Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:08-cv-00136-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WILLIAM AKINS, Plaintiff, v. THE UNITED STATES Defendant. ) ) ) ) ) ) ) ) )

CIVIL ACTION FILE NO. 08-136C (Judge Wheeler)

PLAINTIFF'S RESPONSE TO MOTION TO DISMISS I. INTRODUCTION

Defendant moves to dismiss this case under Rule 12(b)(1) or 12(b)(6). Plaintiff will show that Defendant's Rule 12(b)(1) motion is moot and that Defendant's Rule 12(b)(6) motion is not well grounded. For these reasons, Defendant's Motion must be denied. II. ARGUMENT

IIA. Defendant's Rule 12(b)(1) Motion is Moot Defendant does not clearly indicate which of its arguments pertain to Rule 12(b)(1) and which pertain to Rule 12(b)(6). Part II of Defendant's brief contains the substantive argument, and, from the context, Plaintiff assumes for the sake of this

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Response that Parts IIA, IID, and IIE are based on Rule 12(b)(1), and Parts IIB and IIC are based on Rule 12(b)(6). If this is not correct, Plaintiff invites Defendant to clarify its motion and requests an opportunity to respond to such a clarification. In its Rule 12(b)(1) sections (Parts IIA, IID, and IIE), Defendant claims this Court lacks jurisdiction to 1) review the ATF's machine gun classification 2) consider Plaintiff's Due Process claim, and 3) issue declaratory and injunctive relief, respectively. Because these issues are moot, the Rule 12(b)(1) portion of Defendant's motion must be denied. Plaintiff intended to have this Court transfer his request for an injunction to an appropriate District Court upon completion of the case. Because Defendant has raised the issue now, however, Plaintiff has commenced a separate action for declaratory and injunctive relief against Defendant on the same series of occurrences (Akins v. United States, Case No. 8:08CV00988T-26TGW, U.S. District Court for the Middle District of Florida). Plaintiff therefore withdraws his Due Process claim and his request for declaratory and injunctive relief. Because this claim and this relief no longer are sought in this court, there is nothing for this Court to consider with regard to Defendant's Rule 12(b)(1) motion.1

1 Plaintiff

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IIB Defendant's Rule 12(b)(6) Motion Misapplies the Law and Overlooks the Facts Contained in the Complaint Defendant also asserts that the physical seizure of Plaintiff's property was not "for public use." The use made of Plaintiff's property by Defendant is not known to Plaintiff nor alleged in the Complaint. Defendant cannot assert by fiat what the purpose of the takings was. Because there is nothing in the pleadings to indicate the purpose of the takings, it would be premature to dismiss Plaintiff's claim on these grounds. Defendant claims that Plaintiff "does not allege that ATF took the Akins Accelerators so that ATF would have machine guns for its own use." Defendant's Brief, p. 10. This claim is true only because Plaintiff does not allege that the Akins Accelerator is a machine gun at all. It is clear from the Complaint, however, that Plaintiff alleges that ATF took the springs of the Akins Accelerator for its own use ("By confiscating the spring from Plaintiff's Akins Accelerators, Defendant has taken

review the ATF's determination that the Akins Accelerator is a machine gun. In order for this Court to determine the proper amount of damages, it will be necessary for this Court to consider whether the takings was permanent or temporary. This question of necessity involves a determination of whether the takings can lawfully continue. "[W]e do have such authority to issue a declaratory judgment where `it is tied and subordinate to a monetary award.'" Ellis v. United States, 222 Ct. Cl. 65, 69, 610 F.2d 760, 762 (1979) [Emphasis in original]. If this Court does not believe it can make such a determination, then this case should be stayed pending the outcome of the U.S. District Court case. -3-

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Plaintiff's private property for public use without just compensation.... Complaint, ¶ 41 [emphasis supplied]). It is rather shocking that Defendant would represent to this Court that something was not alleged in the Complaint when it clearly was. Defendant continues by implying that the ATF gave Plaintiff some sort of gratuitous amnesty by not prosecuting Plaintiff for possession of a machine gun and instead just confiscating Plaintiff's springs. Defendant's brief, p. 10. Defendant ignores the fact that Defendant had provided Plaintiff a perfect defense to such a frivolous prosecution by advising Plaintiff twice in writing that the Akins Accelerator is not a machine gun. The defense of entrapment by estoppel applies "when an official assures a defendant that certain conduct is legal, and the defendant reasonably relies on that advice and continues or initiates the conduct." United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995). Plaintiff was therefore free to continue to possess the fully functioning Akins Accelerators with impunity. Defendant concludes this portion of its argument by blaming Plaintiff for "commenc[ing] the process which ultimately resulted in ATF classifying the Akins Accelerator as a machine gun." Again, Defendant takes liberties with the history of this matter and asserts facts not alleged in the Complaint. It is clear in the Complaint that Plaintiff asked ATF for a classification of the Akins Accelerator in 2003, with
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ATF determining that it was not a machine gun (and therefore not subject to any ATF regulation) in November 2003. Complaint, ¶ 15. Three years later, ATF sua sponte reversed itself after it "received a request from an individual." Complaint, ¶ 24 and Exhibit H. It is disingenuous at best for Defendant to say Plaintiff commenced the process that determined the Akins Accelerator is a machine gun. The Complaint shows that Plaintiff commenced a process that determined the Akins Accelerator is not a machine gun. He then went about his business without further contact with the ATF for three years. The unnamed "individual" to which ATF refers in Exhibit H may have commenced a process that determined the Akins Accelerator to be a machine gun, but Plaintiff certainly did not. Defendant attempts to shield itself from Plaintiff's claim by asserting that it validly exercised its police powers. Defendant offers no argument that Plaintiff's regulatory takings claim is related to Defendant's police powers, because there is no such relationship. Defendant assured Plaintiff that the Akins Accelerator was not a machine gun. The only conclusion from this assurance was that Defendant had no regulatory or police power over the Akins Accelerator at all (firearms accessories are not regulated by federal law). Three years later, Defendant pulled an abrupt about-5-

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face and declared Plaintiff's device to be a machine gun. The arbitrary whim and caprice of agency bureaucrats do not constitute the exercise of police powers for which no takings can be found. Moreover, virtually all regulatory takings are exercises of police power. The test for whether a regulatory takings is compensable is not whether it is such an exercise. The test is whether the economic value of the property has been severely diminished or eliminated. See, for example, Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed. 631 (1978). In the instant case, Plaintiff alleges that his property was regulated to be economically worthless. Defendant continues by asserting that Plaintiff voluntarily entered into a highly regulated field, and thus knew that it was possible Defendant would regulate the economic value of Plaintiff's property to zero. This is simply untrue. Plaintiff scrupulously avoided entering into a regulated field. He asked the ATF to classify the Akins Accelerator because he specifically did not want to enter the field of manufacturing machine guns. He even asked for clarification on the ATF's classification before he went into production. Based on ATF's assurances that the Akins Accelerator is not a machine gun, Plaintiff began producing the device for the consumer market. He was able to do so because the Akins Accelerator was not a
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machine gun, was not a firearm, and did not fall under any federal regulatory scheme of any kind. It is disingenuous for Defendant now to claim Plaintiff voluntarily entered a regulated industry (machine gun manufacturing). Plaintiff entered an unregulated industry because Defendant told him the Akins Accelerator was an unregulated device. Rather than Plaintiff entering a regulated industry, this is a case of Defendant consciously moving a regulated industry to Plaintiff after assuring Plaintiff it would not do so. Defendant overlooks the fact that in a Rule 12(b)(6) motion, the facts as pleaded in the complaint must be taken to be true. "This court must assume all well-pled factual allegations are true and indulge in all reasonable inferences in favor of the nonmovant." United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006). For the purpose of this portion of Defendant's motion, therefore, the Court must assume that the Akins Accelerator is not a machine gun and not subject to government regulation. Complaint, ¶ 39. Given this fact, Defendant cannot be heard to claim that Plaintiff voluntarily inserted himself into a regulated industry. Plaintiff entered an industry that is not regulated at all.

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Finally, Defendant astonishingly asserts that Plaintiff lacked an ownership interest in the "machine guns." Once again, the Complaint alleges the Akins Accelerator is not a machine gun, and the Court must accept this as true for the purpose of a Rule 12(b)(6) motion. Moreover, Defendant does not and can not point to a single allegation in the Complaint (the Court's sole source for facts in a Rule 12(b)(6) motion) indicating Plaintiff lacked an ownership interest in his property. The Complaint alleges that he had such an interest. Complaint, ¶¶ 32, 36. Defendant mistakenly relies on its self-asserted premise that the Akins Accelerator is a machine gun and cites a case involving importation of assault rifles. What Defendant fails to recognize is that one must obtain permission from the government to import assault rifles and the plaintiff in the Defendant's cited case never asserted the items in question were anything but assault rifles. In the instant case, once again, permission is not needed from the government to own or manufacturer firearms accessories, such as the Akins Accelerator, and Plaintiff alleges in the Complaint that the Akins Accelerator is not a machine gun. III. CONCLUSION

Defendant's Rule 12(b)(1) Motion must be dismissed as moot, as Plaintiff has withdrawn his claims that are the subject of Defendant's Rule 12(b)(1) Motion.
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Defendant's Rule 12(b)(6) Motion mistakenly asserts that no exercise of a police power can result in a takings. Defendant also relies on facts not contained in the Complaint to determine that no takings "for public use" has occurred. In a Rule 12(b)(6) Motion, the Court cannot consider matters outside the pleadings. For the foregoing reasons, Defendant's Motion to Dismiss must be denied.

Dated May 27, 2008

JOHN R. MONROE, ATTORNEY AT LAW

__/s/ John R. Monroe___________________ John R. Monroe

9640 Coleman Road Roswell, GA 30075 Telephone: (678) 362-7650 Facsimile: (770) 552-9318 ATTORNEY FOR PLAINTIFF

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CERTIFICATE OF SERVICE I certify that on May 27, 2008 I filed this Plaintiff's Response to Defendant's Motion to Dismiss electronically using the Court's ECF system. The Court's ECF system will provide electronic notice and access to this document to all parties.

/s/ John R. Monroe John R. Monroe

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