Rocketry Planet

WASHINGTON, District of Columbia USA — The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was back in court this past week to publicly admit blundering with the filing of a "Defendant's Notice of Errata," an addendum to the ATF's "Reply in Support of Renewed Motion for Partial Summary Judgment" filed on April 10th.

In their filing, the attorneys for the ATF admit they made a mistake in the filing, costing the ATF one of their points in requesting that U.S. District Court Judge Reggie B. Walton grant a summary judgment in the ATF's favor.

In their April 10th filing, ATF states in footnote 1 (page 2), "In cases under the Administrative Procedure Act, the manner of utilizing Local Civil Rule 7(h) is not entirely clear. That rule requires that an opposition to a summary judgment motion be accompanied by 'a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.' Local Civil Rule 7(h). Here, plaintiffs fail to include any opposing statement, and the Court may treat defendant’s statement of facts as conceded."

The ATF's attorneys reference several case law precedents and adds in that same footnote, "Defendant's facts, all of which are undisputed, are sufficient, in of themselves, to dispose of plaintiff’s claims on the classification of APCP as an explosive, and it is not incumbent on this Court to sift through the administrative record to locate support for plaintiff's position."

This, however, was factually incorrect. Counsel for plaintiffs Tripoli Rocketry Association (TRA) and the National Association of Rocketry (NAR) did contest several of ATF’s statements of material facts, which were summarized in "Plaintiffs' Counter Statement of Material Facts in Genuine Dispute," filed on March 16th, which was included with the submission of "Plaintiffs' Opposition To Defendant's Renewed Motion for Summary Judgment."

After the April 10th filings, counsel for the plaintiffs pointed out that fact to the ATF's counsel. The ATF stated in their May 1 filing that it failed to notice the plaintiffs' attachment when their reply brief was prepared, stating, "After defendant filed its reply, plaintiffs' counsel graciously pointed out that defendant's argument regarding the absence of plaintiffs' response to defendant's statement of material facts was unfounded. Plaintiffs' counsel is correct."

Offering an apology for the oversight, the ATF's attorneys ask in this week's filing that the judge omit footnote 1 from his consideration of the defendant's reply.

Documents:

• Defendant's Notice of Errata (27K Adobe PDF)

Reader comments:

#1

"Oops" is something you don't want to hear from your surgeon, or your lawyer.
Looks like a pretty big "oops" to me...considering the level of detail that goes into every word in these sort of cases.
Very interesting indeed...speaks volumes.

mrbusdriver on 05-04-2007 11:46 AM

#2

Unexpected discoveries like these are obviously the fault of the defendant, but they result in additional billable hours for our legal team. In case anyone hasn't noticed the new T-Shirt of the Month design to the right, now would be a good time to click on the ad and purchase a Rocketry Planet T-Shirt of the Month. All proceeds go to the TRA/NAR legal fund, and what better way to show your support than tell the world you are a Rocket God while fighting the good fight?

crontab on 05-04-2007 01:27 PM

#3

Quote:

Unexpected discoveries like these are obviously the fault of the defendant, but they result in additional billable hours for our legal team.

This seems like one more tactic in the battle of attrition. It almost seems as an act of bad faith on the part of the defendants, introducing the error on purpose, knowing that it would cost the plaintiffs that much more. I mean, the defendants did get extra time, didn't they? It seemed a pretty obvious error, reading all the documents.

Aphyle on 05-06-2007 08:58 PM

#4

This is getting so obvious that the ATF team is simply using a tactic to draw this case out as long as possible. While it is aggravating to me that it involves our hobby, what reayy infuriates me is that the justice system in this country is set up to allow such tactics and other similar ones to avoid TRUE JUSTICE. If I had some extra funds at the moment I would probably make a donation, however I do not right now. I still feel like the overall effort is a waste of time and money. In the end, I think they will prevail due to unlimited funding for their side. At what point is it best to try to reach a compromise before we're backed into a corner and lose everything?

Swampworks on 06-08-2007 12:28 PM

#5 Unlimited budget? Not really

Neither the ATF nor any other government agency has "unlimited" funding. They have way more money than I do, but each agency has a budget, which is certainly finite. For every dollar that ATF spends on this court case, they have one less dollar to spend somewhere else. True, they can request emergency funds from congress, but they are already in trouble for budget overruns: (see this article in the Washington Post) which hopefully will work to our advantage.

Steve_Shannon on 06-10-2007 06:03 AM

#6

Thought I had read somewhere along the line that when the BATFE loses, if they wish to appeal they would have to get the go ahead from their parent organization, the Justice Department.

Kapton on 06-11-2007 12:02 AM

#7

Quote:

Thought I had read somewhere along the line that when the BATFE loses, if they wish to appeal they would have to get the go ahead from their parent organization, the Justice Department.

BATFE => DoJ => Homeland Security

Do you really think HS is going to let something get removed from the list? They'll just complain to congress and get a new law passed.

-Aaron

heada on 06-11-2007 02:52 PM

#8

Quote:

BATFE => DoJ => Homeland Security

Do you really think HS is going to let something get removed from the list? They'll just complain to congress and get a new law passed.

Which is why we need to be prepared to request legislative relief of our own. And this includes countering the statements used by legislators that lift language from "scare sheets" that are built on the same falsehoods, innuendos, and distortions that are part the defendant's side of the APCP case. All one need do is to go to www.senate.gov and www.house.gov.

Aphyle on 06-11-2007 09:26 PM

#9

Remember, the whole lawsuit started long before 9/11.. I's been "in progress" that long.

When it comes to getting relief from congress, that was also tried back in the early 2000's (2002 or so?) John Wickham and the Senator from WY did a great deal of work. We all wrote letters, and the bill was killed.

In the post 9/11 world, the regs we got right now are probably as good as we can expect.

What I'd like to see is NAR/TRA to use some of the fund/lawyers on local level to help with storage requirements and local laws (NFPA amendments?), even if it's just at the club level. Today, I couldn't have storage in the city I live, even if I had a 5 acre lot! The local laws are based on 50 year old regs involving the rail roads, and no one really wants to change them.

jmiller on 06-13-2007 12:32 AM

#10

Actually the bill was not allowed to come to a vote. Schumer and Lautenberg, from NY and NJ, toed the ATF line and kept it from coming up for a vote. The sponsor was Mike Enzi. It was shortly after 9/11 and people were still reacting to that panic filled day.

That does not mean that the bill was not good or that it could not pass now.

Steve_Shannon on 06-13-2007 12:53 AM

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