Bean v. Bureau of Alcohol Tobacco & Firearms

• Decision Date: 20 June 2001
• Docket Number: No. 00-40304,00-40304
• Parties: (5th Cir. 2001) THOMAS LAMAR BEAN, Petitioner-Appellee, v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS; UNITED STATES OF AMERICA, Respondents-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 234

253 F.3d 234 (5th Cir. 2001)

THOMAS LAMAR BEAN, Petitioner-Appellee, v. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS; UNITED STATES OF AMERICA, Respondents-Appellants.

No. 00-40304

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

June 20, 2001

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

The Government appeals the trial court's finding that it had jurisdiction to review the application of Thomas Lamar Bean for relief from the federal firearm disabilities resulting from a conviction in Mexico, as well as its grant of said relief therefrom. We affirm.

BACKGROUND

The facts of this case illustrate in caps underscored why Congress added the relief provision to the Federal Firearms Act, giving certain convicted felons an avenue to regain the right to possess a firearm. They are set forth in great detail in the trial court's opinion; we merely summarize them here.

In March 1998, Bean, a Bureau of Alcohol, Tobacco and Firearms licensed firearms dealer, was in Laredo, Texas, participating in a gun show. One evening he and three assistants decided to cross the border into Mexico for dinner. He directed his assistants to remove any firearms and ammunition from his vehicle, a Chevrolet Suburban, before crossing the border; however, a box of ammunition containing approximately 200 rounds inadvertently was left in the back. The box was in plain view and Mexican customs officers saw it when they sought to enter the Mexican Port of Entry at Nuevo Laredo, Tamaulipas, Mexico. At the time importing ammunition into Mexico was considered a felony.¹ The three assistants were subsequently released but Bean, as the owner of the Suburban and the ammunition, was charged and convicted of the felony of unlawfully importing ammunition.²

Bean was incarcerated in Mexico for approximately six months before being released to the custody of the United States under the International Prisoner Transfer Treaty. He thereafter spent another month in federal prison before being released under supervision. As a convicted felon, under 18 U.S.C. § 922(g)(1) Bean lost all rights to possess firearms. Section 925(c) of the statute, however, provides a means for relief from the firearms disabilities. Upon completion of his period of supervision in July, 1999, Bean petitioned the BATF for such relief so that he might return to his business.

At issue herein is the action and inaction of Congress since 1992. For this nigh decade, Congress has stated in its annual budget appropriation bill 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)."³ Because the BATF could not use any appropriated funds to fulfill its responsibilities under the statute, it sent Bean a notice that it would not act upon his request due to the congressional action. Bean then petitioned the district court, contending that the BATF's letter denied his petition and exhausted his administrative remedies.

The district court, in its detailed Memorandum Opinion, discussed the statute, congressional actions, the various circuit opinions on this issue, including our decision in United States v. McGill,⁴ and determined that it did, in fact, have jurisdiction to hear Bean's appeal. In granting Bean's petition it further found that the facts of this case underscore why § 925(c) permitted not only judicial review, but judicial supplementation of the record to prevent a miscarriage of justice.

ANALYSIS

Jurisdiction

In McGill we noted that Congress, through its appropriations acts, had reflected an intent to suspend the relief provided to individuals by § 925(c). As a consequence we opined that we lacked subject matter jurisdiction. As the Government correctly notes, ordinarily an inferior court is not at liberty to disregard the mandate of a superior court.⁵ But in the instance herein presented, we must examine carefully the reasons and analysis by the trial court, and our earlier decision in light of, notably, the intervening passage of time and its effect.

The trial court, as had the McGill panel, extensively detailed the legislative history of the relief provisions and reached a different conclusion, noting: "Ultimately, the Court recognizes that an advocate can find an abundance of legislative history to support his position."⁶ We do not here parse the committee or floor commentary but, rather, examine congressional action/inaction and its continuing effect.

As noted in the trial court's opinion, Congress first amended the Federal Firearms Act in 1965 to provide the potential and mechanism for certain convicted felons to obtain relief from federal firearms disabilities by petitioning the Secretary of the Treasury. It amended the relief provision in 1986 to provide for judicial review of executive decisions in order to better ensure that relief was available for those felons whose convictions were based on technical or unintentional violations.

In large measure, as a result of newspaper editorials about the cost to taxpayers of performing the investigations necessary under the relief provision,⁷ as well as a report published by the Violence Policy Center listing instances wherein convicted felons had their firearms privileges restored and committed violent crimes,⁸ a senate bill entitled the Stop Arming Felons (SAFE) Act was introduced in 1992 to eliminate the relief provision.⁹ That bill however, was never reported out of the Senate Judiciary Committee.

Although it obviously has the power, Congress has not enacted legislation eliminating or amending § 925(c). Rather, both the House and Senate Appropriations Committees proposed language for the Treasury, Postal Service, and General Government Appropriations Act for Fiscal Year 1993 that precluded the BATF from using any appropriated funds to investigate petitions for such relief.¹⁰ That language was incorporated in the appropriations bill ultimately passed that year and has been included in each subsequent annual appropriations act relating to BATF funding.¹¹

We observed in McGill that "Congress has the power to amend, suspend or repeal a statute by an appropriations bill, as long as it does so clearly."¹² We cited Robertson v. Seattle Audubon Soc.¹³ as authority for that proposition. Robertson opined "[A]lthough repeals by implication are especially disfavored in the appropriations context . . . Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly."¹⁴

The "especially disfavored" language hales from the high court's opinion in Tennessee Valley Authority v. Hill, et al.,¹⁵ wherein the Court stated that the doctrine disfavoring repeals by implication "applies with ever greater force when the claimed repeal rests solely on an Appropriations Act."¹⁶ In the subsequent Will case, upon which the Robertson Court relied, it addressed Congress' failure to fund promised federal pay raises previously authorized by statute by refusing to appropriate funds for those raises in each year's Appropriation Act. In Will the Court found Congress' actions were clear and intentional, and thus effectively rescinded the authorized raise for each year.¹⁷ That decision led to the Court's comments in Robertson, noted above, upon which the McGill panel relied.

We find the facts at bar readily distinguishable from Will, and thus distinguishable from Robertson. Will involved authorized salary increases, a purely financial right, that Congress refused to fund. When it passed the Executive Salary Cost-of-Living Adjustment Act ¹⁸ in 1975 Congress promised certain federal employees annual cost-of-living salary increases, based upon certain financial criteria. It then changed its mind and rescinded that year's increase in each of the four years beginning in 1977.¹⁹

In the case at bar, Congress is not merely promising money then changing its mind and not making it available. Nor is it directly suspending a statutory provision. In enacting § 925(c) Congress granted certain persons administrative and judicial rights. The SAFE Act proposed to withdraw those rights, but Congress did not adopt that withdrawal. The Government insists, however, that Congress indirectly has abrogated those rights by necessarily recognizing same but declining expenditure of any funds for their enforcement. We find that action clearly distinguishable from the facts in the cited precedential cases and inimical to our constitutional system of justice.

In its early review of this conundrum, the McGill panel relied on Robertson. In addition to the noted factual differences of Robertson, Will, and Dickerson, we have a critical additional factor, the intervening passage of time and the resulting reality of the effective non-temporary "suspension" of statutorily created rights. We must conclude that Congress seeks to abrogate administrative and judicial rights it created, by using funding bills, after declining to address actual amendments to or revocation of the creating statute. Section 925(c) was enacted for apparently valid reasons, and citizens like Bean are entitled to the rights therein created and authorized unless and until Congress determines to change same. We must now conclude that merely refusing to allow the agency responsible for facilitating those rights to use appropriated funds to do its job under the statute is not the requisite direct and definite suspension or repeal of the subject rights. We further hold that when the BATF notified Bean that it would not act on his petition, his administrative remedies de facto were exhausted.²⁰ Accordingly, the trial court had jurisdiction to entertain this appeal.

The Merits

The Government cites as error the trial court's grant of relief, contending without citing any authority that when reviewing the actions of an administrative agency the court ...