                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-2000

Palma v. Dept of ATF
Precedential or Non-Precedential:

Docket 99-1503




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http://digitalcommons.law.villanova.edu/thirdcircuit_2000/205


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Filed September 26, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1503

JEROME E. PALMA

v.

UNITED STATES OF AMERICA, DEPARTMENT
OF ALCOHOL, TOBACCO AND FIREARMS,

       Appellant

Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. Misc. A. 98-mc-00209
District Judge: Hon. Marvin Katz

Argued: March 13, 2000

Before: McKEE and RENDELL, Circuit Judges,
and ROSENN, Senior Circuit Judge

(Opinion Filed: September 26, 2000)
       RICHARD MENTZINGER, JR., ESQ.
       Assistant U. S. Attorney
       615 Chestnut Street
       Suite 1250
       Philadelphia, PA 19106
       MARK B. STERN, ESQ.
       THOMAS M. BONDY, ESQ. (Argued)
       Attorneys, Appellate Staff
       Civil Division, Room 9548
       Department of Justice
       601 "D" Street, N. W.
       Washington, DC 20520

       OF COUNSEL:
       IMELDA M. KEOTT, ESQ.
       Associate Chief Counsel
       DAVID C. LIEBERMAN, ESQ.
       Attorney
       Office of Chief Counsel
       Bureau of Alcohol, Tobacco and
       Firearms
       Washington, DC 20226
       Attorneys for Appellant

       STANFORD SHMUKLER, ESQ.
        (Argued)
       Suite 1915
       1515 Market Street
       Philadelphia, PA 19102
       Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

The Bureau of Alcohol, Tobacco and Firearms ("ATF ")
appeals the district court's order restoring firearms
privileges to Jerome E. Palma. Palma had previously pled
guilty to two counts of making false statements on a federal
income tax return in violation of 26 U. S. C. S 7206(1), and
was thereby precluded from owning or possessingfirearms
under 18 U. S. C. S 922(g)(1) because he was a convicted

                                 2
felon. We hold that Palma did not make the necessary
showing under 18 U.S.C. S 925(c) to obtain relief from that
disability, and we will therefore reverse the district court's
order based upon our decision in Rice v. United States, 68
F.3d 702 (3d Cir. 1995).

I.

Palma was formerly a marketing director for various
casinos in Atlantic City, New Jersey. While employed in
that capacity he gave favorable treatment to various entities
that were then doing business with the casinos in return
for payoffs that totaled more than $100,000. Palma did not
report any of the proceeds from those payoffs on his federal
income tax returns.

On December 10, 1987, Palma pled guilty to two counts
of making false statements on his income tax return, a
felony. The district court suspended his sentence, placed
him on five years probation, and ordered him to pay a fine
of $10,000. It is undisputed that Palma successfully
completed all terms and conditions of his sentence, and
that he was granted early discharge from his probation. It
is also undisputed that Palma has not had any adverse
contact with law enforcement since successfully completing
his sentence. Until three years ago, Palma was employed by
Palma/Lazar Associates as a real estate appraiser. In 1997,
he started his own real estate appraisal business, ProData
Services. He claims that his "need" to carry a gun relates to
his real estate appraisal business.

II.

Under the Gun Control Act of 1968, 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. S 922(g)(1). However, the
Gun Control Act also authorizes the Secretary of the
Treasury to lift the firearms disability imposed under
S 922(g)(1) if "it 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

                               3
dangerous to the public safety and that the granting of the
relief would not be contrary to the public interest." 18
U. S. C. S 925(c). The Secretary has delegated the authority
to grant relief from the firearms disability to the Director of
the ATF. 27 C. F. R. S 178.144(b), (d).

The Act further provides that 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." 18 U. S. C. S 925(c). When reviewing
a denial of relief from the disability, the district court "may
in its discretion admit additional evidence where failure to
do so would result in a miscarriage of justice." Id.

Prior to 1992, when a convicted felon sought relief from
the firearms disability, the ATF "conduct[ed] 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 at 705 (citation omitted). The ATF "interview[ed] the
applicant, the listed character references, employers,
members of the community where the applicant live[d], the
applicant's probation officer and other local law
enforcement officers, [and consulted] other law enforcement
records," Id. (citation and internal quotations omitted), so
that it could properly act upon a petition to reinstate a
convicted felon's firearms privileges.

However, in each of the annual ATF appropriations bills
passed since 1992, including the bill for FY 2000, Congress
expressly prohibited the ATF from using any appropriated
funds to investigate or act upon applications for relief
under S 925(c). The following language was placed in each
of those appropriations bills: "None of the funds
appropriated herein shall be available to investigate or act
upon applications for relief from Federal firearms
disabilities under 18 U. S. C. S 925(c)." Pub. L. No. 106-58,
113 Stat. 430, 434 (1999); Pub. L. No. 105-277, 112 Stat.
2681, 2681-485 (1998); Pub. L. No. 105-61, 111 Stat.
1272, 1277 (1997); Pub. L. No. 104-208, 110 Stat. 3009,
3009-319 (1996); Pub. L. No. 104-52, 109 Stat. 468, 471
(1995); Pub. L. No. 103-329, 108 Stat. 2382, 2385 (1994);
Pub. L. No. 103-123, 107 Stat. 1226, 1228 (1993); Pub. L.

                               4
No. 102-393, 106 Stat. 1729, 1732 (1992). Congress' stated
explanation for the prohibition is that a decision to grant
relief from federal firearms disabilities "could have
devastating consequences for innocent citizens if the wrong
decision is made." S. Rep. No. 103-106, 103d Cong., 1st
Sess. 29 (1993); S. Rep. No. 102-353 102 Cong., 2d Sess.,
19-20 (1992). Congress has reiterated that "[t]here is no
reason to spend the Government's time or taxpayers' money
to restore a convicted felon's right to own a firearm." H. R.
Rep. No. 104-183, 104th Cong., 1st Sess. 15 (1995).

Some time after his conviction, Palma applied to the ATF
for relief from his firearms disability underS 925(c). The
ATF informed him that it could not act on his request
because Congress' prohibition of the use of appropriated
funds made the necessary background check and
investigation impossible. Palma then filed a petition for
relief from the firearms disability in the district court. In
that petition, he conceded that Congress has prohibited the
ATF from acting on petitions for relief. Petition for Relief at
P 12. Nonetheless, he asked the district court to conduct its
own inquiry into his fitness to own a firearm and to issue
an order restoring his firearms privileges. Id. at PP 22-26.
Palma's petition alleged

       that he was fifty-nine years old, self-employed as a real
       estate appraiser, and that his employment takes him
       into high-crime, dangerous areas of Philadelphia and
       suburbs . . . . that he had never been convicted of any
       offense other than the one for which he pled guilty,
       that he is of sound mind and has no history of mental
       illness, that he has an excellent reputation for good
       character, and attached to his petition affidavits from
       reliable and responsible citizens. . . . that he is not
       likely to act in a manner that is dangerous to the
       safety of the public, and that granting the relief sought
       would not be contrary to the public interest.

Palma's Br. at 3. The government responded to Palma's
petition by filing a motion to dismiss in which it asserted
that the district court has "no authority to consider in the
first instance the merits of a convicted felon's application
for relief from his federal firearms disabilities."
Government's Br. at 7.

                               5
The district court denied the government's motion to
dismiss. The court issued an order setting a hearing on
Palma's motion, and directing parties to submit proposed
findings of fact and conclusions of law. The court also
ordered that those proposals "should address the issue,
assuming arguendo plaintiff meets his `heavy burden' on
the merits, [of whether] the denial of appropriated funds to
administer the law is a miscarriage of justice." App. at 31.
Thereafter, pursuant to our decision in Rice v. United
States, the district court asserted jurisdiction over Palma's
petition and held an evidentiary hearing at which Palma
and a number of character witnesses testified. At the
conclusion of that hearing, the district court entered an
order restoring Palma's firearms privileges. Palma v. United
States, 48 F. Supp.2d 481 (E. D. Pa. 1999). This appeal
followed.

III.

A.

Before discussing the merits of the government's appeal,
we must address Palma's contention that the government's
appeal should be dismissed because it is untimely. The
district court's judgment was entered on April 21, 1999.
The government's notice of appeal was filed on June 17,
1999; fifty-six days after the entry of judgment.
Simultaneously with his appellee's brief, Palmafiled a
motion to dismiss the government's appeal as untimely.
Palma argues that inasmuch as his petition arises from a
criminal conviction, his petition for relief from the firearms
disability must, of necessity, also be a criminal proceeding.
Therefore, he argues, the government's notice of appeal had
to be filed within 30 days of the district court's judgment,
as required in a criminal case, see F. R. A. P.
4(b)(1)(B)[captioned "Appeal in a Criminal Case], rather
than within 60 days as required in a civil case, see
F. R. A. P. 4(a)(1)(B)[captioned "Appeal in a Civil Case]. We
disagree.

At the outset, we note that Palma's contention that his
petition for relief is a criminal proceeding is completely

                                6
conclusory. He offers absolutely no authority for it. This
may be because none exists. A proceeding can not be
defined as criminal merely because it arises from, or
pertains to, a prior criminal proceeding. For example, a
petition for a writ of habeas corpus is an independent civil
action even though the detention complained of arises out
of a criminal action. Riddle v. Dyche, 262 U. S. 333, 335-36
(1923). Similarly, a motion to correct, set aside or reduce a
criminal sentence under 28 U. S. C. S 2255 is deemed civil
for purposes of F. R. A. P. 4. See United States v. Hayman,
342 U. S. 205, 209 n.4 (1952); Rule 11 -- Section 2255
Proceedings. Moreover, parole and probation revocation
hearings are civil proceedings even though they may
subject an offender to a period of incarceration based upon
a prior criminal conviction. Gagnon v. Scarpelli , 411 U. S.
778, 788-89 (1973).

Similarly, the scheme established under the Gun Control
Act of 1968 plainly demonstrates that petitions for judicial
review under S 925(c) are civil proceedings. Convicted felons
are not the only persons that firearms disabilities are
imposed upon. The Gun Control Act imposes those
disabilities on nine categories of persons: (1) convicted
felons; (2) fugitives from justice; (3) unlawful users of
controlled substances; (4) any person who has been
adjudicated as a mental defective or who has been
committed to a mental institution; (5) illegal aliens; (6)
persons dishonorably discharged from the armed forces; (7)
persons who have renounced their United States
citizenship; (8) any person who is subject to a restraining
order in a stalking case; and (9) any person who has been
convicted of a misdemeanor crime of domestic violence. 18
U. S. C. S 922(g)(1)-(9). Though one could plausibly argue
that most of these categories implicate criminal
proceedings, it certainly can not be argued that a challenge
to a disability based upon dishonorable discharge, or
renouncing citizenship is criminal. Yet, under S 925(c), any
of the nine categories of persons listed in S 922(g)(1)-(9) may
apply for reinstatement of firearms privileges. The
application is made to the Bureau of Alcohol, Tobacco, and
Firearms, an administrative agency. Judicial review of the
ATF 's decision under S 925(c) is conducted under the
familiar "arbitrary and capricious" standard of the

                               7
Administrative Procedure Act. 5 U. S. C. S 706(2)(A). See
Bagdonas v. ATF, 93 F.3d 422, 425 (7th Cir. 1996); United
States v. McGill, 74 F.3d 64, 66 (5th Cir. 1996); Bradley v.
ATF, 736 F.2d 1238, 1240 (8th Cir. 1984); Kitchens v. ATF,
535 F.2d 1197, 1199-1200 (9th Cir. 1976). Moreover, a
petition for judicial review under S 925(c) names the
government as the defendant or respondent. It is not an
action brought by the "People of the United States" or a
given State for violation of a criminal law.

Palma's petition for judicial review under S 925(c) alleges
that, inasmuch as he has no administrative relief from the
firearms disability in light of Congress' appropriations ban,
he is excused from seeking the administrative remedy that
the Secretary is statutorily empowered to give, and the
district court therefore should exercise its jurisdiction and
afford him an avenue of relief. Petition, at PP 15,16, 17.
Palma named himself as the petitioner, and the government
as the respondent. His own pleading is therefore consistent
with a civil, as opposed to a criminal, proceeding.

Consequently, we hold that the government's appeal was
timely under F. R. A. P. 4(a)(1)(B), and we will therefore
deny Palma's motion to dismiss.

B.

In Rice v. United States, 68 F.3d 702 (3d Cir. 1995), we
held that, despite the congressional prohibition against
spending government funds to process S 925(c) applications
for relief, a district court retains subject matter jurisdiction
to consider a convicted felon's petition for relief from the
federal firearms disability in the first instance. We
concluded that the annual congressional bans on the
expenditure of funds to process S 925(c) applications "do
not evidence an intent to repeal or limit the district court's
jurisdiction to review BATF 's . . . inaction on[a convicted
felon's] section 925(c) application. . . ." Id. at 710. We also
concluded that the "[ ]ATF 's continuing inability to process
[a convicted felon's] section 925(c) application constitutes
an undue delay excusing [the convicted felon] from
exhausting his administrative remedies that allows him to
seek judicial review." Id.

                                8
As a consequence of our decision in Rice, a district court
entertaining a S 925(c) application for relief must
"determine in the exercise of its sound discretion whether
the facts [the convicted felon] alleges indicate a potential for
a miscarriage of justice." Id. If so, a district court may
permit the petitioner to "submit additional evidence of his
fitness to have his firearms privileges restored, and,
thereafter, [the court will] decide whether[the]. . .
application satisfies section 925(c)'s standards for
restoration of a convict's firearms privileges." Id., In Rice,
we remanded with instructions to permit testimony only if
the facts alleged by the petitioner indicated that a potential
for a miscarriage of justice would otherwise result. We
stated:

       we will remand this case to the district court to
       determine in the exercise of its sound discretion
       whether the facts Rice alleges indicate a potential for a
       miscarriage of justice. If so, it should then permit Rice
       to submit additional evidence of his fitness to have his
       firearms privileges restored and, thereafter, decide
       whether Rice's application satisfies section 925(c)'s
       standards for restoration of a convict's firearms
       privileges.

68 F.3d at 710 (emphasis added). We also explicitly noted
that a convicted felon seeking relief under S 925(c) "bears a
heavy burden" because "possession of a firearm after a
disabling conviction is a privilege, not a right." Id. (citing
Lewis v. United States, 445 U. S. 55 (1980)).

The government contends that Rice's holding that district
courts have subject matter jurisdiction over applications for
relief from firearms disabilities despite Congress' ban on
appropriations for S 925(c) investigations is"fundamentally
flawed." Government's Br. at 18. As the government is
quick to point out, Rice has been rejected by four other
Courts of Appeals that have considered the issue. See
McHugh v. Rubin, ___ F.3d ___, 2000 WL 955420 (2d Cir.
July 11, 2000); Owen v. Magaw, 122 F.3d 1350 (10th Cir.
1997); Burtch v. Department of the Treasury, 120 F.3d 1087
(9th Cir. 1997); United States v. McGill, 74 F.3d 64 (5th Cir.
1996). Cf. Saccacio v. Bureau of Alcohol, Tobacco &
Firearms, 211 F.3d 102 (4th Cir. 2000)(Not taking direct

                               9
issue with our analysis in Rice because of its holding that
the Secretary's denial of an application for relief is a
jurisdictional requirement that is not satisfied simply
because of the agency's failure to process the application).
However, despite its disagreement with Rice, the
government realizes that Rice is binding on us1 and that the
district court was bound by that decision. Therefore, as the
government also concedes, the district court did not err
under Rice in exercising jurisdiction over Palma's S 925 (c)
application. Nonetheless, the government judiciously
submits that "en banc reconsideration of Rice may be
warranted at a suitable juncture, in this Court's discretion."
Government's Br. at 18.

However, we need not now respond to the government's
concerns about our analysis in Rice because, inasmuch as
we conclude that Palma failed to establish the requisite
"miscarriage of justice," he is not entitled to have the
firearms disability removed in any event.

The district court held that "the government's failure to
provide funds to investigate and process applications for
relief as provided in the statute constitutes a miscarriage of
justice, where, . . . [Palma] meets the statutory
requirements for such relief and there is no way for him to
obtain the relief authorized by the statute." 48 F. Supp.2d
at 486. In so holding, the district court misappliedS 925(c),
and misinterpreted our holding in Rice. Clearly, under the
unambiguous language of the statute, it is not the absence
of administrative relief that constitutes a "miscarriage of
justice." Rather, the convicted felon must allege facts in his
or her application for relief which "indicate a potential for a
miscarriage of justice," if the petition is denied. Therefore,
a showing of a "potential for a miscarriage of justice" is the
threshold showing which a convicted felon must make
under Rice in order for the district court to permit the
applicant to submit evidence of his or her fitness to have
firearms privileges restored.2 Then, and only then, can the
_________________________________________________________________

1. See Third Circuit IOP 9.1.

2. Although S 925(c) refers to "additional evidence", it is obvious that,
in
the current context there will be no evidence other than that which may
be received from the petitioner as there will be no formal denial, no
investigation and no report.

                                10
district court receive such evidence and consider it in
determining whether the applicant satisfies the other
requirements of S 925(c) -- i. e., whether the applicant will
not be likely to act in a manner dangerous to public safety
and that the granting of relief would not be contrary to the
public interest.

A contrary reading of S 925(c) yields absurd results. It
would sanction removal of the disability based upon
something tantamount to an ex parte proceeding that is
controlled by the convicted felon because the district court
would have to receive whatever admissible evidence the
petitioner offered and render a decision based solely upon
that one-sided record whenever a petition for relief is filed.
For example, one who seeks to obtain assault weapons in
order to launch an attack upon members of a religious or
ethnic minority group or a bothersome neighbor could
always establish a "miscarriage of justice" based upon the
prohibition of using appropriations to investigate his/her
fitness to own or possess firearms. Such a petition would
thereby open the courthouse door for a hearing, in which
the judge would hear positive things the petitioner chose.
Accordingly, the judge may never learn the kind of
information that an investigation could ferret out (i.e., the
"bothersome" neighbor who may have a justifiable concern
over lifting the petitioner's disability).3

Rice simply gives the district court jurisdiction to
adjudicate a petition under S 925(c). However, absent a
preliminary showing of a miscarriage of justice, the
petitioner is not entitled to introduce evidence to support
the petition. That preliminary showing must, therefore,
arise from the averments in the four corners of the petition.
In the event that the petitioner can establish that removing
the disability is necessary to prevent a miscarriage of
justice, it is certainly possible that a law enforcement or
regulatory agency other than ATF could conduct an
appropriate inquiry to allow the court to rule upon
petitioner's claim. However, Congress clearly did not intend
to authorize such an inquiry unless justice requires it.
_________________________________________________________________

3. We set forth this admittedly extreme hypothetical not to cast
aspersions on Mr. Palma, but to illustrate the problems evidenced in the
district court's interpretations of the "miscarriage of justice" standard.

                               11
Here, Palma claims that he needs to carry a gun for"self-
defense," and he makes two allegations in support of that
claim. First, he alleges that "[t]he nature of Petitioner's
employment requires him to travel in high crime areas in
order to conduct appraisals." Petition, at P 20. Second, he
states "Petitioner seeks restoration of Federalfirearms
privileges so that he may possess a firearm for self-defense
purposes." Id. at P 21. The two justifications thus boil down
to a single assertion that Palma needs to have the privilege
of possessing a gun restored for purposes of self-defense.
However, Palma's vague and generalized claim of self-
defense falls woefully short the stringent "miscarriage of
justice" threshold that must be established before the
district court can receive evidence in support of his S 925(c)
petition.

Palma's "self-defense" claim lacks any foundation in this
record. Palma's petition does not identify any particular
high crime area where he is in danger, nor does it even
allege a single instance where his life has been placed in
danger because he had to conduct an appraisal. At the
hearing on Palma's petition, Palma testified that the "high
crime areas" referred to in his petition are actually the
entire City of Philadelphia and its surrounding suburbs of
Bucks, Delaware and Montgomery Counties. App. at 71.

       Q: In your view, it's dangerous in Philadelphia, and it's
       dangerous in Delaware County, and Bucks County and
       Montgomery County, any of the surrounding counties,
       as well as the City is dangerous, right?

       A: That's correct.

App. at 71. He was not even able to identify any particular
part of the city or the surrounding counties as being
particularly dangerous. Id.

       Q: You are not able to . . . identify any particular high
       crime areas; is that right?

       A: That's correct.

Id. Moreover, despite his concerns about conducting
appraisals in Philadelphia and the surrounding counties
unarmed, Palma admitted that he was not aware of a single
incident in which an appraiser had been personally

                               12
attacked on the job. Id. at 73. Finally, Palma neither alleged
in this petition nor offered testimony that an appraiser's job
is dependent upon carrying a gun. On the contrary, it was
openly acknowledged that no one is required to conduct
appraisals in places that are considered genuinely unsafe.
Id. at 95.

When Palma was specifically asked if any appraiser had
ever told him of being personally threatened in the
dangerous environs of Philadelphia and southeastern
Pennsylvania in the 12 years Palma had been in the real
estate appraisal business, he conceded that none had,
although appraisers had reported some stolen equipment.
Id. at 72. The district court noted in its Findings of Fact
that: "Mr. Palma testified that he would only use a gun in
self-defense in a situation where his life was threatened,
and not in a situation merely where property was being
stolen." 48 F. Supp. 2d at 481.

Yet, the only incidents that Palma could relate to the
court concerned property loss, not threats to life. The court
noted: "[Palma] testified as to one incident in which an
appraiser's camera was stolen out of his car, and while the
appraiser was successfully chasing down the camera thief,
someone else stole the car radio." Id. at 482. The court did
note that Palma also testified that "other appraisers had
been robbed," but it is not clear that those incidents
involved "robberies" in the technical sense, or that they
involved a threat to anyone's person because Palma also
testified (as noted above) that he was unaware of any
appraiser being "personally attacked." App. at 73. The
overall context of his testimony clearly does not suggest
that the generalized reference to robbery involved a
personal attack because "Mr. Palma was unable testify as
to the specifics of any other incident." Id . His inability to do
so is as inconsistent with his belief that the City of
Philadelphia and its surrounding suburbs are so dangerous
as to justify restoring his privilege of carrying a gun, as it
is with a finding that a "miscarriage of justice" would result
from denying his petition.

Thus, the foundation for his attempt to gain relief from
the firearms disability rests upon little more than the fact
that he would feel safer, and be more comfortable in

                               13
Philadelphia and the surrounding counties, if he carried a
gun during his appraisals. This hardly satisfies the burden
he must meet before the district court can receive evidence
in support of his petition.

IV.

Accordingly, we will reverse the district court's order
restoring Palma's firearms privileges and remand with
directions to the district court to enter an order dismissing
the petition for relief from disability.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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