                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             FEB 04, 2009
                              No. 08-15640                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 08-00988-CV-T-26-TGW

WILLIAM AKINS,


                                                            Plaintiff-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (February 4, 2009)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     William Akins appeals the summary judgment in favor of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives and against his complaint that the

Bureau violated his due process rights when it classified the Akins Accelerator, an

accessory that increases the rate of fire of a semiautomatic rifle, as a prohibited

firearm. Akins argues that the decision of the Bureau to classify the Accelerator as

a “machinegun” as defined in the National Firearms Act, 26 U.S.C. § 5845(b), is

unreasonable and not entitled to deference; the classification of the Accelerator

without a hearing violated his right to procedural due process; and section 5845(b)

is unconstitutionally vague. We affirm.

                                 I. BACKGROUND

      The Gun Control Act makes its unlawful for any person, other than law

enforcement personnel, to “transfer or possess a machinegun” manufactured after

May 19, 1986. 18 U.S.C. § 922(o). The term “machinegun” used in section

922(o) shares the definition of the term in the National Firearms Act. The

Firearms Act defines a machinegun as “any weapon which shoots, is designed to

shoot, or can be readily restored to shoot, automatically more than one shot,

without manual reloading, by a single function of the trigger.” 26 U.S.C. §

5845(b). A machinegun also includes “the frame or receiver of any such weapon,

any part designed and intended solely and exclusively, or combination of parts

designed and intended, for use in converting a weapon into a machinegun . . . .”



                                           2
Id. Congress delegated authority to the Bureau to interpret and enforce the Act. 27

C.F.R. § 479.

      Akins invented an “apparatus for accelerating the cyclic firing rate of a semi-

automatic firearm” and received a patent for the accessory. The Accelerator is a

molded stock that cradles a semiautomatic rifle and uses an internal spring and the

force of recoil to reposition and refire the rifle. According to Akins, a gunman

pulls the trigger, then “maintains tension against the finger stops,” and each time

the rifle recoils, it is pushed forward by “tension supplied by the spring,” which

pushes “the trigger . . . into the finger[] and the rifle.” The process continues until

the rifle empties its ammunition chamber or the shooter releases contact with the

finger stops. This process is known commonly as “bump firing,” but the

Accelerator allegedly enables the shooter to achieve better accuracy than with

similar devices.

      In March 2002, Akins wrote the Firearms Technology Branch of the Bureau

to inquire if it would classify the Accelerator as a machinegun. In the letter, Akins

explained that the Accelerator “alter[ed] the stock on some semiautomatic rifles in

a manner which allows them to be fired so rapidly that the practical effect is

equivalent to a fully-automatic machinegun.” After the Firearms Branch tested a

prototype of the Accelerator with an SKS-type rifle, it determined that “[t]he



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weapon did not fire more than one shot by a single function of the trigger” and

concluded that “the submitted stock assembly does not constitute a machinegun . . .

[nor] a part or parts designed and intended for use in converting a weapon into a

machinegun.” The letter mentioned that the prototype broke during testing.

      Concerned that the classification might not include an Accelerator that

functioned properly, Akins asked the Bureau in January 2004 to explain its ruling.

The Bureau stated that it classified the Accelerator based on its “theory of

operation,” which “was clear even though the rifle/stock assembly did not perform

as intended.” Akins began to produce and sell the Accelerator.

      In August 2006, the Bureau noticed a website that Akins used to market the

Accelerator. The website advertised the Accelerator as “[e]valuated by” the

Bureau and quoted from its letters. An individual who had purchased an

Accelerator wrote the Bureau and asked for a “written determination” whether the

accessory when “assembled with a standard Ruger 10/22 semiautomatic carbine”

would constitute a machinegun. The Bureau also received requests to evaluate

other devices designed to increase the rate of fire of a semiautomatic firearm.

      The Bureau opened an investigation regarding the Accelerator in September

2006. After the Bureau obtained and tested the accessory, it advised Akins in

November 2006 that the Accelerator, when used with a Ruger 10/22 rifle,



                                          4
“demonstrated that a single pull of the trigger initiates an automatic firing cycle

that continues until the finger is released, the weapon malfunctions, or the

ammunition supply is exhausted.” The Bureau classified the Accelerator as a

machinegun, notified Akins that its previous letters were “overruled,” and

instructed him either to register the devices he possessed or to surrender them.

      On December 13, 2006, the Bureau issued a new policy statement, ATF

Ruling 2006-2. The Bureau stated that “conversion parts that, when installed in a

semiautomatic rifle, result in a weapon that shoots more than one shot, without

manual reloading, by a single pull of the trigger, are a machinegun as defined in

the National Firearms Act and the Gun Control Act.” The Bureau described the

Accelerator in the statement and stated that the accessory was a machinegun. In

January 2007, the Bureau ordered Akins to turn over any recoil springs in his

possession.

      In early February, Akins asked the Bureau to reconsider its decision. Akins

alleged that “[i]f the trigger finger remains in contact with the trigger, only one

shot can result until the trigger is released and then pressed again” and he

mentioned that several other devices had not been classified as machineguns

although they also enabled shooters to fire two or three shots with a single pull of

the trigger. Akins argued that the original classification of the Accelerator was



                                           5
“consistent” with “long-standing agency interpretations” and he asked for an

opportunity to “present [his] case orally” to the Bureau. The Bureau affirmed its

decision summarily in September 2007.

      Akins filed a complaint against the United States in May 2008. He alleged

that the decision of the Bureau was arbitrary and capricious and violated his right

to due process. Akins requested the court: (1) declare that the Accelerator is not a

machinegun; (2) issue an injunction to prohibit the government from treating the

Accelerator as a machinegun; (3) declare section 5845 unconstitutionally vague;

and (4) issue an injunction to prohibit the government from classifying the

Accelerator as a machinegun.

      The United States moved for summary judgment, which the district court

granted. The district court found that the decision of the Bureau that the

Accelerator qualified as machinegun was consistent with the language and

legislative history of the National Firearms Act and concluded that the Bureau had

the authority to reclassify the Accelerator. The court ruled that the actions of the

Bureau did not violate Akins’s right to procedural due process and that the

definition of machinegun in section 5845 was not unconstitutionally vague.

                           II. STANDARD OF REVIEW

      We review a summary judgment de novo. Cooper v. Fulton County, Ga.,



                                           6
458 F.3d 1282, 1285 (11th Cir. 2006). Under the Administrative Procedures Act,

we defer to the decision of the Bureau unless it “(1) exceeds the Bureau’s statutory

authority, (2) violates a constitutional right, or (3) constitutes an ‘arbitrary’ or

‘capricious action,’ or ‘an abuse of discretion’ or an action ‘otherwise not in

accordance with law.’” Gun South, Inc. v. Brady, 877 F.2d 858, 861 (11th Cir.

1989) (quoting the Administrative Procedure Act, 5 U.S.C.A. § 706(2)(A), (B),

and (C) (West 1977)). Based on that deferential standard, we “cannot substitute

our judgment for the Bureau’s judgment, but rather, we must presume” that the

actions of the government agency are “valid[.]” Id. We review de novo the

constitutionality of a federal statute. See United States v. Awan, 966 F.2d 1415,

1424 (11th Cir. 1992).

                                   III. DISCUSSION

       Akins challenges the summary judgment on three grounds. First, Akins

argues that the classification by the Bureau of the Accelerator as a machinegun is

unreasonable. Second, Akins argues that the summary disposition of the

classification violated his right to due process. Third, Akins contends that section

5845(b) of the National Firearms Act is unconstitutionally vague. These

arguments fail.

       The Bureau acted within its discretion when it reclassified the Accelerator as



                                             7
a machinegun. A machinegun is a weapon that fires “automatically more than one

shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. §

5845(b). The interpretation by the Bureau that the phrase “single function of the

trigger” means a “single pull of the trigger” is consonant with the statute and its

legislative history. See Staples v. United States, 511 U.S. 600, 602 n.1, 114 S. Ct.

1793, 1795 n.1 (1994); National Firearms Act: Hearings Before the Committee on

Ways and Means, 73rd Cong. 40 (1934). After a single application of the trigger

by a gunman, the Accelerator uses its internal spring and the force of recoil to fire

continuously the rifle cradled inside until the gunman releases the trigger or the

ammunition is exhausted. Based on the operation of the Accelerator, the Bureau

had authority to “reconsider and rectify” what it considered to be a classification

error. See Gun South, 877 F.2d at 862–63. That decision was not arbitrary and

capricious. See id. at 866.

      The Bureau did not violate Akins’s right to due process when it reclassified

the Accelerator summarily. Due process requires that the “‘a person in jeopardy of

serious loss be given notice of the case against him and opportunity to meet it.’”

Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 909 (1976) (quoting Joint

Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171–72, 71 S. Ct. 624, 649 (1951)

(Frankfurter, J., concurring)). As the Mathews Court explained, “[a]ll that is



                                           8
necessary is that the procedures be tailored, in light of the decision to be made, to

‘the capacities and circumstances of those who are to be heard,’ to insure that they

are given a meaningful opportunity to present their case.” Id. at 349, 96 S. Ct. at

909 (citation omitted). Akins received notice that the Bureau had reclassified the

Accelerator, and Akins submitted a lengthy request for the agency to reconsider its

decision based on his interpretation of the statute. No further process was required.

      Section 5845(b) also is not unconstitutionally vague. A statute is

constitutionally vague when it fails to give a “person of ordinary intelligence a

reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford,

408 U.S. 104, 108, 92 S. Ct. 2294, 2298–99 (1972). The plain language of the

statute defines a machinegun as any part or device that allows a gunman to pull the

trigger once and thereby discharge the firearm repeatedly. See United States v.

Thomas, 567 F.2d 299, 300 (5th Cir. 1978) (applying a commonsense meaning to

the word “silencer” under former section 5845 in a vagueness challenge). Use of

the word “function” instead of “pull” to reference the action taken by a gunman to

commence the firing process is not so confusing that a man of common

intelligence would have to guess at its meaning.



                                 IV. CONCLUSION



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The summary judgment in favor of the United States is AFFIRMED.




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