                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2002

Pontarelli v. Bur Alcohol
Precedential or Non-Precedential:

Docket 00-1268




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Pontarelli v. Bur Alcohol" (2002). 2002 Decisions. Paper 230.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/230


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       Filed March 29, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1268

LOUIS A. PONTARELLI

v.

UNITED STATES DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS;
JOHN W. MAGAW, DIRECTOR, BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS

Bureau of Alcohol,
Tobacco and Firearms;
John W. Magaw,

       Appellants

On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 98-cv-05081)
District Judge: Honorable Herbert J. Hutton

Argued: November 28, 2001

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,*
SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL,
BARRY, AMBRO, FUENTES, and ROSENN, Circuit Jud ges

(Opinion filed: March 29, 2002)
_________________________________________________________________

       * The Honorable Carol Los Mansmann participated in the oral argument
       and joined in this opinion, but died before the opinion could be filed.


       STUART E. SCHIFFER
       Acting Assistant Attorney General
       MICHAEL L. LEVY
       United States Attorney
       MARK B. STERN
       THOMAS M. BONDY (Argued)
       United States Department of Justice
       601 D Street, N.W., Room 9548
       Washington, D.C. 20530
       Attorneys for Appellants

       IMELDA M. KOETT
       Associate Chief Counsel
       JOHN R. KODADEK
       Office of Chief Counsel
       Bureau of Alcohol, Tobacco and
        Firearms
       Washington, D.C. 20226
       Of Counsel

       GREGORY P. LaMONACA (Argued)
       223 N. Monroe Street
       Media, PA 19063
       Attorney for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

The Bureau of Alcohol, Tobacco and Firearms ("ATF "), an
arm of the United States Department of the Treasury,
appeals the District Court’s order restoring Louis A.
Pontarelli’s firearms privileges. ATF asks us to reconsider
our holding in Rice v. United States, 68 F.3d 702, 706-07
(3d Cir. 1995), that district courts have jurisdiction under
18 U.S.C. S 925(c) to review convicted felons’ applications
for restoration of their firearms privileges when ATF,
pursuant to Congress’s mandate, is unable to do so.

Section 925(c) allows convicted felons to apply to ATF for
restoration of their firearms privileges,1 and gives district
_________________________________________________________________

1. Federal law prohibits persons convicted of a crime punishable by a
prison sentence exceeding one year from possessing, shipping,

                                2


courts jurisdiction to review a "denial" by ATF of a felon’s
application. The statute provides in pertinent part:

       A person who is prohibited from possessing, shipping,
       transporting, or receiving firearms or ammunition may
       make application to the Secretary2 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. 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) (emphases added). Since 1992, Congress
has provided in each ATF appropriations bill that"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)."3 This
_________________________________________________________________

transporting, or receiving firearms that have traveled in interstate
commerce. 18 U.S.C. S 922(g)(1). Aside fromS 925(c), a convicted felon
can regain his firearms privileges if the jurisdiction in which he was
convicted expunges his conviction, pardons him, or restores his civil
rights. 18 U.S.C. S 921(a)(20).

2. "[T]he Secretary" means "the Secretary of the Treasury or his
delegate." 18 U.S.C. S 921(a)(18). The Secretary of the Treasury has
delegated his authority to grant relief under S 925(c) to the Director of
ATF. 27 C.F.R. S 178.144(b), (d). For simplicity, we refer to the Director
of ATF as "ATF," and, unless otherwise indicated by the text, we use
"Secretary" and "ATF " interchangeably.

3. Treasury, Postal Service, and General Government Appropriations Act,
1993, Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992); Treasury,
Postal Service, and General Government Appropriations Act, 1994, Pub.
L. No. 103-123, 107 Stat. 1226, 1228 (1993); Treasury, Postal Service,
and General Government Appropriations Act, 1995, Pub. L. No. 103-329,

                                3


appropriations ban prevents ATF from acting upon--and
thus from denying--felons’ S 925(c) applications.

Rice was the first circuit court opinion to address
whether the appropriations ban enables felons to seek the
restoration of their firearms privileges in federal court
despite ATF ’s inability to review their applications.
Unanimous panels of six other courts of appeals
subsequently rejected its conclusion that ATF ’s inability to
act pursuant to the appropriations ban enables district
courts to review applications de novo. Mullis v. United
States, 230 F.3d 215, 221 (6th Cir. 2000); McHugh v.
Rubin, 220 F.3d 53, 59-60 & n.5 (2d Cir. 2000); Saccacio v.
ATF, 211 F.3d 102, 104 (4th Cir. 2000); Owen v. Magaw,
122 F.3d 1350, 1353-54 (10th Cir. 1997); Burtch v. United
States Dep’t of Treasury, 120 F.3d 1087, 1090 (9th Cir.
1997); United States v. McGill, 74 F.3d 64, 66-68 (5th Cir.
1996). But see Bean v. ATF, 253 F.3d 234, 239 (5th Cir.
2001), reh’g en banc denied, 273 F.3d 1105 (5th Cir. Aug.
21, 2001) (unpublished table decision), cert. granted, 122 S.
Ct. 917 (Jan. 22, 2002) (No. 01-704).4

Bean notwithstanding, we conclude that because the
_________________________________________________________________

108 Stat. 2382, 2385 (1994); Treasury, Postal Service, and General
Government Appropriations Act, 1996, Pub. L. No. 104-52, 109 Stat.
468, 471 (1995); Omnibus Consolidated Appropriations Act, 1997, Pub.
L. No. 104-208, 110 Stat. 3009, 3009-319 (1996); Treasury, Postal
Service, and General Government Appropriations Act, 1998, Pub. L. No.
105-61, 111 Stat. 1272, 1277 (1997); Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277,
112 Stat. 2681, 2681-485 (1998); Treasury, Postal Service, Executive
Office of the President, and General Government Appropriations Act,
2000, Pub. L. No. 106-58, 113 Stat. 430, 434 (1999); Consolidated
Appropriations Act, 2001, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-
129 (2000); Treasury and General Government Appropriations Act, 2002,
Pub. L. No. 107-67, 115 Stat. 514, 519 (2001).

4. Bean contradicted McGill but purported not to overrule it. We decline
to follow Bean because, as we explain in more detail below, it ignored the
texts of S 925(c) and the appropriations ban, departed from Supreme
Court precedent on when an appropriations act can change a
substantive statute, and distorted the legislative history of the
appropriations ban.

                                  4


appropriations ban suspends ATF ’s ability to issue the
"denial" that S 925(c) makes a prerequisite, it effectively
suspends that statute’s jurisdictional grant. We therefore
overrule Rice and hold that the District Court lacked
subject matter jurisdiction to consider Pontarelli’s
application.

I. Facts and Procedural History

Pontarelli pled guilty in 1991 to violating 18 U.S.C.
S 666(a)(2) by making cash payments totaling over $1,000
to a public official in exchange for favorable treatment in
the award of federally financed housing rehabilitation
contracts.5 He was sentenced to three years of probation,
fined, and ordered to pay $4,000 in restitution and to
perform two hundred hours of community service. In 1998,
Pontarelli submitted a S 925(c) application to ATF for the
restoration of his firearms privileges. The agency told him
that the appropriations ban rendered it unable to consider
his application.

Pontarelli sued in the District Court, claiming that Rice
allowed it to consider his application despite ATF ’s inability
to act. The Court held an evidentiary hearing to determine
whether he satisfied S 925(c)’s criteria for relief. Only
Pontarelli presented evidence at the hearing.6 Based on that
_________________________________________________________________

5. Section 666(a)(2) prohibits bribing "an agent of an organization or of
a State, local or Indian tribal government, or any agency thereof, in
connection with any business, transaction, or series of transactions of
such organization, government, or agency involving anything of value of
$5,000 or more" if the organization, government, or agency receives over
$10,000 in federal assistance in any one-year period.

6. Pontarelli testified that he wants to regain his firearms privileges
because he fears for his safety when he inspects dwellings for code
compliance and collects payments for his son’s construction company,
and because he worries about the safety of his home in Clifton Heights,
Pennsylvania. He added that prior to his conviction he was an avid
hunter and a member of a gun club. Pontarelli’s wife and son, as well as
a former Chief of Police of Clifton Heights (who had known him for
sixteen years) and the then-current Chief of Police of Clifton Heights
(who had known Pontarelli for twenty-seven years and was a member of
the gun club to which he belonged before his conviction), also testified,
stating that Pontarelli is not a violent person, does not abuse drugs or
alcohol, and would not threaten any person or the community if his gun
privileges were restored.

                                  5
presentation, the Court ordered his firearms privileges
restored. Pontarelli v. United States, Dep’t of Treasury, No.
CIV.A.98-5081, 2000 WL 274002, at *1-3 (E.D. Pa. Mar. 9,
2000). When ATF appealed, we voted after panel oral
argument to hear the case en banc to reconsider Rice.

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. S 1291 because
ATF appeals the District Court’s final judgment in
Pontarelli’s favor. We consider de novo whether the District
Court had subject matter jurisdiction. In re Phar-Mor, Inc.
Sec. Litig., 172 F.3d 270, 273 (3d Cir. 1999).

III. Rice

In Rice, a convicted felon applied to ATF for the
restoration of his firearms privileges. After ATF informed
him that the appropriations ban prevented it from
processing his application, Rice sought judicial review. Rice,
68 F.3d at 705-06. The District Court dismissed his suit,
concluding that it lacked subject matter jurisdiction
because ATF ’s inability to act on his application was not a
"denial" under S 925(c). Rice v. ATF , 850 F. Supp. 306, 308
(E.D. Pa. 1994) (citing Moyer v. Secretary of the Treasury,
830 F. Supp. 516, 518 (W.D. Mo. 1993)).

We reversed, holding that the District Court had
jurisdiction because the appropriations ban did not convey
a clear intent to repeal S 925(c) or to preclude judicial
review of ATF ’s inability to restore felons’ firearms
privileges. Rice, 68 F.3d at 706-07. We acknowledged that
under Robertson v. Seattle Audubon Society, 503 U.S. 429,
440 (1992), and United States v. Dickerson, 310 U.S. 554,
555 (1940), Congress can use an appropriations act to
modify substantive law if the act clearly states its intention
to do so.7 We then analyzed in a single paragraph
_________________________________________________________________

7. However, we did not cite United States v. Will, in which the Supreme
Court held that "when Congress desires to suspend or repeal a statute
in force, ‘[t]here can be no doubt that . . . it could accomplish its
purpose by an amendment to an appropriation bill, or otherwise,’ " and
that whether an appropriations measure changes substantive law
" ‘depends on the intention of Congress as expressed in the statutes.’ "
449 U.S. 200, 222 (1980) (quoting Dickerson, 310 U.S. at 555, and
United States v. Mitchell, 109 U.S. 146, 150 (1883)).

                                6


Congress’s intent in enacting the appropriations ban. Rice,
68 F.3d at 707. Without considering its obvious
relationship to S 925(c)’s "denial" provision, its legislative
history, or the implications of allowing felons to go straight
to federal court to regain their firearms privileges, we
determined that the appropriations ban did not prevent
district courts from reviewing ATF ’s inability to restore
felons’ firearms privileges. Id. We reasoned that the ban did
not "expressly preclude" district courts from reviewing
applications and that "more explicit language" was required
to repeal either S 925(c)’s jurisdictional grant or the statute
as a whole. Id.

Next we considered whether ATF ’s inability to process
applications excused the ordinary requirement that a
person aggrieved by an agency decision exhaust his
administrative remedies before seeking judicial review. Id.
at 708. Relying on McCarthy v. Madigan, 503 U.S. 140, 147
(1992) (stating that "an unreasonable or indefinite
timeframe for administrative action" militates against
requiring exhaustion), and Coit Independence Joint Venture
v. Federal Savings and Loan Insurance Corp., 489 U.S. 561,
586-87 (1989) (holding that "[t]he lack of a reasonable time
limit in [an] administrative claims procedure render[ed] it
inadequate" and thus excused exhaustion), we held that,
because the annually reenacted appropriations ban caused
an "indefinite delay" in ATF ’s processing of applications, a
felon could seek judicial review without exhausting his
administrative remedies. Rice, 68 F.3d at 708-10. Although
we recognized that the decision on whether to grant relief
from firearms disabilities involves ATF ’s discretion and
expertise, we concluded that Congress did not intend to
impose a rigid exhaustion requirement because S 925(c)
gives district courts discretion to consider evidence outside
the administrative record when necessary to avert a
miscarriage of justice. Id. at 709.8
_________________________________________________________________

8. In addition, in a portion of our opinion not directly relevant here, we
instructed the District Court to determine on remand whether refusing
to admit Rice’s proffered evidence would result in a miscarriage of
justice, and if so, whether his proffered evidence, combined with the
other evidence before the Court, was sufficient to satisfy Rice’s burden
of demonstrating that he "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." Id. at 709-10 (quoting S 925(c)) (quotation marks
omitted in original).

                                7


IV. The Near-Unanimous Rejection of Rice

Nearly every federal court to consider the issue after Rice
rejected its conclusion that the appropriations ban allows
felons to go directly to federal court to seek restoration of
their firearms privileges.9 In McGill, the first court of
appeals opinion after Rice to address the issue, the Fifth
Circuit stated its "doubt that the district court has original
jurisdiction to consider an application to remove the
Federal firearm disability," but avoided confronting the
issue directly by holding that Congress intended the
appropriations ban to suspend the relief provided by
S 925(c). McGill, 74 F.3d at 65-66. 10 The Court relied heavily
on the legislative history of the appropriations ban, which
indicated that Congress suspended S 925(c)’s operation to
avoid wasting resources and risking harm to innocent
citizens, not to saddle federal judges with the unfamiliar
task of investigating felons’ fitness to carry firearms. Id. at
66-67. Moreover, while the initial appropriations ban barred
ATF from using funds to investigate any applications, in
each subsequent year Congress provided funding to ATF to
investigate corporations’ (but not individuals’) applications.
This shift would not have been necessary to enable
_________________________________________________________________

9. Mullis, 230 F.3d at 221; McHugh , 220 F.3d at 59-60 & n.5; Saccacio,
211 F.3d at 104; Owen, 122 F.3d at 1353-54; Burtch, 120 F.3d at 1090;
McGill, 74 F.3d at 66-68; United States v. Wiggins, 50 F. Supp. 2d 512,
514-15 (E.D. Va. 1999); Dreher v. ATF, 943 F. Supp. 680, 684 (W.D. La.
1996); see also United States v. Chavez, 204 F.3d 1305, 1314 n.6 (11th
Cir. 2000) (stating in dicta that the appropriations ban suspends the
relief provided by S 925(c)) (citing McGill, 74 F.3d at 66-68); Moyer, 830
F. Supp. at 518-19 (holding, in a decision issued two years before Rice
but not cited therein, that district courts lack jurisdiction to consider
S 925(c) applications because the appropriations ban suspended
S 925(c)’s relief provision). But see Bean, 253 F.3d at 239.

10. One year after the McGill decision, the United States District Court
for the Western District of Louisiana addressed the jurisdiction issue in
Dreher. Relying on the McGill panel’s statement in dicta that Congress
intended for district courts to have jurisdiction only over applications
that ATF has denied, McGill, 74 F.3d at 66, Dreher held that, because
the appropriations ban prevents ATF from processing applications,
district courts lack original jurisdiction to review them. Dreher, 943 F.
Supp. at 684.

                                8


corporations to obtain relief if Congress intended for federal
courts to consider felons’ applications de novo . Id. at 67-68.

In contrast to McGill, the Ninth Circuit’s decision in
Burtch resolved the issue without examining the legislative
history of the appropriations ban because S 925(c) "is clear
on its face." Burtch, 120 F.3d at 1090. The Ninth Circuit
held that the appropriations ban suspends S 925(c)’s
jurisdictional grant because the latter makes a"denial" a
jurisdictional prerequisite, and "[i]n the context of the entire
statute, the word ‘denial’ means an adverse determination
on the merits and does not include a refusal to act." Id.
Similarly, the Fourth Circuit held in Saccacio that a district
court lacks subject matter jurisdiction to adjudicate a
felon’s application in the first instance becauseS 925(c)
"authorizes judicial review of only the denial of an
application for relief," and ATF ’s inability to act upon a
felon’s application is not " ‘an adverse determination on the
merits.’ " Saccacio, 211 F.3d at 104 (quoting Burtch, 120
F.3d at 1090).11

The Tenth Circuit’s decision in Owen held that the
appropriations ban suspends S 925(c)’s jurisdictional grant.
Owen, 122 F.3d at 1353. The Court rejected the argument
that the ban "transferred the task of determining whether
a felon’s firearms privileges should be restored from [ATF]
to the judiciary," emphasizing that S 925(c) allows only "the
Secretary" to grant relief and permits judicial review only if
the Secretary denies relief. Id.   at 1353-54. Further, the
Court found that the legislative   history cited in McGill
refuted the notion that Congress   intended for federal courts
to evaluate felons’ applications   in the first instance. Id. at
1354.

In McHugh, the Second Circuit held that district courts
lack jurisdiction to evaluate S 925(c) applications that ATF
has not reviewed.12 McHugh , 220 F.3d at 59-60 & n.5. The
_________________________________________________________________

11. In Wiggins, which was decided the year before Saccacio, the United
States District Court for the Eastern District of Virginia held that the
appropriations ban suspended S 925(c)’s relief provision, leaving federal
courts without jurisdiction to review felons’ applications. Wiggins, 50 F.
Supp. 2d at 514-15.

12. The applicant in McHugh was convicted of a "misdemeanor crime of
domestic violence," which under S 922(g) has the same consequences for
firearms privileges as a felony conviction. McHugh, 220 F.3d at 55.

                                9


Court explained that, for several reasons, S 925(c)’s text
makes it "abundantly clear that Congress intended to
confine the initial adjudication of S 925(c) applications to
the Secretary" and did not want courts evaluating
applications in the first instance. Id. at 59. First, the
statute "explicitly limits the scope of district court
jurisdiction" to reviewing a "denial" by ATF of a felon’s
application. Id. Second, S 925(c) gives only "the Secretary"
the authority to receive applications and grant relief; it does
not "create a freestanding opportunity for relief " that
district courts may grant pursuant to their jurisdiction over
federal questions or commerce regulations. Id. Third, the
statute’s "standard for granting relief is worded so broadly
as to connote administrative agency decisionmaking." Id.
Fourth, S 925(c) prevents district courts from considering
new evidence regarding an application unless failing to do
so would produce a "miscarriage of justice," a constraint
that indicates that only the Secretary may initially consider
applications. Id.

The Second Circuit further noted that while S 925(c)’s text
is clear, nothing in the appropriations ban’s text or its
legislative history suggests that Congress intended for the
ban to "expand[ ] district court jurisdiction beyond the
limits set forth in S 925(c)." Id. at 60. Instead, Congress
expressed "pronounced skepticism about the ability of any
adjudicative body to perform the task adequately and a
desire to suspend the ability of individuals to have their
firearms privileges restored." Id. To the extent that the
appropriations ban precludes the "denial" thatS 925(c)
makes a jurisdictional prerequisite, it is " ‘irreconcilable’
with, and impl[ies] the suspension of, that portion of
S 925(c) which authorizes judicial review." Id. at 60 n.5
(quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190
(1978)).
Thus the crucial question was whether ATF ’s inability to
act constituted a "denial" triggering federal-court
jurisdiction. Id. at 60. The Second Circuit concluded that it
did not because "the word ‘denial’ connotes more than a
mere refusal to act." Id. (citations omitted). Moreover, even
if ATF acted unlawfully by refusing to act, the appropriate
remedy would be a court order compelling it to act

                                10


pursuant to 5 U.S.C. S 706(1) (allowing a court to "compel
agency action unlawfully withheld or unreasonably
delayed"), not plenary judicial review of the felon’s
application. Id. at 61. Alternatively, if ATF ’s refusal to act
constituted a "de facto denial" that conferred jurisdiction, a
district court could reverse ATF ’s decision only if it were
" ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,’ " which complying with a
congressional mandate surely is not. Id. (quoting 5 U.S.C.
S 706(2)(A)) (citations omitted).

The Sixth Circuit held that the appropriations ban
suspends S 925(c) in its entirety, thereby removing its
jurisdictional grant. Mullis, 230 F.3d at 221. The Court
reasoned that Congress chose to preclude the ATF"denial"
that must precede federal jurisdiction under S 925(c). Id. at
219. Further, the limited scope of judicial review under 5
U.S.C. S 706 does not permit de novo review of S 925(c)
applications, for the appropriations ban means that"there
is no agency action for a federal court to compel or review."
Id.

Practical considerations reinforced the Sixth Circuit’s
conclusion that Congress intended to suspend S 925(c)’s
operation. Id. Unlike ATF, district courts are poorly
equipped to conduct detailed investigations into felons’
backgrounds and obtain information that they omitted from
their applications, and adjudications based solely on the
evidence presented by felons would be dangerously one-
sided. Id. at 219-20. In addition, the legislative history
showed that Congress enacted the appropriations ban to
ensure that federal resources would not be devoted to
restoring felons’ firearms privileges. Id. at 220-21 & n.3.

While six circuit court opinions have rejected Rice, only
one has agreed with it. Departing from the Fifth Circuit’s
ruling in McGill, the recent panel decision in Bean held that
the appropriations ban does not suspend or repeal the
rights embodied in S 925(c), and that district courts can
consider S 925(c) applications when ATF is unable to do so.13
_________________________________________________________________

13. Bean did not reverse McGill because, as in the Third Circuit, one
Fifth Circuit panel cannot reverse an earlier panel’s decision. FDIC v.

                                11


Bean, 253 F.3d at 239. The panel insisted that it was
focusing on Congress’s intent, but it failed to address that
S 925(c)’s text makes a "denial" a jurisdictional prerequisite.
Though Bean refused to consider committee reports or
statements by members of Congress, it relied heavily on the
failure of a bill entitled the Stop Arming Felons Act ("the
SAFE bill"), which was introduced in 1992, and which, inter
alia, would have repealed S 925(c). Id. at 237-39. The SAFE
bill’s demise, the panel reasoned, illustrates that
"[a]lthough it obviously has the power, Congress has not
enacted legislation eliminating or amending S 925(c)." Id. at
238. However, Bean neglected to mention (as we explain
below) that the SAFE bill is the ancestor of the
appropriations ban, and that the latter is a temporary,
compromise version of the former.

In addition to relying on Congress’s decision not to pass
the SAFE bill, Bean claimed that Congress lacks
constitutional authority to suspend S 925(c)’s relief scheme
by refusing to fund it. Id. at 239 (calling the notion that
Congress could do so "inimical to our constitutional system
of justice"). The panel insisted that the Supreme Court’s
decisions in Will and Dickerson--which held that Congress
can use an appropriations act to suspend substantive law14
--are distinguishable because those cases involved"purely
financial rights that Congress then rescinded by expressly
refusing to fund same." Id. at 239 n.19. Unlike a
_________________________________________________________________

Abraham, 137 F.3d 264, 268 (5th Cir. 1998) (stating "the rule that one
panel of this court cannot disregard, much less overrule, the decision of
a prior panel"). Instead, Bean purported to distinguish McGill based on
"the intervening passage of time." Bean , 253 F.3d at 234, 239. Despite
the obvious conflict between Bean and McGill, the Fifth Circuit declined
to rehear Bean en banc. As noted above, the Supreme Court recently
granted ATF ’s petition for certiorari. See supra text accompanying note
4.

14. Dickerson held that an appropriations bill that prohibited the use of
funds to pay a statutorily required military re-enlistment allowance
suspended the allowance for the fiscal year covered by that bill. 310 U.S.
at 561. Will held that Congress intended to suspend statutorily required
annual cost-of-living increases for federal judges when it passed
appropriations bills banning the use of funds for those increases. 449
U.S. at 222-24.

                                12


congressional refusal to fund statutorily required cost-of-
living increases or military re-enlistment allowances, Bean
reasoned, the appropriations ban is not "the requisite direct
and definite suspension or repeal of " the statutory right at
issue. Id. at 239. The panel failed to cite a single case
supporting its novel conclusion that an appropriations act
cannot change a substantive law unless the law involves
"purely financial rights." Nor did it mention that the
Supreme Court unanimously held in Seattle Audubon, 503
U.S. at 440, that a provision in an appropriations bill
changed the requirements for complying with laws
regulating timber harvesting, and that this provision had
nothing to do with funding.15 After determining that the
appropriations ban did not affect S 925(c)’s relief provision,
Bean concluded--without analyzing the issues of judicial
review of agency inaction discussed in McHugh and Mullis--
that district courts have jurisdiction to reviewS 925(c)
applications because ATF ’s failure to act effectively
exhausts applicants’ administrative remedies.16 Bean, 253
F.3d at 239 & n.20.
_________________________________________________________________

15. While the provision at issue in Seattle Audubon did not pertain to the
use or amount of appropriated funds, we know of no instance where the
Supreme Court said that there is a distinction--let alone one of
constitutional significance--between changing a substantive law by
refusing to fund its implementation and doing so by including in an
appropriations act legislation unrelated to funding.

16. The Bean panel repeatedly expressed sympathy for the felon whose
application was at issue. For instance, it said that because the felon was
a licensed firearms dealer prior to his conviction, it would be
"inequit[able]" for him to be unable to resume his business while a
corporation that sells firearms may seek relief under S 925(c). Bean, 253
F.3d at 238 n.9. However, the panel did not cite the Ninth Circuit’s
rejection in Burtch of a felon’s contention that Congress violated the
Equal Protection Clause by distinguishing between individual and
corporate applicants. Burtch, 120 F.3d at 1090. Nor did it cite the
Supreme Court’s statement that "Congress could rationally conclude
that any felony conviction, even an allegedly invalid one, is a sufficient
basis on which to prohibit the possession of a firearm." Lewis v. United
States, 445 U.S. 55, 66 (1980). It appears that the Bean panel was
frustrated that Congress left S 925(c) intact but barred individual felons
from taking advantage of the statute’s relief provision by (seemingly
perpetually) continuing the appropriations ban. See Bean, 253 F.3d at
239 (claiming that McGill did not control in light of "the intervening
passage of time and the resulting reality of the effective non-temporary
‘suspension’ of statutorily created rights").

                                13


V. Discussion

Overwhelming authority suggests that Rice
misunderstood Congress’s intent in enacting the
appropriations ban. The texts of S 925(c) and the
appropriations ban, the legislative history of the latter, and
district courts’ inability to assess accurately which felons
will misuse firearms confirm that Congress did not intend
for felons to be able to apply directly to district courts for
restoration of their firearms privileges.

A. The Texts of S 925(c) and the Appropriations Ban

The texts of S 925(c) and the appropriations ban
demonstrate that district courts currently lack jurisdiction
to consider felons’ petitions for restoration of their firearms
privileges. Section 925(c)’s jurisdictional grant provides:
"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)
(emphases added). This language unambiguously makes a
"denial" a jurisdictional prerequisite. McHugh, 220 F.3d at
59; Saccacio, 211 F.3d at 104; Burtch , 120 F.3d at 1090.
Because the Secretary of the Treasury has delegated his
authority to ATF, see supra note 2, a district court may
review a felon’s application for restoration of his firearms
privileges only if ATF first denies it. Mullis , 230 F.3d at 219;
McHugh, 220 F.3d at 59; Saccacio, 211 F.3d at 104; Owen,
122 F.3d at 1354; Burtch, 120 F.3d at 1090.

The structure of S 925(c) supports this reading. The
statute grants only "the Secretary" the authority to grant
relief in the first instance. McHugh, 220 F.3d at 59; Owen,
122 F.3d at 1354. Further, he may grant relief "if it is
established to his satisfaction 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. S 925(c) (emphases added). That
Congress gave "the Secretary" broad discretion to apply
such an amorphous standard suggests that it wanted an
administrative agency, not district courts, to decide whether
to restore felons’ firearms privileges. McHugh , 220 F.3d at
59.

                                14


In addition, immediately after stating that a district court
can review a "denial," S 925(c) provides that a court may
"admit additional evidence where failure to do so would
result in a miscarriage of justice." While Rice claimed that
this provision decisively supports its conclusion as to
exhaustion of administrative remedies,17 closer examination
shows otherwise. To begin with, the "additional evidence"
provision permits district courts only to supplement the
record; it gives them no authority to create the record in the
first place. As ATF points out, "that the district court may
supplement the record does not change the fact that the
court is expressly limited to conducting a ‘judicial review’ of
ATF ’s ‘denial’ " to determine whether it was arbitrary and
capricious. Appellant’s Opening Br. at 18. Moreover,
Congress would not have limited the admission of
"additional" evidence to situations in which a"miscarriage
of justice" would result if it intended for district courts to
evaluate felons’ applications de novo.18 McHugh, 220 F.3d at
59.

Because S 925(c) unequivocally makes a "denial" by ATF
a jurisdictional prerequisite, we must consider whether
ATF ’s inability to act because of the appropriations ban
constitutes a "denial."19 We hold that it does not. "[T]he
_________________________________________________________________

17. "Were it not for the express authority section 925(c) gives district
courts to receive independent evidence when necessary to avoid a
miscarriage of justice, we would be hesitant to excuse exhaustion where,
as here, Congress has entrusted a decision to an agency under
standards including one so broad as ensuring the public interest." Rice,
68 F.3d at 709.
18. For this reason, Rice was wrong to view the "additional evidence"
provision as supporting its conclusion with respect to exhaustion of
administrative remedies. Rice, 68 F.3d at 708.

19. Rice did not consider whether plenary judicial review of a felon’s
application is consistent with S 925(c)’s text. Instead, it treated the
statute’s "denial" provision as "a judicially waivable exhaustion
requirement, rather than a jurisdictional prerequisite." Saccacio, 211
F.3d at 105 n.2. In addition to erroneously viewing the issue in terms of
exhaustion rather than jurisdiction, Rice misapplied the exhaustion
doctrine. Rice relied upon Coit Independence, 489 U.S. at 586-87, for the
proposition that an agency’s "undue delay" excuses exhaustion. Rice, 68
F.3d at 708-09. However, Coit Independence involved a situation where

                                15


word ‘denial’ means an adverse determination on the
merits." Burtch, 120 F.3d at 1090; see also Saccacio, 211
F.3d at 104 (same). In contrast, an inability to grant a
request is not commonly understood to constitute a
"denial." See, e.g., Webster’s Third New International
Dictionary 602 (3d ed. 1993) (defining a "denial" as a
"refusal to grant, assent to, or sanction" or a "rejection of
something requested, claimed, or felt to be due") (emphases
added). Through the appropriations ban, Congress has
rendered ATF unable to consider felons’S 925(c)
applications. ATF ’s inability to grant the relief that felons
seek does not constitute a "denial."20

Nor does the text of the appropriations ban create new
jurisdiction for district courts to evaluate felons’S 925(c)
applications absent a "denial." The appropriations ban
provides: "[N]one 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. 107-67, 115 Stat. at 519. Nothing in the ban’s
text suggests that Congress intended to confer new
jurisdiction on district courts to restore felons’ firearms
privileges. McHugh, 220 F.3d at 60. Moreover, in 1993
Congress inserted a sentence immediately following the
appropriations ban that restored funding for ATF to
investigate corporations’ applications. Pub. L. No. 103-123,
107 Stat. at 1228 ("[S]uch funds shall be available to
investigate and act upon applications filed by corporations
_________________________________________________________________

neither Congress nor the agency itself had imposed a reasonable
deadline for agency action. 489 U.S. at 586-87. In contrast, when
Congress passed the appropriations ban it expressly barred ATF from
acting upon applications. ATF has no duty to act because Congress has
prohibited it from acting; hence "[t]his is not [a] situation where an
agency’s proceedings have been tainted by unreasonable delay." Wiggins,
50 F. Supp. 2d at 516.

20. Although the appropriations ban expressly prohibits ATF from
reviewing applications, some courts have imprecisely described ATF ’s
inability to act as a "refusal" to do so. See, e.g., McHugh, 220 F.3d at 60;
Burtch, 120 F.3d at 1090. The word "refusal" implies that a choice was
made, and thus inaccurately suggests that ATF could have reviewed
applications despite the appropriations ban.

                                16


for relief from Federal firearms disabilities under 18 U.S.C.
S 925(c)."). This sentence (and its inclusion in each
subsequent ATF appropriations act) would be superfluous if
Congress believed that the appropriations ban permitted
district courts to grant relief despite ATF ’s inability to
review applications. McGill, 74 F.3d at 67-68.

The texts of S 925(c) and the appropriations ban
demonstrate convincingly that Congress did not intend for
district courts to review individual felons’ S 925(c)
applications in the first instance.21 Ordinarily we do not
examine legislative history when the relevant statutory texts
are clear. Ross v. Hotel Employees and Restaurant
Employees Intern. Union, 266 F.3d 236, 245 (3d Cir. 2001).
However, because we viewed the pertinent texts differently
in Rice, and because the Bean panel made selective use of
the legislative history of the appropriations ban, it is
appropriate to examine that history.22

B. The Legislative History of the Appropriations   Ban

The legislative history of the appropriations ban confirms
that Congress did not intend for the appropriations ban to
allow individual felons to go straight to district court to
seek the restoration of their firearms privileges. As
mentioned above, Congress first imposed the
appropriations ban in 1992. In the reports to their
respective chambers, the House and Senate Appropriations
Committees explained why they were preventing ATF from
_________________________________________________________________

21. Even if a district court had jurisdiction, it could reverse ATF ’s
refusal to restore felons’ firearms privileges only if ATF ’s decision not to
act was arbitrary and capricious, McHugh, 220 F.3d at 61; McGill, 74
F.3d at 66; Bagdonas v. Dep’t of Treasury, 93 F.3d 422, 425 (7th Cir.
1996); Bradley v. ATF, 736 F.2d 1238, 1240 (8th Cir. 1984), which
following Congress’s mandate is not.

22. Our concurring colleague agrees that the appropriations ban is
"irreconcilable" with S 925(c)’s jurisdictional grant, but criticizes, inter
alia, our reliance on legislative history. We would reach the same result
even if no Member of Congress uttered a word about his intent. That
said, the legislative history confirms Congress’s intent to suspend
S 925(c)’s jurisdictional grant and undermines whatever slight persuasive
value Bean has.

                                17


acting on felons’ S 925(c) applications. These reports
indicate that Congress wanted to suspend S 925(c)’s relief
procedure because it was concerned that dangerous felons
were regaining their firearms privileges and because it
believed that the resources allocated to investigating felons’
applications would be better used to fight crime. The House
Appropriations Committee noted:

        Under the relief procedure, ATF officials are required
       to guess whether a convicted felon . . . can be
       entrusted with a firearm. After ATF agents spend many
       hours investigating a particular applicant for relief,
       there is no way to know with any certainty whether the
       applicant is still a danger to public safety. Needless to
       say, it is a very difficult task. Thus, officials are now
       forced to make these decisions knowing that a mistake
       could have devastating consequences for innocent
       citizens.

        Thus, the Committee believes that the $3.75 million
       and the 40 man-years annually spent investigating and
       acting upon these applications for relief would be
       better utilized by ATF in fighting violent crime.
       Therefore, the Committee has included language which
       states that no appropriated funds be used to
       investigate or act upon applications for relief from
       Federal firearms disabilities.

H.R. Rep. 102-618, at 14 (1992). Similarly, the Senate
Appropriations Committee stated:

        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

                                18


       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 for
       relief from Federal firearms disabilities. Under current
       policy, States have authority to make these
       determinations and the Committee believes this is
       properly where the responsibility ought to rest. The
       Committee expects ATF to redeploy the positions and
       funding presently supporting firearms disability relief
       to the Armed Career Criminal program.

S. Rep. 102-353, at 19-20 (1992).

At the same time, not a single Member of Congress
suggested that the appropriations ban would give courts
the authority to evaluate S 925(c) applications in the first
instance. McHugh, 220 F.3d at 60. Instead, individual
Members echoed the Appropriations Committees’ concern
about restoring felons’ firearms privileges. For instance,
Senator Chafee said:

       Dozens of convicted felons who have had their gun
       rights reinstated have been rearrested on new charges,
       including attempted murder, robbery, and child
       molestation.

        This program [S 925(c)’s relief provision] just does not
       make any sense. At a time when gun violence is
       exacting terrible costs upon our society, it seems
       absolutely crystal clear to me that the government’s
       time and money would be far better spent trying to
       keep guns out of the hands of convicted felons, not
       helping them regain access to firearms.

        I am pleased to note that the Appropriations
       Subcommittee23 has come to this same conclusion, and
       has stipulated in the bill that no appropriated funds
       may be used to investigate or act upon applications for
       relief from Federal firearms disabilities.
_________________________________________________________________

23. Though Senator Chafee referred to "the Appropriations
Subcommittee," he probably meant "the Committee" because he made
his remarks about one-and-a-half months after the Senate
Appropriations Committee issued its report.

                                19


138 Cong. Rec. S13238 (1992). Likewise, Senator
Lautenberg applauded the decision to suspend ATF from
acting on S 925(c) applications: "Criminals granted relief
have later been rearrested for crimes ranging from
attempted murder to rape and kidnaping. . . . ATF agents
have better things to do than conduct in-depth
investigations on behalf of convicted felons. They should be
out on the streets, pursuing criminals." Id. at S13241.

Nonetheless, the Bean panel claimed that Congress
wanted courts to be able to restore felons’ firearms
privileges because it did not pass the SAFE bill, Bean, 253
F.3d at 237-39, which Senators Lautenberg and Simon
introduced a few months before Congress decided to
suspend ATF from acting on S 925(c) applications. 138
Cong. Rec. S2675 (1992). The SAFE bill would have
eliminated S 925(c)’s relief provision for individuals and
provided that corporations could not seek judicial review if
ATF refused to restore their firearms privileges. Id. at
S2676. In addition, it would have amended 18 U.S.C.
S 921(a)(20) to provide that persons convicted of violent
felonies cannot possess firearms even if the state in which
they were convicted restores their civil rights. 24

For several reasons, the SAFE bill’s demise does not
support the result in Bean. To begin with, the Supreme
Court has consistently said that the legislative history of "a
proposal that does not become law" is "a particularly
dangerous ground" upon which to base an interpretation of
an enacted law. Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633, 650 (1990). The reason is that
"[c]ongressional inaction lacks ‘persuasive significance’
because ‘several equally tenable inferences’ may be drawn
from such inaction, ‘including the inference that the existing
legislation already incorporated the offered change .’ " Id.
(quoting United States v. Wise, 370 U.S. 405, 411 (1962))
(emphasis added).
_________________________________________________________________

24. Section 921(a)(20) provides that a conviction"which has been
expunged, or set aside or for which a person has been pardoned or has
had civil rights restored" does not prevent a person from exercising
firearms privileges unless the expungement, pardon, or restoration of
civil rights expressly provides otherwise. 18 U.S.C.S 921(a)(20).

                                20


Moreover, the sponsors of the failed SAFE bill
successfully pushed for the appropriations ban and viewed
the ban’s suspension of S 925(c)’s relief provision as a step
toward the repeal that they sought. For instance, Senator
Lautenberg said of the appropriations ban: "I am very
pleased that the bill before us includes a provision based
on legislation that I introduced with Senator Simon . . . .
I’m hopeful that, before long, we can take the next step,
and make the change permanent." 138 Cong. Rec. S13241
(1992).25 Indeed, the reasons that the House and Senate
Appropriations Committees gave for imposing the
appropriations ban mirror those offered by Senators
Lautenberg and Simon in support of the SAFE bill.
Compare 138 Cong. Rec. S2675 (1992) (statement of Sen.
Lautenberg) ("Surely, someone who has demonstrated his
or her willingness to commit a crime of violence should not
be entrusted with highly dangerous, deadly weapons."), and
id. at S2679 (statement of Sen. Simon) ("[T]axpayers are
paying millions of dollars each year so that convicted felons
may obtain firearms. In an age of increasing violent gun
crimes, not to mention an ever widening budget deficit, that
just doesn’t make sense."), with S. Rep. No. 102-353 at 19
(1992) ("[Deciding which felons can safely carry firearms] is
a very difficult and subjective task which could have
devastating consequences for innocent citizens if the wrong
decision is made."), and H.R. Rep. No. 102-618, at 14
(1992) ("[T]he Committee believes that the $3.75 million
and the 40 man-years annually spent investigating and
_________________________________________________________________

25. Senators Lautenberg and Simon made similar statements when
they unsuccessfully reintroduced the SAFE bill in subsequent years. 141
Cong. Rec. S10570 (1995) (statement of Sen. Lautenberg) ("Senator
Simon and I have been successful over the past three years in securing
language in the Treasury, Postal Service and General Government
Appropriations Bill that prohibits the use of appropriated funds to
implement the ATF relief procedure with respect to firearms. However, a
funding ban is merely a stop-gap measure for one fiscal year. This bill
would eliminate the relief procedure permanently."); 139 Cong. Rec.
S10850 (1993) (statement of Sen. Simon) ("Last year, Senator Lautenberg
and I successfully included language in the Treasury, Postal and General
Government appropriations bill to ensure that no money was spent by
the Bureau in 1993 to rearm felons. However, a permanent ban is clearly
needed.").

                                21


acting upon these applications for relief would be better
utilized by ATF in fighting violent crime.").

In addition, Bean overlooked the fact that the
appropriations ban is a temporary, compromise version of
the portion of the SAFE bill that would have permanently
prevented individual felons from regaining their firearms
privileges. That Congress chose not to repeal S 925(c)’s relief
provision does not mean that it did not intend to suspend
it. Further, Bean neglected to mention that the SAFE bill
raised federalism concerns that the appropriations ban did
not, as it would have eliminated the states’ ability to restore
felons’ firearms privileges. The Senate Appropriations
Committee’s report indicates that the SAFE bill failed to
pass at least partially for this reason. See S. Rep. No. 102-
353, at 20 (1992) ("Under current policy, States have
authority to make these determinations and the Committee
believes this is properly where the responsibility ought to
rest.").

Moreover, the notion that Congress’s failure to pass the
SAFE bill illustrates that it wanted felons to be able to
regain their firearms privileges is inconsistent with the
legislative history of subsequent appropriations acts. In
1993, the Senate Appropriations Committee explained why
it was continuing the appropriations ban in language
virtually identical to that in its 1992 report; the only
difference was that it noted that the appropriations ban
would no longer apply to corporations. S. Rep. No. 103-106,
at 20 (1993). The House Appropriations Committee
reiterated the reasons for the ban in 1995:

       [T]hose 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 [sic] money
       to restore a convicted felon’s right to own a firearm.

H.R. Rep. No. 104-183, at 15 (1995).

Shortly after we decided Rice, Senator Simon strongly
criticized our decision. He emphasized that Congress

                                22


wanted to suspend felons’ ability to regain their firearms
privileges, not to transfer to the courts the responsibility for
reviewing S 925(c) applications:
        This misguided decision [referring to Rice] could flood
       the courts with felons seeking the restoration of their
       gun rights, effectively shifting from ATF to the courts
       the burden of considering these applications. Instead of
       wasting taxpayer money and the time of ATF agents[,]
       which could be much better spent on important law
       enforcement efforts . . . we would now be wasting court
       resources and distracting the courts from consideration
       of serious criminal cases.

        Fortunately, [McGill] found that congressional intent
       to prohibit any Federal relief--either through ATF or
       the courts--is clear. . . .

        Given this conflict in the circuit courts, we should
       clarify our original and sustaining intention. The goal
       of this provision has always been to prohibit convicted
       felons from getting their guns back--whether through
       ATF or the courts. It was never our intention to shift the
       burden to the courts.

        . . . .

        . . . . It made no sense for ATF to take agents away
       from their important law enforcement work, and it
       makes even less sense for the courts, which have no
       experience or expertise in this area, to be burdened
       with this unnecessary job. Let me make this point
       perfectly clear: It was never our intent, nor is it now, for
       the courts to review a convicted felon’s application for
       firearm privilege restoration.

142 Cong. Rec. S10320-21 (1996) (emphases added). In
addition, Congress rejected some Members’ efforts to
undermine the appropriations ban. In 1995, the House
Appropriations Committee reinstated the appropriations
ban after one of its subcommittees voted to lift it. 141
Cong. Rec. S10572 (1995). The following year, Congress
rejected a provision in the House version of the
appropriations bill that would have supplemented district

                                23


courts’ jurisdiction so that they could review someS 925(c)
applications de novo.26

Since 1996, Congress has not indicated why it retained
the appropriations ban. However, there has been no
adverse congressional reaction to the holdings in McGill,
Burtch, Owen, Saccacio, McHugh, and Mullis that the
appropriations ban does not allow district courts to review
S 925(c) applications. If Congress wanted district courts to
be able to restore felons’ firearms privileges, these decisions
should have prompted it to give them jurisdiction to do so.

In sum, the legislative history of the appropriations ban
demonstrates that Congress wanted to suspend felons’
ability to regain their firearms privileges underS 925(c).
This history refutes the claim that Congress intended to
give district courts jurisdiction to review ATF ’s
congressionally mandated inability to restore felons’
firearms privileges. Mullis, 230 F.3d at 220-21.

C. Policy Considerations

District courts’ institutional limitations suggest that
Congress could not have intended for the appropriations
ban to transfer to them the primary responsibility for
determining whether to restore felons’ firearm privileges.
Evaluating a S 925(c) application requires a detailed
_________________________________________________________________

26. The House version included an amendment offered by
Representative Obey--who opposed denying nonviolent felons the
opportunity to regain their firearms privileges--that implicitly gave
district courts jurisdiction to review some felons’ applications.
Representative Obey’s amendment provided that "the inability of [ATF] to
process or act upon [S 925(c)] applications for felons convicted of a
violent crime, firearms violations, or drug-related crimes shall not be
subject to judicial review," 142 Cong. Rec. H7635 (1996), which
suggested that ATF ’s inability to act upon other criminals’ applications
was subject to judicial review. The Senate deleted this language, 142
Cong. Rec. S10141 (1996), and the final bill likewise did not give district
courts new authority to review S 925(c) applications. H.R. Conf. Rept. No.
104-863, 142 Cong. Rec. H12007 (1996). Senators Lautenberg and
Simon praised the Conference Committee for eliminating Representative
Obey’s amendment, which they said was inconsistent with the intent
behind the appropriations ban. 142 Cong. Rec. S12164 (1996).

                                24


investigation of the felon’s background and recent conduct.
Id. at 219. An effective investigation entails interviewing a
wide array of people, including the felon, his family, his
friends, the persons whom he lists as character references,
members of the community where he lives, his current and
former employers, his coworkers, and his former parole
officers. Id.; Bagdonas v. ATF, 884 F. Supp. 1194, 1199
(N.D. Ill. 1995). Unlike ATF, courts possess neither the
resources to conduct the requisite investigations nor the
expertise to predict accurately which felons may carry guns
without threatening the public’s safety. Mullis , 230 F.3d at
220; Owen, 122 F.3d at 1354; McGill, 74 F.3d at 67.

Because courts "are without the tools necessary to
conduct a systematic inquiry into an applicant’s
background," if they reviewed applications de novo they
would be forced to rely primarily--if not exclusively--on
information provided by the felon. Mullis, 230 F.3d at 219.
As few felons would volunteer adverse information, the
inquiry would be dangerously one-sided.27 Id. at 219-20.
Instead of being approved by ATF after a detailed
investigation, felons’ firearms privileges would be restored
based on less, and less accurate, information. It is
inconceivable that Congress--concerned that felons who
regained their firearms privileges would commit violent
crimes--would want to make the review process less
reliable. McGill, 74 F.3d at 67.

Conclusion

Section 925(c) gives district courts jurisdiction to review
applications only after a "denial" by ATF. The
appropriations ban renders ATF unable to deny individual
felons’ applications, and thus effectively suspendsS 925(c)’s
_________________________________________________________________

27. Pontarelli’s petition illustrates the problem. The District Court
heard only from witnesses he handpicked. Not surprisingly, these
witnesses described Pontarelli as a nonviolent, morally upright, and
productive member of the community, and said that his firearms
privileges should be restored. While Pontarelli may have all these
attributes, many other convicted felons do not. If we reaffirmed Rice,
many more felons would regain their firearms privileges by making
similarly one-sided presentations.

                                25


jurisdictional grant. The legislative history of the
appropriations ban confirms that Congress intended to
prevent individual felons from regaining firearms privileges.
Indeed, Congress could not have meant to confer new
jurisdiction on the district courts to restore those privileges
because district courts are incapable of predicting
accurately which felons will misuse firearms. For these
reasons, we overrule Rice and hold that the District Court
lacked subject matter jurisdiction to review Pontarelli’s
application.

                                26


McKEE, Circuit Judge concurring in the judgment:

I reluctantly concur in the judgment of the court.
However, I write separately to voice my concerns over the
more fundamental issue confronting us, and because I
think this case is more momentous than the majority’s
analysis and the weight of the aggregate authority suggest.

I must agree that the tension between the legislative
history of the appropriations ban on the Secretary’s
investigation mandated under 18 U.S.C. S 925(c) requires
the result that the majority reaches.1 However, I am not
persuaded that Congress actually intended to repeal our
subject matter jurisdiction under S 925(c). I do not doubt
that "Congress wanted to suspend felons’ ability to regain
their firearms privileges under S 925(c)." Maj. Op. at 24. I
am not nearly as certain that Congress actually suspended
those privileges as opposed to merely having created a
situation that leaves the jurisdictional grant in place while
making its exercise absolutely impossible. In this latter
situation, courts have no alternative but to conclude that
subject matter jurisdiction under S 925(c) is an
impossibility and the statute therefore becomes a dead
letter. There is a fine but important distinction between
concluding that Congress intended to repeal a statute that
confers subject matter jurisdiction, and concluding that it
is impossible to exercise subject matter jurisdiction because
the condition precedent to its exercise can never be
satisfied although the grant of jurisdiction remains.
Moreover, to the extent that the latter formulation of the
issue necessarily implies the former, I write to express my
concern that courts are being forced to repeal legislation
that Congress has intentionally decided to leave alone.

The appropriations ban detailed by the majority is clearly
in tension with the grant of subject matter jurisdiction in
18 U.S.C. S 925(c). However, I do not think that tension
establishes an intent to repeal the statute. This tension
may suggest that Congress intended to repeal our
jurisdiction. However, as I discuss below, more than a
_________________________________________________________________

1. I will refer to the "Secretary" throughout as shorthand for the
Secretary of the Treasury and his/her designee underS 18 U.S.C.
S 925(c). See 18 U.S.C. S 921(a)(18), 27 C.F.R. S 178.144(b), (d).

                                27


suggestion of intent is required to imply a repeal. Moreover,
to the extent that Congress may have intended an end to
our jurisdiction while leaving S 925 in tact, I voice my
concern that, given the separation of powers, our
jurisprudential reach is exceeding our constitutional grasp.2

I.

At the outset, it is important to stress that repeals by
implication are disfavored. See Allen v. McCurry , 449 U.S.
90, 99 (1980). Nevertheless, as my colleagues note, an
appropriations act can result in an implicit repeal of
substantive law if Congress’s intent to repeal the law is
clear. See Robertson v. Seattle Audubon Society, 503 U.S.
429, 440 (1992); United States v. Dickerson, 310 U.S. 554,
555 (1940). See Maj. Op. at 6. However, courts must be
even more reticent to imply a repeal of substantive
legislation when the sole indicia of congressional intent is
an appropriations act. The Supreme Court has stated:

       The doctrine disfavoring repeals by implication applies
       with full vigor when . . . the subsequent legislation is
       an appropriations measure. This is perhaps an
       understatement since it would be more accurate to say
       that the policy applies with even greater force when the
       claimed repeal rests solely on an appropriations act.

Tennessee Valley Authority v. Hill, 437 U.S. 153, 190 (1978)
(emphasis and ellipses in original, citations omitted).3

The majority’s analysis rests in large part upon
comments of individual Representatives and Senators, and
statements in various committee reports. Those comments
and statements evidence understandable concern and
indignation over a federal agency spending money to assist
_________________________________________________________________

2. Although I have reservations about the majority’s analysis, I also
wish to state that I disagree with the exhaustion analysis that formed
the framework of our decision in Rice v. United States, 68 F.3d 702, 706-
07 (3d Cir. 1995); and I am not persuaded by the analysis of the Court
of Appeals for the Fifth Circuit in Bean v. ATF , 253 F.3d 234 (2001).

3. For convenience, I will refer to Tennessee Valley Authority v. Hill as
"TVA," and I will refer to the Tennessee Valley Authority, the petitioner
in that case, as the "Authority."

                                28


convicted felons in regaining firearm privileges. Such
expressions may reflect congressional intent, but that does
not necessarily follow. "[E]xpressions of committees dealing
with requests for appropriations can not be equated with
statutes enacted by Congress. . . ." TVA, 437 U.S. at 191.
This is particularly true when the statements are made in
the appropriations context. Moreover, TVA teaches that "we
should be extremely hesitant to presume the general
congressional awareness [of the issues involved] based only
upon a few isolated statements in the thousands of pages
of legislative documents." Id. at 192 (quoting SEC v. Sloan,
436 U.S. 103, 121 (1978) (internal quotation marks
omitted)). Inasmuch as the text of S 925(c) still sets forth a
mechanism whereby a convicted felon may file a request
with the Secretary, I am reluctant to conclude that the
"plain purpose," of the appropriations ban was for Congress
to rescind subject matter jurisdiction under that statute.

       Members [of Congress] may differ sharply on the
       means for effectuating [their] intent, the final language
       of the legislation may reflect hard-fought compromises.
       Invocation of the ‘plain purpose’ of legislation at the
       expense of the terms of the statute itself takes no
       account of the processes of compromise and, in the
       end, prevents the effectuation of congressional intent.

Bd. of Governors of Fed. Reserve Sys. v. Dimension
Financial Corp., 474 U.S. 361, 374 (1986).

Here, of course, the precise issue is not whether
Congress thought it would be a good idea to prevent felons
from regaining firearms privileges. Rather, the issue is
whether Congress’s failure to appropriate funds for the
investigation mandated by S 925(c) was tantamount to
rescinding subject matter jurisdiction of the federal courts
even though the statute conferring that jurisdiction was
neither amended nor formally repealed.

The Court’s analysis in TVA counsels far more caution in
resolving this paradox than is evident from the majority’s
analysis. Although a strong argument can be made to
distinguish the holding in TVA, I believe the analysis of the
appropriations acts at issue there, is more instructive than
the majority’s discussion here suggests.
                                29


TVA arose under the Endangered Species Act of 1973.
That legislation authorizes the Secretary of the Interior to
declare that a species is "endangered," and thereby list it
for special protection. The species at issue was the"snail
darter," a recently discovered member of the perch family.
The only known snail darters lived in a portion of the Little
Tennessee River that was soon to be completely inundated
by the Tellico dam. That dam was nearing completion at a
cost of over $100 million.

Congress had appropriated funds for the Tellico dam
project every year since 1967. However, in 1972, a federal
district court enjoined completion of the dam pending filing
of an appropriate Environmental Impact Statement and
that injunction remained in effect until late 1973 when that
court approved the final Environmental Impact Statement
and allowed the project to proceed. A few months after the
injunction was dissolved, the snail darter was discovered in
the vicinity of the Tellico project and was shortly thereafter
placed on the Endangered Species List. From there, this
"previously unknown species of perch" took center stage in
the attempt to stop construction of the dam. TVA , 437 U.S.
at 159.

In court, the Authority argued that the Endangered
Species Act was not intended to prohibit the completion of
a project which had been authorized and funded by
Congress and was substantially constructed before the Act
had even been enacted. Meanwhile, the maneuvering over
the snail darter’s fate and the future of the dam had not
gone unnoticed in Congress. After the Authority argued in
court that Congress did not intend for the Endangered
Species Act to apply in this situation, the House Committee
on Appropriations went on record in a June 20, 1975
Report as recommending that an additional $29 million be
appropriated for the Tellico dam project. The Report stated:
"the Committee directs that the project should be completed
as promptly as possible." 437 U.S. at 164 (emphasis in
original). Consistent with that recommendation, Congress
thereafter approved the Authority’s budget including funds
for completing the Tellico project. That budget was signed
into law one month after the snail darter was listed as an
endangered species.

                                30


After the budget was enacted into law, an association of
biologists and a group of concerned citizens again went into
court seeking to enjoin completion of the project. This time
they argued that the project violated the Endangered
Species Act by endangering the last known habitat of the
snail darter. Shortly thereafter, the House and Senate held
appropriations hearings. Those hearings included a
discussion of the Tellico budget and the controversy
surrounding the project’s completion. During those
hearings, the Chairman of the Authority argued that the
Endangered Species Act should not apply to the Tellico dam
project because it was over 50 percent completed when the
Act became effective and 70 to 80 percent complete when
the snail darter was listed as endangered.

Meanwhile, the district court accepted the Authority’s
position in the ongoing litigation. The court refused to
enjoin the project noting that a permanent injunction
would mean that "some $53 million would be lost in
nonrecoverable obligations, . . . a large portion of the $78
million already spent would be wasted. . . . [and also noting
that] the Endangered Species Act was passed some seven
years after construction of the dam commenced and that
Congress had continued appropriations for Tellico, with full
awareness of the snail darter problem." Id . at 166. The
district court reasoned that

       [a]t some point in time a federal project becomes so
       near completion and so incapable of modification that
       a court of equity should not apply a statute enacted
       long after inception of the project to produce an
       unreasonable result. . . . Where there has been an
       irreversible and irretrievable commitment of resources
       by Congress to a project over a span of almost a
       decade, the Court should proceed with a great deal of
       circumspection.

Id. The district court also noted that the plaintiffs’ position
would create the "absurd result of requiring ‘a court to halt
impoundment of water behind a fully completed dam if an
endangered species were discovered in the river on the day
before such impoundment was scheduled to take place’ ".
Id. at 166-167 (emphasis added). The district court "[could]

                                31


not conceive that Congress intended such a result[ ]" and
refused an injunction. Id.

Only a couple of weeks after the district court refused the
injunction, the Senate and House Appropriations
Committees recommended approval of the full $9 million
budget requested to continue work on the dam. The Report
accompanying the legislation in the Senate stated:

       During subcommittee hearings, [the Authority] was
       questioned about the relationship between the Tellico
       project’s completion and the 1975 listing of the snail
       darter . . . as an endangered species under the
       Endangered Species Act. . . . [The Authority] repeated
       its view that the Endangered Species Act did not
       prevent the completion of the Tellico project, which has
       been under construction for nearly a decade. The
       subcommittee brought this matter, as well as the
       recent U.S. District Court’s decision upholding[the
       Authority’s] decision to complete the project, to the
       attention of the full Committee. The Committee does not
       view the Endangered Species Act as prohibiting
       completion of the Tellico project at its advanced stage
       and directs that this project be completed as promptly
       as possible in the public interest.

Id. (emphasis in original). Thereafter, both Houses of
Congress passed the Authority’s budget including the
requested funds for completion of the Tellico project, and
that budget was signed into law.

However, the Court of Appeals for the Sixth Circuit
subsequently reversed the district court’s decision denying
an injunction, and remanded the litigation to the district
court with instructions that it issue an injunction that
would remain in effect until Congress, "by appropriate
legislation, exempts Tellico from compliance with the Act or
the snail darter has been deleted from the list of
endangered species or its critical habitat materially
redefined." Hill v. Tennessee Valley Authority, 549 F.2d
1064, 1069 (6th Cir. 1977). The district court entered a
permanent injunction on remand pursuant to that
direction.

                                32


Members of the Authority’s Board thereafter appeared
before subcommittees of both the House and Senate
Appropriations Committees and testified in support of
continued appropriations for completion of the project
despite that injunction. Both Appropriations Committees
subsequently recommended that Congress appropriate the
full amount needed to complete the Tellico dam. The House
Appropriations Committee stated in its June 2, 1977
Report:

       It is the Committee’s view that the Endangered Species
       Act was not intended to halt projects such as these in
       their advanced stage of completion, and [the
       Committee] strongly recommends that these projects
       not be stopped because of misuse of the Act.

TVA, 437 U.S. at 170 (emphasis and brackets in original).
The Senate Appropriations Committee took a similarly
strong stand. Its Report stated:

       This committee has not viewed the Endangered Species
       Act as preventing the completion and use of these
       projects which were well under way at the time the
       affected species were listed as endangered. If the act
       has such an effect which is contrary to the Committee’s
       understanding of the intent of Congress in enacting the
       Endangered Species Act, funds should be appropriated
       to allow these projects to be completed and their
       benefits realized in the public interest, the Endangered
       Species Act notwithstanding.

Id. at 171 (emphasis in original). Both Houses of Congress
approved the Authority’s budget, and a budget including
funds to complete the Tellico project was subsequently
signed into law.4
The primary issue facing the Supreme Court on appeal
from the court of appeals’ decision granting an injunction
was whether Congress’s continued funding of the project
under these unique circumstances implied the repeal or
amendment of the Endangered Species Act as applied to
the Tellico project. In resolving that question, the Court
_________________________________________________________________

4. The Authority’s budget also included funds for relocating the snail
darter as that was an option that was being considered.

                                33


accepted the proposition that completion of the nearly
completed dam would "either eradicate the known
population of snail darters or destroy their ‘critical
habitat.’ " Id. at 171. As noted above, the Court first
reiterated that the doctrine disfavoring repeals by
implication "applies with even greater force when the
claimed repeal rests solely on an Appropriations Act." Id. at
190 (emphasis in original). The Court further observed that
the appropriations legislation that Congress approved for
the project did not specifically state that the Tellico project
was to be completed "irrespective of the requirements of the
Endangered Species Act." Id. at 189. The Court therefore
expressed great reluctance to glean a congressional intent
from statements in the Appropriations Committee Reports,
even though those statements purported to convey the will
of Congress. Id. at 191 The Court was "urged to view the
Endangered Species Act reasonably, and hence shape a
remedy that accords with some modicum of common sense
and public weal." Id. at 194 (internal quotation marks
omitted). The Court refused, and responded by asking: "is
that our function?" Id. The same question might well be
posed here. See Bd. of Governors of the Fed. Reserve Sys.
v. Dimension Financial Corp., 474 U.S. 361, 374 n.7 (1986)
(Congress can best resolve "anomalies" resulting from "[t]he
process of effectuating congressional intent.").

There are, of course, real differences between inferring
congressional intent from a refusal to appropriate funds
and inferring congressional intent from an affirmative
appropriation of funding. See TVA, 437 U.S. at 190. Thus,
my colleagues’ attempt to distinguish TVA from the
circumstances surrounding the instant inquiry has some
merit. Nevertheless, I find it difficult to completely reconcile
our analysis with that of the Court in TVA.

18 U.S.C. S 925(c) still provides that:

       a person who is prohibited from possessing . . .
       firearms . . . may make application to the Secretary for
       relief from the disabilities imposed by Federal Laws
       with respect to the acquisition . . . for possession of
       firearms, and the Secretary may grant such relief if it is
       established . . . that the circumstances regarding the
       disability . . . are such that the applicant will not be

                                34
       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.

Accordingly, persons seeking relief from the federal
firearms-disability can still petition the Secretary for relief
from that disability under S 925(c). No one suggests that
Congress repealed that portion of the statute. Rather,
Congress has placed the applicant as well as the courts in
a Catch 22 reminiscent of a Kafka novel.

Similarly, I can not as easily ignore Congress’s failure to
enact the Stop Arming Felons Act ("the SAFE bill") that was
introduced in 1992, as the majority; nor am I as persuaded
by the statements of various Representatives and Senators
supporting the SAFE legislation as my colleagues. See Maj.
Op. at 21-24. "Considering these statements in context, . . .
it is evident that they represent only the personal views of
these legislators . . . ." TVA, 437 U.S. at 193. My colleagues
note that the defeat of the SAFE-bill and the subsequent
enactment of the appropriations ban was a political
compromise that allowed the appropriations ban to
continue on a temporary basis with some Representatives
and Senators hoping it would become permanent. See Maj.
Op. at 12-13. They suggest that Bean v. ATF , 253 F.3d 234,
239 (5th Cir. 2001), reh’g en banc denied, 273 F.3d 1105
(5th Cir. Aug. 21, 2001) (unpublished table decision), cert.
granted, No. 01-704, 2002 WL 75667 (Jan. 22, 2002),
"overlooked the fact that the appropriations ban is a
temporary, compromise version of the portion of the SAFE
bill that would have permanently prevented individual
felons from regaining their firearms privileges." Maj. Op. at
22 (emphasis in original). However, that does not resolve
the issue. When all is said and done, the text ofS 925(c)
still establishes a mechanism by which convicted felons can
apply for removal of the disability, and judicial review is
still woven into the text of the statute establishing that
mechanism.5
_________________________________________________________________

5. In this regard, the majority’s reliance on statements in S. Rep. No.
102-353, at 20 (1992) is puzzling. There, the Senate Appropriations
Committee Report states: "Under current policy, States have authority to
make these determinations and the Committee believes this is properly

                                35


Nor am I as comfortable with the notion that Congress
can grant subject matter jurisdiction on the one hand while
indefinitely suspending it on the other without altering the
text of the jurisdictional statute. Congress has left the
mechanism of petitioning the Secretary under S 925(c)
untouched. Congress had a specific opportunity to enact
legislation that would remove the contradiction between the
appropriations ban and the privilege of petitioning the
Secretary, but it refused to do so. Now courts are forced to
read the tea leaves sprinkled about the legislative history,
and divine a resolution for the irreconcilable tension
remaining between the continuing grant of a substantive
privilege, and the failure to fund the mechanism for its
realization. I agree that, given the nature of the statutory
problem, we are unable to exercise subject matter
jurisdiction under S 925(c).6

However, I join the judgment more because of that
necessity than a reasoned belief that Congress itself
intended to repeal a provision while leaving it intact.
Rather, I believe that Congress has left it to the courts to
repeal S 925(c), and I am reminded of the Supreme Court’s
inquiry in TVA: "is that our function?" TVA, 437 U.S. at
194.
_________________________________________________________________

where the responsibility ought to rest." See Maj. Op. at 22. That remark
appears to refer not to the states’ ability to exempt a convicted felon from
the firearms disability by expunging his/her record, granting a pardon,
or restoring his/her civil rights as is provided for under 18 U.S.C.
S 921(a)(20). Rather, it suggests that the states can somehow perform the
investigation called for under S 925(c). I do not understand how the
Supremacy Clause would permit a state investigation to substitute for
the Secretary’s investigation under S 925(c) absent federal legislation to
that effect.

6. In a different context, agency inaction can constitute a "denial"
triggering judicial review if the inaction has the same impact upon the
"rights" of the applicant as no action. Cutler v. Hayes, Jr., 818 F.2d 879,
898 n.154 (D.C. Cir.,1987). However, we then determine if the agency’s
inaction is unreasonable and seriously prejudicial. Houseton v. Nimmo,
670 F.2d 1375, 1378 (9th Cir. 1982). Inasmuch as the Secretary’s
inaction here results solely from the appropriations ban, there is no
authority to conclude that it is unreasonable.

                                36


I am not at all sure it is, and I find myself identifying
with the circus hand that our colleague, Judge Aldisert,
alluded to while dissenting in United States v Gibbs, 813
F.2d 596, 603 (3rd Cir. 1986) (Aldisert, J. dissenting).
There, Judge Aldisert lamented that he "would not be the
circus hand following the . . . elephant around the sawdust
trail." Here, I fear that we have been handed the shovel,
and invited to clean up after the elephant. I am joining my
colleagues in taking up the shovel. Given the parameters of
the jurisprudence so deftly set forth by the majority
opinion, I do not think we have a choice. The Supreme
Court has granted certiorari in Bean, and this anomaly will
now finally be resolved there.

A True Copy:
Teste:

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

                                37
