                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-1381
                                      ____________

                                   EDWARD J. BARR,
                                                  Appellant

                                             v.

                   WILLIAM A. CAPOUILLEZ; JAY DELANEY,
                     JR.; JOHN DOE NO. 1; JOHN DOE NO. 2;
                   DOROTHY R. DERR; MATT HOUGH; RALPH
                    A. MARTONE; JOSEPH J. NEVILLE; RICH
                   PALMER; DAVID J. PUTNAM; CARL G. ROE;
                  DAVID W. SCHREFFLER; RONALD A. WEANER
                      __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. Civ. No. 11-cv-01672)
                      District Judge: Honorable Richard P. Conaboy
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 4, 2014

         Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

                             (Opinion filed: February 9, 2015)
                                     ____________

                                        OPINION 1
                                      ____________


PER CURIAM




1
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Appellant Edward J. Barr (“Barr”) appeals from an order of the District Court

granting summary judgment to the defendants. For the reasons that follow, we will

affirm.

          Barr, a resident of Pocono Lake, sued the Pennsylvania Game Commission in

Commonwealth Court, alleging that the new $30.00 fee associated with using the Game

Commission’s shooting ranges on game lands was arbitrary and capricious. He noted

that those who hold a valid, current general hunter or furtaker license pay as little as

$13.70 per year for their licenses and are exempt from the $30.00 fee. Barr argued that

the fee and application process are irrational and violate the 14th Amendment equal

protection and due process rights of those who do not hold a hunter or furtaker license.

With respect to the fee itself, he argued that it was exorbitant because the shooting ranges

require little maintenance, and, with respect to the application process, “[a]s opposed to

simply visiting a local sporting goods shop or the like for a hunting permit, an applicant

for a Shooting Range permit may acquire the permit in only one of two ways: (a) By

driving to the Defendant’s headquarters in Harrisburg or by driving a slightly lesser

distance to one of the Defendant’s six (6) regional offices,” Complaint, at ¶ 15, or making

the purchase through the Game Commission’s website using a credit or debit card. Barr

noted that not everyone in Pennsylvania owns a computer and has access to the internet,

nor does everyone possess a debit or credit card. Barr sought injunctive relief and money

damages in the amount of $1.00. Specifically, Barr asked the District Court to order the

Game Commission to permit shooting range applications by mail, to allow payment by

check or money order, and to accept pro-rated payment of the annual $30.00 fee.



                                               2
       The Game Commission removed Barr’s complaint to the United States District

Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1441(a) & (b), and

then moved to dismiss it pursuant to Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim

upon which relief may be granted. The Game Commission argued that it is not a

“person” and cannot be sued under 42 U.S.C. § 1983, see Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 70 (1989), and that suits against the Commonwealth are barred by

the Eleventh Amendment. Barr then moved to amend his complaint. The District Court

dismissed the original complaint and authorized Barr to file an amended complaint. In

his amended complaint, Barr named as defendants several officials within the

Pennsylvania Game Commission and several current and former members of the Board

of Game Commissioners. These defendants then answered the amended complaint.

       The defendants moved for summary judgment, Fed. R. Civ. Pro. 56(a), identifying

Barr’s primary claim as one involving alleged unreasonable demands placed upon

applicants for a shooting range permit that violate the 14th Amendment’s equal

protection and substantive due process clauses, and acknowledging his specific complaint

that the shooting range permit is more costly than hunting and furtaking licenses, and that

the application process is overly burdensome. The defendants argued that they were

nonetheless entitled to judgment as a matter of law, because the fee and application

process associated with the shooting range permits was rationally related to the Game

Commission’s legitimate interest in covering the costs associated with maintaining and

repairing the shooting ranges, and in regulating the safety of the shooting ranges. They

further argued that the application process was not overly burdensome.



                                             3
       Specifically, the defendants argued that, because licensed hunters and furtakers

had previously borne the costs of upkeep of the State game lands shooting ranges through

their license fees, it was determined that recreational shooters, who were the primary

users of shooting ranges in urban areas, should also contribute to the costs of

maintenance. Additionally, due to the open availability of the shooting ranges, the

Commission was having a difficult time policing and regulating their use, leading to

illicit activities occurring at the ranges. The defendants contended that, in developing a

fee for the permit, the Commission took into consideration the cost of a hunting or

furtaking license – approximately $20.70 per year for adults. They also took into

consideration that persons paying for a hunting or furtaking license must first complete

Hunter-Trapper education, a course designed to educate applicants on hunting behavior,

firearm equipment knowledge, outdoor safety and basic shooting. Because the shooting

ranges are located on State game lands, where hunting and trapping take place, and

because those individuals at the shooting ranges could benefit from shooting and safety,

the Commission determined that it was desirable that shooting range users take Hunter-

Trapper education. They therefore decided to increase the price of the recreational

shooting range permit to more than that of the hunting or furtaking licenses in order to

encourage people to get a hunting or furtaking license and take Hunter-Trapper

education. In short, the $30.00 fee was only nominally higher than the hunting or

furtaking license and was in no way arbitrary and capricious because it was rationally

related to the legitimate goals of safety at, and upkeep of, the shooting ranges.

       The defendants also argued that the application process was not constitutionally

suspect, explaining that shooting range permits, unlike hunting and furtaking licenses, are

                                              4
not available at County Treasurer’s offices and commercial issuing agents through the

Pennsylvania Automated Licensing System (“PALS”) because changes to PALS, a

system administered by a contractor, are costly. The defendants noted that Barr’s

residence is located less than 35 miles from the Northeast Regional Office in Dallas,

Pennsylvania, where he would be able to purchase a shooting range permit.

       Barr submitted written opposition to the motion for summary judgment, arguing

that the $30.00 fee was indeed high, and that the fee and application process sent the

message that, “if you are not a hunter or a ‘fur-taker,’ even if you are a native of

Pennsylvania, go away.” (Response to Summary Judgment Motion, at ¶ 5.) He further

argued that the defendants had no rational basis for refusing to accept cash, checks, and

money orders, and for, in effect, denying licenses to individuals who do not own a

computer. He did not specifically respond to the defendants’ assertion that he could

avoid buying his permit on-line by purchasing it in person at the Northeast Regional

Office in Dallas, Pennsylvania.

       The Magistrate Judge to whom the case was referred filed a Report and

Recommendation, in which she recommended that summary judgment be granted to the

defendants. Barr filed no Objections to the Magistrate Judge’s report. In an order

entered on February 6, 2014, the District Court adopted the Report and Recommendation,

and granted summary judgment to the defendants.

       Barr appeals. We have jurisdiction under 28 U.S.C. § 1291. We review a District

Court’s grant of summary judgment de novo. Alcoa, Inc. v. United States, 509 F.3d 173,

175 (3d Cir. 2007). Summary judgment is proper where the summary judgment record

“shows that there is no genuine dispute as to any material fact and that the movant is

                                              5
entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). The moving party has

the initial burden of identifying evidence that it believes shows an absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine

issue of material fact is one that could change the outcome of the litigation. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In addition, we are required to view the

facts in the light most favorable to the non-moving party, and make all reasonable

inferences in his favor. See Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).

But, “[w]here the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       Barr contends in his Informal Brief that the shooting range permit application

process is aimed at “administrative convenience, as opposed to the convenience of the

public, for whom … the … defendants exist to be of service.” Appellant’s Informal

Brief, at 3. He contends that not everyone has access to a computer and the internet, and

that the Game Commission is not authorized by state or federal law to demand that an

applicant have these things before he can purchase a shooting range permit. Barr also

reiterates his constitutional arguments and argues that the actions of the Game

Commission in requiring a non-hunter/non-furtaker to obtain a permit to use the shooting

range is an arbitrary exercise of the Commonwealth’s power. In addition, Barr argues

that he was denied discovery in the proceedings below. He asks that the defendants be

ordered to “knock off the administrative nonsense” and accept personal checks or postal

money orders and permit mail-in shooting range applications for those who are not

hunters or furtakers. Appellant’s Informal Brief, at 6.

                                              6
       We will affirm. Effective April 1, 2011, the Pennsylvania Game Commission

enacted legislation requiring individuals wishing to use the Pennsylvania Game Land

shooting range facilities to obtain a range use permit. The annual cost of the permit is

$30.00. Those who already hold a current general hunting or furtaking license are

exempt from paying the range use permit fee. In order to obtain a permit, an applicant

must either visit the Pennsylvania Game Commission headquarters in Harrisburg, one of

the six regional offices, or the Commission’s website. In order to complete the purchase

on the website, the applicant must have a credit or debit card.

       Here, Barr did not claim that he is a member of a protected class, but rather that he

is being treated differently than similarly situated individuals, that is, hunters and

furtakers. Since Barr is not a member of a protected class, he must show that there is no

rational basis for treating shooting range users differently from hunters and furtakers.

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). Under the

rational basis test “if the justification for the disparate treatment is neither arbitrary nor

capricious, but grounded on some reasonable policy, there is no denial of equal protection

of the laws.” Jamieson v. Robinson, 641 F.2d 138, 142 (3d Cir. 1981). See also Sammon

v. N.J. Bd. of Med. Examiners, 66 F.3d 639, 645 (3d Cir. 1995) (under rational basis

review, statute withstands substantive due process challenge if state identifies legitimate

state interest that the legislature could rationally conclude was served by the statute).

       The material facts are undisputed. An annual shooting range permit costs $30.00,

58 Pa. Code § 147.1002 (2011), and is available for purchase through the Game

Commission’s website, at the Commission’s Harrisburg headquarters, and at all six

regional offices. A hunting or furtaking license for an adult resident costs $19.00, 34 Pa.

                                                7
Cons. Stat. Ann. § 2709, and is more readily available for in-person purchase, but it

requires that the licensee successfully complete Hunter-Trapper education, a course

designed to educate licensees on safe hunting behavior, firearm equipment knowledge,

outdoor safety, and basic shooting. Unlike shooting range permits, hunter and furtaker

licenses are available at county treasurer’s offices and from commercial issuing agents

through PALS. Shooting range permits, in contrast, cost $30.00 and are not available

through PALS but can be purchased any time of day or night on the Commission’s

website, if one has access to the internet and either a debit or credit card.

       Summary judgment for the defendants was proper here because Barr did not

demonstrate in opposing it that there is a triable issue with respect to whether the state

action at issue here bears a rational relation to a legitimate governmental objective,

Jamieson, 641 F.2d at 142. The summary judgment record establishes that the

defendants’ actions are rationally related to the legitimate government interests of

property upkeep and firearm safety, and Barr presented no evidence and no persuasive

argument demonstrating otherwise. In Baldwin v. Montana Fish & Game Comm’n, 436

U.S. 371 (1978), in rejecting an equal protection challenge to Montana’s differential

treatment of resident and nonresident elk hunters, the Supreme Court “perceived no duty

on the State … to justify to the penny any cost differential it imposes in a purely

recreational, noncommercial, nonlivelihood setting. Rationality is sufficient.” Id. at 391.

That rule of law applies here. The defendants’ actions here “must be upheld against

equal protection challenge if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.” F.C.C. v. Beach Communications, Inc.,

508 U.S. 307, 313 (1993). Barr has not shown that the defendants’ decision to set the fee

                                               8
modestly higher for the shooting range permit for the purpose of upkeep and in order to

encourage applicants to be better educated in hunting and shooting safety is irrational or

arbitrary and capricious. Nor has he shown that the decision to limit the purchase of

shooting range permits to the Game Commission’s main and regional offices, and its

website, in order to avoid the administrative cost of changes to PALS, is irrational or

arbitrary and capricious. Barr has shown nothing more than that the application process

for shooting range permits is less convenient than the process for obtaining a hunter or

furtaker license for those who do not have access to the internet, or debit or credit cards,

but that is insufficient to show that the fee application process is irrational. We note that

Barr did not claim that he was not able to go to the regional office closest to his home to

make the required purchase. In his Reply Brief, Barr appears to argue that the permit is

only available on-line, Appellant’s Reply Brief, at 1. Such an assertion is contradicted by

the summary judgment record. Barr also appears to argue that recreational shooters are a

suspect class warranting strict scrutiny of the fee and application process. This assertion

that recreational shooters are a suspect class is not supported by case law, cf.

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (per curiam)

(suspect classes include those based on race and national origin because of a history of

purposeful unequal treatment).

       Last, Barr contends that his discovery motion was improperly deemed withdrawn.

During discovery, Barr filed a motion to compel, asserting that the defendants’ responses

to several of his interrogatories were inadequate. The Magistrate Judge ordered Barr to

file a brief in support of his motion within 14 days, as required by Local Rule 7.5. When

Barr failed to file a brief, his motion to compel was deemed withdrawn. At the end of

                                              9
discovery, Barr filed another motion to compel without a brief in support. The

Magistrate Judge deemed this motion withdrawn for failure to file a brief in support.

Because Barr failed to seek review of the Magistrate Judge’s discovery orders from the

District Court, we decline to consider his argument that his motion to compel was

improperly deemed withdrawn. Absent consent of the parties to proceed before a

Magistrate Judge, appeal of an order issued by a Magistrate Judge is to a District Judge.

28 U.S.C. § 636(b)(1) &(c)(1). A party who fails to appeal a Magistrate Judge’s pretrial

ruling to the District Court, see Fed. R. Civ. Pro. 72(a), waives review of that ruling by

this Court absent “exceptional circumstances.” Continental Cas. Co. v. Dominick

D’Andrea, Inc., 150 F.3d 245, 254 (3d Cir. 1998). We find no exceptional circumstances

here because Barr has not described or discussed the discovery he did not receive, and

has not argued that the missing discovery prevented him from opposing the defendants’

motion for summary judgment.

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment in favor of the defendants.




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