The opinion of the court was delivered by: Robertson, District Judge.
This case presents an APA challenge to certain provisions of
twelve-year-old regulations implementing the National Firearms
Act of 1934, 26 U.S.C. § 5801, et seq. The Act governs the
manufacture, possession, and transfer of short barreled shotguns
and rifles, machine guns, silencers, and "destructive" devices. The
challenged provisions of the regulations, 27 C.F.R. § 179.85
and § 179.62, require that every application to manufacture or transfer a
covered firearm be submitted on an ATF form that, in turn, requires
certification from a chief law enforcement officer
(CLEO)*fn1 that the CLEO is satisfied that the fingerprints and
photograph submitted with the application are the applicant's and
that there is no reason to believe possession of the firearm would
place the applicant in violation of local or state law or
that the firearm would be used for an unlawful purpose.
Plaintiffs are two law enforcement officers and seven private
individuals. They allege that the CLEO certification requirement
is unlawful because (1) it violates taxpayer privacy protections guaranteed
by 26 U.S.C. § 6103, (2) it compels States to enact or administer a
federal regulatory program contrary to the rule of Printz v.
United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997),
(3) it interferes with the duty of the Secretary of the
Treasury to collect taxes under 26 U.S.C. § 6103,
and (4) its delegation of authority to CLEOs is arbitrary, capricious, an
abuse of discretion, and contrary to law.
Defendants have moved to dismiss. They argue that plaintiffs lack
standing to bring their claims and, in the alternative, that
the complaint fails to state a claim for which relief can be granted.
The motion will be granted. Plaintiffs do have standing
to challenge the regulations, but the allegations of their complaint,
which are taken as true for purposes of this motion,
do not entitle them to relief.
"For each claim, if constitutional and prudential standing can be
shown for at least one plaintiff, we need not consider
the standing of the other plaintiffs to raise that claim." Mountain
States Legal Foundation v. Glickman, 92 F.3d 1228,
1232 (D.C.Cir. 1996). The government concedes that plaintiff Grimes
has standing to bring Count III (interference with duty of
Secretary to collect taxes) and Count IV (delegation is arbitrary and
The government suggests that Grimes lacks standing to bring Count I
(violation of privacy protections in 26 U.S.C. § 6103) because he did
not specifically allege a privacy injury from his attempts
to gain certification. Plaintiff Whelan does allege injury — that he
is denied a permit because of his refusal for privacy reasons to seek
certification — but, the government argues, he failed to exhaust
his certification options. The case on which the government relies,
Steele v. National Firearms Act Branck, 755 F.2d 1410
(11th Cir. 1985) (no standing to challenge certification requirement where
plaintiff did not attempt to get certification from all possible
CLEOs), is inapposite. The plaintiff in that case was challenging
refusals of CLEOs to sign the certificates, and the court could "not
be sure whether the injury was caused by the defendant's
actions or by appellant's failure to pursue all possible avenues . . .
to obtain the required signatures." Id. at 1415. Whelan's
alleged privacy injury arises when he discloses his transfer or
manufacture application to any one of the CLEOs. Thus
Whelan has standing to assert the claim set forth in Count I.
The law enforcement officer plaintiffs have standing to bring the Tenth
Amendment challenge set forth in Count II. The government's argument
to the contrary is that "ATF's regulations do not
require these two plaintiffs to do anything," so that they have not
suffered an injury in fact. Defs.' Mem. Supp. Mot.
Dismiss at 17-18. In evaluating plaintiffs' standing, however, we do
not recast merits arguments as jurisdictional ones. Road
Sprinkler Fitters Local Union v. Herman, 234 F.3d 1316, 1319-20
(D.C.Cir. 2000). Even though the regulations do not "compel"
the CLEO plaintiffs to do anything, their allegations to the contrary
are sufficient to confer standing.
Count I alleges that the certification requirement violates the
taxpayer privacy provision of 26 U.S.C. § 6103. Section
6103 provides, inter alia, that except as otherwise provided, "no
officer of the United States . . . shall disclose any return
or return information obtained by him in any manner in connection
with his service as such an officer or an employee or otherwise."
The argument is that, because the ATF form fits the statutory
definition of a "return," and because applicants must
show the form to the CLEO in order to get the necessary approval,
"the applicant acts as the Secretary's agent in disclosing
the form to the CLEO." PI.'s Opp. Mot. Dismiss at 21. If the
Secretary mandated the manufacture or transfer of the firearm,
this argument might have currency. But, of course, it is the
plaintiffs themselves who choose to manufacture or transfer the
firearms. It is their choice, and only their
choice, that requires the submission of ATF forms to CLEOs.
"Disclosure by the taxpayer himself of his copies of returns is
not an unauthorized disclosure, even though it be made by reason of
legal compulsion." United States v. Sheriff City of
New York, 330 F.2d 100, 101 (2d Cir.), cert. denied, 379 U.S. 929, 85
S.Ct. 323, 13 L.Ed.2d 341 (1964).
Plaintiffs argue that the certification regulations violate the
Tenth Amendment because they "compel the States to
enact or administer a federal regulatory program," or put local
officials "in the position of taking the blame for [the program's]
burdensomeness and for its defects," or both. Printz; 521 U.S. at 926,
930, 117 S.Ct. 2365. This effort to invoke the rule of the Printz
case fails. "States remain free . . . after [Printz] voluntarily
to cooperate with federal law enforcement efforts." United States v. Nathan,
202 F.3d 230, 233 (4th Cir. 2000) (citations omitted)
(upholding a federal program because "[n]o part of the arrangement
involves federal compulsion"), cert. denied, 529 U.S. 1123, 120 S.Ct.
1994, 146 L.Ed.2d 819 (2000). Unlike the statute at issue in
Print; these regulations do not compel local officials to act;
rather, "these officials have the discretion to execute or not execute
the required certifications." 53 Fed.Reg. 10480, 10488 (March 31, 1988). The
claim of direct violation of the Tenth Amendment therefore fails. Doe
v. Bureau of Alcohol, No. 3:94CV1699, 1997 WL 852086, at *7 (D.Conn.
Sept. 12, 1997); Westfall v. Miller, No. 4:93CV273, at *5-6
(E.D.Tex. Mar. 28, 1995), aff'd on other grnds, 77 F.3d 868, 870 (5th
Cir. 1996); Steele v. National Firearms Act Branch,
No. 82-02013-CIV-SMA (S.D.Fla. Mar. 28, 1983), vacated on other
grnds, 755 F.2d 1410 (11th Cir. 1985).
Plaintiffs fare no better on their fallback Printz argument, that
the regulations put CLEOs "in the position of taking the
blame for [the program's] burdensomeness and for its defects." 521
U.S. at 930, 117 S.Ct. 2365. Not every federal program
that presents states or localities a difficult choice with political
ramifications violates the Tenth Amendment. See State of Okla.
ex rel. Oklahoma Dept of Public Safety v. United States,
161 F.3d 1266, 1269 (10th Cir. 1998) (Federal Driver's Privacy Protection
Act does not violate the Tenth Amendment simply because it forces states
to make a choice between releasing motor vehicle records in
conformity with the Act and halting the release of such records);
Minnesota ex rel Hatch v. U.S., 102 F. Supp.2d 1115, 1121 (D.Minn. 2000)
("Tenth Amendment's anticommandeering principle prohibits only direct
federal compulsion."); City of New York v. United
States, 971 F. Supp. 789, 793 (S.D.N Y 1997) (rejecting plaintiffs'
argument that the Tenth "Amendment was violated because
the statute resulted in political cost to city officials), aff'd,
179 F.3d 29 (2d Cir. 1999). "Congress has not compelled
state regulation where `any burden caused by a State's refusal to
regulate will fall on [individuals], rather than on the State as
sovereign.'" Fraternal Order of Police v. United States,
981 F. Supp. 1, 6 (D.D.C. 1997), citing New York v. United States,
505 U.S. 144, 174, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), aff'd,
173 F.3d 898 (D.C.Cir. 1999). Because CLEO participation
in the certification process is optional, and because the burden of a
CLEO's refusal to certify an application falls exclusively on the
individual applicant, these regulations do not violate the Tenth