Joseph Wolldershein
202-225-5870
Dear Sir,
Knowing that Ms. Musgrave is a champion of the Second Amendment, I was pleased at her recent victory over anti-firearms groups and the defunding of the trigger lock law.
Of interest to Ms. Musgrave may be the defunding of the Restoration of Rights program of the then BATF in 1992. Under this program, a person who has a conviction which prevents them from firearms ownership could apply for the restoration of their rights to the BATF(E).
Unfortunately, in 1992 anti-firearms groups successfully lobbied for the defunding of the program by preventing the BATF(E) from using any budgeted funds for that purpose.
In 2002, a man named Thomas Lamar Bean petitioned the Supreme Court of the United States (SCotUS) -- UNITED STATES v. BEAN 537 U.S. 71 (2002) -- for certiorari in his case after he had applied to the BATF(E) for restoration of his rights. His application was returned without action due to the defunding of the program.
In a unanimous decision, the opinion of which was delivered by Justice Thomas, the court found that mere inaction by the BATF(E) did not constitute a denial.
Held: The absence of an actual denial by ATF of a felon's petition precludes judicial review under §925(c). The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925(c)'s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction. Grammatically, the phrase "denied by the Secretary" references the Secretary's decision on whether an applicant "will not be likely to act in a manner dangerous to public safety," and whether "the granting of the relief would not be contrary to the public interest." Such determination can hardly be construed as anything but a decision actually denying the application. (emphasis added) Under §925(c)'s procedure for those seeking relief, the Secretary, i.e., ATF, has broad authority to grant or deny relief, even when the statutory prerequisites are satisfied. This procedure shows that judicial review cannot occur without a dispositive decision by ATF. (emphasis added) First, in the absence of a statutorily defined standard of review for action under §925(c), the Administrative Procedure Act (APA) supplies the applicable standard. 5 U. S. C. §§701(a), 706(2)(A). The APA's "arbitrary and capricious" test, by its nature, contemplates review of some action by another entity. Second, both parts of §925(c)'s standard for granting relief--whether an applicant is "likely to act in a manner dangerous to public safety" and whether the relief is in the "public interest"--are policy-based determinations and, hence, point to ATF as the primary decisionmaker. Third, §925(c) allows the admission of additional evidence in district court proceedings only in exceptional circumstances. Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates that a court's determination will heavily rely on the record and the ATF's decision. Indeed, the very use in §925(c) of the word "review" to describe a court's responsibility in this statutory scheme signifies that it cannot grant relief on its own, absent an antecedent actual denial by ATF. Pp. 2-7.
This leaves those who would apply for relief with no outlet for relief as the next step. Application to the District Court is disallowed absent an actual denial of relief by the BATFE.
I would ask that Ms. Musgrave champion an effort to have the funding restored to the BATFE budget so that persons seeking relief will once again have an outlet through which they can have their rights restored.
I will seek to bring this issue to her personal attention the next time she is in the Longmont, CO area but would appreciate a heads-up to her by you on this issue.
Sincerely,
Jim Peel
[address]
Longmont, CO
[phone]
