220 F.3d 53 (2nd Cir. 2000), 99-6274, McHugh v Rubin

Docket NºDocket No. 99-6274
Citation220 F.3d 53
Party NameDENNIS McHUGH, Plaintiff-Appellee, v. ROBERT RUBIN, Secretary of the Department of the Treasury, and THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Defendants-Appellants.
Case DateJuly 11, 2000
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 53

220 F.3d 53 (2nd Cir. 2000)

DENNIS McHUGH, Plaintiff-Appellee,

v.

ROBERT RUBIN, Secretary of the Department of the Treasury, and THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Defendants-Appellants.

Docket No. 99-6274

United States Court of Appeals, Second Circuit

July 11, 2000

May 24, 2000, Argued

Decided

Page 54

JEROLD WOLIN, Wolin & Wolin, Jericho, NY, for Plaintiff-Appellee.

THOMAS M. BONDY, Department of Justice, Washington, DC (David W. Ogden, Acting Assistant Attorney General, Washington, DC; Loretta E. Lynch, United States Attorney, and Carolyn Lisa Miller, Assistant United States Attorney, Brooklyn, NY; and Mark B. Stern, Department of Justice, Washington, DC, on the brief; Imelda M. Koett, Associate Chief Counsel,

Page 55

Bureau of Alcohol, Tobacco and Firearms, Washington, DC, of counsel), for Defendants-Appellants.

Before: CALABRESI and SACK, Circuit Judges, and CEDARBAUM, District Judge.[*]

SACK, Circuit Judge:

This appeal requires us to determine whether recent congressional funding restrictions have effectively suspended the ability of the Bureau of Alcohol, Tobacco and Firearms (the "ATF") and the federal district courts to review applications by individuals for relief from federal firearms disabilities. The plaintiff, a convicted criminal, applied to the ATF for restoration of his federal firearms privileges pursuant to 18 U.S.C. § 925(c). The ATF refused to act upon his application because Congress has enacted for each fiscal year since 1993 an annual appropriations statute barring the ATF from using appropriated funds to act upon applications by individuals for the restoration of federal firearms privileges. The plaintiff brought suit in the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge) seeking either an order of mandamus compelling the ATF to act or an adjudication of his application by the district court in the first instance. The defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6) on the ground that the congressional funding limitations have stripped both the ATF and the district courts of the ability to review the plaintiff's application. The district court denied the defendants' motion to dismiss in a memorandum and order dated April 23, 1999. See McHugh v. Rubin, 49 F.Supp.2d 105 (E.D.N.Y. 1999).

We conclude that there is no basis for issuing an order of mandamus compelling the ATF to act. We also conclude that the district court is without jurisdiction to adjudicate the plaintiff's application for restoration of federal firearms disabilities. Accordingly, we reverse the order of the district court and remand to the district court with instructions for it to grant the defendants' motion to dismiss.

BACKGROUND

The complaint alleges the following undisputed facts. Plaintiff Dennis McHugh, a former New York State Park Police Officer, was convicted in state court of criminal contempt in the second degree and assault in the third degree in violation of N.Y. Penal Law §§ 215.50 and 120.00, respectively, after he violated an order of protection and struck his wife with his fist. McHugh was sentenced to three years' probation. Because he had been convicted of a "misdemeanor crime of domestic violence," McHugh lost the ability "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). For purposes of § 922(g), a "misdemeanor crime of domestic violence" includes "an offense that--(i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse." 18 U.S.C. § 921(a)(33)(A). Assault in the third degree is a misdemeanor under New York law, see N.Y. Penal Law § 120.00, and it has as an element the causation of "physical injury to another person," id. McHugh has not contested that he was convicted of a misdemeanor crime of domestic violence within the meaning of §§ 922(g) and 921(a)(33)(A).

McHugh was suspended and ultimately discharged from his position as a New York State Park Police Officer because of his inability to carry a firearm.

Page 56

On June 16, 1998, McHugh filed with the ATF an application for relief from federal firearms disabilities pursuant to 18 U.S.C. § 925(c). Section 925(c), as relevant here, provides:

A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary [of the Treasury] 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 has delegated his authority under § 925(c) to the Director of the ATF. See Owen v. Magaw, 122 F.3d 1350, 1351 (10th Cir. 1997); Burtch v. United States Dep't of the Treasury, 120 F.3d 1087, 1089 (9th Cir. 1997); 27 C.F.R. §§ 178.11, 178.144.

On July 9, 1998, the ATF sent McHugh's counsel a letter stating:

Since October 1992 . . . ATF's annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities. This restriction was retained in Pub.L. No. 105-61, 111 Stat. 1277, containing ATF's appropriations for 1998. As long as this provision is included in ATF's appropriations legislation, ATF cannot act upon applications for restoration of Federal firearms privileges as submitted by individuals.

As a result of the above restrictions, we recommend that you contact our office about obtaining restoration of Federal firearms privileges for your client if and when Congress acts to remove the restriction currently imposed.

The plaintiff responded by filing the instant lawsuit in the United States District Court for the Eastern District of New York seeking either an order of mandamus compelling the ATF to act on his application, or plenary review of his application by the district court. The defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6), respectively. The defendants argued that an order of mandamus was not appropriate because the ATF is prohibited by law from spending funds to act upon applications such as the plaintiff's. The defendants further argued that the district court did not have subject matter jurisdiction to review the plaintiff's application because the plaintiff did not receive a "denial" from the agency within the meaning of 18 U.S.C. § 925(c). The plaintiff argued in opposition that he was entitled to an order of mandamus notwithstanding the limitation on ATF expenditures, and that he should be excused from the normal exhaustion of remedies requirement because of the ATF's refusal to review his application.

The district court denied the motion to dismiss. It held that § 925(c) "remains in effect," and that the ATF's refusal to entertain the plaintiff's application constituted a "de facto denial" within the meaning of § 925(c). McHugh, 49 F.Supp.2d at 111. The district court referred the case to a magistrate judge "to develop a record and make a recommendation regarding the relief sought." Id. Pursuant to the defendants' request, the district court certified its decision for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and

Page 57

on October 5, 1999, this Court granted leave to appeal.

DISCUSSION

I. Standard of Review

This appeal turns solely on questions of law which we review de novo. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (holding that legal issues presented by Rule 12(b)(1) motion are reviewed de novo); Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir. 1998) (holding that Rule 12(b)(6) disposition is reviewed de novo).

II. Mandamus

The plaintiff has argued that he is entitled to a writ of mandamus pursuant to 28 U.S.C. § 1361. Section 1361 provides in full: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." This Court has held that a writ of mandamus may not be granted pursuant to § 1361 unless there is "a plainly defined and peremptory duty on the part of the defendant to do the act in question." Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989); accord City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984) (holding that a writ of mandamus will not issue under § 1361 unless "the defendant is under a clear nondiscretionary duty to perform the act requested"), aff'd on other grounds sub nom. Bowen v. City of New York, 476 U.S. 467, 90 L.Ed. 2d 462, 106 S.Ct. 2022 (1986).

Here, the ATF is under a statutory duty not to do the act in question. For each fiscal year since 1993, Congress has enacted an appropriations statute stating: "None of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18...

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    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • October 24, 2000
    ...with the Third Circuit's view of whether there has been any agency action as well as its view of the right to relief. In McHugh v. Rubin, 220 F.3d 53, 58 (2d Cir.2000), for example, the Second Circuit held that there was a repeal by implication of ATF's authority to grant relief under § 925......
  • Examining the Lautenberg Amendment in the civilian and military contexts: congressional overreaching, statutory vagueness, ex post facto violations, and implementational flaws.
    • United States
    • Fordham Urban Law Journal Vol. 29 Nbr. 1, October 2001
    • October 1, 2001
    ...States v. Farmer, 73 F.3d 836, 841 (8th Cir. 1996); McHugh v. Rubin, 49 F. Supp. 2d 105, 108 (E.DN.Y. 1999), rev'd on other grounds, 220 F.3d 53 (2d Cir. 2000); United States v. Boyd, 52 F. Supp. 2d 1233, 123637 (D. Kan. 1999), aff'd, 211 F.3d 1279 (10th Cir. 2000); United States v. Hicks, ......
  • In re E.C., 070815 NJSUP, A-3713-13T2
    • United States
    • New Jersey Superior Court of New Jersey
    • July 8, 2015
    ...as "amorphous." Pontarelli v. U.S. Dep't of Treasury, 285 F.3d 216, 225 (3d Cir. 2002) (en banc); see also McHugh v. Rubin, 220 F.3d 53, 59 (2d Cir. 2000) (stating "the standard for granting relief [under section 925(c)] is worded . . . broadly" and implicates "the ......
  • 628 F.Supp.2d 535 (S.D.N.Y. 2009), 08 Civ. 4056 (DC), Families for Freedom v. Napolitano
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 25, 2009
    ...remedy-if any-is an order compelling agency action, not plenary review of the application by a district court." McHugh v. Rubin, 220 F.3d 53, 61 (2d Cir.2000). Accordingly, I hereby order DHS to grant or deny plaintiffs' complaint within thirty days of entry of judgment. C. Plaintiffs'......
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23 cases
  • 119 F.Supp.2d 473 (M.D.Pa. 2000), 4CV-00-0187, Bald Eagle Ridge Protection Ass'n, Inc. v. Mallory
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • October 24, 2000
    ...with the Third Circuit's view of whether there has been any agency action as well as its view of the right to relief. In McHugh v. Rubin, 220 F.3d 53, 58 (2d Cir.2000), for example, the Second Circuit held that there was a repeal by implication of ATF's authority to grant relief under § 925......
  • In re E.C., 070815 NJSUP, A-3713-13T2
    • United States
    • New Jersey Superior Court of New Jersey
    • July 8, 2015
    ...as "amorphous." Pontarelli v. U.S. Dep't of Treasury, 285 F.3d 216, 225 (3d Cir. 2002) (en banc); see also McHugh v. Rubin, 220 F.3d 53, 59 (2d Cir. 2000) (stating "the standard for granting relief [under section 925(c)] is worded . . . broadly" and implicates "the ......
  • 628 F.Supp.2d 535 (S.D.N.Y. 2009), 08 Civ. 4056 (DC), Families for Freedom v. Napolitano
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 25, 2009
    ...remedy-if any-is an order compelling agency action, not plenary review of the application by a district court." McHugh v. Rubin, 220 F.3d 53, 61 (2d Cir.2000). Accordingly, I hereby order DHS to grant or deny plaintiffs' complaint within thirty days of entry of judgment. C. Plaintiffs'......
  • 222 F.R.D. 51 (E.D.N.Y. 2004), 00 CV 3641 JBW CLP, City of New York v. Beretta U.S.A. Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • May 19, 2004
    ...Congress may amend or repeal a statute by means of an appropriations bill, its intention to do so must be clear" ); McHugh v. Rubin, 220 F.3d 53, 57 (2d Cir.2000) (same). Here, plaintiffs urge that since no clear intention is evident, the 2004 Act should not be interpreted to effect an......
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