                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
                              )
ESTATE OF PASCAL              )
CHARLOT et al.,               )
                              )
                Plaintiffs,   )
                              )
     v.                       )    Civ. Action No. 03-2501 (EGS)
                              )
BUSHMASTER FIREARMS, INC.,    )
                              )
                Defendant.    )
                              )
______________________________)


                         MEMORANDUM OPINION

     Plaintiffs brought this case under the District of Columbia

Assault Weapons Manufacturing Strict Liability Act (“SLA” or “the

Act”), D.C. Code §§ 7-2551.01 to 7-2551.03 (2001).    The Court

stayed the case pending a final decision on the constitutionality

of the SLA by the District of Columbia Court of Appeals.    See

District of Columbia v. Beretta (“Beretta V”), 940 A.2d 163 (D.C.

2008), cert. denied, 129 S. Ct. 1579 (2009).1    In the interim,

Congress passed the Protection of Lawful Commerce in Arms Act

(“PLCAA”), 15 U.S.C. §§ 7901 et seq., and defendant filed a second

motion for judgment on the pleadings pursuant to Federal Rule of

Civil Procedure 12(c).   Defendant’s new motion argues that the

PLCAA foreclosed or preempted plaintiffs’ SLA action.    Plaintiffs


     1
       The Beretta Cases are fully cited and identified in this
memorandum opinion as Beretta I through Beretta V. See infra
Section I.C.
respond that their suit falls within one of the exceptions of the

PLCAA, and also that the PLCAA is unconstitutional under United

States v. Klein, 80 U.S. 128 (1871).     The United States has

intervened to defend the constitutionality of the federal statute.

Pending before the Court is defendant’s motion for judgment on the

pleadings.    After careful consideration of defendant’s motion,

plaintiffs’ opposition, defendant’s reply, amicus filings the

entire record, and applicable case law, this Court GRANTS

defendant’s motion for judgment on the pleadings.

I.   BACKGROUND

A.   Factual History

     When presented with a motion on the pleadings, the Court

“accepts the facts as alleged in the complaint.”     Whiteing v.

District of Columbia, 521 F. Supp. 2d 15, 17 (D.D.C. 2007).

Plaintiffs are the personal representatives of the Estate of

Pascal Charlot.    Plaintiffs allege that Charlot was shot and

killed with a Bushmaster XM-15 E2S .223 caliber semiautomatic

assault rifle (“rifle”) in Washington, D.C., on October 3, 2002.

Compl.    ¶ 2.   John Allen Mohammad and Lee Boyd Malvo were charged

with the shooting.2    Id.   The defendant, Bushmaster Firearms, Inc.

(“Bushmaster” or “defendant”), is the gun manufacturer that


      2
        Mohammad and Malvo, known as the D.C. Snipers, terrorized
the Washington, D.C. metropolitan area, killing sixteen people
over the course of forty-seven days in October and November 2002.
See Carol Morello, “Va. Court Upholds Muhammad Sentences,” Wash.
Post, April 23, 2005, at B1.

                                   2
produces the rifle.    Id.   Plaintiffs bring this action under the

SLA.

       Plaintiffs allege that Bushmaster manufactured the weapon at

issue, put it into the stream of interstate commerce, and sold it

directly to Bull’s Eye Shooter Supply of Tacoma, Washington

(“Bull’s Eye”).    Id. at ¶ 21.   Bull’s Eye received the weapon on

July 2, 2002.    Plaintiffs further allege that the rifle used to

kill Charlot was manufactured after October 7, 1994, the day the

SLA became applicable to machine guns.       Id. ¶ 26.   Plaintiffs

state that the weapon was recovered by police, who confirmed that

Charlot was shot and killed with the Bushmaster rifle.        Id. ¶ 13.

According to the SLA, a machine gun is defined as a “firearm 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.”       D.C. Code § 7-2501.01(10).

Plaintiffs allege that the weapon used to kill Charlot falls

within this definition of machine gun, as

       it can readily be converted to shoot more than 12 shots
       without manual reloading.    Bushmaster markets 40 round
       magazines as available for sale to the general public for
       only $24.95.   These magazines are used to convert the
       Bushmaster assault rifle to permit the firing of 40 rounds
       of ammunition without pausing to reload manually.

Compl. ¶ 27.

B.   Procedural History

       Plaintiffs originally filed this case in Superior Court of

the District of Columbia (“Superior Court”) on October 1, 2003.

                                   3
Defendant removed the action to this Court on December 5, 2003

pursuant to diversity jurisdiction under 28 U.S.C. § 1332.    On

January 21, 2004, defendant filed a motion for judgment on the

pleadings; plaintiffs filed a motion for partial summary judgment

on February 20, 2004.   On May 5, 2004, after the D.C. Court of

Appeals decided District of Columbia v. Beretta (“Beretta II”),

847 A.2d 1127 (D.C. 2004), this Court, sua sponte, ordered the

parties to file simultaneous pleadings regarding the applicability

of the rationale of Beretta II to the issue raised in this case.

After a motions hearing held on July 29, 2004, defendant, with the

support of amici, urged the Court to grant a stay in this case

until after Beretta II became final.    On September 10, 2004, after

a second motions hearing, the Court stayed the case pending final

resolution of Beretta II and ordered the parties to keep this

Court apprised of any developments.    On October 10, 2005,

following the Supreme Court’s denial of certiorari in District of

Columbia v. Beretta (“Beretta III”), 872 A.2d 633 (D.C. 2005),

cert. denied 546 U.S. 928 (2005), this Court ordered the parties

to file a joint proposal for further proceedings.

     On November 15, 2005, the Court held a status hearing at

which plaintiffs asked the Court to temporarily lift the stay for

the limited purpose of enabling them to file a motion for leave to

file an amended complaint.   The Court granted plaintiffs’ request

and also lifted the stay to allow defendant to brief the


                                 4
applicability of the PLCAA.    The Court set a briefing schedule –

including filings from amici, the District of Columbia and The

Sporting Arms and Ammunition Manufacturers Institute, Inc., and

the United States – that permitted filings through February 24,

2006.   The stay remained in effect as to all other matters.    After

a motions hearing on April 18, 2006, the Court took defendant’s

motion for judgment on the pleadings under advisement.    While the

motions were under advisement, another iteration of Beretta was

proceeding through the District of Columbia court system.      See

District of Columbia v. Beretta (“Beretta IV”), 2006 WL 1892023

(D.C. Super. May 22, 2006); see also infra Section I.C.     Given the

potential impact of Beretta IV on this case, the Court again

stayed consideration of the pending motions to await the final

resolution of Beretta IV.     The appeal in Beretta IV was decided by

the D.C. Court of Appeals on January 10, 2008.     Beretta V, 940

A.2d at 163.

     On February 7, 2008, after the parties jointly recommended

supplemental briefing to address the applicability of Beretta V,

this Court denied defendant’s motion for judgment on the pleadings

without prejudice and ordered the parties to file any potentially

dispositive motions thirty days after the decision in Beretta V

became final.   The Court set a briefing schedule for the motions,

including an opportunity for the United States, as intervenor, to




                                   5
file its submission.   Beretta V became final on March 9, 2009 when

the Supreme Court denied certiorari.    See 129 S. Ct. at 1579.

C.   The Many Iterations of Beretta

     Beretta was originally filed in 2002 in D.C. Superior Court.

See District of Columbia v. Beretta (“Beretta I”), 2002 WL

31811717 (D.C. Super. Dec. 16, 2002).   Plaintiffs brought an

action seeking compensatory damages and other equitable relief for

conduct by defendants that plaintiffs alleged gave rise to

liability under common law claims of negligence and public

nuisance, as well as under the SLA.    Defendant filed a motion for

judgment on the pleadings seeking dismissal of the suit.   The

Superior Court entered judgment for defendant and dismissed the

action, finding the SLA to be an unconstitutional exercise of

extraterritorial regulation by the District.    See id. at *48.

     On appeal, the D.C. Court of Appeals affirmed in part and

reversed in part, holding that the SLA is constitutional and

allowing the individual plaintiffs to advance to discovery.       See

Beretta II, 847 A.2d at 1151.   An en banc hearing of the D.C.

Court of Appeals vacated the panel’s opinion and superceded the

panel’s decision.   See Beretta III, 872 A.2d at 633.   Beretta III

held, inter alia, that (1) the SLA confers a right of action on

individuals who are injured, but not on the District; (2) the SLA

does not violate the Commerce Clause; (3) and the SLA does not

violate due process.   The D.C. Court of Appeals remanded the case


                                 6
to the Superior Court, but before the case was heard on remand in

Superior Court, Congress enacted the PLCAA.

     On remand, the Superior Court granted defendant’s motion for

judgment on the pleadings and held that plaintiffs’ causes of

action under the SLA fall squarely within the PLCAA’s definition

of a “qualified civil liability action” and did not fall within

the PLCAA’s predicate exception.       See Beretta IV, 2006 WL 1892023,

at *9.    The Superior Court also concluded that the PLCAA was a

constitutional exercise of congressional authority.      On appeal,

the D.C. Court of Appeals affirmed the decision of the Superior

Court and held, inter alia, that (1) the District’s and

individuals’ SLA causes of action were a “qualified civil

liability action” barred by the PLCAA, and (2) the PLCAA did not

violate separation of powers by usurping a judicial function and

directing a court to take a specific position in the pending SLA

action.    See Beretta V, 940 A.2d at 169-74.    The Supreme Court

denied certiorari on March 9, 2009.      See 129 S. Ct. at 1579.

D.   The D.C. Court of Appeals Holdings in Beretta V

     In Beretta V, the plaintiffs conceded that “if their action

is not one alleging ‘violat[ion by the defendants of] a . . .

statute applicable to the sale or marketing of’ a firearm, 15

U.S.C. § 7903(5)(A)(iii), then it is a ‘qualified civil liability

action’ that must be dismissed, unless the Constitution dictates

otherwise.”    Beretta V, 940 A.2d at 169 (footnote omitted).


                                   7
Plaintiffs argued that they met the predicate exception3 because

their complaint alleged that the defendant “knowingly violated”

the SLA, a statute that by its express terms “‘appli[es] to the

sale or marketing of’ a class of firearms.”     Id. at 169.   The D.C.

Court of Appeals rejected this argument, noting that it had

difficulty seeing how defendants “may be said to have ‘violated’

the SLA.”   Id. at 170.   The court further reasoned:

     In ordinary language, a “violation” is understood to mean “an
     infringement or transgression,” and a violation of a law to
     mean “[a]n infraction or breach of the law.” Plain meaning,
     therefore, would seem to require the law in question to
     contain a prohibition against, or standards of, conduct that
     are being violated.

Id. (internal citations omitted).     The court noted that D.C. Code

§ 7-2531.02(a), which generally mirrors the SLA,

     requires proof that the defendant knowingly and willfully
     engaged in the illegal sale of a firearm, defined to mean any
     of four actions including [f]ailure to establish proof of the
     purchaser’s residence in a jurisdiction where the purchase of
     the weapon is legal, or [f]ailure to maintain full, complete,
     and accurate records of firearm sales as required by local,
     state, and federal law.




     3
        The PLCAA provides for six exceptions to the mandate that
qualified civil liability actions must be dismissed. See 15
U.S.C. § 7903(5)(A)(i)-(vi). The exception relevant here, which
has been called the “predicate exception,” City of New York v.
Beretta, 524 F.3d 384, 390 (2d Cir. 2008), cert. denied, 129 S.
Ct. 1579 (2009), provides that a suit may proceed when a
plaintiff adequately alleges that a “manufacturer or seller of a
qualified product knowingly violated a State or Federal statute
applicable to the sale or marketing of the product, and the
violation was a proximate cause of the harm for which relief is
sought.” § 7903(5)(A)(iii); see also Beretta V, 940 A.2d at 169-
70.

                                  8
Id. (internal quotation marks and citations omitted).          The problem

the Court of Appeals found, however, is that plaintiffs did not

allege liability under D.C. Code § 7-2531.02, “nor is their SLA

claim that the defendants knowingly violated any proscriptions or

requirements of local or federal law governing the sale or

possession of firearms.”   Id.     Rather, plaintiffs argued that the

SLA, which by its terms would make these defendants “strictly

liable in tort” for death or injuries resulting from the discharge

of an assault weapon or machine gun they manufactured or sold,

embodies “‘a legal duty owed to the residents of the District’”

and that its requirement to compensate for injuries “‘thus

presupposes a “violation” of a statutory duty.’”           Id. (quoting Br.

for Individual Plaintiffs at 4-5).

     The court rejected this argument, noting that “it stretches

the meaning of ‘violation’ well beyond what the authors of the

PLCAA reasonably intended.”      Id.       Accordingly, the court found

that “[t]he SLA imposes no duty on firearms manufacturers or

sellers to operate in any particular manner or according to any

standards of care or reasonableness.”           Id. (citation omitted).

The court noted that in the plaintiffs’ view, the statute is

“‘violated’ . . . merely when a person is killed or injured by the

discharge of an assault weapon manufactured or sold by a named

defendant – an injury that may occur years after the manufacture




                                       9
or sale and despite the utmost care taken in the manufacture or

sale.”    Id.

       The court held that “[b]y the terms of the PLCAA, the

plaintiffs’ action under the SLA was properly dismissed.”       Id. at

172.    The court reasoned that “[s]hoehorning, as it were, into the

predicate exception a strict liability cause of action that, at

bottom, simply shifts the cost of injuries resulting from the

discharge of lawfully manufactured and distributed firearms would,

in our view, ‘frustrate Congress’s clear intention’ reflected in

the PLCAA.”      Id. (internal citation omitted).

II.    STANDARD OF REVIEW

       A motion for judgment on the pleadings pursuant to Federal

Rule of Civil Procedure 12(c) will be granted only if “the moving

party demonstrates that no material fact is in dispute and that it

is ‘entitled to judgment as a matter of law.’”      Peters v. Nat’l

R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)

(quoting Jablonski v. Pan Am. World Airways, 863 F.2d 289, 290 (3d

Cir. 1988)).     The Court must “‘view the facts presented in the

pleadings and the inferences to be drawn therefrom in the light

most favorable to the nonmoving party.’”      Id. (quoting Jablonski,

863 F.3d at 290-91).

III.    LEGAL FRAMEWORK

A.     The SLA




                                    10
     The Council of the District of Columbia enacted the SLA in

December 1990, and the law took effect on February 29, 1992.      The

SLA provides that

     Any manufacturer, importer, or dealer of an assault weapon
     or machine gun shall be held strictly liable in tort,
     without regard to fault or proof of defect, for all direct
     and consequential damages that arise from bodily injury or
     death if the bodily injury or death proximately results
     from the discharge of the assault weapon or machine gun in
     the District of Columbia.

D.C. Code § 7-2551.02.4   The SLA imposes strict liability based on

findings that “assault weapons” and “machine guns” are “abnormally

and unreasonably dangerous,” and “[i]t is foreseeable by

manufacturers and distributors of assault weapons that the

criminal or accidental use of assault weapons will cause injury or

death.”   See D.C. Law 8-263 [Act 8-289], § 2(12), (13), DCR 8482

(Dec. 28, 1990).

B.   The PLCAA

     The PLCAA became law on October 26, 2005, and prohibits the

institution of a “qualified civil liability action” in any state

or federal court.   15 U.S.C. § 7902(b).   It further provides that

any such “action that is pending on [the date of enactment of this

Act] shall be immediately dismissed by the court in which the

action was brought or is currently pending.”    Id.   A “qualified


      4
       D.C. Code § 7-2551.03 lists exemptions from liability,
including an exemption for a weapon originally distributed to law
enforcement. § 7-2551.03(a). The SLA also provides that “[a]ny
defense that is available in a strict liability action shall be
available as a defense under this unit.” § 7-2551.03(d).

                                 11
civil liability action” is defined as “a civil action . . .

brought by any person against a manufacturer or seller of a

[firearm that has been shipped or transported in interstate or

foreign commerce] . . . for damages, . . . or other relief

resulting from the criminal or unlawful misuse of [the firearm].”

Id. § 7903(5)(A).

     Congress enacted the PLCAA in response to “[l]awsuits . . .

commenced against manufacturers, distributors, dealers, and

importers of firearms that operate as designed and intended, which

seek money damages and other relief for the harm caused by the

misuse of firearms by third parties, including criminals.”     Id. §

7901(a)(3).   Congress found that manufacturers and sellers of

firearms “are not, and should not, be liable for the harm caused

by those who criminally or unlawfully misuse firearm products or

ammunition products that function as designed and intended.”      Id.

§ 7901(a)(5).   Congress found egregious “[t]he possibility of

imposing liability on an entire industry for harm that is solely

caused by others.”   Id. § 7901(a)(6).   Indeed, the PLCAA’s stated

primary purpose is

     [t]o prohibit causes of action against manufacturers,
     distributors, dealers, and importers of firearms or
     ammunition products, and their trade associations, for the
     harm solely caused by the criminal or unlawful misuse of
     firearm products or ammunition products by others when the
     product functioned as designed and intended.

Id. § 7901(b)(1).



                                 12
      The PLCAA provides for six exceptions to the definition of a

“qualified civil liability action.”     See § 7903(5)(A)(i)-(vi).

Most relevant to this case, a qualified civil liability action

“shall not include . . . an action in which a manufacturer or

seller of a qualified product knowingly violated a State or

Federal statute applicable to the sale or marketing of the

product, and the violation was a proximate cause of the harm for

which relief is sought.”     Id. § 7903(5)(A)(iii).   This is known as

the “predicate exception.”     See supra n.3.

IV.   DISCUSSION

A.    The SLA and the Predicate Exception

      Defendant maintains that Beretta V correctly held that a

claim under the SLA does not fit within the predicate exception of

the PLCAA, because the SLA does not proscribe any conduct nor is

it a statute “applicable to the sale or marketing,” §

7903(5)(A)(iii), of firearms within the meaning of the predicate

exception of the Act.    Even if it were possible for Bushmaster to

“violate” the SLA, defendant contends, that violation would not be

a proximate cause of plaintiffs’ harm, as required for the claim

to fit within the predicate exception of the PLCAA.

      Beretta V notwithstanding, plaintiffs argue that the PLCAA’s

statutory exception includes, by its plain language, violations of

the SLA.    Plaintiffs maintain that the SLA is a statute

“applicable to the sale or marketing,” § 7903(5)(A)(iii), of


                                   13
firearms as defined by the PLCAA and that plaintiffs have

fulfilled the proximate cause requirement of the statutory

exception to the PLCAA by alleging a violation of the SLA.

Plaintiffs argue that this Court is not bound by Beretta V because

the D.C. Court of Appeals is not a federal court.

     Plaintiffs are not entirely correct.    While it is true that

this Court is not bound by the D.C. Court of Appeals’

interpretation of the PLCAA, this Court is bound by the D.C. Court

of Appeals’ interpretation of the SLA, a District of Columbia

statute.    “Resolution of all claims that arise under state law,

whether brought in federal court or not, is controlled by the

substantive law of the state that creates the cause of action.”

U.S. Through Small Bus. Admin. v. Peña, 731 F.2d 8, 11 (D.C. Cir.

1984) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 (1938)).

Erie “fully applies to federal courts in the District of Columbia

when they exercise jurisdiction over state-created causes of

action.”5   Id. (citing Anchorage-Hynning & Co. v. Moringiello, 697

F.2d 356, 360-61 (D.C. Cir. 1983).     Construing the SLA, the D.C.

Court of Appeals found that Beretta had not “violated” the SLA

within the meaning of the predicate exception of the PLCAA.     See

Beretta V, 940 A.2d at 170-71.   The D.C. Court of Appeals holding

that the SLA is not a predicate exception is binding on this



     5
     . For the purposes of diversity jurisdiction, the District
of Columbia is treated as a state. See 28 U.S.C. § 1451.

                                  14
Court.   See Steorts v. Am. Airlines, Inc., 647 F.2d 194, 197 n.24

(D.C. Cir. 1981) (“[D]eference due to the District of Columbia

Court of Appeals as the highest court of the District require the

federal courts here to abide by the guidelines established by Erie

and its progeny.”).

     The Beretta Cases are nearly identical to the case before

this Court.   The legal arguments made by the parties here are

identical to some of the arguments the D.C. Court of Appeals

rejected in Beretta V.   See supra Section I.B.   As determined by

the D.C. Court of Appeals, the SLA is not a predicate exception

statute within the meaning of 15 U.S.C. § 7903(5)(A)(iii), because

Bushmaster cannot be said to have violated the SLA simply by

lawfully selling a gun to Bull’s Eye.   That determination

notwithstanding, this Court must still decide whether the PLCAA is

constitutional.   Plaintiff is correct that the D.C. Court of

Appeals’ construction of federal law is not controlling precedent

for this Court.   See Silvas v. E*Trade Mortg. Corp., 421 F. Supp.

2d 1315, 1321 n.4 (S.D. Cal. 2006) (“In any event, none of these

California decisions are binding on this Court since they are

state decisions interpreting federal preemption law.”).   This

Court must decide the constitutionality of the PLCAA for itself.

Having determined – based on the D.C. Court of Appeals’ holding in

Beretta V – that the predicate exception does not apply, this

Court now turns to that task.


                                 15
B.   The Constitutionality of the PLCAA

     Plaintiffs contend that the PLCAA is unconstitutional under

the separation of powers principles announced in Klein because

Congress has directly instructed the courts to dismiss all cases

falling into a certain category.    Just as in Beretta V, plaintiffs

challenge the PLCAA on the grounds that Congress has attempted to

direct the outcome of a pending case – thereby usurping the

judiciary’s role to decide cases and violating the separation of

powers doctrine.   See Beretta V, 940 A.2d at 172.

     In addition to the D.C. Court of Appeals, both the Second and

Ninth Circuits have held that the PLCAA does not contravene the

principles of separation of powers first articulated in United

States v. Klein, 80 U.S. 128 (1871).    See City of New York v.

Beretta, 524 F.3d 384 (2d Cir. 2008), cert. denied, 129 S. Ct.

1579 (2009); Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009).

Defendant argues that the PLCAA is constitutional because it

creates a new federal standard that governs when a manufacturer of

a firearm may be sued for harm resulting from the misuse of the

firearm.   Defendant urges the Court to follow the D.C. Court of

Appeals and the Second and Ninth Circuits, which upheld the

constitutionality of the PLCAA.

     The United States – which intervened in this case to defend

the constitutionality of the PLCAA – argues that the PLCAA is

constitutional under the Supremacy Clause, as it preempts state or


                                   16
common law causes of action.6    The United States asserts that the

PLCAA is consistent with separation of powers principles announced

in Klein because the PLCAA imposes a new legal standard that is

not restricted to pending cases.    Like defendant, the United

States maintains that in enacting the PLCAA, Congress has done

nothing more than create a new governing law, in that federal law

now preempts certain state and common law claims, whereas no

preemption previously existed.

     This Court starts from the premise that Acts of Congress are

entitled to a “strong presumption of validity.”    Gonzales v.

Raich, 545 U.S. 1, 28 (2005).    Under this presumption, laws with

an economic purpose are upheld “absent proof of arbitrariness or

irrationality on the part of Congress.”    Duke Power Co. v.

Carolina Envtl. Study Group, Inc., 438 U.S. 59, 83 (1978)

(citations omitted).   Under Klein, however, Congress cannot direct

the outcome of a pending case without changing the substantive law

underlying the suit.

     In Klein, Congress, unhappy with a court’s decision that

proof of loyalty to the Union after the Civil War could be

established by presidential pardon, passed a law directing the

Supreme Court to dismiss any suit in which the claimant had


     6
       The plaintiffs do not challenge Congress’s authority to
enact the PLCAA, so there is no need to address Congress’s
authority here. For a discussion of Congress’s authority to
enact the PLCAA under the Commerce Clause, see City of New York,
524 F.3d at 393-95.

                                   17
established loyalty on the basis of a pardon.     Klein, 80 U.S. at

143-44.    The Court held that Congress impermissibly “required [the

court] to ascertain the existence of certain facts and thereupon

to declare that its jurisdiction had ceased, by dismissing the

bill.”    Id. at 146.   Plaintiffs argue that the PLCAA contains a

similar command:    ascertain whether an action is a “qualified

civil liability action” and thereupon dismiss it.

     Plaintiffs contend that the PLCAA arose out of Congress’s

dissatisfaction with judicial interpretations of existing laws.       A

report by the House Judiciary Committee explains that Congress was

concerned that “various public entities that have brought suit

against the gun industry in recent years have raised novel claims”

and that “approximately half [of these suits] have been allowed to

proceed.”    H.R. Rep. No. 109-24 at 13-16.   Plaintiffs also point

to the findings in the PLCAA, which warn of “[t]he possible

sustaining” of “liability actions . . . by maverick judicial

officer or petit jury.”    15 U.S.C. § 7901(a)(7).   In response,

Congress enacted the PLCAA “to prevent . . . courts . . . from

setting precedents that will further undermine American industries

and the U.S. economy.”    H.R. Rep. No. 109-24 at 5.

     Defendant responds that (1) the PLCAA reflects a change in

existing law; and (2) that even if it did not change existing law,

the PLCAA does not impose a rule of decision in violation of

Klein.    The Court is persuaded by defendant’s argument.   Klein’s


                                   18
prohibition does not prevent Congress from changing the law

applicable to pending cases.    See Plaut v. Sprindthrift Farm,

Inc., 514 U.S. 211, 218 (1995) (“Whatever the precise scope of

Klein, however, later decisions have made clear that its

prohibition does not take hold where Congress ‘amends applicable

law’” (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429,

441 (1992))); Axel Johnson Inc. v. Arthur Andersen & Co., 6 F.3d

78, 81 (2d Cir. 1993) (“The rule of Klein precludes Congress from

usurping the adjudicative function assigned to the federal courts

under Article III.   However, Klein does not preclude Congress from

changing the law applicable to pending cases.”).   While Congress

is barred from “retroactively commanding the federal courts to

reopen final judgments,” Plaut, 514 U.S. at 218, “Congress may

require (insofar as separation-of-powers limitations are

concerned) that new statutes be applied in cases not yet final,”

id. at 233 n.7.   If a new law imposes a “new legal standard” that

is not restricted to pending cases, there is no separation of

powers violation.    Miller v. French, 530 U.S. 327, 349 (2000).

     Plaintiffs contend that the PLCAA takes the unusual approach

of defining a specific group of lawsuits based on existing law and

directing the judicial branch to dismiss them.   In the Court’s

view, however, that is not what Congress did when it enacted the

PLCAA.   Congress enacted a law barring qualified civil liability

as defined in the statute, which sets forth a new legal standard


                                  19
to be applied to all actions.    In so doing, Congress proceeded in

a way that has been upheld by the Supreme Court.     In Robertson,

several environmental organizations filed lawsuits to stop timber

harvesting in old growth forests as violative of certain statutes.

In response, Congress passed a law amending the governing law by

allowing the harvest under certain conditions and, if those

conditions were met, the statutory requirements at issue would be

satisfied.    Robertson, 503 U.S. at 438-39.   The Supreme Court

found that Klein was not violated because Congress had “compelled

changes in law, not findings or results under old law.”     Id. at

438; see also Axel Johnson, Inc., 6 F.3d at 82 (upholding

amendment to Securities and Exchange Act); City of Chicago v. U.S.

Dep’t of the Treasury, 423 F.3d 777, 780 (7th Cir. 2005)

(upholding changes to law under Consolidated Appropriations Act of

2005).

       The PLCAA creates a new federal standard that governs when

plaintiffs can sue manufacturers or sellers of firearms.     As the

Second Circuit explained,

       [T]he Act permissibly sets forth a new rule of law that is
       applicable both to pending actions and to future actions.
       The PLCAA bars qualified civil liability actions, as
       defined in the statute. The definition of qualified civil
       liability action permissibly sets forth a new legal
       standard to be applied to all actions.

City of New York, 524 F.3d at 395 (citing Miller, 530 U.S. at 348-

49).    The statute preempts and displaces conflicting state law.

Preemption, rather than amending a specific statute, does not make

                                  20
it any less a change in the law or render it constitutionally

infirm.   See Ileto, 565 F.3d at 1131-37.

     “Pursuant to the Supremacy Clause of Article VI of the U.S.

Constitution, state law is preempted when it ‘stands as an

obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.’”    Cleveland County Ass’n for Gov’t by

People v. Cleveland County Bd. of Comm’rs, 142 F.3d 468, 477 (D.C.

Cir. 1998) (quoting Wash. Serv. Contractors Coal. v. District of

Columbia, 54 F.3d 811, 815 (D.C. Cir. 1995)).    Accordingly,

Congress may abrogate tort claims consistent with separation of

powers principles even when legislation has an impact on pending

cases.    Tort law is generally regulated by the states, which have

“considerable flexibility” in defining that body of law.     See BMW

of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).    If a state’s

tort laws burden interstate commerce, however, then its power is

subordinate to federal law.     Id. at 571 (“[O]ne State’s power to

impose burdens on the interstate market . . . is not only

subordinate to the federal power of interstate commerce, but is

also constrained by the need to respect the interests of other

States.” (citations omitted)).    Congress manifested a clear intent

to preempt state tort actions by designing the PLCAA to conflict

with contrary state or common law laws.     See supra Section III.B.;

15 U.S.C. § 7901(b)(4) (“The purpose[] of this chapter [includes

the prevention] of such lawsuits to impose unreasonable burdens on


                                  21
interstate and foreign commerce.”).     “In determining whether a

state statute is pre-empted by federal law and therefore invalid

under the Supremacy Clause of the Constitution, [the Court’s] sole

task is to ascertain the intent of Congress.”     Cal. Fed. Sav. &

Loan Ass’n v. Guerra, 479 U.S. 272, 280 (1987) (citations

omitted).    One of Congress’s purposes in enacting the PLCAA was to

“prohibit causes of action” that constitute qualified civil

liability actions.     See 15 U.S.C. § 7901 2(b)(1).

     The Court rejects plaintiffs’ argument that the PLCAA imposes

an impermissible rule of decision upon the courts.     Unlike the

provision at issue in Klein, the PLCAA does not directly interfere

with judicial fact-finding.     See Klein, 80 U.S. at 130-34.   The

PLCAA identifies particular types of claims that are not

permissible and leaves it to the courts to apply those standards

in the cases before them.     See § 7903(5)(A)(iii); City of New

York, 524 F.3d 390.    The statute permits the courts to determine

whether the cases before them, such as this one, are covered by

the PLCAA.    Id.   Defendant has persuasively demonstrated that this

case is squarely covered by the PLCAA.

     Contrary to plaintiffs’ contention, the PLCAA leaves in place

a judicial function before the Court:     to determine whether the

suit in question falls into the general category and not one of

the exceptions.     See § 7903(5)(A)(i)-(vi); see also City of New

York, 524 F.3d at 395-96; Ileto, 565 F.3d at 1139-40.     Though


                                   22
plaintiffs rely heavily on Klein to argue that the PLCAA

contravenes separation of powers, every other court to examine the

constitutionality of the PLCAA has found that it does not violate

Klein.   See, e.g., Adames v. Sheahan, 2009 WL 711297 (Ill. Mar.

18, 2009).

     As discussed above, in Beretta V, the D.C. Court of Appeals

held that

     Plaut and Robertson demonstrate why Klein does not apply
     to this case. The PLCAA sets forth new standards that
     must be met before a case may be brought or a pending one
     may proceed against the manufacturer or seller of a
     firearm for damages resulting from the use of the firearm
     by a third person. When, but only when, a suit is found
     by a court not to meet one of the statutory exceptions to
     a “qualified civil liability action,” it must be
     dismissed.

940 A.2d at 173.

     The Second and Ninth Circuits reached the same conclusion.

As the Second Circuit noted

     Article III of the Constitution establishes a judicial
     department with the province and duty . . . to say what
     the law is in particular cases and controversies. Article
     III forbids legislatures from prescribing rules of
     decision to the Judicial Department of the government in
     cases pending before it. However, this prohibition does
     not take hold when Congress amends applicable law.
City of New York, 524 F.3d at 395 (internal quotation marks and

citations omitted).   “Because the PLCAA does not merely direct the

outcome of cases, but changes the applicable law, it does not

violate the doctrine of separation of powers.”   Id. at 396.

     The Ninth Circuit, favorably citing both Beretta V and City

of New York, also found that the PLCAA was constitutional and did

                                 23
not contravene Klein.    The Ninth Circuit noted that “if a statute

compels changes in the law, not findings or results under old law,

it merely amends the underlying law, and is therefore not subject

to a Klein challenge.”     Ileto, 565 F.3d at 1139 (internal

quotation marks and citations omitted).    This distinction is key

to this Court’s holding.    Rejecting plaintiffs’ argument that

Congress had compelled results under old law, the Ninth Circuit

said, “[h]ere, Congress has amended the applicable law; it has not

compelled results under old law.    The PLCAA sets forth a new legal

standard – the definition (with exceptions) of a ‘qualified civil

liability action’ – to be applied to all cases.”     Id. at *10.   The

Ninth Circuit also rejected plaintiffs’ arguments that the PLCAA

somehow violated Plaut’s holding that Congress cannot “overrule[]

‘the judicial department with regard to a particular case or

controversy.’”   Id. (quoting Plaut, 514 U.S. at 227).    The Ninth

Circuit noted that “the quoted sentence makes clear, that rule

applies to final decisions by the judiciary, not to pending

cases.”   Id. (citing Plaut, 514 U.S. at 227 (“[E]ach court, at

every level, must decide [a case] according to existing laws.

Having achieved finality, however, a judicial decision becomes the

last word of the judicial department with regard to a particular

case or controversy [and cannot be overruled by congressional

act].”)).   The PLCAA applies only to pending and future cases and

does not purport to undo final judgments of the judiciary.     Id.


                                   24
     This Court concurs with the rationale of the other courts

that have examined the PLCAA.    See Beretta V 940 A.2d at 163; City

of New York,524 F.3d at 384; Ileto, 565 F.3d at 1126.    Thus, this

Court concludes that the PLCAA withstands constitutional scrutiny

and that plaintiffs’ SLA claims are preempted by the federal

statute.

V.   CONCLUSION

     In view of the foregoing, defendant’s motion for judgment on

the pleadings is GRANTED.   Defendant’s motion to strike, motion

for leave to file, and plaintiffs’ motion for partial summary

judgment are DENIED AS MOOT.    An appropriate Order accompanies

this Memorandum Opinion.

     SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           June 25, 2009




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