Burtch v. U.S. Dept. of the Treasury, 96-35066

• Decision Date: 15 August 1997
• Docket Number: No. 96-35066,96-35066
• Citation: 120 F.3d 1087
• Parties: 97 Cal. Daily Op. Serv. 6488, 97 Daily Journal D.A.R. 10,617 Robert F. BURTCH, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE TREASURY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1087

120 F.3d 1087

97 Cal. Daily Op. Serv. 6488, 97 Daily Journal

D.A.R. 10,617

Robert F. BURTCH, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE TREASURY, Defendant-Appellee.

No. 96-35066.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 17, 1997.

Decided Aug. 15, 1997.

Melinda D. Miles, Miles & Goff, Anchorage, AK, for the plaintiff-appellant.

Thomas M. Bondy, United States Department of Justice, Washington, DC, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-95-00222-JWS.

Before: WALLACE, JOHN T. NOONAN and THOMPSON, Circuit Judges.

WALLACE, Circuit Judge:

Robert F. Burtch sought an order from the district court, pursuant to 18 U.S.C. § 925(c), providing him relief from his federal firearms disabilities imposed by 18 U.S.C. §§ 921-930. The district court dismissed his action, holding that it lacked jurisdiction over his claim, and Burtch appeals from that judgment. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

Between 1984 and 1987, Burtch was convicted of four felonies. One or more of his convictions was for a crime "punishable by imprisonment for a term exceeding one year" and thus Burtch lost his entitlement "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)(1).

Burtch brought his action to have his federal firearms privileges restored. 18 U.S.C. § 925(c) allows for restoration of firearms privileges upon application to the Secretary of the Treasury. "[T]he Secretary may grant such relief if it is established to his satisfaction that ... the applicant will not be likely to act in a manner dangerous to public safety and the granting of relief would not be contrary to the public interest." 18 U.S.C. § 925(c).

The statute provides for judicial review of denials by the Secretary: "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." Id. The Secretary has delegated his authority under this section to the Director of the Bureau of Alcohol, Tobacco and Firearms (ATF). 27 C.F.R. §§ 178.144(b), (d).

Since 1993, however, Congress has eliminated funding for ATF investigation or actions on applications for relief from federal firearms disabilities. Each of the annual Treasury Department appropriations statutes has provided 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)." Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009, 3009-319 (1996); Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub.L. No. 104-52, 109 Stat. 468, 471 (1995); Treasury, Postal Service, and General Government Appropriations Act, 1995, Pub.L. No. 103-329, 108 Stat. 2382, 2385 (1994); Treasury, Postal Service, and General Government Appropriations Act, 1994, Pub.L. No. 103-123, 107 Stat. 1226, 1228 (1993); Treasury, Postal Service, and General Government Appropriations Act, 1993, Pub.L. No. 102-393, 106 Stat. 1729, 1732 (1992).

The appropriations statutes since 1994 have provided, however, that "such funds shall be available to investigate and act upon applications filed by corporations for relief from Federal firearms disabilities under 18 U.S.C. § 925(c)." 110 Stat. 3009-319; 109 Stat. 471; 108 Stat. 2385; 107 Stat. 1228-1229.

On January 8, 1994, Burtch, through his attorney, requested ATF to send an application for relief from his firearms disabilities. ATF notified Burtch that, as a result of Public Law 103-123, ATF was "prohibited from acting upon or investigating applications for relief from Federal firearms disabilities under 18 U.S.C. section 925(c) for individuals." ATF recommended "that you contact our office about obtaining restoration of Federal firearms privileges for your client should Congress act to remove the restriction currently imposed."

On June 16, 1995, Burtch filed his "Verified Petition for Removal of Federal Disabilities" in the district court, naming as defendant the United States of America Department of the Treasury. He alleged that his application was denied and requested that the court provide him relief from his federal firearms disabilities. Burtch argued that ATF's funding limitations do not "repeal or affect the validity of 18 U.S.C. § 925(c)." Burtch also challenged as an equal protection violation the appropriation statutes' distinction between individuals, who are not permitted to have their applications processed by ATF, and corporations, which are.

The district court dismissed Burtch's action for lack of subject matter jurisdiction, holding that "[w]here no investigation occurs, there is no denial." The court also concluded that "the prohibition against investigating and acting upon applications from individuals under § 925(c) has a rational basis and does not deny the plaintiff equal protection under the law or violate any constitutional rights."

II

We review the district court's conclusions of law de novo. See Owner-Operators Indep. Drivers Ass'n v. Skinner, 931 F.2d 582, 584 (9th Cir.1991) (whether district court had subject matter jurisdiction is a question of law); United States v. Baker, 63 F.3d 1478, 1490 (9th Cir.1995) (equal protection claims are questions of law), cert. denied, --- U.S. ----, 116 S.Ct. 824, 133 L.Ed.2d 767 (1996).

"As in all cases of statutory interpretation, our starting point in determining Congress's intent must be the language of the statute itself. Unless exceptional circumstances dictate otherwise, if we find the statutory language unambiguous, then we will not resort to the legislative history." Jenkins v. INS, 108 F.3d 195, 200 (9th Cir.1997), quoting Fernandez v. Brock, 840 F.2d 622, 632 (9th Cir.1988).

Section 925(c) permits the federal district courts to entertain a petition for judicial review by "[a]ny person whose application for relief from disabilities is denied by the Secretary." 18 U.S.C. § 925(c). In context, the phrase "denied by the Secretary" refers back to the Secretary's substantive decisions about whether the applicant "will ... be likely to act in a manner dangerous to public safety," and whether "the granting of the relief would ... be contrary to the public interest." Id. Section 925(c) permits the district court to admit "additional evidence where failure to do so would result in a miscarriage of justice." Id. (emphasis added).

The issue before us is not new. Already there is an intercircuit conflict. Compare United States v. McGill, 74 F.3d 64 (5th Cir.1996) (McGill ), cert. denied, --- U.S. ----, 117 S.Ct. 77, 136 L.Ed.2d 35 (1996), with Rice v. United States, 68 F.3d 702, 709 (3d Cir.1995) (Rice ). Must, as the statute states, there first be a denial by ATF for the district court to review, or is the failure to act the functional equivalent of a denial on the merits? The statute is so clear that we hold it means what it says. Thus, the failure to appropriate...