1

United States Court of Appeals,

Fifth Circuit.

No. 95-40310.

Robert Lee WESTFALL, Plaintiff-Appellant,

v.

Wayne MILLER, Chief, National Firearms Act Branch, Department of

the Treasury, and the United States of America, DefendantsAppellees.

March 18, 1996.

Appeal from the United States District Court for the Eastern

District of Texas.

Before KING, STEWART and PARKER, Circuit Judges.

STEWART, Circuit Judge:

Robert Lee Westfall appeals the district court's judgment,

which held that Westfall lacked standing to challenge the law

enforcement certification requirement, that even if Westfall had

standing mandamus was an improper remedy and the Administrative

Procedure Act did not provide jurisdiction over the action, and

further that Westfall failed to state a claim upon which relief

could be granted because the law enforcement requirement does not

violate the Tenth, Fifth, or Fourteenth Amendments of the

Constitution. Finding that Westfall lacks standing, we affirm.

FACTS

On March 16, 1993, Robert Lee Westfall contracted to purchase

an AWC Systems Technology machinegun. Federal regulations require

a transferee of a machinegun to submit to the National Firearms Act

Branch of the Bureau of Alcohol, Tobacco and Firearms ("ATF") an

ATF Form 4, which is an application for Tax Paid Transfer and
2

Registration of Firearm. ATF Form 4 requires the transferee to

obtain a certification from a local law enforcement official that,

inter alia, the official has no knowledge that the transferee will

use the firearm for an unlawful purpose.

Westfall, who resides in the City of Plano, Collin County,

Texas, requested the required certification from the officials

located within five miles of his home: the City of Plano Chief of

Police, the Sheriff of Collin County, and the Collin County

District Attorney. Each of these officials declined or refused to

complete the certification. Nevertheless, on July 7, 1993,

Westfall submitted his Form 4 and other prescribed documents to the

ATF. He attached a letter challenging the legal basis for the law

enforcement certification. Additionally, Westfall attached an

affidavit explaining that he had unsuccessfully attempted to obtain

certification from the chief of police, the sheriff, and the

district attorney in his area.

On August 27, 1993, Wayne Miller, the chief of the National

Firearms Branch of the ATF, sent Westfall a letter refusing to

process Westfall's application because it was incomplete without

the required law enforcement certification. Miller also informed

Westfall that the transferee has the burden of obtaining the law

enforcement certification and advised Westfall of other officials

who could give the certification. The proposed certifying

officials included the head of the state police and certain judges.

Westfall filed suit on October 20, 1993 against Miller in his

official capacity and the United States, seeking a declaration that
3

the law enforcement provision of 27 C.F.R. § 179.85 violated the

Tenth and Fourteenth Amendments of the Constitution, as well as a

writ of mandamus directing the ATF to approve his application.

Westfall amended his complaint to add that § 179.85 also violated

his Fifth Amendment right to due process. The ATF moved to dismiss

Westfall's complaints, and soon thereafter Westfall sought summary

judgment.

On March 28, 1995, the district court granted the ATF's motion

to dismiss with prejudice. First, the district court held that

Westfall did not have standing to challenge the certification

requirement because he had not exhausted his certification options

prior to filing suit. Second, the district court held that even if

Westfall had standing, mandamus was not the appropriate remedy.

Third, the district court concluded that the Administrative

Procedure Act did not provide jurisdiction. Finally, the district

court held that the complaint failed to state a claim upon which

relief could be granted because the law enforcement certification

requirement did not violate the Constitution. The Tenth Amendment

was not violated because state officials do not have a duty to make

the certification. Westfall could not establish a Fifth Amendment

due process violation because he did not have a property right in

possession of a machinegun. Further, Fourteenth Amendment due

process was not implicated because there was no state action.

Westfall timely appealed.

DISCUSSION

A. STANDARD OF REVIEW.
4

We review de novo the granting of a motion to dismiss,

accepting as true all well pleaded assertions in the light most

favorable to the plaintiff. See American Waste & Pollution Control

Co. v. Browning-Ferris, 949 F.2d 1384, 1386 (5th Cir.1991).

Dismissal is appropriate only if the district court could not

afford relief to the plaintiff under any set of facts consistent

with the allegations in the complaint. Id. Accordingly, we will

uphold the dismissal only if it "appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-

46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In viewing the facts in

favor of the plaintiff, we need not strain to find inferences

favorable to the plaintiff. Therefore, we will view the facts in

Westfall's favor, and Westfall is entitled to all inferences that

surface from a fair and reasonable reading of the pleadings.

B. STANDING.

 Before we can address the merits of Westfall's arguments we

must determine whether Westfall is the appropriate party to raise

these complaints. Just because Westfall does not like the firearms

regulation does not give him standing to complain about its

legality. The courts are designed to address only grievances of

people who have suffered real injuries causally linked to the

defendant's alleged unlawful conduct and likely to be redressed by

the requested relief. See U.S. Const. art. III; see also

Northeastern Florida Chapter of the Associated General Contractors

of America v. City of Jacksonville, 508 U.S. 656, ----, 113 S.Ct.
5

2297, 2301-02, 124 L.Ed.2d 586, 595-96 (1993). The Supreme Court

explained the three elements of standing as follows:

It has been established by a long line of cases that a party

seeking to invoke a federal court's jurisdiction must

demonstrate three things: (1) "injury in fact," by which we

mean an invasion of a legally protected interest that is (a)

concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical, ...; (2) a causal relationship

between the injury and the challenged conduct, by which we

mean that the injury fairly can be traced to the challenged

action of the defendant, and has not resulted from the

independent action of some third party not before the court,

...; and (3) a likelihood that the injury will be redressed

by a favorable decision, by which we mean that the prospect of

obtaining relief from the injury as a result of the favorable

ruling in not too speculative.

Id. (citations and quotations omitted). Accordingly, we must first

examine the substance of Westfall's injuries before diving into the

constitutional complaints alleged.

The district court found that Westfall lacked standing

because he failed to exhaust his certification options before

filing suit. Therefore, the court concluded that Westfall failed

to demonstrate a causal link between the certification requirement

and his injury.

Westfall argues that he fully complied with all constitutional

and lawful requirements of 27 C.F.R. § 179.85. He claims that the

ATF's contention that he must seek certification from the head of

the Texas State Police (a position which he contends does not

exist) or other officials is an attempt to unreasonably expand the

list of qualified individuals who may certify his application.

Finally, Westfall asserts that the Eleventh Circuit in Steele v.

National Firearms Act Branch, 755 F.2d 1410 (11th Cir.1985),

impliedly held that a firearm purchaser would have standing to
6

challenge the regulations by holding that a seller lacked standing

to challenge them.

On the other hand, the ATF argues that Westfall has failed to

establish the necessary causal link between his injury and the

regulation because he has not shown that he is not the cause in

fact of his injury. The ATF further alleges that Westfall has not

pursued certification from all specified persons, such as the head

of the Texas State Police (which the ATF contends is the Texas

Department of Public Safety). Finally, the ATF maintains that

Westfall misinterprets the Steele decision.

We agree with the district court and with the ATF that

Westfall lacks standing to bring the instant action. Westfall

correctly directs our attention to Steele, which persuasively

addresses the issue in a different context; however, we find that

Westfall grossly misinterprets Steele. In Steele, the Eleventh

Circuit analyzed whether Steele, a seller of firearms, had standing

to challenge the law enforcement certification requirement. 755

F.2d at 1413-15. Steele submitted requests to State Attorney Janet

Reno, United States Attorney Atlee Wampler, and United States

Marshall Carlos Cruz, who all refused to sign the certificate. Id.

at 1413. The National Firearms Act Branch (NFAB) informed Steele,

that although he was an attorney, the NFAB probably would not

accept the certificate with his signature in the certification

section. The NFAB also notified Steele that there were other local

officials, besides Reno, whose signature the NFAB would accept.

Steele filed suit without seeking attestations from any other local
7

officials. The Eleventh Circuit found that Steele could not

satisfy the causation element of the standing inquiry. Id. at

1414. The court explained as follows:

The allegedly illegal conduct challenged by the appellant is

the NFAB's refusal to approve firearms transfers without a

properly supported Form 4539. The line of causation from that

conduct to plaintiff's injury is not established from the

allegations of the complaint or other materials in the record.

The challenged regulation indicates that local law enforcement

officials are eligible to sign the form, and the exhibits

attached to the complaint indicate that appellant was directed

to such officials. Appellant's inability to sell his

inventory would be fairly traceable to the purportedly

unlawful conduct only if all of the eligible signers listed in

the regulation would not sign the form.... Without such an

allegation [that local officials other than Reno refused to

sign the form] ..., this court cannot be sure whether the

injury was caused by the defendant's actions or by appellant's

failure to pursue all possible avenues listed in the

regulation to obtain the required signatures.

Id. The Eleventh Circuit clarified that the causation element is

satisfied only if the petitioner exhausts the remedies available in

the regulation. Steele had not requested signatures from all

acceptable officials listed in the statute. Accordingly, the court

could not determine whether the injury Steele alleged was

self-inflicted by his own inaction.

We are persuaded by the reasoning of the Eleventh Circuit and

adapt its analysis to fit the specific issue presented here.

Westfall requested signatures of some local officials who refused

to make the required certification. Although the ATF informed

Westfall of other acceptable local officials, Westfall made no

effort to obtain certifications from these officials. We can only

conclude that his inaction has caused any injury he has suffered.

We fully understand that, as the regulation is written, Westfall
 

1The head of the Department of Public Safety, the highest

law enforcement official in the state of Texas, is the official

whom Texas law enforcement bodies recognize as the head of the

state police. The ATF, citing Texas Gov't Code § 411.002,

indicates in its brief that the Texas Department of Public Safety

is the State Police of Texas "since it is an agency of the State

which enforces the laws protecting the public safety and

providing for the prevention and detention of crime." The letter

from the City of Plano police department, which declined to

provide the certification, specifically advised Westfall to seek

certification from the head of the Department of Public Safety. 

The ATF's post-argument submission to this court demonstrates

that the Director of the Department of Public Safety has

completed the law enforcement certification for some of the

recently approved Form 4 transfer application. Therefore, it is

more than mere supposition that Westfall could get the necessary

certification from the head of the Texas State Police by

soliciting the Director of the Department of Public Safety. 

8

may possibly have to face more rejection or even go outside of the

five mile radius of his home in order to exhaust the regulation's

list of certifying officials. We also acknowledge that this

process may prove to be cumbersome, frustrating, and inconvenient

for Westfall. Nonetheless, we find the completion of the statutory

procedure necessary to establish Westfall's injury. Moreover, we

cannot ignore the fact that Westfall will not have an injury of

which to complain if the chief of the Texas Department of Public

Safety or a judge in his area provides the requested certification.

Under the facts of this case we also must reject Westfall's

arguments that the ATF is attempting to unreasonably expand the

list of qualified individuals who may certify his application. The

ATF's suggestion is consistent with the directives of the statute.

Section 179.85 specifically lists the head of the state police,

whose functional equivalent in this case is the head of the Texas

Department of Public Safety,1 as a certification option. Enforcing
 

2The ATF's list of qualified officials from whom Westfall

could seek certification appears even more reasonable in light of

the number of transfer applications approved using the Form 4

process with signatures from the very officials from whom

Westfall refused to seek certification. The ATF approved a total

of 1,275 Form 4 transfer applications for Texas transferees

between March 16, 1993 (the date Westfall contracted to purchase

the machinegun) and November 25, 1995. Of the 1,275

applications, 829 transfers involved Texas transferees receiving

machineguns. Certifying officials included chiefs of police,

sheriffs, the director of the Texas Department of Public Safety,

local district attorneys, Texas state court judges, county

attorneys, Texas marshals, Texas constables, and United States

provost marshals. The ATF has not asked Westfall to seek

certification from any official that has not already certified a

Form 4 application. Accordingly, the ATF has not expanded its

list of qualifying officials, and its instruction to Westfall to

exhaust the already established list was not unreasonable. 

9

the statute as written certainly cannot be interpreted as an

unreasonable expansion. Further, requiring Westfall to seek

certification from local judges is consistent with case law

interpreting § 179.85. Compare Steele, 755 F.2d at 1415 n. 3

(where the appellate court impliedly noted that it was reasonable

to require the transferee to seek certification from the other

local officials in his area before the transferee was eligible to

challenge the legality of the law enforcement requirement).2 We

find, therefore, that the ATF was completely within its authority

to require Westfall to exhaust these certification options.

Westfall has failed to establish that he has suffered an

injury in fact which is fairly traceable to actions taken by the

ATF. Thus, the district court correctly dismissed Westfall's

complaint.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court's
10

judgment dismissing Westfall's complaint with prejudice.