Mullis v. USA, 99-6312

• Decision Date: 02 August 2000
• Docket Number: No. 99-6312,99-6312
• Parties: (6th Cir. 2000) James Michael Mullis, Plaintiff-Appellee, v. United States of America, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 215

230 F.3d 215 (6th Cir. 2000)

James Michael Mullis, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.

No. 99-6312

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 2, 2000

Decided and Filed: October 19, 2000

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 98-02894--Jon Phipps McCalla, District Judge.

Thomas M. Bondy, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., for Appellant.

Les Jones, W. J. Michael Cody, Susan M. Clark, BURCH, PORTER & JOHNSON, Memphis, Tennessee, for Appellee.

Before: KENNEDY and NORRIS, Circuit Judges; KATZ, District Judge. ^*

OPINION

KENNEDY, Circuit Judge.

The United States appeals the district court's order granting plaintiff's petition for the removal of the firearms disabilities imposed on him by 18 U.S.C. § 922 (g)(1). The Bureau of Alcohol, Tobacco & Firearms ("ATF") is the only agency authorized to grant relief from firearms disabilities under § 925(c). Congress, in its last eight appropriations acts, has prohibited the ATF from expending funds to process applications for the removal of firearm disabilities. The district court held that due to the inability of the ATF to act, it had subject matter jurisdiction under § 925(c) to grant relief from the disability, and restored plaintiff's right to possess firearms and ammunition. The government asserts that the district court lacked subject matter jurisdiction to consider plaintiff's petition for the restoration of firearm rights under 18 U.S.C. § 925(c). For the reasons detailed below, we agree and reverse the judgment of the district court and dismiss the case.

I.

In 1994, James Michael Mullis ("plaintiff") pled guilty to falsifying travel expenses in connection with his business, in violation of 18 U.S.C. § 1001, which carries a maximum term of imprisonment of five years. As a consequence, plaintiff was prohibited from possessing firearms by 18 U.S.C. § 922 (g)(1), which provides in relevant part that: "[i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to possess any firearm or ammunition." Plaintiff, who is apparently an avid hunter, sought to remove the firearm restrictions imposed on him by § 922 (g)(1). Accordingly, plaintiff obtained legal counsel, and in October of 1996, requested an application from the ATF for relief from his firearms disabilities pursuant to 18U.S.C. § 925(c). The ATF responded that it was unable to even provide plaintiff with an application due to language Congress inserted in an appropriations act, which forbad the ATF from using any appropriated funds to evaluate or process such applications.

Undeterred, plaintiff filed an action in the district court seeking the restoration of his civil rights, or in the alternative, the removal of his federal firearm disability under § 925(c). The district court denied plaintiff's petition without prejudice, stating that plaintiff must first exhaust his administrative remedies by submitting an application made pursuant to §925(c) to the ATF at least two years after the termination of his probation. Plaintiff again wrote the ATF on October 9, 1997, and was again told that the agency was not accepting applications.

In January of 1998, plaintiff filed this action for the restoration of his civil rights, or in the alternative, for removal of his federal firearm disability. The United States argued that the district court was without jurisdiction to consider plaintiff's request. The district court disagreed, concluding that Congress' appropriations acts did not suspend the judicial relief available under § 925(c). The court referred the merits of plaintiff's petition to a magistrate judge "to develop a record, make any factual findings, and make a recommendation . . . regarding the relief sought." The magistrate judge reviewed the Presentence Investigation Report prepared in 1994 at the time of plaintiff's conviction, letters and recommendations from five unrelated persons supplied by plaintiff, and consulted with the probation department to determine if plaintiff had any intervening criminal activity. After considering this information, the magistrate judge concluded that plaintiff was not likely to endanger public safety and that granting plaintiff's requested relief was not contrary to public interest.

The district court reviewed the magistrate judge's Report and Recommendation and found that the magistrate judge had adequately considered all factors other than plaintiff's mental health. Accordingly, the district court required plaintiff to submit to an examination by a psychologist. The district court then referred consideration of the resulting mental health report to the magistrate judge, who again concluded that plaintiff's firearm disability should be removed. The district court accepted the magistrate judge's Report and Recommendation and ordered the removal of plaintiff's firearm disabilities pursuant to § 925(c). The United States brought this timely appeal.

II.

The United States contends that the language and legislative history of § 925(c) and Congress's appropriations acts show that in withdrawing funding from ATF investigations under § 925(c), Congress meant to suspend the provision's operation in its entirety. We review the district court's determination of its subject matter jurisdiction de novo. See, e.g., Michigan Peat v. Environmental Protection Agency, 175 F.3d 422, 427 (6th Cir. 1999).

We begin, as in all cases of statutory interpretation, with the language of the statute itself. Section 925(c) allows the Secretary of the Treasury to grant relief from the firearm disabilities imposed by § 922(g), stating:

A person who is prohibited from possessing, . . . firearms or ammunition may make application to the Secretary for relief from the disabilities imposed by Federal laws . . ., 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 delegated authority to determine whether the granting of relief would be contrary to the public interest to the ATF, which conducted the necessary background checks and investigations. See 27 C.F.R. § 178.144. However, for each fiscal year since 1992, Congress has enacted an appropriations bill which states 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)."¹ As a consequence, the ATF is effectively prohibited from processing applications for relief under § 925(c).

Congress, through appropriations acts, has the power to suspend, amend, or repeal a statute, so long as it does so clearly. See Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S. Ct. 1407, 1414, 118 L. Ed. 2d 73 (1992); United States v. Dickerson, 310 U.S. 554, 555, 60 S. Ct. 1034, 1035, 84 L. Ed. 1356 (1940). The district court recognized this fact and plaintiff does not argue to the contrary. The question that must be answered then is what was Congress' intent in precluding the ATF from spending funds on investigating or acting upon applications for relief under § 925(c). See Dickerson, 310 U.S. at 555-62, 60 S. Ct. 1034-38 (reviewing an appropriations act and the relevant legislative history to ascertain Congress's intent); United States v. Mitchell, 109 U.S. 146, 150, 3 S. Ct. 151, 153, 27 L. Ed. 887 (1883) (analyzing the effects of an appropriations act and stating that "[t]he whole question depends on the intention of Congress as expressed in the statutes").

Plaintiff does not dispute that through its appropriations measures, Congress intended to suspend all relief available through the ATF. However, plaintiff asserts that in doing so, Congress left the judiciary's role untouched. The district court agreed with plaintiff's argument and concluded that Congress had failed to show a clear intent to repeal § 925(c) in its entirety or to preclude judicial review of the ATF's "refusal" to grant relief from firearm disabilities.

While it is an issue of first impression in this circuit, the question of whether district courts retain subject matter jurisdiction to consider a plaintiff's petition for relief under §925(c) has been addressed by several other circuits. See McHugh v. Rubin, 220 F.3d 53 (2d Cir. July 11, 2000); Owen v. Magaw, 122 F.3d 1350 (10th Cir. 1997); Burtch v. United States Dept. of the Treasury, 120 F.3d 1087 (9th Cir. 1997); United States v. McGill, 74 F.3d 64 (5th Cir. 1996); Rice v. United States, 68 F.3d 702 (3d Cir. 1995). Although the circuits have used slightly different reasoning, the only court to conclude that the district court retains subject matter jurisdiction is the Third Circuit in Rice, the case primarily relied on by the district court in the case at bar.

In Rice, the earliest circuit case, the court recognized that Congress could use appropriations acts to amend or repeal substantive legislation, and further that, subject to constitutional restraints, it could preclude judicial review of administrative action. See Rice 68 F.3d at 707. However, the court observed that in order to do so, Congress' intention must be clearly stated. See id. With little explanation, the court...