McHugh v. Rubin, 98-CV-5651(TCP).

• Decision Date: 23 April 1999
• Docket Number: No. 98-CV-5651(TCP).,98-CV-5651(TCP).
• Parties: Dennis McHUGH, Plaintiff, v. Robert RUBIN, Secretary of the Department of the Treasury, and The Bureau of Alcohol, Tobacco and Firearms, Defendants.
• Court: U.S. District Court — Eastern District of New York

49 F.Supp.2d 105

Dennis McHUGH, Plaintiff, v. Robert RUBIN, Secretary of the Department of the Treasury, and The Bureau of Alcohol, Tobacco and Firearms, Defendants.

No. 98-CV-5651(TCP).

United States District Court, E.D. New York.

April 23, 1999.

Jerold Wolin, Wolin & Wolin, Jericho, NY, for plaintiff.

Zachary W. Carter, United States Attorney for the Eastern District of New York City, by Carolyn Lisa Miller, for defendants.

MEMORANDUM AND ORDER

PLATT, District Judge.

Before the Court is a Motion to Dismiss brought by defendants Robert Rubin ("Rubin"), Secretary of the Department of the Treasury, and the Bureau of Alcohol, Tobacco & Firearms ("ATF") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendants' Motion to Dismiss is denied.

Background

The underlying facts in this case are not disputed. On August 5, 1994, plaintiff John McHugh was convicted in District Court, Suffolk County of misdemeanor domestic violence offenses, to wit, Assault in the Third Degree and Criminal Contempt, after physically assaulting his wife. Plaintiff was sentenced to three years probation, although this period was terminated early because of plaintiff's exemplary conduct.

At the time of his conviction, plaintiff was employed as a New York State Park Police Officer. On December 20, 1996, plaintiff's employer placed him on "in-pay" status and removed him from active duty because his misdemeanor domestic violence conviction rendered him ineligible to carry a firearm pursuant to the 1996 amendment to the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. Specifically, section 922(g)(9) provides that "[i]t shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition...." 18 U.S.C. § 922(g)(9) (1998).¹

In response, plaintiff applied for and received a Certificate of Relief from Civil Disabilities from the State of New York on March 20, 1997. This State Certificate entitled plaintiff to relief from "all disabilities and bars to employment, excluding the right to be eligible for public office." Compl. ¶ 13, Ex. A. Notwithstanding this Certificate, plaintiff received notice on April 3, 1997 that the New York State Office of Parks, Recreation and Historic Preservation was seeking to terminate his employment due to his inability to carry a firearm under federal law. On June 2, 1998, the Office formally terminated plaintiff's employment, reasoning that the "Certificate of Relief from Civil Disabilities [issued by the State did] not restore [plaintiff's] ability to possess a firearm." Compl. ¶ 15, Ex. A.

On June 16, 1998, plaintiff filed a petition with defendants Rubin and ATF for relief from federal firearm disabilities pursuant to section 925(c), which provides, in relevant part, that:

[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, ... 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) (1998) (emphasis added).

In 1992, Congress enacted the Treasury, Postal Service, and General Government Appropriations Act (the "Appropriations Act"), mandating 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)." Pub.L. No. 102-393, 106 Stat. 1729, 1732 (1992). Since then, Congress has imposed similar funding limitations for each fiscal year. See Pub.L. No. 105-61, 111 Stat. 1272, 1277 (1997); Pub.L. No. 104-208, 110 Stat. 3009, 3319 (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). Over the last two years, however, Congress has restored funding for the limited purpose of investigating applications for firearms relief submitted by corporations under section § 925(c).

Based on these appropriations restrictions, Christopher Cuyler, Chief of the ATF Firearms Program Division, informed plaintiff that the agency would not review his application for restoration of federal firearms privileges. Specifically, Mr. Cuyler stated that:

[s]ince 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.... 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.

Compl. Ex. B, at 1. Without such relief, plaintiff remained ineligible to possess, receive or transport firearms under 18 U.S.C. §§ 922(g)(9) and 921(a)(33)(A).

Accordingly, plaintiff commenced the instant action on July 21, 1998, seeking an Order of Mandamus compelling defendants to process and act upon plaintiff's application for relief pursuant to section 925(c).

Defendants now move this Court for an Order dismissing plaintiff's Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

Discussion

A. Constitutional Challenge to Section 922(g)

In his Memorandum in Opposition to Defendants' Motion to Dismiss, plaintiff seems to question the constitutionality of section 922(g) on grounds that his domestic violence misdemeanor conviction may not serve as a predicate offense for the purposes of that section without violating the Ex Post Facto Clause. Specifically, plaintiff states that "[he] was convicted for the crimes (1994) before the statute penalizing him was enacted." (Pl.'s Br. at 5.)

To the extent that plaintiff asserts a violation under the Ex Post Facto Clause, his claim must fail. The Second Circuit has held that "Congress intended statutes prohibiting felons from possessing firearms to reach `persons convicted of felonies prior to [the effective date of the statute].'" United States v. Brady, 26 F.3d 282, 291 (2d Cir.1994) (quoting United States v. Matassini, 565 F.2d 1297, 1307 (5th Cir.1978)). While the case at bar involves a misdemeanor conviction as opposed to a felony, plaintiff has cited no authority to suggest that the same rule relating to felony convictions should not apply in this instance.

B. Subject Matter Jurisdiction to Review ATF's Refusal to Consider Plaintiff's Application for Relief from Firearms Disabilities under Section 925(c)

Having found that section 922(g)(9) does not violate the Ex Post Facto Clause, this Court next must determine whether it has jurisdiction to review the ATF's refusal to consider plaintiff's application for relief from federal firearms disabilities. Defendants contend that this Court may not review ATF inaction because section 925(c) confers jurisdiction upon district courts only if the ATF actually denies an individual's application. Where, as here, the ATF merely refuses to consider an individual's application, the district court may not review the agency's decision. In response, plaintiff asserts that this Court has jurisdiction because the ATF's refusal to consider plaintiff's application for relief from firearms disabilities constitutes a de facto denial, which this Court may review pursuant to section 925(c). While this issue is one of first impression in the Second Circuit, several circuits already have addressed this question and are split as to whether subject matter jurisdiction lies with the district courts.

The Ninth Circuit has held that district courts lack jurisdiction to review individuals' claims for relief from firearms disabilities where the ATF has simply refused to consider such applications due to appropriation legislation. See Burtch v. U.S. Dep't of the Treasury, 120 F.3d 1087, 1089-90 (9th Cir.1997). Having received four felony convictions, the plaintiff in Burtch was prohibited from possessing a firearm pursuant to 18 U.S.C. § 922(g)(1). He sought restoration of his firearms privileges under section 925(c), but the ATF declined to review his application because Congress eliminated funding for such investigations. Burtch commenced an action in district court, which, in turn, dismissed the case on grounds that it lacked jurisdiction.

On appeal, the Ninth Circuit affirmed, reasoning that the plain language of section 925(c) only permits district courts to review an individual's application where the ATF has "denied" relief. The court concluded that "the word `denial' means an adverse determination on the merits and does not include a refusal to act." Id. at 1090. Accordingly, where there has not been an actual denial of relief by the ATF, district courts do not have jurisdiction to review the matter under section 925(c). See id.

In United States v. McGill, the Fifth Circuit reached the same conclusion as the Ninth Circuit in Burtch, albeit on slightly different grounds. 74 F.3d 64, 67 (5th Cir.1996). McGill also involved a person who lost his right to possess a firearm after a felony conviction. In this case, however, the court relied on the legislative history of the Appropriations Act as it related to section 925(c)....