 27 C.F.R. 71.41(d)(2)(i)(A) as follows: An ATF Ruling is an official interpretation by the Bureau that has been published in the Bulletin for the information and guidance of taxpayers, Bureau officials, and others concerned. Clearly the intent is that the ruling be of an interpretive nature. ATF Rulings published in the Bulletin do not have the effect of Department of the Treasury Regulations . . . but are published to provide precedents to be used in the disposition of other cases, and may be cited and relied upon for that purpose. 27 C.F.R. 71.41(2) (iii) (A). Appellant alleges that appellees have failed to meet the procedural requirements of the Administrative Procedure Act, 5 U.S.C. section 554(b). The basis for this contention is the position of appellees that the definition of "machinegun" includes those weapons which can be converted to shoot as a machinegun, as being "designed" to be "machineguns". As appellant states in his brief, the heart of the issue is whether the ATF's definition of the term "machinegun" is a legislative or an interpretive ruling. Pursuant to 5 U.S.C. -15- section 553(b)(A), if it is interpretive, it is exempt from the procedure and notice requirements of that section. An interpretive rule is a "statement as to what the administrative officer thinks the statute or regulation means". American Postal Workers Union, AFL-CIO v. United States Postal Service, 707 F.2d 548, 559 (D.C. Cir. 1983); Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1951); Allen v. Bergland, 661 F.2d 1001, 1007 (4th Cir. 1981). Legislative rules, or substantive rules, are rules which "create law, usually implementary to an existing law. " Allen v. Bergland, 661 F.2d 1001, 1007 (4th Cir. 1981); Gibson Wine Co. v. Snyder, 194 F.2d 3271 331 (D.C. Cir, 1951). Section 553 requires that an agency give public notice and have a hearing on proposed substantive rules before they are put into effect so the public would have an opportunity to participate in the process. Saint Francis Memorial Hospital v. Weinberger, 413 F. Supp. 323, 327 (N.D. Cal. 1976). An appropriate consideration is 'whether there is such genuine ground for difference of opinion on the wisdom of the policy embodied in the rule as to make the hearing process a meaningful and important requirement.' Dow Chemical, USA v. Consumer Product Safety Commission, 459 F. Supp. 378, 393 (W.D. La. 1978). In the instant case, ATF Ruling 83-5 was an interpretive ruling and nothing more. It did not create new law, nor did it have a binding effect on the courts. 27 C.F.R. -16- 71.41(d)(2)(iii)(A). It merely states what ATF has determined a "machinegun" is. Moreover, there is no genuine ground for difference of opinion on 'the wisdom of the policy'. Clearly Congress has an interest in protecting the public from this type of weapon. Appellant concedes this on page 18 of his brief. This ATF ruling only furthers that policy and makes it more effective. There is no plausible "ground for difference" on this issue. A rule is interpretive, rather than legislative, if it is not issued pursuant to legislatively delegated power to make rules having the force of law or if the agency intends the rule to be no more than an expression of its construction of a statute or rule. Joseph v. United States Service Commission, 554 F.2d 1140, 1153 (D.C. Cir. 1977). See also, Chamber of Commerce of United States v. Occupational Safety and Health Administration, 636 F.2d 464, 468 (D,C. Cir. 1980). To reiterate, the ruling does not have the force of law and is only an expression of construction. It merely states what term "design" is interpreted to mean, nothing else. Accordingly, appellant has no viable claim to de novo review pursuant to 5 U.S.C. section 553. IV. APPELLANT WAS ENTITLED TO NEITHER A TEMPORARY RESTRAINING ORDER NOR A PERMANENT INJUNCTION. A. STANDARD OF REVIEW. The extraordinary and drastic relief of a restraining order or injunction should be granted only where movant satisfies all of the following four prerequisites: -17- (1) that it has a substantial likelihood of success on the merits; (2) that the movant will suffer irreparable injury if the preliminary injunction is not granted; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing parties; and (4) that the injunction will not be adverse to the public interest. GTE Corporation v. Williams, Slip Op. No. 83-1545 (10th Cir. 1984); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). None of the elements were present to any significant degree in this case. B. ANALYSIS. 1. No Probability of Success on The Merits. The Memorandum of Points and Authorities in support of Defendants' Motion for Summary Judgment, the oral argument, and the arguments contained herein set forth the basis for the court's correct ruling in favor of the Motion for Summary Judgment and the dismissal of plaintiff's complaint for failure to state a claim. 2. No Immediate Irreparable Injury. Insofar as appellant's claim of irreparable injury goes to claim that the agency has singled him out for disparate treatment, appellant has not specifically asserted facts. See, infra., pp. 12-14. -18- Any money damages suffered by the refunds, would be capable of calculation, hence injunctive relief was inappropriate. Kaiser Trading Co. v. Associated Metals and Minerals Corp., 321 F. Supp. 923 (N.D. Cal. 1970), appeal dismissed, 443 F.2d 1364 (9th Cir. 1971). Appellant's request for restraint or an injunction against the possibility of criminal prosecution of those who, by remaining in possession of the machinegun, violate the National Firearms Act, was premature at best. The threat, if any, was not imminent. The determination on the merits of this action, i.e., the appropriateness of the classification by ATF of the weapon as a "machinegun" rendered this relief moot. The movant had the burden of persuasion in showing irreparable injury. Sampson v. Murray, 415 U.S. 61, 67 (1974); Williams Exploration Co. v. U.S. Department of Energy, 561 F. Supp. 465, 469 (N.D. Okla. 1980). This movant failed to do. 3. Balancing of the Equities Favors the Denial of the Injunction. Appellant relies solely on his arguments for equal protection and due process. Appellant 's Brief, p. 18. Appellees' responses thereto are found herein at pp. 12-14. 4. The Injunction Would Have Been Adverse To The Public Interest. The public interest favored a denial of relief in this instance. This was so because of the mandate of Congress which is embodied in the National Firearms Act. Machineguns have -19- been determined by Congress to be sufficiently dangerous to the public welfare to justify strict regulation. 26 U.S.C. section 5801 et. seq. Where the agency has made its scientific and technical determination that the STEN weapon is a "machinegun", the court should uphold such finding on the grounds that the public welfare will benefit from the control. Based upon the foregoing the decision of the District Court in denying injunctive relief should be sustained. SUMMARY The administrative action in classifying the YAC STEN MK II firearm as a "machinegun" was neither arbitrary, capricious, nor an abuse of discretion. This conclusion is supported by the administrative record submitted for judicial review which reveals that the determination was based upon relevant factors and rests upon a rational basis and is not plainly erroneous. Simply stated, the specialists at the agency examined the firearm and concluded, based upon their technical examination, that because the firearm could be easily and quickly restored to automatic fire, that the firearm was a "machinegun". Appellant's due process rights are minimal under the facts of this case. He has no cognizable constitutional guarantees which would entitle him to notice and hearing as to the administrative action. -20- Appellant's equal protection rights were not violated. He has claimed that there has been a selective prosecution against him but has not and cannot establish the requisite facts to support his claim. Appellant claims a right under 5 U.S.C. section 553 to de novo review. This claim is unsupportable because the determination by the agency was interpretive, not an act of "rule-making". Therefore, the district court's decision denying injunctive relief and granting summary judgment and dismissing the complaint with prejudice was not error and should be upheld. Respectfully submitted this 10th day of July 1984. BRENT D. WARD United States Attorney By: BARBARA W. RICHMAN Assistant United States Attorney CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am an employee of the United States Attorney's Office for the District of Utah, and that a copy of the foregoing BRIEF was mailed, postage prepaid to all parties named below, this 10th day of July, 1984. Loni F. DeLand Herschel Bullen McRAE & DeLAND 132 South 600 East Salt Lake City, Utah 84102 0274R -21-