Palma v. U.S.

• Decision Date: 13 March 2000
• Docket Number: No. 99-1503,99-1503
• Parties: (3rd Cir. 2000) JEROME E. PALMA v. UNITED STATES OF AMERICA, DEPARTMENT OF ALCOHOL, TOBACCO AND FIREARMS, Appellant Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 323

228 F.3d 323 (3rd Cir. 2000)

JEROME E. PALMA v. UNITED STATES OF AMERICA, DEPARTMENT OF ALCOHOL, TOBACCO AND FIREARMS, Appellant

No. 99-1503

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: March 13, 2000

Filed September 26, 2000

Appeal from the United States District Court for the Eastern District of Pennsylvania, No. Misc. A. 98-mc-00209, District Judge: Hon. Marvin Katz

[Copyrighted Material Omitted]

RICHARD MENTZINGER, JR., ESQ. Assistant U. S. Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106, MARK B. STERN, ESQ. THOMAS M. BONDY, ESQ. (Argued) Attorneys, Appellate Staff Civil Division, Room 9548 Department of Justice 601 "D" Street, N. W. Washington, DC 20520, IMELDA M. KEOTT, ESQ. Associate Chief Counsel DAVID C. LIEBERMAN, ESQ. Attorney Office of Chief Counsel Bureau of Alcohol, Tobacco and Firearms Washington, DC 20226, for Appellant

STANFORD SHMUKLER, ESQ. (Argued) Suite 1915 1515 Market Street Philadelphia, PA 19102, for Appellee

Before: McKEE and RENDELL, Circuit Judges, and ROSENN, Senior Circuit Judge

OPINION OF THE COURT

McKEE, Circuit Judge.

The Bureau of Alcohol, Tobacco and Firearms ("ATF ") appeals the district court's order restoring firearms privileges to Jerome E. Palma. Palma had previously pled guilty to two counts of making false statements on a federal income tax return in violation of 26 U. S. C. S 7206(1), and was thereby precluded from owning or possessing firearms under 18 U. S. C. S 922(g)(1) because he was a convicted felon. We hold that Palma did not make the necessary showing under 18 U.S.C. S 925(c) to obtain relief from that disability, and we will therefore reverse the district court's order based upon our decision in Rice v. United States, 68 F.3d 702 (3d Cir. 1995).

I.

Palma was formerly a marketing director for various casinos in Atlantic City, New Jersey. While employed in that capacity he gave favorable treatment to various entities that were then doing business with the casinos in return for payoffs that totaled more than $100,000. Palma did not report any of the proceeds from those payoffs on his federal income tax returns.

On December 10, 1987, Palma pled guilty to two counts of making false statements on his income tax return, a felony. The district court suspended his sentence, placed him on five years probation, and ordered him to pay a fine of $10,000. It is undisputed that Palma successfully completed all terms and conditions of his sentence, and that he was granted early discharge from his probation. It is also undisputed that Palma has not had any adverse contact with law enforcement since successfully completing his sentence. Until three years ago, Palma was employed by Palma/Lazar Associates as a real estate appraiser. In 1997, he started his own real estate appraisal business, ProData Services. He claims that his "need" to carry a gun relates to his real estate appraisal business.

II.

Under the Gun Control Act of 1968, persons convicted of crimes punishable by a term of imprisonment in excess of one year are prohibited from possessing, transporting, or receiving firearms. 18 U.S.C. S 922(g)(1). However, the Gun Control Act also authorizes the Secretary of the Treasury to lift the firearms disability imposed under S 922(g)(1) 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 the public safety and that the granting of the relief would not be contrary to the public interest." 18 U.S.C. S 925(c). The Secretary has delegated the authority to grant relief from the firearms disability to the Director of the ATF. 27 C. F. R. S 178.144(b), (d).

The Act further provides 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 the district in which he resides for a judicial review of such denial." 18 U.S.C. S 925(c). When reviewing a denial of relief from the disability, the district court "may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice." Id.

Prior to 1992, when a convicted felon sought relief from the firearms disability, the ATF "conduct[ed] a broad-based field investigation concentrating on [the] statutory criteria surrounding the applicant's disabling conviction and the applicant's record and reputation." Rice v. United States, 68 F.3d at 705 (citation omitted). The ATF "interview[ed] the applicant, the listed character references, employers, members of the community where the applicant live[d], the applicant's probation officer and other local law enforcement officers, [and consulted] other law enforcement records," Id. (citation and internal quotations omitted), so that it could properly act upon a petition to reinstate a convicted felon's firearms privileges.

However, in each of the annual ATF appropriations bills passed since 1992, including the bill for FY 2000, Congress expressly prohibited the ATF from using any appropriated funds to investigate or act upon applications for relief under S 925(c). The following language was placed in each of those appropriations bills: "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. S 925(c)." Pub. L. No. 106-58, 113 Stat. 430, 434 (1999); Pub. L. No. 105-277, 112 Stat. 2681, 2681-485 (1998); Pub. L. No. 105-61, 111 Stat. 1272, 1277 (1997); Pub. L. No. 104-208, 110 Stat. 3009, 3009-319 (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); Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992). Congress' stated explanation for the prohibition is that a decision to grant relief from federal firearms disabilities "could have devastating consequences for innocent citizens if the wrong decision is made." S. Rep. No. 103-106, 103d Cong., 1st Sess. 29 (1993); S. Rep. No. 102-353 102 Cong., 2d Sess., 19-20 (1992). Congress has reiterated that "[t]here is no reason to spend the Government's time or taxpayers' money to restore a convicted felon's right to own a firearm." H. R. Rep. No. 104-183, 104th Cong., 1st Sess. 15 (1995).

Some time after his conviction, Palma applied to the ATF for relief from his firearms disability under S 925(c). The ATF informed him that it could not act on his request because Congress' prohibition of the use of appropriated funds made the necessary background check and investigation impossible. Palma then filed a petition for relief from the firearms disability in the district court. In that petition, he conceded that Congress has prohibited the ATF from acting on petitions for relief. Petition for Relief at P 12. Nonetheless, he asked the district court to conduct its own inquiry into his fitness to own a firearm and to issue an order restoring his firearms privileges. Id. at PP 22-26. Palma's petition alleged

that he was fifty-nine years old, self-employed as a real estate appraiser, and that his employment takes him into high-crime, dangerous areas of Philadelphia and suburbs . . . . that he had never been convicted of any offense other than the one for which he pled guilty, that he is of sound mind and has no history of mental illness, that he has an excellent reputation for good character, and attached to his petition affidavits from reliable and responsible citizens. . . . that he is not likely to act in a manner that is dangerous to the safety of the public, and that granting the relief sought would not be contrary to the public interest.

Palma's Br. at 3. The government responded to Palma's petition by filing a motion to dismiss in which it asserted that the district court has "no authority to consider in the first instance the merits of a convicted felon's application for relief from his federal firearms disabilities." Government's Br. at 7.

The district court denied the government's motion to dismiss. The court issued an order setting a hearing on Palma's motion, and directing parties to submit proposed findings of fact and conclusions of law. The court also ordered that those proposals "should address the issue, assuming arguendo plaintiff meets his `heavy burden' on the merits, [of whether] the denial of appropriated funds to administer the law is a miscarriage of justice." App. at 31. Thereafter, pursuant to our decision in Rice v. United States, the district court asserted jurisdiction over Palma's petition and held an evidentiary hearing at which Palma and a number of character witnesses testified. At the conclusion of that hearing, the district court entered an order restoring Palma's firearms privileges. Palma v. United States, 48 F. Supp.2d 481 (E. D. Pa. 1999). This appeal followed.

III.

A.

Before discussing the merits of the government's appeal, we must address Palma's contention that the government's appeal should be dismissed because it is untimely. The district court's judgment was entered on April 21, 1999. The government's notice of appeal was filed on June 17, 1999; fifty-six days after the entry of judgment. Simultaneously with his appellee's brief, Palma filed a motion to dismiss the government's appeal as untimely. Palma argues that inasmuch as his petition arises from a criminal conviction, his petition for relief from the firearms disability must, of necessity, also be a criminal proceeding. Therefore, he argues, the government's notice of appeal had to be filed within 30 days of the district court's judgment, as required in a criminal case, see F. R. A. P. 4(b)(1)(B)[captioned "Appeal in a Criminal Case], rather than within 60 days as required in a civil case, see F. R. A. P. 4(a)(1)(B)[captioned "Appeal in a Civil Case]. We disagree.

At the outset, we note that Palma's...