Bean v. U.S., CIV. A. 1:99-CV-724.

• Decision Date: 22 February 2000
• Docket Number: No. CIV. A. 1:99-CV-724.,CIV. A. 1:99-CV-724.
• Citation: 89 F.Supp.2d 828
• Parties: Thomas Lamar BEAN, Petitioner, v. UNITED STATES of America, Bureau of Alcohol, Tobacco and Firearms, Respondents.
• Court: U.S. District Court — Eastern District of Texas

Page 828

89 F.Supp.2d 828

Thomas Lamar BEAN, Petitioner, v. UNITED STATES of America, Bureau of Alcohol, Tobacco and Firearms, Respondents.

No. CIV. A. 1:99-CV-724.

United States District Court, E.D. Texas, Beaumont Division.

February 22, 2000.

Larry C. Hunter, Vidor, TX, for Petitioner.

John Burch Stevens, Jr., Asst. U.S. Atty., U.S. Attorney's Office, Beaumont, TX, for Respondents.

MEMORANDUM OPINION

JOE J. FISHER, District Judge.

Before the Court is the Petitioner's "Petition for Relief from Disabilities Under the Federal Firearms Act." After considering the Petition, the evidence submitted, the Response from the Respondents, and arguments from counsel, the Court GRANTS the Petition. A separate Order will be entered in accordance with this Memorandum.

I. BACKGROUND

On Saturday, March 14, 1998, Mr. Thomas Lamar Bean ("Petitioner," "Mr. Bean," or "Bean") was attending a gun show as a dealer in Laredo, Texas. At the conclusion of the show, Mr. Bean and his three assistants decided to cross the United States-Mexican border to have dinner at a restaurant in Nuevo Laredo, Mexico. Before leaving, Mr. Bean instructed his assistants to remove all firearms and ammunition from his 1994 Suburban. However, as the assistants removed said items from the vehicle, they inadvertently left approximately two hundred rounds of ammunition in plain view in the back of Mr. Bean's Suburban.

Mr. Bean's vehicle was stopped at the Mexican Port of Entry, Nuevo Laredo, Tamaulipas, Mexico, where the ammunition was discovered by Mexican officials. Although all four individuals were initially arrested, Mr. Bean's associates were soon released. Bean, however, was detained and charged with introduction of ammunition into the Republic of Mexico since he was the owner of the vehicle and the ammunition. While acknowledging that the ammunition was in plain view in the back of his Suburban, Bean stated that he was unaware that the ammunition was in the vehicle at the time he crossed the border. He was also unaware that possession of ammunition was an offense in the Republic of Mexico.

Mr. Bean was immediately taken into custody and almost two months later, on May 27, 1998, was sentenced to a term of imprisonment of five years and was fined in the amount of 17,679 pesos or the equivalent of twenty days of community service work. He remained in a Mexican jail until September 21, 1998, when he was transferred to the La Tuna Penitentiary in Anthony, Texas by virtue of the International Prisoner Transfer Treaty and the applicable federal statutes under 18 U.S.C. § 4100, et seq.

Bean was then released from La Tuna Penitentiary on October 21, 1998 and returned to his home in Orange County, Texas. Pursuant to 18 U.S.C. § 4106A(b)(3), jurisdiction over the Petitioner was conferred upon the United States District Court for the Eastern District of Texas. Petitioner was initially placed on supervised release but this restriction was terminated by an order signed by this Court on August 30, 1999.

Due to this Mexican conviction (and despite the termination of supervised release), Mr. Bean could not own or possess a firearm. Title 18 U.S.C. § 922(g)(1) prohibits any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" from shipping, transporting, or possessing any firearms or ammunition. However, 18 U.S.C. § 925(c) permits any person to apply to the Secretary of Treasury for relief from the disabilities imposed under § 922(g)(1). The Secretary of Treasury is authorized to restore firearm privileges to the applicant "if it is established to [the Secretary's] 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." 18 U.S.C. § 925(c). The Secretary of the Treasury has delegated his authority to grant relief to the Director of the Bureau of Alcohol, Tobacco and Firearms ("BATF" or "ATF"). See 27 C.F.R. § 178.144.

Title 18 U.S.C. § 925(c) also states that "any person whose application for relief from disabilities is denied by the Secretary may file a petition with the United States district court ... 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).

Congress however, in 1992, 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)."¹ Since then, Congress has imposed similar funding limitations for each fiscal year.² This essentially meant that the ATF could no longer conduct investigations because they had been given no appropriations to do so.

On July 14, 1999, counsel for Mr. Bean wrote the Bureau of Alcohol, Tobacco and Firearms requesting the relief authorized by § 925(c). The ATF replied and informed Bean that the agency is not accepting applications for restoration of firearms privileges since Congress has specifically denied funding for ATF investigations, or actions on applications for § 925(c) relief, through a series of appropriations measures dating back to October 1992. Mr. Bean was instructed by the ATF to contact their office if and when Congress lifts the restrictions. Bean then filed in this Court his "Petition for Relief of Disabilities Under the Federal Firearms Act."

II. ANALYSIS

Bean's petition presents four questions for this Court: (1) whether the decision by Congress not to fund the review of applications for relief submitted to the ATF suspends the relief available provided for under 18 U.S.C. § 925(c); (2) whether the inaction by the ATF constitutes a defacto denial of an application such that a United States district court may consider a petition for judicial review of the denial; (3) whether a foreign conviction may serve as the predicate offense for a prohibition of firearms privileges under 18 U.S.C. § 922(g)(1); and (4) whether Mr. Bean will be "likely to act in a manner dangerous to public safety" and if the "granting of the relief would ... be contrary to the public interest." 18 U.S.C. § 925(c).

A. Congress' failure to fund the review of applications by the ATF was not a suspension of relief under 18 U.S.C. § 925(c), but rather Congress only intended the suspension of the ATF's ability to investigate or act upon applications for relief by individuals.

This Court does not question that it is Congress' exclusive power to appropriate money and establish the jurisdiction of inferior federal courts. See U.S. Const., Art. I, § 8; U.S. Const., Art III, § 1. The Court also recognizes that Congress may also use appropriation acts to amend or repeal substantive legislation. See Robertson v. Seattle Audubon Soc'y, 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); Director, OWCP v. Alabama by Products Corp., 560 F.2d 710, 719 (5th Cir.1977).

Nevertheless, it is a general maxim that repeals by implication are "strongly" disfavored. See Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974). Before courts will hold that Congress has used an appropriation act to repeal substantive legislation or preclude judicial review of administrative action, the intention to do so must be clearly stated. See Robertson, 503 U.S. at 440, 112 S.Ct. at 1414 (Congress "may amend substantive law in an appropriations statute, as long as it does so clearly."); Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974) (courts require "clear and convincing evidence of congressional intent ... before a statute will be construed to restrict access to judicial review").

Ultimately, this Court is relegated to determining Congress' intent, with respect to 18 U.S.C. § 925(c), when it suspended funds for the ATF to conduct investigations and whether such intent was "clear." The Court begins this analysis by discussing a similar case from the Third Circuit Court of Appeals, Rice v. U.S., Department of Alcohol, Tobacco and Firearms, 68 F.3d 702 (3d. Cir.1995).

In 1970, Phillip Rice ("Rice") pleaded guilty in state court to several felonies involving stolen auto parts. Id. at 704. More than twenty years later, Rice submitted an application to the ATF for restoration of his firearm privileges. Id. at 705. In response, the ATF sent Mr. Rice a letter notifying him that it could no longer process his application because Congress had passed an appropriation bill which suspended funds for the ATF to investigate or act upon such applications. Id. Mr. Rice, pursuant to the express language in 18 U.S.C. § 925(c), then filed a petition for judicial review in federal district court. Id. at 705.

Concerning the question of legislative intent, the Court found that the Appropriation Acts failed "to show a clear intent to repeal section 925(c) or to preclude judicial review of (the) BATF's refusal to grant relief from firearms disabilities." Id. at 707. In making the determination, the Court looked at the language contained in the 1993 Appropriations Act and found it extremely important that the Appropriations Acts did not "expressly preclude a court from reviewing BATF's refusal to process an application for relief." Id. Subsequently, the Court held that the Appropriations Acts neither repealed 18 U.S.C. § 925(c) nor precluded "judicial review of administrative decisions concerning a convict's application for restoration of his firearm privileges." Id.

The Fifth Circuit Court of Appeals has also considered this issue in United States v. McGill, 74 F.3d 64 (5th...