The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Federal law bars convicted felons from possessing firearms. The Attorney General may grant relief from this prohibition if it is established to his satisfaction that certain conditions have been met. See 18 U.S.C. § 925(c); United States v. Bean, 537 U.S. 71, 123 S.Ct. 584, 586 (2002).*fn1 By regulation, the power to restore firearms rights has been delegated to the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). However, every year since 1992 Congress has included language in the ATF's annual appropriation that forbids the Bureau from expending any of its funds in connection with applications made by individuals under § 925(c).
Plaintiff Rex Black, a convicted felon, has brought this suit in an effort to force the Attorney General to act upon his § 925(c) application. To this end, he both seeks a writ of mandamus and makes a claim under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(1), to "compel administrative action unlawfully withheld or unreasonably delayed."
Plaintiff argues that the funding restriction imposed on ATF does not bar the Attorney General himself from granting applications made under § 925(c). In the alternative, he claims that insofar as the appropriations ban does effectively foreclose individualized relief from federal firearms disabilities, such a prohibition would itself violate the Due Process Clause, as federal law would then contain an irrebuttable presumption that every person convicted of a felony is too dangerous to be trusted with guns. The Court is not persuaded by these arguments and therefore will grant defendant's motion for summary judgment.
The Gun Control Act of 1968 makes it unlawful for any person convicted of a crime punishable by imprisonment for more than one year to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). However, such persons are permitted to apply to the Secretary of the Treasury "for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, 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." 18 U.S.C. § 925(c). In 1972, the Secretary delegated this authority to ATF, where it has remained ever since.
At the time of this original delegation, ATF was part of the Treasury Department. Effective January 24, 2003, however, the Homeland Security Act moved the Bureau (rechristened as the "Bureau of Alcohol, Tobacco, Firearms, and Explosives") to the Department of Justice, and transferred the Secretary of the Treasury's power to act upon § 925(c) applications to the Attorney General. See Pub. L. No. 107-296, title XI, 116 Stat. 2135 (Nov. 25, 2002). Soon thereafter, the Attorney General delegated that authority back to ATF. See 28 C.F.R. § 0.130(a)(1); 68 Fed. Reg. 4923, 4926 (Jan. 31, 2003); cf. 28 U.S.C. § 510 (allowing the Attorney General to "make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General"). The parties agree that this governmental reorganization has no effect on the merits of plaintiff's suit, although it does require that the Attorney General be substituted for the Secretary of the Treasury as the sole defendant. See FED. R. CIV. P. 25(c).*fn2
More relevant is Congress' decision, first made in 1992 and continued each year thereafter, to prohibit the federal funds appropriated annually for ATF from being used "to investigate or act upon applications for relief from Federal firearm disabilities under 18 U.S.C. § 925(c)." Treasury, Postal Service and General Government Appropriations Act, Pub. L. No. 102-393, 106 Stat. 1729, 1732 (Oct. 6, 1992). To the present day, every ensuing ATF appropriation has contained the same restriction on the processing of individual applications (although since 1994 Congress has allowed ATF to use its appropriated funds to act upon § 925(c) applications made by corporations). See Bean, 123 S.Ct. at 587 n.3 (cataloging these appropriations provisions).*fn3 Bound by this prohibition, ATF now simply returns any individual application that it receives with an explanation that it is permitted to do no more.*fn4
In 1986, plaintiff was convicted in California of possessing narcotics for sale, which under the law of that state is punishable by more than one year's imprisonment. On August 26, 2000, plaintiff (now a resident of Texas) submitted to the Secretary of the Treasury an application under § 925(c) for restoration of his right to possess firearms. Acting on the Secretary's behalf, ATF invoked the appropriations restrictions and informed plaintiff on December 15, 2000, that his application could not be processed. On December 21, plaintiff filed the present action against the Secretary/Attorney General. In his complaint, plaintiff asks for two different forms of relief. First, invoking both the writ of mandamus and the APA, he seeks to compel the Secretary/Attorney General (rather than ATF) to act on his application. Second, in the event that it is determined that the appropriations restrictions operate as a de facto repeal of § 925(c), plaintiff seeks a declaration that Congress' decision to leave convicted felons without a mechanism under federal law for the restoration of their right to bear arms violates the Due Process Clause of the Fifth Amendment.
This case was temporarily put on hold after the Fifth Circuit held that a district court could itself order individual relief under § 925(c), even in the absence of action by ATF. See Bean v. ATF, 253 F.3d 234 (5th Cir. 2001). Hoping to take advantage of that decision, plaintiff sought to dismiss this action in order to pursue a Bean -type claim in Texas. However, on December 10, 2002, the Supreme Court reversed the Fifth Circuit, concluding that ATF's inaction was not a "denial" of the application within the meaning of § 925(c), and therefore that no judicial review was available under that provision. See 123 S.Ct. at 587-88. At the same time, however, the Supreme Court noted that Bean had not asserted an APA claim against the Secretary of the Treasury for action unlawfully withheld or unreasonably delayed. See id. at 586 n.2. In light of the Supreme Court's decision, plaintiff reopened his suit before this Court, in which he pursues the claim that Bean did not. Both parties have now filed cross-motions for summary judgment, to which the Court now turns.
The APA authorizes federal courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Here, plaintiff asserts that the Secretary/Attorney General's failure to take action on his § 925(c) application warrants this remedy. The Court cannot agree. To begin, there can be little doubt that plaintiff's APA claim would fail had it been brought against ATF itself. The appropriations restriction manifestly forbids ATF from expending any money to engage in the action that plaintiff seeks to compel. As the Second Circuit has written:
Congress could not have stated more clearly that the ATF is prohibited from acting on applications submitted by individuals pursuant to § 925(c). The parties have not suggested that the ATF has access to any funds other than those affected by the relevant spending limitation, nor are we aware of any such funds. Thus, while the annual appropriations statutes speak in terms of the ATF's ability to spend appropriated funds, their affect on the agency is obvious: It may neither grant nor deny applications falling within the scope of the funding restriction.
McHugh v. Rubin, 220 F.3d 53, 58 (2d Cir. 2000). Far from unlawfully withholding action, therefore, ATF was under a legal duty not to act. Under those circumstances, a § 706(1) claim against the Bureau based on its failure to respond to a § 925(c) application would be essentially frivolous. See Mullis v. United States, 230 F.3d 215, 219 (6th Cir. 2000) ("Given Congress' explicit instructions that the ATF should not spend any appropriated funds to process applications for the removal [of] firearm disabilities, plaintiff could hardly argue that the ATF has acted unlawfully or unreasonably in failing to process his application.").
Accordingly, the question in this case becomes whether that result should be different merely because plaintiff has sued the Secretary/Attorney General rather than ATF. No court has directly confronted this issue, although the Supreme Court in Bean ...