UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-10342
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH W. McGILL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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January 18, 1996
Before DAVIS AND PARKER, Circuit Judges; BUNTON,1 District Judge.
DAVIS, Circuit Judge:
McGill, a convicted felon, who lost his right to possess
firearms upon his conviction of a felony, appeals from the
dismissal of his application to restore his firearms privileges.
We affirm the district court's judgment.
I.
Kenneth W. McGill pleaded guilty to two felony offenses:
making a false statement pursuant to 18 U.S.C. § 1014 and filing
a false tax return pursuant to 26 U.S.C. § 7206. In April 1993, he
1
District Judge of the Western District of Texas, sitting by
designation.
was sentenced to probation for two years. The district court
granted an early release from probation in September 1994.
Title 18 U.S.C. § 922(g)(1) prohibits a convicted felon from
shipping, transporting, or possessing any firearms or ammunition.
Title 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 has transferred his authority to
grant this relief to the Director of the Department of Alcohol,
Tobacco and Firearms ("ATF"). 27 C.F.R. § 178.144.
McGill wrote the ATF requesting information about applying for
relief from the § 922 firearm disability. The ATF informed him
that it was no longer accepting applications for relief authorized
by § 925(c) because Congress had denied funding for the program.
Public Law 103-329 (1994) of the Treasury Department Appropriations
Act specifically stated that "[n]one of the funds appropriated
herein shall be available to investigate and act upon applications
for relief from Federal firearms disabilities under 18 U.S.C.
section 925(c)." Treasury, Postal Service and General Government
Appropriations Act, 1995, Pub.L. No. 103-329, 108 Stat. 2382, 2385
(1994). McGill then filed with the district court an application
for the removal of his § 922 Federal firearm disability. The
district court promptly dismissed the application on the ground
that it lacked jurisdiction. McGill filed a timely notice of
appeal.
II.
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We review de novo a district court's dismissal for lack of
subject matter jurisdiction. Matter of Bradley, 989 F.2d 802, 804
(5th Cir. 1993). Although we doubt that the district court has
original jurisdiction to consider an application to remove the
Federal firearm disability, we pretermit that question because it
is clear to us that Congress suspended the relief provided by §
925(c). "In the past, we similarly have reserved difficult
questions of our jurisdiction when the case alternatively could be
resolved on the merits in favor of the same party." Norton v.
Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672
(1976), cited in Texas Employers' Ins. Ass'n v. Jackson, 862 F.2d
491, 497 n.8 (5th Cir. 1988) (en banc), cert. denied, 490 U.S.
1035, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989).
Congress has the power to amend, suspend or repeal a statute
by an appropriations bill, as long as it does so clearly.
Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S.Ct.
1407, 1414, 118 L.Ed.2d 73 (1992). "There can be no doubt that
Congress could suspend or repeal the authorization contained in [a
current statute] . . .; and it could accomplish its purpose by an
amendment to an appropriation bill, or otherwise." United States
v. Dickerson, 310 U.S. 554, 555, 60 S.Ct. 1034, 1035, 84 L.Ed. 1356
(1940). "The whole question depends on the intention of Congress
as expressed in the statutes." United States v. Mitchell, 109 U.S.
146, 150, 3 S.Ct. 151, 153, 27 L.Ed. 887 (1883).
Thus the question of whether the appropriations bill suspended
the relief available under § 925(c) turns on the intent of
Congress. Section 922, part of the Gun Control Act of 1968, was
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enacted in response to the increase in violence resulting from
firearm possession. The act makes it unlawful for a convicted
felon "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).
Congress also established a statutory framework under which a
convicted felon could seek relief from the Federal firearms
disability. Section 925(c) grants relief from § 922 by providing:
A person who is prohibited from possessing, . . .
firearms or ammunition may make application to the
Secretary for relief from the disabilities imposed by
Federal laws . . ., 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).
The Secretary delegated his authority to the Director of the
ATF and adopted detailed regulations to govern the requirements an
applicant must meet. 27 C.F.R. § 178.144. The ATF conducts a
broad-based field investigation of the convicted applicant's record
and reputation before ruling on the application. See Smith v.
Brady, 813 F. Supp. 1382, 1383-84 (E.D. Wis. 1993) (describes ATF's
investigative procedures under § 925(c)). By its terms, § 925(c),
gives the applicant the right to seek review in the district court
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only after the Secretary has denied her application. The district
court is given authority to reverse the Secretary's order if the
Secretary's denial was arbitrary, capricious or an abuse of
discretion. Bradley v. Bureau of Alcohol, Tobacco, and Firearms,
736 F.2d 1238, 1240 (8th Cir. 1984).
Even though § 925(c) allows the district court to admit
additional evidence in extraordinary circumstances, the legislative
history of this amendment makes it clear that Congress intended for
district courts to review only the Secretary's denial under an
arbitrary and capricious standard. The Senate report states that
this amendment "empowers the court to consider additional evidence
in making its finding where a failure to do so might yield a
miscarriage of justice. In such a case, the court might in its
discretion request the presence of an agent representing the
Secretary, and stay the action for a suitable time to permit the
Secretary to review his findings in light of the additional
evidence, then proceed forward in the event the evidence does not
alter his determination." S. Rep. No. 476, 97th Cong., 2d Sess. 24
(1982); see also, David T. Hardy, The Firearms Owners' Protection
Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 644
(1987). We now turn to the appropriations acts which serve as the
basis for the government's argument that the § 925(c) relief has
been suspended.
In the 1993 Appropriations Act for the Treasury Department,
Congress specifically barred any funding for ATF "to investigate or
act upon applications for relief from Federal firearms disabilities
under 18 U.S.C. 925(c)." Treasury, Postal Service, and General
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Government Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat.
1729 (1992). This funding limitation was continued with the same
language in the next two appropriations acts -- Public Law 103-123
(1993) and Public Law 103-329 (1994). In these last two acts,
however, funds were expressly appropriated to process applications
filed by corporations for relief under § 925(c).
In a report to the Senate, the Appropriations Committee
explained why it withheld funds in the 1993 Appropriations Act for
ATF action on applications for § 925(c) relief:
Under the relief procedure, ATF officials are required to
determine whether a convicted felon, including persons
convicted of violent felonies or serious drug offenses, can be
entrusted with a firearm. After ATF agents spend many hours
investigating a particular applicant[,] they must determine
whether or not that applicant is still a danger to public
safety. This is a very difficult and subjective task which
could have devastating consequences for innocent citizens if
the wrong decision is made. The Committee believes that the
approximately 40 man-years spent annually to investigate and
act upon these investigations and applications would be better
utilized to crack down on violent crime. Therefore, the
Committee has included language in the bill which prohibits
the use of funds for ATF to investigate and act upon
applications from relief from Federal firearms disabilities.
S. Rep. No. 353, 102nd Cong., 2d Sess. 77 (1992)(emphasis added).
This report expresses concern over: (1) use of limited
valuable resources for investigating these difficult cases and (2)
consequences to innocent citizens if ATF makes a mistake and grants
relief to a felon from his firearm disabilities.
By withdrawing funds to the ATF to process these applications
under these circumstances and with this explanation by the
appropriations committee, it is clear to us that Congress intended
to suspend the relief provided by § 925(c). We cannot conceive
that Congress intended to transfer the burden and responsibility of
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investigating the applicant's fitness to possess firearms from the
ATF to the federal courts, which do not have the manpower or
expertise to investigate or evaluate these applications.
We disagree with the contrary conclusion of the Third Circuit
in Rice v. United States Dept. of Alcohol, Tobacco, and Firearms,
68 F.3d 702, 707 (3d. Cir. 1995). The Rice court concluded that
"[t]he appropriation acts presently before us fail to show a clear
intent to repeal section 925(c) or to preclude judicial review of
BATF's refusal to grant relief from firearms disabilities."
We agree with Moyer v. Secretary of Treasury, 830 F. Supp. 516
(W.D.Mo. 1993). In that case the court found that the limitation
on ATF's funds reflected a Congressional intent to suspend the
ability of convicted felons to seek relief from Federal firearms
disabilities.
We also find the history of funding for investigating
applications from corporations as evidence of the intent of
Congress to suspend the relief available under § 925(c). The
initial 1993 Appropriations Act (Pub. L. No. 102-292) barred the
ATF from using funds to investigate any applications. In the 1994
Appropriations Act (Pub. L. No. 103-123) Congress expressly
restored funding to the ATF to investigate applications from
corporations, but continued to withhold funds to investigate
applications from individuals. If Congress thought the courts were
considering applications for relief under § 925(c), this
restoration of funds to provide relief for corporations would have
been unnecessary. In the 1995 Appropriations Act, Congress
continued to provide funding for ATF to investigate corporate
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applications while maintaining its hold on funds to investigate
individual applications.
We therefore conclude that relief from federal firearms
disabilities for individuals under § 925(c) is suspended by the
last three appropriations acts.
McGill alteratively argues for the first time on appeal that,
if we find § 925(c) as repealed or suspended, we should also find
that § 922(g) was repealed or suspended. We will not consider an
argument raised for the first time on appeal unless it rises to the
standard of plain error. United States v. Olano, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993). The standard for plain error is a clear or
obvious error that affected substantial rights or seriously
affected the fairness or integrity of the judicial proceeding.
United States v. Calverly, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc), cert. denied, 115 S.Ct. 1266 (1995). The district court
certainly did not commit obvious error in failing to declare §
922(g) suspended.2
2
We are satisfied that McGill's argument that Congress
intended to suspend § 922 is meritless. The explicit reason
Congress withheld funding from ATF was not to give convicted felons
the right to possess weapons but to allocate those funds to
enforcement. In a 1995 report to the House, the Committee on
Appropriations stated:
For the fourth consecutive year, the Committee has added
bill language prohibiting the use of Federal funds to process
applications for relief from Federal firearms disabilities.
The Committee understands the controversial nature of the
underlying law allowing convicted felons to have their right
to own a firearm restored. However, those who commit serious
crimes forfeit many rights and those who commit felonies
should not be allowed to have their right to own a firearm
restored. We have learned sadly that too many of these felons
whose gun ownership rights were restored went on to commit
violent crimes with firearms. There is no reason to spend the
Government's time or taxpayer's money to restore a convicted
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For the reasons stated above, we conclude that Congress has
suspended the relief provided in § 925(c) for individuals. We
therefore affirm the district court's dismissal.
AFFIRMED.
felon's right to own a firearm.
H.R. Rep. No. 183, 104th Cong., 1st Sess. 23 (1995).
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