Opinion
No. 02-2290, Section A(4), MISCELLANEOUS ACTION
October 30, 2002
ORDER AND REASONS
Before the Court is a Petition for Relief from Disabilities under the Federal Firearms Act (Rec. Doc. 1) filed by David Bennett Ridgeway pursuant to 18 U.S.C. § 925(c). Ridgeway is petitioning the Court for relief from disabilities imposed by federal law with respect to the possession of firearms by a convicted felon. For the reasons that follow, this matter is STAYED pending a final decision by the United States Supreme Court in the case of United States v. Bean.
BACKGROUND
David Ridgeway ("Petitioner") founded and was appointed Chief Executive Officer and President of Alliance Casualty Reinsurance Company of New Orleans ("Alliance") in 1987. Within four years, Alliance grew from a start-up company to booking over $11,000,000 in sales insuring medium size businesses for Workers Compensation, General Liability, and Auto coverage. In 1992, Alliance was investigated by the Federal Bureau of Investigation and the U.S. Department of Justice as part of an anti-corruption effort focused on the Louisiana insurance industry. Petitioner was eventually indicted and subsequently pled guilty to 22 counts, including Conspiracy to Defraud, False Statements to Banks, Mail Fraud, Wire Fraud, Bank Fraud, and Aiding Abetting. As a result, Petitioner was sentenced to a term of 48 months imprisonment plus five years supervised release, $50,000 fine and $100,000 restitution. Furthermore, as a convicted felon, Petitioner was automatically prohibited from shipping, transporting, or possessing any firearm or ammunition pursuant to 18 U.S.C. § 922(g)(1).After serving his prison term and supervised release, Petitioner applied to the Bureau of Alcohol, Tobacco and Firearms ("ATF") requesting relief from his section 922 federal firearms prohibition. The ATF refused to consider Petitioner's application, however, because ATF's current annual appropriation of funding prohibits the agency from spending any funds to act upon applications for relief from federal firearms disabilities. Exhibit B.
In light of ATF's refusal to consider his application, Petitioner requests that this Court review the facts of his case and grant him relief from the firearms disabilities imposed because of his criminal record. Petitioner hopes to eventually become a licensed firearm dealer.
LAW AND ANALYSIS
Under the Gun Control Act of 1968 (the "Act"), 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. § 922(g)(1). However, Congress also adopted a statutory framework under which a convicted felon could seek relief from the federal firearms disability. The Act authorizes the Secretary of the Treasury to lift the federal firearms disability imposed under section 922(g)(1) if
[I]t 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 granting of the relief would not be contrary to the public interest.18 U.S.C. § 925(c).
Furthermore, the Act provides for judicial review should the Secretary deny an application to lift the firearms disability.
[A]ny 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 . . .Id. (emphasis added)
The Secretary subsequently delegated his authority to grant this relief to the ATF and adopted detailed regulations to govern the requirements an applicant must meet. See 27 C.F.R. § 178.144(d). Consequently, when a convicted felon seeks relief from the firearms disability, the ATF "conducts 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 702, 705 (3d Cir. 1995), overruled on other grounds by Pontarelli v. U.S. Dept. of the Treasury, 285 F.3d 216 (3d Cir. 2002). The ATF "interviews the applicant, the listed character references, employers, members of the community where the applicant lives, the applicant's probation officer and other local law enforcement officers, [and consults] law enforcement records." Id. After such an investigation the ATF either reinstates an applicant's firearm privileges or denies the application. Id.
However, in each of the annual ATF appropriations bills passed since 1992, Congress has expressly prohibited the ATF from using any appropriated funds to investigate or act upon applications for relief under section 925(c). The prohibition is based upon Congress's belief that scarce public resources would be better spent fighting violent crime rather than conducting time-consuming investigations aimed at enabling a convicted criminal to possess a firearm. See S. Rep. No. 102-353 at 19-20 (1992); H.R. Rep. No. 104-183 at 15 (1995).
See, e.g., Treasury and General Government Appropriations Act, 2002, Pub.L. No. 107-67, 115 Stat. 514, 519 (2001).
In United States v. McGill, the Fifth Circuit upheld the district court's dismissal of a convicted felon's firearm relief petition. 74 F.3d 64, 65 (5th Cir. 1996). The applicant had been turned down by the ATF because of the funding restriction so he sought relief with the district court. Id. The district court concluded that it lacked subject matter jurisdiction over the petition and dismissed it. Id.
The Fifth Circuit affirmed, concluding that by eliminating all funding for the relief offered under section 925(c), Congress had meant to completely suspend any relief for convicted felons — not merely transfer the investigatory role from the executive branch to the judicial. See id. at 66. Indeed, the Fifth Circuit recognized that the federal courts have no means to conduct the type of investigation necessary to assess an applicant's fitness to possess a firearm while ensuring the public's safety. See id. at 67. The Fifth Circuit therefore found it unnecessary to conclusively determine whether a federal court would even have subject matter jurisdiction to consider such an application where the ATF does not deny an application on the merits but rather refuses to consider it at all. Id. at 65-66.
Other circuits have expressly held that subject matter jurisdiction is lacking. See, e.g., McHugh v. Rubin, 220 F.3d 53 (2d Cir. 2000) (holding that ATF is statutorily barred from acting on applications for restoration of firearms privileges and, as a result, district court lacks subject matter jurisdiction to review application). The Third Circuit had taken a contrary position, concluding that ATF's rejection of an application due to funding restrictions does not preclude an applicant from seeking relief in district court, see Rice v. United States, 68 F.3d 702 (3d Cir. 1995), but subsequently reversed that position, see Pontarelli v. United States Dep't of Treasury, 285 F.3d 216 (3d Cir. 2001). The Fifth Circuit had considered the Rice decision and expressly rejected it in McGill, but as discussed infra, the Fifth Circuit now seems to have reversed its own position, see Bean v. Bureau of Alcohol, Tobacco Firearms, 253 F.3d 234 (5th Cir. 2001).
Subsequently, however, the Fifth Circuit retracted and without expressly stating that it was overruling McGill, concluded that Congress had not tacitly intended to repeal the relief offered under section 925(c), and affirmed the district court's grant of relief from federal firearm disabilities. Bean v. Bureau of Alcohol, Tobacco, Firearms, 253 F.3d 234, 235 (5th Cir. 2001). However, the Supreme Court granted the Government's petition for writ of certiorari and the case is currently pending before the High Court. United States v. Bean, 534 U.S. 1112, 122 S.Ct. 917, 151 L.Ed.2d 883 (2002).
Based on the foregoing, the ability of this Court to consider Petitioner's request is questionable at this time but will likely be clarified when the Bean case is decided by the Supreme Court. Therefore, the Court concludes that no action should be taken on Ridgeway's petition until such time as the Supreme Court rules on the Bean case.
Accordingly;
IT IS ORDERED that this matter should be and is hereby STAYED pending a decision by the United States Supreme Court in United States v. Bean; IT IS FURTHER ORDERED that the Clerk shall mark this matter CLOSED FOR ADMINISTRATIVE PURPOSES. Petitioner can move to reopen the case following the Supreme Court's disposition of the Bean case.