Petition for Writ of Certiorari — Thomasian v. United States

5

term "destructive device." Resolution of the question of

whether the underscored language modifies only “shotgun

shell" and not "shotgun" turns on application of the doctrine of

the last antecedent.

The court of appeals held that “the phrase ‘generally

recognized as particularly suitable for sporting purposes,’

modifies ‘shotgun,’ as well as ‘shotgun shell.’"” 416 F.3d at

979. the court of appeals explained that “the plain language of

the statute indicates that the qualifying clause modifies both

‘shotgun’ and ‘shotgun shell’” and that:

following the last antecedent argument would

create an “absurd result.” (citing Demko v.

United States, 216 F.3d 1049, 1053

(Fed.Cir.2000)). Under Thomasian's argument,

Ҥ 5845(f)(2) would have the incongruous

effect that no shotgiin could be a ‘destructive

device,’ but all shotgun shells (except those

generally recognized as particularly suitable for

sporting purposes) would be ‘destructive

devices.'" Jd.

416 F.3d at 979.

In determining the intent of Congress, courts mast

"employ(]} traditional tools of statutory construction .

Chevron, U.S.A. v. Natural Resources Defense Council, bs.

467 U.S. 837, 843, n.9 (1984). The doctrine of the last

antecedent is a venerable tool of statutory construction used to

determine whether a modifying word, phrase, or clause applies

to the last one of, or to all of, a series of preceding nouns (or

phrases), the last of which is separated from the other

6

antecedent noun or nouns (or phrases) by the disjunctive "or."

In F. T. C. v. Mandel Brothers, 359 U.S. 385 (1959),

this Court construed the term “invoice” as defined in § 2 (f) of

the Fur Products Labeling Act, 65 Stat. 175, 15 U.S.C. § 69:

a written account, memorandum, list, or

catalog, which is issued _n connection with any

commercial dealing in fur products or furs, and

describes the particulars of any fur products or

furs, transported or delivered to a purchaser,

consignee, factor, bailee, correspondent, or

agent, or any other person who is engaged in

dealing commercially in fur products or furs.

359 U.S. at 386 (emphasis added).

In particular, the Court had to determine whether the

underscored phrase modified only “any other person” or

whether it also modified also all the other preceding terms in

the subsection including “purchaser.” The court of appeals had

held that “engaged in dealing commercially” modified not only

“any other person” but also al! the other preceding terms in the

? See District 6, United Mine Workers of America v. United States

Department of the Interior, 562 F.2d 1260, 1264, n.17 (D.C. Cir. 1977),

where the court quoted the doctrine of the last antecedent a- stated by

Sutherland Statutory Construction.

Referential and qualifying words and phrases, where no

contrary intention appears, refer solely to the last

antecedent, which consists of "the last word, phrase, or

clause that can be made an antecedent without impairing

the meaning of the sentence.”

7

subsection including “purchaser.” 359 U.S. at 389. This Court

rejected that holding, stating that “this limiting clause is to be

applied only to the last antecedent.” /d.

More recently, this Court addressed whether the words

“tending to cause confusion” in the phrase “the words

‘Olympic’, ‘Olympiad’, ‘Citius Altius Fortius’, or any

combination or simulation thereof tending to cause confusion”

modified the word “Olympic.” (emphasis added). San

Francisco Arts & Athletics v. U.S. Olympic Committee, 483

U.S. 522 (1987). This Court concluded that, “because there is

no comma after ‘thereof,’ the more natural reading of the

section is that ‘tending to cause confusion’ modifies only ‘any

combination or simulation thereof." 483 U.S. 528-529.

Plainly, had there been a comma after “thereof,” the Court

would have concluded that the phrase “tending to cause

confusion” modified not only the phrase “any combination or

simulation thereof," but the earlier word “Olympic.”

In § 5845(f)(2), the absence of a comma after “shotgun

shell” makes clear that the modifying phrase applies only to

“shotgun shell” and that the court of appeals’ conclusion

conflicts with this Court’s view of the doctrine of the last

antecedent.

In Anhydrides & Chemicals, Inc. v. United States, 130

F.3d 1481 (Fed. Cir. 1997), the court followed this Court’s

view of the doctrine of the last antecedent, considering the

doctrine to be one of the “rules of grammar [which] apply in

pranaia hares a ee eee

derivatives . . ‘of sanbsinadld dertead in wholes or inpart from

maleic anhydride or from cyclohexane ....” (emphasis

added). The court concluded that, “[s]ince ‘succinic acid’ is the

last antecedent to ‘derived in whole or in part from maleic

anhydride or cyclohexane,’ . . . the clause is properly read as

modifying ‘succinic acid.” 130 F.3d at 1483.

»

The Third Circuit has consistently applied the doctrine

of the last antecedent. In United States ex rel. Santarelli v.

Hughes, 116 F.2d 613, 616 (3" Cir. 1940), the Third Circuit

noted that the doctrine of the last antecedent is “common sense

in grammar hardened into law.”

In National Surety Corp. v. Midland Bank, 551 F.2d 21

(3" Cir. 1977), the court applied the doctrine of the last

antecedent to interpret the phrase: “letters of credit authorizing

holders thereof to draw drafts upon it. .. at sight or on time not

exceeding one year.” (emphasis added). In particular, the court

had to determine whether the italicized phrase modified the

first underscored phrase as well as “time” or modified only

“time”. The court concluded:

Common English usage, let alone the last

antecedent rule of statutory construction,

requires that the italicized language be read to

modify “time”, rather than the more remote

phrase “letters of credit”.

551 F.2d at 34.

In the case at bar, the words immediately preceding the

qualifying phrase are "shotgun shell." Thus, just as the

modifying phrase in National Surety Corp. modified only

9

"time," not also “letters of credit" (the words proceeding the ©

disjunctive “or"), so the modifying phrase in the case at bar

modifies only “shotgun shell," not “shotgun” (the word

proceeding the disjunctive "or").

In Elliot Coal Mining Co. v. Director, Office of

Workers Compensation Programs, 17 F.3d 616 (3d Cir. 1994),

the court construed the following:

“operator” means any owner, lessee, or other

th ther man regenera

coal or other mine . .

17 F.3d at 629.

The issue was whether the phrase “who operates,

controls, or supervises a coal or other mine" modified "owner"

and “lessee” as well as “other person... ." The Director

argued that the doctrine of the last antecedent applied and that

the modifying phrase modified only "other person" -- the last

noun in a series of three nouns ("owner, lessee, or other

person"). In rejecting the Director's understanding of the

doctrine of the last antecedent, the court observed that there

was:

a comma before the conjunction "or." Under

the normal rules of English punctuation for

words in a series, it is the absence of a comma

.

or_other punctuation before the coordinate son or” that a :

ee be limiti ne canal

treated separately rather than as part of the

whole series.

10

17 F.3d at 630 (emphasis added).

Thus, the court concluded, "the limiting clause applies

to the entire series." Jd Moreover, the court, relying on

National Surety Corp. v. Midland Bank, supra, approved the

general rule that “lack of a comma limited application of the

qualifying language to the word immediately preceding it . . .

“Id.

In contrast to the punctuation in the language at issue in

E'liot Coal Mining Co., in the language at issue here, there is

no comma before the conjunction "or". If Congress had sought

to modify "shotgun" as well as "shotgun shell," Congress would

have used a comma after "shotgun" and before “shotgun shell"

to indicate that the modifying phrase modified both "shotgun"

and "shotgun shell." That Congress did not do so indicates that

Congress intended the modifying phrase modifies only

“shotgun shell." Thus, for the very reason that the Director's

argument was rejected in Elliot Coal Mining Co., the

modifying language in the case at bar does not modify the word

“shotgun,” but only the words "shotgun shell.”

The Fourth Circuit has adopted tie Third Circuit’s

approach:

Absent an expression of contrary congressional

intent, the failure to apply this canon "flies in

the face of common sense in grammar hardened

into law." United States ex rel. Santarelli v.

Hughes, 116 F.2d 613 (3rd Cir. 1940).

National Coalition for Students v. Allen, 152 F.3d 283, 288, 0.6

il

(4th Cir. 1998).

The court of appeals here adopted the approach of the

court in Demko v. United States, 216 F.3d 1049 (Fed. Cir.

2000), in which the court held that it did not need to “reach the

issue of the doctrine of the last antecedent because the statute

is unambiguous.” 216 F.3d at 1053. This statement implies

that the doctrine of the last antecedent is only applied if a

statute is ambiguous. On the contrary, as a traditional rule of

statutory construction, the doctrine of the last antecedent is

applied to determine whether a statute is ambiguous. As

expressed in NLRB v. United Food & Com'] Wkrs Union, 484

U.S. 112, 123 (1987), “On a pure question of statutory

construction, our first job is to try to determine congressional

intent, using ‘traditional tools of statutory construction.””

The very approach taken in Demko (and here) was

rejected by the Third Circuit in National Surety Corp. v.

Midland Bank, supra. There, the district court had found the

statute at issue “‘not clear on its face’” (551 F.2d at 27) and

declined to apply the doctrine of the last antecedent. Instead,

to resolve the statute’s ambiguity, the district court reviewed

the purposes of the statute. The Third Circuit reversed the

district court, applying the doctrine of the last antecedent to

determine the “plain meaning of the statute.” 551 F.2d at 34.

The Third Circuit concluded that application of the doctrine of

the last antecedent “requires rejection of the district court’s

finding of ambiguity.” Id. Thus, Demko should have applied

the doctrine of the last antecedent at the outset to determine the

plain meaning of § 5845(£)(2).

To support what it viewed as the plain meaning of §

12

5845(f(2), Demko noted that its reading “is consistent with

Congress's goal in enacting the legislation requiring the tax on

firearms ....” 216 F.3d at 1053. But reading a statute so as to

achieve what the court views as the statute’s goal is not

permissible if the statutory text is to the contrary. In Rodriguez

v. United States, 480 U.S. 522 (1987), this Court rebuked the

court of appeals for its reliance on:

its understanding of the broad purposes of the

[statute] .... Deciding what competing values

will or will not be sacrificed to the achievement

of a particular objective is the very essence of

legislative choice and it frustrates rather than

effectuates legislative intent simplistically to

assume that whatever furthers the statute’s

primary objective must be the law.

480 U.S. at 525-26.

Demko and the court of appeals here did the same; it

read § 5845(f)(2) so as to carry out what they perceived was the

statute’s primary objective instead of construing the statute

using traditional rules of construction.

Further evidencing Demko’s effort to read § 5845(f(2)

so as to carry out what it perceived was the statute’s primary

objective is its statement that, if the modifying phrase does not

modify both “shotgun” and “shotgun shell”, the statute “would

have the incongruous effect that no shotgun could be a

‘destructive device,” but all shotgun shells . . . would be. . . .”

Id. The court of appeals here accepted this specious analysis.

The Demko court, however, offered no explanation why this

result. would be “incongruous” or why, even if it is

13

“incongruous,” that should be a basis for not implementing

Congress’ will.’ Indeed, as the legislative history below

demonstrates, the fact that no shotgun could be a “destructive

device” is precisely what Congress intended.‘ As Rodriguez,

supra, makes clear, Congress may make choices which may not

appear logical, but courts are to implement those choices, not

frustrate them. 5

Demko further concluded that:

the doctrine [of the last antecedent] would not

control in this case because it would create an

absurd result. See generally Squillacote v.

United States, 747 F.2d 432, 433-34 (7 Cir.

1984) (suggesting that the doctrine of the last

antecedent is inapplicable when it creates

absurd or otherwise conflicting results).

216 F.3d at 1053.

While Squillacote rejected application of the doctrine

of the last antecedent in light of the peculiar .. sult of its

application to the statute at issue, that result is very much

> Demko also suggested that “common sense” would dictate that

Congress intended that shotguns, as wel] as shotgun shells, were “destructive

devices.” /d The court offered no explanation why that would be so.

* it is also untrue that all shotgun shells would be “destructive

device” since the modifying phrase (“which the Secretary or his delegate

finds is generally recognized as particularly suitable for sporting purposes”)

permits the Secretary or his delegate to exempt any shotgun shell.

14

different than the result of applying the doctrine to § 5845(f)(2).

In Squillacote, application of the doctrine of the last antecedent

would have required a dispute over a regulation to go to one

court and a dispute over the statute on which the regulation was

based to go to a different court. 747 F.2d at 432. Thus, the

peculiar nature of the result was apparent from the face of the

statute. By contrast, Demko offered nothing to explain why

application of the doctrine of the last antecedent would “create

an absurd result.”’ This assertion is mere ipse dixit.

In fact, what is absurd is to believe that, after extensive

debates on legislation that could have brought all shotguns _

within the ambit of the term “destructive device,” but did not,

as shown, infra, Congress intended, in what was merely "a

technical revision of existing law” (S. Rep. 1501, 90th Cong.,

2d Sess. 30 (1968)), to delegate expansive, unfettered authority

to devermine which shotguns were within the ambit of the term

“destructive device.”

This Court’s observation in FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) with

regard to the regulation of tobacco, a political issue at least as

contentious as firearms regulation, is equally applicable here:

“Congress could not have intended to delegate a decision of

such economic and political significance to an agency in so

cryptic a fashion.”

> The result would certainly not be absurd in the sense meant by’

this Court when it refers to an absurd result. In Sorreils v. United States,

287 U.S. 435 (1932), the Court held that, despite the literal language of a

statute, certain persons were not encompassed within it. The explained:

“General terms should be so limited in their application as not to lead to

injustice, oppression, or an absurd consequence.” 287 U.S. at 446.

lo

2) The legislative history of § 5845(f)(2) supports the

view that the modifying phrase does not modify "shotgun" and

demonstrates conclusively that it is the conclusion of the court

of appeals which may be characterized as absurd.

§ 5845(f)(2) is part of what was originally enacted as

the National Firearms Act of 1934 ("NFA"). The original NFA

did not include any reference to "destructive device."

In March, 1965, the Johnson Administration proposed

legislation to amend the NFA and the Federal Firearms Act of

1938 (FFA). Proposed Amendments to the National Firearms

Act and the Federal Firearms Act: Hearings Before the

Committee on Ways and Means, House of Representatives,

89th Cong., Ist Sess. 3 (1965). For the first time, a definition

of "destructive device" was proposed; it was to be added to §

5848, the definitions section of the NFA.° S. 1591, 89th Cong.

2d Sess. (1965). In pertinent part, that definition would have

stated that the term "destructive device" included:

any type of weapon by whatsoever name known

(other than a shotgun having a barrel or barrels

of 18 or more inches in length), which will, or

which is designed to, or which may be readily

converted to, expel a projectile, or projectiles by

the action of an explosive, the barrel or barrels

of which have a bore of one-half inch or more

in diameter... .

* The definitions section of the NFA is now § 5845.

16

The Johnson Administration also proposed legislation

to amend the FFA, which also would have added a definition

of “destructive device.” That bill was introduced as S. 1592,

85th Cong. 2d Sess. (1965). In pertinent part, that definition

stated that the term "destructive device” included:

any type of weapon by whatsoever name known

which will, or is designed to, or which may be

readily converted to expel a projectile or

projectiles by the action of an explosive, the

barrel or barrels of which have a bore of one-

half inch or more in diameter.

Sec. 1(a), Reprinted in S. Rep. 1866, 89th Cong., 2d Sess. 43.

Unlike the bill amending the NFA, which exempted

certain shotguns in the definition itself, S. 1592 limited the

coverage of the definition by creating a Section 1(b)(2) which

stated in pertinent part: "The term "destructive device” shall not

include . . . (C) any shotgun (other than a short-barreled

shotgun)... ." /d at 44.’ The Johnson Administration's

legislation was not enacted by the 89th Congress.

In the 90th Congress, Senator Hruska introduced S.

1853 to amend the FFA and S. 1854 to amend the NFA.* The

definition of “destructive device" in S. 1854 was as follows:

” According to the Report, the exemption was removed from the

definition so that it became an affirmative defense and not an element of the

offense which the government had to prove. /d at 76.

* Senator Hruska siated that S. 1854 “is similar in approach to S.

1591,” the bill introduced for the Johnson Administration in the 89th

Congress. 114 Cong. Rec. 13705.

17

any type of weapon by whatever name known

which will, or which may be readily converted

to, expel a projectile by the action of an

explosive, the barrel or barrels of which have a

bore of more than .78 inches in diameter . . . .

S. 1854 also stated: "The term ‘destructive device’ shall not

include . . . (iii) any shotgun... ." 114 Cong. Rec. 13705

(1967).

When S. 917 “an omnibus crime control bill) was

marked-up by the Senate Judiciary Commitiee, the Committee

included a definition of "destructive device" in the definitions

section of Chapter 44 of title 18 (§ 921)’, which read:

The term “destructive device" means... any

type of weapon which will, or is designed to or

may be readily converted to, expel a projectile

by the action of any explosive, and having any

barrel with a bore one-half inch or more in

§ 921(aX(4). S. Rep. 1097, 90th Cong., 2d Sess. (1968).

§ 921 also included a subsection (b\(2) which stated in

part: "The term ‘destructive device’ shall not include . . . (C) any

shotgun other than a short-barreled shotgun ...." In addition,

§ 921(a)(16) defined "ammunition" as “ammunition for a

destructive device; it shall not include shotgun shells or any

® This definition was necessary since the bill as approved by the

Committee established a system whereby, instead of including "destructive

devices” as NF A weapons, the approval of a principal local law enforcement

officer would have to be obtained before a “destructive device” could be

transferred.

18

other ammunition designed for use in a firearm other than a

destructive device." These provisions were enacted into law on

June 19, 1968 as part of Title [V of the Omnibus Crime Control

and Safe Streets Act of 1968. Pub. L. 90-351, 82 Stat. 197

(1968). Thus, as of June 19, 1968, shotguns (other than short-

barreled shotguns) were excluded from the definition of

"destructive device"; the Secretary had no authority to classify

a shotgun as a “destructive device" based on its suitability for

sporting purposes.

On June 10, 1968, H.R. 17735 was introduced in the

House of Representatives. {t was reported out of the House

Judiciary Committee on June 21, 1968. Consideration of H.R.

17735 began on the House floor on July 19, 1968. While H.R.

17735 proposed amendments to numerous provisions of

Chapter 44 of Title 18, no change was proposed to 18 U.S.C.

§ 921(a)(4\X(defining "destructive device") or to §

921(6)(2)(C)(excluding shotguns (other than short-barreled

shotguns) from the definition of "destructive device"); §

921(a)(16) was, however, to be amended to encompass all

ammunition. 114 Cong. Rec. 22224. Although H.R. 17735 as

passed by the House included no proposed changes to 18

U.S.C. § 921(a)(4) or to § 921(b\(2)(C), the House adopted an

amendment to § 921(a)(16) to define "ammunition" as “only

ammunition for a destructive device and pistol or revolver

ammunition. It shall not include shotgun shells... ." 114

Cong. Rec. 23093 (1968). The House passed the bill onJuly

24, 1968 and sent it to the Senate.

The companion bill in the Senate, S. 3633, was

introduced by Senator Dodd on June 12, 1968. 114 Cong. Rec.

16883. When the bill was marked up by the Senate Judiciary

19

Committee on September 6, 1968,"° the Committee proposed

"technical changes" to § 921(a)(4), which included adding

“(e]xceptions to the definition [of destructive device]" to §

921(a)(4) itself and repealing the exceptions in § 921(b\(2)(C).

S. Rep. 1501, 90th Cong., 2d Sess. 20, 54, 56 (1968)."’ The

definition of “ammunition” was to be amended to state that

ammunition “shall only include ammunition for a destructive

device and pistol or revolver ammunition. It shall not include

shotgun shells... .""* As proposed to be amended by the

Committee, the pertinent part of the definition of “destructive

device" was to read:

any type of weapon by whatever name known

which will, or which may be readily converted

to, expel a projectile by the action of an

explosive or other propellant, the barrel or

barrels of which have a bore of more than one-

half inch in diameter, except a shotgun or

shotgun shell which the Secretary or his

delegate finds is generally recognized as

particularly suitable for sporting purposes . . . .

S. Rep. 1501, 90th Cong., 2d Sess. 54.

The Committee Report explained that the proposed

definition of “destructive device" is "a technical revision of

"° This was, of course, about 6 weeks after the House had passed

H.R. 17735.

'' At that time, § 921(6)(2) stated in part: "The term ‘destructive

device’ shall not include . . . (C) any shotgun other than a short-barreled

shotgun ...."

'? This language is identical to the language adopted earlier by the

House in H.R. 17735.

20

existing law... ." S. Rep. 1501, 90th Cong., 2d Sess. 30

(1968).'* Similarly, during Senate floor debate on September

16, 1968, Senator Dodd, in seeking Senate approval of the

Committee amendment to his bill, reiterated that the definition

proposed by the Committee was “a technical revision of

existing law .. . ." 114 Cong. Rec. 26900 (1968). Senator

Hruska (who, the year before, had introduced S. 1854, which

completely excluded shotguns from the definition of

"destructive device") stated that it was a “noncontroversial

measure... ." 114 Cong. Rec. 26900 (1968). Senator Cooper

-- who voted for the amendment, along with Senators Hruska

and Dodd, 114 Cong. Rec. 26900-1 -- noted later in the debate

that Senators Dodd and Hruska had commented “intelligently”

nacre aries “destructive device” and concluded that

gprs a yes Genauie abdath 114 Cong.

Rec 26903. Senator Cooper thus viewed all shotguns as not

" In the explanatory part of the Report, the Report referred to a

"shotgun shell or shotgun generally recognized as particularly suitable for

shooting sport purposes ...." As the U.S. Court of Appeals for the District

of Columbia Circuit has said of committee reports which differ from the

language of the bill:

[W]e think it plainly wrong as a general matter, and in

this case in particular, to regard committee reports as

drafted more meticulously and as reflecting the

congressional wil] more accurately than the statutory text

itself. Committee reports, we remind, do not embody the

law. Congress, as Judge Scalia recently noted, votes on

the statutory words, not on different expressions

packaged in committee reports. Hirschey v. FERC, 777

F.2d 1, 7-8 & n. | (DC. Cir. 1985) (Scalia, J.,

concurring).

Abourezk v. Reagan, 785 F 2d 1043, 1054-55, n. 11 (D.C. Cir. 1986).

21

being "destructive devices.""* The amendment was approved

by the Senate 79 to 1. id.”

From these comments, it is evident that the Senate did

not intend to do anything other than reenact, in a slightly

different form, the complete exemption for shotguns from the

definition of "destructive device." Indeed, had the Senate

intended the bill to grant the Secretary the authority to classify

shotguns as "destructive devices” and thus bring them within

the controls of the NFA, the amendments certainly would not

have referred to as "technical" or “noncontroversial" since such

a grant of authority would have represented a radical change

from existing law.

That granting the Secretary the authority to classify

shotguns as “destructive devices” would have been

controversial is evidenced by the controversial nature of the

"sporting purposes” language itself. In considering identical

"sporting purposes" language in the provision of the law

prohibiting importation of firearms which did not meet the

"sporting purposes” test, there was extensive debate. See 114

Cong. Rec. 27461-27465 (1968). Both Senators Hruska and

Murphy -- who supported the adoption of the "destructive

device" definition -- spoke out against the "sporting purposes"

test. Senator Murphy, for example, expressed his concern with

'* Senator Dodd was the sponsor of the bill; he and Senator Hruska

were the sponsors of the Senate Judiciary Committee amendment. "It is the

sponsors that we look to when the meaning of the statutory words is in

doubt." Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384

(1951). Moreover, as sponsors whose statements were not contradicted by

other senators -- indeed, Senator Cooper concurred - reliance on their

statements is thus entirely appropriate as an indicator of Congress’ intent.

'S Later that day, the Senate, without debate or recorded vote,

voted to strike out § 921(bX(2). 114 Cong. Rec 26915 (1968).

22

the vagueness of the language by noting that "sometimes the

meaning [appointive officers in the executive branch] read into

a law is not exactly the meaning that Congress intended in

writing the law." 114 Cong. Rec. 27465 (1968). It is

inconceivable that Senator Murphy would have voted for the

"destructive device" definition two days earlier if he had

understood it to mean that the "sporting purposes" test to which

he was opposed applied to shotguns.

The Senate passed S. 3633 on September 18, 1968, 114

Cong. 27491, and substituted, in H.R. 17735, the language of

S. 3633 for the language of H.R. 17735. Jd.

As the House rejected the Senate amendments to H.R.

17735, a conference committee was appointed to resolve the

differences. With regard to "destructive devices," the

conference committee "adopted the Senate amendment." 114

Cong. Rec. 30576 (1968). Both the Senate and the House then

passed the conference committee's proposed bill on October 9

and 10 respectively." The President signed it into law on

October 22, 1968. Pub. L. 90-618, 82 Stat. 1213 (1968).

In sum, the legislative history makes plain that Congress

did not intend that the definition of “destructive device"

encompass any shotgun. As this result is consistent with proper

application of the doctrine of the last antecedent, the conclusion

is unmistakable that the modifying language does not modify

"shotgun" and that no shotgun is a “destructive device."

‘6 Because the conference committee adopted the Senate

amendment, the legislative history of the amendment is its Senate history.

23

IL.

THE COURT OF APPEALS’ DECISION THAT THE

PHRASE "GENERALLY RECOGNIZED AS” IN §

5845(f)(2) IS NOT AN UNCONSTITUTIONAL

DELEGATION CONFLICTS WITH THIS COURT’S

DECISIONS

In Touby v. United States, 500 U.S. 160 (1991), this

Court reiterated its long-standing construction of Art. I, § 1 of

the Constitution: "Congress may not constitutionally delegate

its legislative power to another Branch of government." /d. at

165. That, however, is what Congress has done here, if, despite

application of the doctrine of the last antecedent and despite the

legislative history, the modifying language in § 5845(f)(2)

modifies "shotgun."

In Touby, the Court repeated its prior decisions holding

that "Congress [must] ‘lay down . . . an intelligible principle to

which the person or body authorized to [act] is directed to

conform .. . .' (citation omitted)." Jd. at 165. § 5845(f)(2) does

not contain such a principle.

The key language in § 5845(f)(2) is "generally

recognized as particularly suitable for sporting purposes." The

phrase “particularly suitable for sporting purposes," standing

alone, lays down an intelligible principle since the Secretary's

determination would be made only by reference to the

quantifiable characteristics of the instrument itself. But, by

preceding the phrase with the language "generally recognized

as," the entire phrase loses it intelligibility by making the

Secretary's determination dependent not upon an analysis of the

quantifiable characteristics of the instrument itself, but rather

upon whether some unspecified group recognizes the

instrument as “particularly suitable for sporting purposes."

Indeed, in clear recognition of the lack of an intelligible

24

principle in the phrase "generally recognized as," the agency

itself, in ATF Ruling 94-2, did not even discuss, let alone

conclude, that the Striker 12 is not "generally recognized as"

particularly suitable for sporting purposes.

The phrase “generally recognized as particularly

suitable for sporting purposes" also does not "meaningfully

constrain{]” ATF’s discretion to define criminal conduct.

In Touby, the Court upheld the statute at issue since it

"meaningfully constrains the Attorney General's discretion to

define criminal conduct." 500 U.S. at 166. The Court found

such restraint embodied in the following requirements: that the

Attorney General make a finding that scheduling a drug

temporarily is "necessary to avoid an imminent hazard to the

public safety"; that this finding be based upon three specific

factors; that the Attorney General publish 30 day of the

proposed scheduling in the Federal Register, transmit notice to

the Secretary of HHS, and “take into consideration any

comments submitted by the Secretary in response"; and that the

Attorney General make findings regarding the use of the drug.

500 U.S. at 166.

None of these restraints are present in § 5845(f)(2).

Indeed, since a classification pursuant to § 5845(f)(2) is a

permanent classification, not a temporary classification similar

to the one upheld in Touby, the absence in § 5845(f)(2) of the

additional restraints which apply to the permanent scheduling

of drugs -- discussed at 500 U.S. at 168 -- only exacerbates the

unconstitutional nature of the delegation of legislative power by

§ 5845(f)(2)."”

'? Subsequent to Touby, the Court upheld § 109(b)(1) of the Clean

Air Act against a delegation challenge because:

25

The rule laid down in Touby follows from earlier cases

which also demonstrate that the delegation in § 5845(f)(2) is

precisely the type of delegation of which the Court would not

approve: National Broadcasting Co. v. United States, 319 U.S.

190 (1943); Yakus v. United States, 321 U.S. 414 (1944); and

Lichter v. United States, 334 U.S. 742 (1948).

In National Broadcasting Co., the Court upheld the

delegation to the Federal Communications Commission of the

power to regulate radio stations "as public interest, convenience

or necessity requires... ." In doing so, the Court relied on

Section 1 of the Communications Act, which stated the general

purpose of the Act:

to make available, so far as possible, to all the

people of the United States a rapid, efficient,

Nationwide, and world-wide wire and radio

communication service with adequate facilities

at reasonable charges... .

319 US. at 214.

~

the text of § 109(b)(1) of the CAA at a minimum requires

that “[flor a discrete set of pollutants and based on

published air quality criteria that reflect the latest

scientific knowledge, [the] EPA must establish uniform

national standards at a level that .s requisite to protect

public health from the adverse effects of the pollutant in

the ambient air.” Tr. of Oral Arg. in No. 99-1257, p. 5.

Requisite, in turn, “mean{s} sufficient, but not more than

necessary.” Id., at 7.

Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 473 (2001).

No similar limitations are found in the NFA.

26

Further, the Court noted, Section 301 “particularizes

this general purpose with respect to radio... ." 319 U.S. at

214. Finally, the Court observed that "[t}he ‘public interest’ to

be served under the Communications Act is thus the interest of

the listening public in ‘the larger and more effective use of

radio’. § 303(g)." 319 U.S. at 216. Taken together, these

statutory provisions satisfied the Court that adequate standards

were established by Congress and that the Act was not an

unconstitutional delegation.

By contrast, in the National Firearms Act (NFA), 26

U.S.C. Chapter 53, the Act of which § 5845(f) is a part,

Congress did not enact any general or specific purpose. There

is thus no standard to guide the Secretary or his delegate in

applying the phrase "generally recognized as." Because that

phrase is "so vague and indefinite . . . the delegation of

legislative authority is unconstitutional." 319 U.S. at 225-6.

The Court's decision in Yakus, where the Court upheld

the power of the Price Administrator, delegated by § 2(a) of the

Emergency Price Control Act (EPCA), points in the same

direction:

after consultation with representative members

of the industry so far as practicable, to

promulgate regulations fixing prices of

commodities which “in his judgment will be

generally fair and equitable and will effectuate

the purposes of this Act" when, in his judgment,

their prices "have risen or threaten to rise to an

extent or in a manner inconsistent with the

purposes of this Act."

321 U.S. at 420.

27

In promulgating the regulations referred to, the Court

noted, § 2 of the EPCA

required the Administrator to “ascertain and

give due consideration to the prices prevailing

between [certain specific dates] . . . and shall

make adjustments for such relevant factors as

he may determine and deem to be of general

applicability, including .. . [list of factors]."

321 U.S. at 421.

The Court thus concluded that "[tJ}he standards set out

in § 2 define the boundaries within which prices having that

purpose must be fixed." 321 U.S. at 423. Moreover, because

§ 2 required that the regulation be “accompanied by a

‘statement of the considerations involved’ in prescribing it," 321

U.S. at 422, “the courts in an appropriate proceeding can see

that substantial basis for those findings is not wanting." 321

U.S. at 423.

Comparison of the NFA to the EPCA highlights the

shortcomings of the NFA and confirms the conclusion that the

"generally recognized as” language of § 5845(f) is an

unconstitutional delegation.

First, unlike the EPCA, the NFA does not require the

promulgation ofa regulation. Considering that Secretary or his

delegate must determine what is "generally recognized as”

suitable for sporting purposes, this failure to seek public input

is especially egregious."*

" In this vein, the NFA also does not require "consultation with

representative members of the industry . . . .”

28

Second, the NFA does not require the Secretary or his

delegate to refer to any objective data, as was the case with the

EPCA (which required reference to prices on certain specific

dates). Rather, the NFA requires the Secretary or his delegate

to determine the views of some unspecified segment of the

general public, without indicating how such determination is to

be made or whose views are to be considered.

Third, there is no requirement in the NFA that the

Secretary or his delegate state the basis for his conclusion that

a particular shotgun is viewed by the unspecified segment of

the general public as a sporting shotgun. Thus, a court cannot

determine if there is a “substantial basis," Yakus at 423, for the

conclusion."? In short, the reasoning of Yakus compels the

conclusion that the "generally recognized as" language in §

5845(f)(2) is an unconstitutional delegation. ;

Finally, Lichter also buttresses the argument that the

"generally recognized as" language in § 5845(f)(2) is an

unconstitutional delegation.

In upholding the delegation to the executive branch of

the power to determine whether "excessive profits" had been

made on government contracts, the Court strongly emphasized

that the Renegotiation Act was enacted pursuant to Congress’

war power, “under which the exercise of broad discretion as to

methods to be employed may be essential to [its] effective use

...." 334U.S. at 779. The NFA, however, was enacted under

the taxing power. Sonzinsky v. United States, 300 U.S. 506,

513 (1937). Congress thus lacked the “broad discretion” that

'? In ATF Rul. 94-2, there was not even an attempt to provide an

explanation for the conclusion that the Striker 12 was not “generally

recognized as" a sporting firearm.

29

it had when enacting the Renegotiation Act.”

Second, the initial Renegotiation Act had been enacted

"in light of," 334 U.S. at 783, administrative practices

interpreting the term "excessive profits" and the Second

Renegotiation Act included a definition of "excessive profits"

which set out six factors to be taken into consideration. 334

U.S. at 799-800. No such claim can be made for § 5845(f)(2).

Third, the "purpose of the Renegotiation Act and its

factual background establish a sufficient meaning for ‘excessive

profits’ as those words are used in practice." 334 U.S. at 785.

In the case of the NFA, neither its purpose nor its background

establish any meaning for the phrase “generally recognized

as" 21

In sum, like National Broadcasting Co. and Yakus,

Lichter demonstrates that the phrase "generally recognized as"

is an unconstitutional delegation.

There is an additional reason the phrase "generally

recognized as" is an unconstitutional delegation. In A.L.A.

Schecter Poultry Corp. et al. v. United States, 295 U.S. 495

(1937), the Court invalidated the National Industrial Recovery

Act. One of the grounds for the Court's decision was the Act's

delegation of “legislative authority to trade or industrial

associations or groups... ." 295 U.S. at 537. Such a

delegation to private parties "is unknown to our law, and is

© “[I}t is the established rule not . . . to enlarge [tax statutes’)

operations so as to embrace matters not specifically pointed out.” Gould v.

Gould, 245 U.S. 151, 153 (1917).

2! The Court also observed that the concept of excess profits was

not novel and had been the subject of earlier statutes and cases. 334 U.S. at

784.

30

utterly inconsistent with the constitutional prerogatives and

duties of Congress.” 295 U.S. at 537.

A similar delegation exists with the phrase "generally

recognized as" since a determination of whether a firearm is

lawful is dependent upon the views of some portion of the

general public. Indeed, the delegation made by § 5845(f\(2) is

more egregious than that invalidated by Schecter Poultry since

the phrase "generally recognized as" does not even specify

whose views are to be considered. The phrase "generally

recognized as” is thus “utterly inconsistent with the

constitutional prerogatives and duties of Congress,” 295 U.S.

at 537, and should, if construed to modify "shotgun," be

invalidated, thereby rendering unconstitutional the

classification of the Striker 12 as a “destructive device."

CONCLUSION

This Court should grant this petition for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit.

RICHARD E. GARDINER*

Suite 404

10560 Main Street

Fairfax, Virginia 22030

(703) 352-7276

Counsel for Petitioner

*Counsel of Record

October, 2005

APPENDIX

la

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

One Sentinel Arms Striker-12 CV-03-00886

Shotgun Serial No. 001725, In Rem,

FOR THE NINTH CIRCUIT

United States of America, )

)

Plaintiff-Appellee, )

)

Craig A. Thomasian, )

)

Claimant-Appellant, )

: )

v. ) No. 04-35360

) D.C. No.

)

)

)

)

Defendant.

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Submitted July 11, 2005.'

Portland, Oregon

Filed July 26, 2005

Before: Pamela Ann Rymer, A. Wallace Tashima,

' This panel unanimously finds this case suitable for

decision without oral argument. See Fed. R.A ~ uv. P. 34(a)(2).

2a

Circuit Judges, and Charles R. Weiner,” Senior Judge

Opinion by Judge Weiner

COUNSEL

Richard E. Gardiner, Esquire, Fairfax, VA, for appellant Craig

Thomasian.

Karin J. Immergut, United States Attorney for the District of

Oregon, Leslie J. Westphal, Assistant United States Attorney

for the District of Oregon, Portland, OR, for appellee United

States of America. z

OPINION

WEINER, Senior District Judge:

This is a civil in rem forfeiture action in which the

United States sought to forfeit defendant property, a Sentinel

Arms Striker-12 shotgun, serial no. 001725 ("Striker-12

shotgun"), on the basis that the Striker-12 shotgun is a

“destructive device” possessed in violation of the National

Firearms Act ("NFA"). 26 U.S.C. §§ 5861(d), 5872. The

claimant, Craig Thomasian, filed a claim of interest and then

moved to dismiss the complaint for failure to state a claim,

arguing that the Bureau of Alcohol, Tobacco and Firearms

("ATF") can not properly classify the Striker-!2 shotgun as a

“destructive device” pursuant to 26 U.S.C. § 5845(f)(2), and

that Congress unconstitutionally delegated legislative authority

* The Honorable Charlies R. Weiner, Senior United

States District Court Judge for the Eastern District of

Pennsylvania, sitting by designation.

3a

to ATF. The district court found that the United States had

properly stated a claim for forfeiture and denied Thomasian's

motion to dismiss. On May 17, 2004, the district court entered

a final judgment of forfeiture against defendant. Thomasian

timely appealed. We find Thomasian's arguments without

merit, and affirm the decision below.

Discussion

Questions of statutory interpretation are reviewed de

novo. United States v. Cabaccang, 332 F.3d 622, 624-25 (9th

Cir.2003) (en banc). Challenges to the constitutionality of a

statute are questions of law and are also reviewed de novo.

United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002),

cert. denied, 537 U.S. 1037, 123 S.Ct. 572, 154 L.Ed.2d 458

(2002).

[1] The National Firearms Act defines a destructive

device as, “any typ> of weapon by whatever name known which

will, or which may be readily converted to, expel a projectile by

the action of an explosive or other propellant, the barrel or

barrels of which have a bore of more than one-half inch in

diameter, except a shotgun or shotgun shell which the Secretary

finds is generally recognized as particularly suitable for

sporting purposes [.]" 26 U.S.C. § 5845(f)(2) (emphasis added).

Thomasian argues that according to the doctrine of the last

antecedent, the clause "which the Secretary finds is generally

recognized as particularly suitable for sporting purposes,"

modifies “shotgun shell," but not "shotgun." Thus, the statute

would categorically exclude all shotguns from the definition of

a destructive device.

[2] "In determining the scope of a statute, a court must

look first to the statute's language and structure. If the statute's

language is unambiguous, its plain language controls except in

4a

rare and exceptional circumstances." United States v. LeCoe,

936 F.2d 398, 402-03 (9th Cir.1991) (internal citations and

quotations omitted). As the Federal Circuit recently noted, §

5845(f}(2) is not ambiguous and the plain language of the

statute indicates that the qualifying clause modifies both

“shotgun” and "shotgun shell." Demko v. United States, 216

F.3d 1049, 1053 (Fed.Cir.2000). As the Federal Circuit also

explained, following the last antecedent argument in this case

would create an “absurd result." Id. at 1053. Under Thomasian's

argument, " § 5845(f)(2) would have the incongruous effect

that no shotgun couid be a ‘destructive device,’ but all shotgun

shells (except those generally recognized as particularly

suitable for sporting purposes) would be ‘destructive devices.

" Id. This would be an absurd result indeed.

[3] The plain language of the statute and the legislative

history make clear that the phrase "generally recognized as

particularly suitable for sporting purposes," modifies "shotgun,"

as well as “shotgun shell." See H.R.Rep. No. 90-1956 (1968),

reprinted in 1968 U.S.C.C.A.N. 4426, 4427. Moreover, as we

have specifically recognized, the doctrine of the last antecedent

"must yield to the most logical meaning of a statute that

emerges from its plain language and legislative history."

Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 833

(9th Cir. 1996).

[4] Thomasian next argues that the phrase "generaily

recognized as suitable for sporting purposes” contained in 26

U.S.C. § 5845(f(2) unconstitutionally delegates legislative

authority to ATF. We disagree. "So long as Congress shall lay

down by legislative act an intelligible principle to which the

person or body authorized to exercise the delegated authority is

directed to conform, such legislative action is not a forbidden

delegation of legislative power." Mistretta v. United States, 488

U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). As the

Sa

Federal Circuit correctly held, the sporting purpose standard

meets the “intelligible principles” test. Demko, 216 F.3d at

1054. The Federal Circuit is not the only court to reach this

conclusion. This exact standard, contained in the Gun Control

Act, was held constitutional in Gilbert Equipment Co., v.

Higgins, 709 F.Supp. 1071 (S.D.Ala.1989), aff'd. 894 F.2d 412

(11th Cir.1990). The fact that this standard is non-quantitative

does not change our result, as the Supreme Court has often heid

that non-quantitative standards do not violate the nondelegation

doctrine. See, ¢.g., Am. Power & Light Co. v. SEC, 329 U.S.

90, 104, 67 S.Ct. 133, 91 L.Ed. 103 (1946) (upholding statute

giving SEC authority to modify corporate structures so that

they are not "unduly or unnecessarily complicate[d]" and do not

"unfairly or inequitably distribute voting power among security

holders"); see also Yakus v. United States, 321 U.S. 414,

419-20, 423-27, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (upholding

pc tite em ghana taal be generally

fair and equitable").

Accordingly, the decision of the district court is

AFFIRMED.

6a

UNITED STATES OF AMERICA,

Plaintiff,

v.

ONE SENTINEL ARMS STRIKER-12 SHOTGUN,

SERIAL NO. 001725, IN REM,

Defendant.

No. CV 03-886-MA.

- April 13, 2004.

Leslie J. Westphal, OSB # 83344, Assistant United States

Attorney, Portland, OR, for Plaintiff United States.

ORDER

MARSH, J.

*1 On October 21, 2003, I filed an order denying Craig

Thomasian's motion to dismiss this civil forfeiture proceeding.

In so ruling, I held that the subject matter of this action, a

Striker- 12 shotgun is a “destructive device" within the meaning

of the National Firearms Act (NFA), 26 U.S.C. § 5845(f)(2)

and ATF Ruling 94-2. This ruling effectively disposed of the

merits of Thomasian's claim against the forfeiture.

Thereafter, the government moved to strike Thomasian's claim

for failure to timely file an answer. I granted this motion by

Order dated January 22, 2004. Because there were no other

claims filed, I entered a Default Judgment of Forfeiture on

March 13, 2004.

Ta

On March 17, 2004, Thomasian filed an opposition to the entry

of a default judgment. With this opposition, Thomasian

re-raised many of the arguments asserted with his motion to

dismiss; he also offered to stipulate to the facts alleged in the

complaint and asked that I enter a judgment on the pleadings

pursuant to Fed. R Civ. P. 12(c) in lieu of a default judgment.

I set aside the default judgment and asked the government to

respond to Thomasian's opposition. I also noted that the

government's original motion for default judgment would be

placed back onto the court's calendar. The government then

responded with a motion for judgment on the pleadings

pursuant to Fed.R.Civ.P. 12(c). [FN1]

FN1. On April 6, 2004, Thomasian filed a notice of appeal.

Pursuant to Federal Rule of Appellate Procedure 4(a)(4), I

retain jurisdiction to rule on motions to alter or amend a

judgment. See Leader National Ins. Co. v. Industrial Indemnity

Insurance Co., 19 F.3d 444 (9th Cir. 1994) (notice of appeal is

held in abeyance pending resolution of motion to amend

judgment).

Based upon the record, the government is entitled to judgment

as a matter of law. Consistent with my opinion of October 21,

2003, I find by a preponderance of the evidence that the subject

matter of this action is subject to forfeiture because it is a

“destructive device" within the meaning of 26 U.S.C. §

5845(f)(2)and ATF Ruling 94-2. Further, no timely answer was

filed by the only claimant to the subject matter of this action.

Accordingly, the government's original motion for default

judgment (# 22) is DENIED as MOOT; the government's

alternative motion for judgment on the pleadings (# 27) is

GRANTED.