Ross v. Fed. Bureau of Alcohol
| Decision Date | 04 August 2011 |
| Docket Number | Civil No. PJM 10-3090 |
| Parties | DANIEL H. ROSS Plaintiff, v. FEDERAL BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, et al. Defendants. |
| Court | U.S. District Court — District of Maryland |
Daniel H. Ross, pro se, has sued the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATFE"), the Federal Bureau of Investigation ("FBI"), and "Unknown Officials" of both agencies (collectively, "Defendants"), asserting various claims arising out of the so-called "appearance" of a felony murder conviction on his record. Defendants have filed a Motion to Dismiss all counts, arguing that some fail to state a claim while, as to others, the Court lacks subject matter jurisdiction. [Paper No. 7]. Defendants' Motion to Dismiss the employment discrimination, state tort, and constitutional tort claims will be GRANTED; the Motion to Dismiss Ross's claim for erroneous denial of a firearm under the Gun Control Act of 1968 ("GCA"), 18 U.S.C. § 921 et seq., will be DENIED WITHOUT PREJUDICE. Ross shall have twenty-one days leave to amend his claim as to the alleged denial of the firearm.
Ross was convicted of two crimes in North Carolina state court in the 1960s: a misdemeanor, in 1965, for assault, and a felony, in 1969, for the murder of his wife. After yearsof fighting the murder conviction, which resulted in a life sentence, Ross was granted federal habeas corpus relief by the U.S. Court of Appeals for the Fourth Circuit. See Ross v. Reed, 704 F.2d 705 (4th Cir. 1983). The Fourth Circuit reversed Ross's murder conviction and remanded the case to the district court with instructions to enter a writ of habeas corpus unless Ross was retried within a reasonable time. Id. at 709. Ross was released from prison on June 1, 1983 and never retried. On appeal, the Supreme Court affirmed, noting that Ross's conviction had been "nullified." See Reed v. Ross, 468 U.S. 1, 21 (1984) (Rehnquist, J., dissenting).
Now, almost three decades after being released from prison and having had his murder conviction nullified, Ross alleges that he is suffering from continuing harm as a result of having the conviction on his record. His Complaint outlines three specific instances of such harm.
First, on April 1, 2009, he was informed by the Personnel Security Branch of the U.S. Environmental Protection Agency ("EPA") that a background check revealed the felony conviction. As a result, Ross was required to submit proof that the conviction had been nullified. It is unclear from Ross's Complaint whether he was employed by EPA at the time, or whether he was applying for a job at the agency. It is also unclear whether he submitted the required proof and whether he suffered any further consequences as a result of the background check.
Second, on March 11, 2010, Ross was informed that his request to receive a White House tour was denied following a Secret Service background check that revealed the felony conviction. Ross alleges that the Secret Service acquired this information from the FBI's National Instant Criminal Background Check System ("NICS"). He further alleges that the Secret Service offered him an opportunity to submit proof that he was not a convicted felon, but it is unclear whether Ross did so, or whether he eventually received a White House tour.
Finally, on January 5, 2010, Ross attempted to purchase a hunting rifle from a pawnbroker, who was a federal firearms licensee ("FFL").1 Under § 922(t) of the GCA, FFLs are required to run a criminal background check on a prospective purchaser before they can transfer the firearm. This involves contacting the NICS database and awaiting a response, which can either be "Proceed," "Delayed," or "Denied." 28 C.F.R. § 25.6(c)(1)(iv). If the FFL receives a "Delayed" response, or does not receive a "Denied" response within three days of contacting the NICS database, the FFL may transfer the firearm to the purchaser. See 18 U.S.C. § 922(t)(1)(B)(ii); 28 C.F.R. 25.6(c)(1)(iv)(B) (). Ross alleges that the FFL denied his request to purchase the hunting rifle.
Believing the denial of his request to be in error, Ross appealed the decision to the FBI's Criminal Justice Information Services ("CJIS") Division. On July 12, 2010, the FBI sent him a letter stating that the denial was based on his felony conviction, which would have made the firearm transfer illegal under 18 U.S.C. § 922(g)(1), which prohibits anyone "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" from receiving a firearm. As Ross has pointed out, however, that section is limited by 18 U.S.C. § 921(a)(20), which exempts "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored" from application of § 922(g)(1). Because he submitted proof that his felony conviction had been nullified in 1983, the FBI advised Ross that "the original prohibitive criteria have been resolved."
However, the FBI also informed Ross that a different aspect of his record presented "potentially prohibitive criteria" and that, accordingly, "any future firearm transactions [would] be subject to a delay." The FBI referenced 18 U.S.C. § 922(g)(9), which makes it unlawful for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence" to possess a firearm. Though Ross's felony conviction had been recharacterized as "nullified," his remaining misdemeanor conviction for assault would violate § 922(g)(9) if it involved domestic violence. Because Ross's record did not specify the nature of the misdemeanor conviction,2 the FBI noted that it "lack[ed] required criteria" to resolve Ross's eligibility to possess a firearm and that the material Ross submitted was "insufficient" to settle the matter.
Eventually, the FBI identified the agency responsible for submitting to it information as to Ross's criminal record, namely North Carolina's State Bureau of Investigation ("SBI"). Ross was invited to contact the SBI to update his record. It is unclear whether Ross followed the FBI's advice. Nonetheless, Defendants claim that this communication from the FBI constituted its final decision in the matter, and represents a "delay," instead of a denial, of Ross's request to purchase a firearm.
On February 12, 2011, after this Complaint was filed, and apparently in response to Defendants' Motion to Dismiss, Ross attempted to purchase a firearm. He alleges that the firearm was not transferred to him on that day, and that three days later, when he inquired of the FFL why not, the FFL informed him that the FBI had denied his transfer. In support of this allegation, Ross has provided the transaction number of his firearm transfer request, but has provided no other documentary evidence demonstrating that he was, in fact, denied a firearmafter the FBI informed him that his future requests would only be subject to delay. In their Reply Memorandum, Defendants did not respond to this allegation, which appears for the first time in Ross's Response. Defendants' position as to this allegation is thus unclear, but presumably the FBI does not agree that the gun request was denied.
Defendants' Motion to Dismiss is brought pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a party may seek dismissal for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). "The plaintiff has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). "When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (citation and quotation marks omitted). "The district court should grant the Rule 12(b)(1) motion to dismiss only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation and quotation marks omitted).
Rule 12(b)(6) governs dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and quotation marks omitted). "[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). The court will also "draw[ ] allreasonable factual inferences from those facts in the plaintiff's favor . . . ." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). But "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts . . . ." Nemet Chevrolet, 591 F.3d at 255. "[A] complaint must contain 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) (quotation marks omitted). "Facial plausibility is established once the factual content of a complaint 'allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. at 256 (quoting Iqbal, 129 S. Ct. at 1949). "[T]he complaint's factual allegations must produce an inference of liability strong enough to nudge the plaintiff's claims 'across the line from conceivable to plausible.'" Id. (quoting Iqbal, 129 S....
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