122 F.3d 1350 (10th Cir. 1997), 96-3275, Owen v. Magaw

Docket Nº96-3275.
Citation122 F.3d 1350
Party NameDavid C. OWEN, Plaintiff-Appellant, v. John W. MAGAW, Director, United States of America Department of Alcohol, Tobacco and Firearms, and Bureau of Alcohol, Tobacco and Firearms, Defendants-Appellees.
Case DateSeptember 08, 1997
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1350

122 F.3d 1350 (10th Cir. 1997)

David C. OWEN, Plaintiff-Appellant,

v.

John W. MAGAW, Director, United States of America Department

of Alcohol, Tobacco and Firearms, and Bureau of

Alcohol, Tobacco and Firearms,

Defendants-Appellees.

No. 96-3275.

United States Court of Appeals, Tenth Circuit

September 8, 1997

Page 1351

Jonathan L. Laurans, Shawnee Mission, KS, for Plaintiff-Appellant.

Thomas M. Bondy, Appellate Staff, Civil Division, Department of Justice, Washington, DC (Mark B. Stern, Appellate Staff, Civil Division, Department of Justice, Imelda M. Koett, Associate Chief Counsel, David C. Lieberman, Office of Chief Counsel, Bureau of Alcohol, Tobacco and Firearms, Washington, DC, with him on the brief), for Defendants-Appellees.

Before KELLY, HOLLOWAY and HENRY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This appeal presents the question of the district court's subject-matter jurisdiction over this controversy involving the Department of Alcohol, Tobacco and Firearms' refusal to process a convicted felon's application for restoration of firearms privileges where that refusal is the result of Congress' denial of funds for the necessary background investigations and action on such applications. For the reasons that follow, we affirm the district court's dismissal of the case for lack of subject-matter jurisdiction.

I

Plaintiff-Appellant David C. Owen was convicted in 1993 on two counts of filing false income tax returns in violation of 26 U.S.C. § 7206(1). App. at 2. He was sentenced on each conviction to a term of one year and one day, the sentences to be served concurrently, and his convictions were affirmed. United States v. Owen, 15 F.3d 1528 (10th Cir.1994). As a result of these convictions, Owen is prohibited from owning or possessing firearms. See 18 U.S.C. § 922(g)(1). However federal law provides a method by which convicted felons can apply for restoration of firearms privileges:

A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.

18 U.S.C. § 925(c). The Secretary of the Treasury in turn delegated the authority to restore firearms privileges to the Director of the Bureau of Alcohol, Tobacco, and Firearms (BATF). See 27 C.F.R. § 178.144.

For each fiscal year after 1992 Congress has provided with respect to the Treasury Department appropriations that "none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. § 925(c)." See Treasury Dept. Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009, 3009-319 (1996); Treasury, Postal Service, and General Government Appropriations Acts 1993-1996, Pub.L. No. 104-52, 109 Stat. 468, 471 (1995); Pub.L. No. 103-329, 108 Stat. 2382, 2385 (1994); Pub.L. No. 103-123, 107 Stat. 1226, 1228 (1993); Pub.L. No. 102-393, 106 Stat. 1729, 1732 (1992).

Following his release from prison, Mr. Owen submitted an inquiry to the BATF concerning the application process for obtaining restoration of his firearms privileges through his congressional representative. App. at 3. By a letter dated January 11, 1995, appellee John W. Magaw, Director of the BATF, responded to the Congresswoman that due to the restrictions contained in the Treasury appropriations bill, the BATF could not take any administrative steps toward investigating Owen and determining whether he should be allowed to carry a firearm. Id. at 3-4, 8-9. Owen then filed this suit against

Page 1352

Magaw and the BATF under 18 U.S.C. § 925(c) in the United States District Court for the District of Kansas, petitioning for review of the BATF's refusal to consider such an application by him. App. at 1. The defendants moved to dismiss the suit or for summary judgment for lack of subject-matter jurisdiction since the BATF had not denied an application by Owen but had taken the position that it was precluded from investigating or acting on such a request by the legislative provisions making unavailable appropriated funds for such purposes. The district court agreed with the defendants and dismissed the case for lack of subject-matter jurisdiction, Owen v. Magaw, 936 F.Supp. 1568 (D.Kan.1996), and Owen appealed.

II

We review de novo the district court's dismissal for lack of subject-matter jurisdiction. Urban ex rel. Urban v. Jefferson County School Dist. R-1, 89 F.3d 720, 724 (10th Cir.1996). This appeal concerns whether the district court had jurisdiction to review the refusal of the BATF to investigate or act on an application for relief from the denial of firearms privileges to a convicted felon on the ground that Congress had, through appropriations statutes, provided that none of the funds appropriated thereby are available for investigating or acting on such applications. Although this is an issue of first impression for us, the Third, Fifth and Ninth Circuits have faced the issue, disagreeing on the jurisdictional question. See Rice v. Department of Alcohol, Tobacco and Firearms, 68 F.3d 702, 707 (3d Cir.1995); United States v. McGill, 74 F.3d 64, 67 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 77, 136 L.Ed.2d 35 (1996); and Burtch v. United States Department of the Treasury, 120 F.3d 1087 (9th Cir.1997).

In Rice, the Third Circuit held that federal courts do have subject-matter jurisdiction to review the BATF's inaction regarding § 925(c) applications. Rice concluded that Congress' decision to deny funds for the BATF to investigate or act on such applications did not amount to a withdrawal of jurisdiction for judicial review of BATF action on such applications. The court applied the rule that Congress will not be held to have repealed substantive law through an appropriations statute unless its intention to do so is "clearly stated." Rice, 68 F.3d at 707 (citing Robertson v. Seattle Audubon Society, 503 U.S. 429, 440, 112 S.Ct. 1407, 1414, 118 L.Ed.2d 73 (1992)). Noting that the appropriations statute in 1992-93 stated only that "[N]one of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. § 925(c),"...

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