KELERCHIAN v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VAHAN KELERCHIAN CIVIL ACTION

Plaintiff,

v. NO. 20-0253

BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES AND

UNITED STATES OF AMERICA,

Defendants.

OPINION

Plaintiff Vahan Kelerchian seeks in his Amended Complaint to assert claims against

Defendants Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the United

States of America under the Declaratory Judgment Act, the Administrative Procedure Act, Fifth

Amendment, and First Amendment. Defendants now move, pursuant to Federal Rule of Civil

Procedure 12(b)(6), to dismiss the case for failure to state a claim. For the reasons that follow,

Defendants’ motion will be granted.

BACKGROUND

The facts of this case and the relevant statutes have been detailed at length. See

Kelerchian v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 2021 WL 2910934, at *1-2

(3d Cir. July 12, 2021); Kelerchian v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 2020

WL 4039056, at *1-2 (E.D. Pa. July 17, 2020). In brief, Kelerchian, formerly a federally

licensed firearms dealer, was convicted of violating federal firearms law, among other counts.

See generally United States v. Kelerchian, 937 F.3d 895 (7th Cir. 2019), cert. denied, 140 S. Ct.

2825 (2020). Kelerchian sought to appeal his conviction by way of a writ of certiorari to the

U.S. Supreme Court. The Supreme Court denied the writ upon which denial his conviction

became final. ATF then informed him by letter that, pursuant to Sections 922(g) and 925(b) of

the Gun Control Act and its implementing regulation, his firearms license would be revoked after

thirty days. Id.; 18 U.S.C. §§ 922(g), 925(b); 27 C.F.R. § 478.144(i)(1).

The Gun Control Act of 1968 bans certain classes of persons, including felons, from

possessing, receiving, or transporting firearms. See 18 U.S.C. § 922(g). These persons are also

ineligible for federal firearms licenses. See 18 U.S.C. § 923(d)(1)(B). The Gun Control Act

further provides that any federal firearms license held by a convicted felon becomes void when

the conviction becomes final. 18 U.S.C. § 925(b). These federal firearms disabilities are

imposed by operation of law; no action by ATF is required to implement them. Id. The

implementing regulation requires no action by ATF to revoke a felon’s federal firearms license.

27 C.F.R. § 478.144(i)(1). The license becomes void thirty days after the felon’s conviction

becomes final. Id. (allowing a thirty-day period for licensees subsequently convicted of felonies

to wind down their business and transfer prohibited firearms to a valid licensee in an orderly

fashion).

ATF informed Kelerchian by letter that he must transfer to ATF machine guns in his

possession manufactured after 1986 and his firearms records, or risk criminal liability. ATF also

removed Kelerchian from the FFL eZ Check system, the online system listing those with federal

firearms licenses. Before his license was revoked Kelerchian applied for relief from his firearms

disabilities pursuant to Section 925(c) of the Gun Control Act. 18 U.S.C. § 925(c). This

provision as originally written and enacted permits those barred from federal firearms privileges,

like felons, to apply to ATF for relief and, while their application is pending, permits applicants

to continue operating under their prior firearms license until the U.S. Attorney General1 decides

1 As enacted, the Gun Control Act initially authorized the Secretary of the Treasury to grant a felon relief from

on the application. Id. Relief could be granted if applicants established, to the Attorney

General’s satisfaction, that certain preconditions were met—including that the applicant no

longer posed a danger to the public and that granting relief would be in the public’s interest. Id.

Authority to administer the § 925(c) relief-from-disabilities program was delegated to the

director of the ATF. 28 C.F.R. § 0.130(a)(1); see also Pontarelli v. U.S. Dep’t of the Treasury,

285 F.3d 216, 217 n.2 (3d Cir. 2002) (en banc). Judicial review was available in the federal

district court of appropriate jurisdiction only to a “person whose application for relief from

disabilities is denied by the Attorney General.” 18 U.S.C. § 925(c). In enacting this relief

provision, Congress provided that if an applicant held a federal firearms license, that applicant

would not be barred from further operations under the license “pending final action” on their

application for relief. Id.; see also 27 C.F.R. § 478.144(i)(1) (if an application were timely filed,

licensee could continue licensed operations “during the pendency of the application.”).

From 1992 onwards, however, Congress consistently used appropriation acts to prohibit

funding to act on or investigate Section 925(c) applications. See e.g., Consolidated

Appropriations Act of 2020, Division B, P.L. 116-93, 133 Stat. 2317, 2401 (2020) (applicable at

the time Plaintiff filed his Section 925(c) application and thereafter); see also e.g., Consolidated

Appropriations Act of 2019, Division C, P.L. 116-6, 133 Stat. 13, 107 (2019); United States v.

Bean, 537 U.S. 71, 75, 75 n.3 (2002) (summarizing appropriation acts every year from 1993 to

2002 preventing funding of act or investigation pursuant to Section 925(c)) (collectively the

“Appropriations Ban”). After observing negative impacts of the § 925(c) relief-from-disabilities

program, in 1992 Congress set out to defund the program entirely, providing in its appropriations

federal firearms disabilities, but later versions of the statute—including the version currently in effect—shifted

authorization to the Attorney General. 18 U.S.C. § 925(c) (amending from the Oct. 11, 1996 version authorizing the

Secretary to the Dec. 8, 2003 version authorizing the Attorney General, current version effective Feb. 1, 2019).

bill that year, becoming effective the year after, “[t]hat 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. [§] 925(c).” Treasury, Postal Service, and General Government

Appropriations Act of 1993, Pub. L. 102-393, 106 Stat. 1729, 1732 (1993). Congress has

retained and reaffirmed the ban on the use of appropriated funds to process applications for relief

filed by individuals every year since. See e.g., Consolidated Appropriations Act of 2020,

Division B, P.L. 116-93, 133 Stat. 2317, 2401 (2020); see also Bean, 537 U.S. 71, 75 n.3 (2002).

The Senate Report accompanying the first appropriations ban in 1992 explained the purposes of

the ban:

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 violent crime.

S. Rep. No. 102-353, at 8 (1992). The House Report accompanying the renewal of the

appropriations ban in 1995 reiterated those reasons three years later:

For the fourth consecutive year, the Committee has added bill

language prohibiting the use of Federal funds to process

applications for relief from Federal firearms disabilities . . ..

[T]hose 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 money to

restore a convicted felon’s right to own a firearm.

H.R. Rep. No. 104-183, at 15 (1995). As the Third Circuit has found, “[t]he legislative history of

the appropriations ban confirms that Congress intended to prevent individual felons from

regaining firearms privileges.” Pontarelli, 285 F.3d at 231. It was in the context of this

background that ATF returned Kelerchian’s Section 925(c) application having taken no action on

it. Kelerchian submitted a second application, on which ATF took no action and which it did not

return. Kelerchian sued to enforce what he alleges are his rights under Section 925(c) to

continue operating under his license while his application is pending before ATF.

This Court dismissed the suit for lack of subject matter jurisdiction. Plaintiff moved for

reconsideration of the dismissal or to amend his complaint, and this Court denied that motion.

Kelerchian then appealed to the Third Circuit which affirmed the dismissal but on different

grounds and vacated as moot the prior order denying reconsideration or leave to amend.

Specifically, the Third Circuit found subject matter jurisdiction was not foreclosed for three

reasons. First, the Third Circuit noted, Bean, 537 U.S. 71, and Pontarelli, 285 F.3d 216, found

subject matter jurisdiction lacking in specific circumstances and their holdings “are limited to

cases where a district court is asked to review an application and decide whether an applicant is

‘likely to act in a manner dangerous to public safety,’ § 925(c), without the benefit of a prior

ATF decision.” Kelerchian, 2021 WL 2910934, at *2. This case, however, the Court of Appeals

distinguished: “Kelerchian does not ask the District Court to decide the merits of his § 925(c)

application.” Id. Second, the Third Circuit noted Kelerchian is not seeking a determination on

his Section 925(c) application itself, but rather “protection” under Section 925(c) that prevents

applicants from being barred by firearms disabilities by permitting them to operate under their

license while their application is pending. Id. at 3. The Third Circuit highlighted differences

between being permitted to continue under a prior license, pursuant to Section 925(c), and

obtaining relief from firearm disabilities—for example, the inability to obtain a license as a

firearms importer or manufacturer under the former but not the latter. Id. Third, the Third

Circuit noted that the Appropriations Ban “only prohibits ATF from ‘investigat[ing] or act[ing]

upon applications for relief.’” Id. (quotations omitted). Yet, “[b]ecause Kelerchian’s requested

relief does not require ATF to grant or deny his application, the [A]ppropriations [B]an did not

deprive the District Court of subject matter jurisdiction.” Id. The Third Circuit did, however,

determine that Kelerchian’s then operative complaint failed to state a claim, addressing

arguments remarkably similar to those now before this Court. Id. at 4.

Following the Third Circuit’s decision, Kelerchian submitted an Amended Complaint,

which Defendants moved to dismiss. Kelerchian’s Amended Complaint was dismissed in July

2022 without prejudice as improperly filed. Kelerchian then filed a motion to amend or correct

his Amended Complaint, which was granted after which his Amended Complaint was properly

filed. The core of Kelerchian’s argument revolves around his Section 925(c) application and,

because he argues that application is pending, he is entitled to continue under his prior license

until ATF issues a decision on his application. Plaintiff clarifies he is not asking for relief

pursuant to Section 925(c) or for Defendants to act on his application. Rather, he wants this

Court to recognize that by filing his application, regardless of ATF’s actions, he should get the

benefit of Section 925(c), namely that his license not be barred while his application is pending.

LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a

complaint for failure to state a claim upon which relief can be granted. “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Yet, “the tenet that a court must accept a

complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s

elements, supported by mere conclusory statements.” Id. at 663. “In light of Twombly, it is no

longer sufficient to allege mere elements of a cause of action; instead a complaint must allege

facts suggestive of [the proscribed] conduct.” Great W. Mining & Mineral Co. v. Fox Rothschild

LLP, 615 F.3d 159, 177 (3d Cir. 2010) (quoting Phillips v. County of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008)) (internal quotation marks omitted). “In other words, ‘there must be some

showing sufficient to justify moving the case beyond the pleadings to the next stage of

litigation.’” Id. (quoting Phillips, 515 F.3d at 234-35).

DISCUSSION

A. Threshold “Pending” Question

For Section 925(c) of the Gun Control Act to apply, the statute first requires an

application to be “pending” before ATF. 18 U.S.C. § 925(c) (“[S]hall not be barred by such

disability from further operations under his license pending final action.”). The Third Circuit

“neither endorse[d] nor discredit[ed] Kelerchian’s characterizations that he has filed an

application for relief and that final action on his application is pending.” Kelerchian, 2021 WL

2910934, at *3 n.3. The Court noted, however, that “ATF’s practice of mailing back individuals’

applications as unprocessed arguably requires ATF to recognize that an individual has filed an

application for relief.” Id. at n.5. Assuming, arguendo, that Kelerchian’s application was filed,

the question is whether a filed application, given Congress’ consistent use of appropriations acts

to prohibit funding for ATF to act or to investigate Section 925(c) applications, is “pending”

within the meaning of Section 925(c).

“As in any statutory construction case, ‘[w]e start, of course, with the statutory text,’ and

proceed from the understanding that ‘ [u]nless otherwise defined, statutory terms are generally

interpreted in accordance with their ordinary meaning[,]’” Sebelius v. Cloer, 569 U.S. 369, 376

(2013) (quoting BP Am. Production Co. v. Burton, 549 U.S. 84, 91 (2006)), as determined by

dictionary definitions, as well as reference to “the whole statutory text, considering the purpose

and context of the statute, and consulting any precedents or authorities that inform the analysis.”

See United States v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008) (citing Dolan v. U.S. Postal Serv.,

546 U.S. 481, 486 (2006)).

Here the word “pending” is not a defined term in the Gun Control Act. Accordingly, one

looks to the term’s ordinary meaning. The year the Gun Control Act was passed, 1968,

“pending” was defined as “[b]egun, but not yet completed; during; before the conclusion of;”

such that something is pending “from its inception until the rendition of final judgment.”

Pending, Black’s Law Dictionary, 1291 (4th ed. 1968); see also Pending, Webster’s New World

Dictionary of the American Language, 1081 (1968) (defining “pending” when used as a

preposition, as here, as “throughout the course or process of; during” or “while awaiting;

until[.]”). Thus, under a plain reading of Section 925(c), the provision applies when final action

on an application has “begun, but [is] not yet completed[.]” Here, Congress through the

Appropriations Bans prevents ATF starting any investigation or taking any action in response to

Section 925(c) applications. See e.g., Consolidated Appropriations Act of 2020, Division B, P.L.

116-93, 133 Stat. 2317, 2401 (2020). As such, ATF cannot even begin the process of

determining Section 925(c) applications. It follows, then, that these applications cannot be

pending. While Kelerchian, by his own account, is simply asking for recognition that by making

and filing his application, regardless of whether ATF may or may not use money appropriated to

it to process and decide those applications, he has certain statutory rights; he is not afforded such

recognition under the ordinary meaning of the language in the statute.

Legislative history supports this conclusion. In enacting the Appropriations Ban year

after year, Congress specifically removed funding from Section 925(c) with the intention that

“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.” H.R. Rep. No. 104-183, at 15 (1995). It turns

this intent on its head to interpret Congress as meaning that while it sought to take away the

possibility of relief from firearm disabilities it also intended to leave open the possibility that if a

felon submits a Section 925(c) application, their application may be deemed pending, permitting

the applicant to operate under their prior license. The purpose was to prevent felons from

owning firearms at all and committing violent acts. Moreover, Congress stated felons should not

be able to “own a firearm” which applies equally to relief from firearm disabilities generally and

operating under a prior license, pursuant to Section 925(c). As such, Section 925(c) applications

cannot, by definition and legislative history, be pending such that Kelerchian nay continue to

operate under his former licenses. Accordingly, the case shall be dismissed because Kelerchian

has failed to establish that his application was pending. However, for the sake of thoroughness,

each of Kelerchian’s arguments will be addressed below and, for the reasons set forth below, are

in any event not viable.

B. Section 925(c) and the Declaratory Judgment Act

Plaintiff first seeks, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202,

a declaration that he complied with Section 925(c) of the Gun Control Act and its implementing

regulations, and thus may continue to operate under his previously issued license, and, further,

that ATF’s actions constitute final agency action. In addition, he seeks an order returning his

previously issued license to him and an injunction preventing ATF from invalidating, voiding

and/or revoking his license based on their inability to process his application.

As a preliminary matter, it is the law of the case that Ҥ 925(c) does not contain an

express right of action to enforce the protection provision and we do not read the statute to imply

a private right of action.” Kelerchian, 2021 WL 2910934, at *4 (citing Alexander v. Sandoval,

532 U.S. 275 (2001))2. “[Section] 925(c) gives only ‘the Secretary’ the authority to receive

applications and grant relief; it does not ‘create a freestanding opportunity for relief[.]’”

Pontarelli, 285 F.3d at 222 (referencing the then effective version of Section 925(c) where the

Secretary made final application determinations); see also e.g., McHugh v. Rubin, 220 F.3d 53,

59 (2d Cir. 2000) (“[Section] 925(c) is not written so as to create a freestanding opportunity for

relief from federal firearms disabilities[.]”); Mullis v. U.S., 230 F.3d 215, 220 (6th Cir. 2000)

(accord).

Neither does Section 925(c) imply a right of action. “The express provision of one

method of enforcing a substantive rule suggests that Congress intended to preclude others.”

Sandoval, 532 U.S. at 290. “Section 925(c) gives district courts jurisdiction to review

applications only after a ‘denial’[.]” Pontarelli, 285 F.3d at 231. In so doing, Congress created

an explicit right of action—for review of decided Section 925(c) applications—thereby intending

to preclude any otherwise implied right of action for undecided Section 925(c) applications. As

such, Plaintiff failed to state cause of action for declaratory relief under Section 925(c).

That determination takes center stage when considering the Declaratory Judgment Act

which “does not itself create an independent basis for federal jurisdiction[.]” Auto-Owners Ins.

Co. v. Stevens & Ricci Inc., 835 F.3d 388, 394 (3d Cir. 2016) (citing Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667, 671-72 (1950)). To seek a remedy under the Declaratory

Judgment Act, Kelerchian must point to a distinct cause of action created by Congress. See

2 See Deisler v. McCormack Aggregates, Co., 54 F.3d 1074, 1086 (3d Cir. 1995) (relying on Arizona v. California,

460 U.S. 605, 618 (1983)) (“The doctrine of the law of the case dictates that ‘when a court decides upon a rule of

law, that rule should continue to govern the same issues in subsequent stages in the litigation.’”).

Kelerchian, 2021 WL 2910934, at *4; Sandoval, 532 U.S. at 286 (“Like substantive federal law

itself, private rights of action to enforce federal law must be created by Congress.”). The Gun

Control Act does not satisfy that requirement which conclusion does not change by resort to the

Declaratory Judgment Act, “no matter how desirable [he may find it] as a policy matter, or how

compatible with the statute.” Id. at 286-87. As such, Count I of the Amended Complaint under

the Declaratory Judgment Act and Section 925(c) of the Gun Control Act fails to state a claim

and shall be dismissed.3

C. Administrative Procedure Act

Next, Plaintiff argues the Administrative Procedure Act (“APA”) provides him a cause of

action. The APA “provide[s] a limited cause of action for parties adversely affected by agency

action,” Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118, 125 n.11 (3d Cir. 2012) (internal

quotation omitted), specifically by a “final agency action for which there is no other adequate

remedy in a court” and without which a plaintiff “cannot state a claim under the APA[.]” 5

U.S.C. § 704 (1966); Chehazeh, 666 F.3d at 125 n.11; see also Hoxha v. Levi, 465 F.3d 554, 564

(3d Cir. 2006). “[T]wo conditions must be satisfied” to establish a final agency action:

First, the action must mark the “consummation” of the agency’s

decisionmaking process—it must not be of a merely tentative or

interlocutory nature. And second, the action must be one by which

“rights or obligations have been determined,” or from which “legal

consequences will flow[.]”

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted) (quoting Chi. &

Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) and Bos. Marine

3 For the reasons set forth below, Kelerchian’s request for a declaratory judgment that ATF violated his rights under

the Administrative Procedure Act, First Amendment, and Fifth Amendment is also not viable. Kelerchian’s rights

under the Administrative Procedure Act and First Amendment were not violated and he has no rights under the Fifth

Amendment in this action.

Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

i. Final Agency Action: Consummation of Decisionmaking Process

“Final agency actions bear certain ‘traditional hallmarks’ that demonstrate ‘[t]here is

nothing left for the agency to do[.]’” T Mobile Ne. LLC v. City of Wilmington, Del., 913 F.3d

311, 318 (3d Cir. 2019) (quoting Del. Riverkeeper Network v. Sec’y of Pa. Dep’t of Env’t. Prot.,

(Riverkeeper II), 870 F.3d 171, 178 (3d Cir. 2017)). “Intermediate decisions made in the course

of determining what position will ultimately be taken are not ‘determinative’ in the appropriate

sense.” Univ. of Med. & Dentistry of N.J. v. Corrigan, 347 F.3d 57, 69-70 (3d Cir. 2003)

(finding no final agency action where “[t]he decision [was] only to investigate, which is by

nature a preliminary one. It is the initiation of a process.”); see also Aerosource, Inc. v. Slater,

142 F.3d 572, 579-80 (3d Cir. 1998) (finding no final agency action “because their conclusions

were tentative and indicative of an on-going investigation.”); CEC Energy Co. v. Pub. Serv.

Comm’n of V.I., 891 F.2d 1107, 1110 (3d Cir. 1989) (“Its decision constitutes no more than a

determination that an investigation will commence, a prerequisite to definitive agency action.”).

“An important but not dispositive factor is an agency’s classification of its order as final.” In re

Matter of Seidman, 37 F.3d 911, 923 (3d Cir. 1994).

a. “Internal Policy”

Under the first condition required by Bennett v. Spear—whether the act is the

consummation of the agency’s decisionmaking process—Kelerchian’s argument is that ATF has

an “internal policy” that warrants a finding that there has been final agency action. 520 U.S. at

177-78. This “internal policy” is a shifting target in Kelerchian’s briefing but taken all together

it appears to be the product of an alleged telephone conversation between Kelerchian’s attorney

and ATF Philadelphia Division Counsel. Kelerchian argues the “internal policy” is ATF’s

practice of immediately revoking licenses, even if license holders file timely Section 925(c)

applications. The “internal policy” is a final agency action, he contends, even when it has not

been published anywhere including the Federal Register, and Kelerchian does not know whether

it exists in written form. The effect of this “internal policy,” he maintains, is the revocation of

his license despite his Section 925(c) application, his removal from the FFL eZ Check system,

and a letter from ATF listing the consequences of the revocation (including the threat of criminal

prosecution if he failed to transfer certain machineguns and business records to ATF).

In determining that Kelerchian failed to state a claim under the APA, the Third Circuit

previously found in this case that “[t]he most Kelerchian alleges is that the ‘internal policy’ was

communicated to Kelerchian’s counsel by ATF Philadelphia Division Counsel Kevin White in a

phone call. This allegation is insufficient to establish that the ‘internal policy’ is a final agency

action under the relevant legal standard.” Kelerchian, 2021 WL 2910934, at *4. This remains

true, although Kelerchian now asserts additional facts, namely removal from the FFL eZ Check

system and ATF’s letter.

Congress, through the Appropriations Ban, for over thirty years in no uncertain terms has

directed ATF not to act on Section 925(c) applications and precluded relief that would otherwise

be available under Section 925(c).4 While the Appropriations Ban continues, ATF cannot

4 Kelerchian asserts on multiple occasions that the Appropriations Ban has not repealed, revoked, or otherwise

nullified Section 925(c). This is incorrect. Congress may amend statutory provisions through an appropriations law,

as here. Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992) (explaining Congress may “amend

substantive law in an appropriations statute, as long as it does so clearly.”). The Supreme Court, Third Circuit, and

other appeals courts across the country recognize that the Appropriations Ban did indeed amend Section 925(c) in

clear and unequivocal language rendering the provision inoperative. See Logan v. United States, 552 U.S. 23, 28 n.1

(2007) (finding Section 925(c) “has been rendered inoperative, however, for Congress has repeatedly barred the

Attorney General from using appropriated funds ‘to investigate or act upon [relief] applications.’”) (citing Bean, 537

U.S. at 74-75); Pontarelli, 285 F.3d at 230 (overruling prior Third Circuit precedent Rice v. United States, Dep’t of

Alcohol, Tobacco & Firearms, 68 F.3d 702, 704 (3d Cir. 1995), the Third Circuit found “the legislative history of

the appropriations ban demonstrates that Congress wanted to suspend felons’ ability to regain their firearms

privileges under § 925(c).”); see also e.g., McHugh, 220 F.3d at 58 (“Thus, while the annual appropriations statutes

speak in terms of the ATF’s ability to spend appropriated funds, their effect on the agency is obvious: It may neither

investigate or act on Section 925(c) applications. Accordingly, there is currently no ultimate

decision on Kelerchian’s application pursuant to Section 925(c). To the extent that Kelerchian is

arguing that inaction by the ATF (ATF has not even considered Kelerchian’s application)

amounts to final agency action, “[i]naction by ATF does not amount to a ‘denial’ within the

meaning of § 925(c)[,]”. ATF’s actions, or lack thereof, here do not qualify as a final agency

action. Bean, 537 U.S. at 75-76. Far from final, ATF’s actions are, at best, the preliminary

stages of a process that cannot (if it is to be in compliance with specific congressional

instruction) move forward much less begin in earnest. And such a preliminary stage of an

agency’s process cannot satisfy the consummation of decisionmaking standard. See e.g.,

Corrigan, 347 F.3d at 69-70.

The posited “internal policy’s” informality further underscores its lack of finality. The

“internal policy” is not written anywhere and a single phone conversation does not final agency

action make. See e.g., Telford Borough Auth. v. U.S. E.P.A., 2013 WL 6047569, at *8 (E.D. Pa.

Nov. 15, 2013) (finding communications, especially informal ones, from an agency to plaintiff’s

counsel are not representative of formal agency actions). ATF does not consider this informal

“internal policy” to be a final agency action. In re Matter of Seidman, 37 F.3d at 923 (reasoning

that an agency’s classification of its own action as not final is an important but not dispositive

fact). As such, the “internal policy’s” informality further indicates it is far from final.

grant nor deny applications falling within the scope of the funding restriction. We therefore conclude that

Congress’s intent to suspend the ATF’s ability to act on applications submitted by individuals pursuant to § 925(c) is

‘clear and manifest.’”); Mullis, 230 F.3d at 221 (“Accordingly, we join with the Second, Fifth, Ninth, and Tenth

Circuits in concluding that Congress, through its appropriations act, has chosen to at least temporarily suspend the

operation of § 925(c) in its entirety[.]”); United States v. Chavez, 204 F.3d 1305, 1314, n.6 (11th Cir. 2000)

(accord); Burtch v. U.S. Dep’t of the Treasury, 120 F.3d 1087, 1090 (9th Cir. 1997) (citing Robertson, 503 U.S. at

440) (accord); United States v. McGill, 74 F.3d 64, 68 (5th Cir. 1996) (accord). This amendment to the Gun Control

Act is the reason for ATF’s failure to act on or investigate Kelerchian’s application. Bean, 537 U.S. at 75-76.

b. Thirty-Day Delay

Kelerchian also argues that the fact that ATF waited until thirty days after his conviction

was final to revoke his license, when the original purpose of those thirty days was to allow for

filing Section 925(c) applications, indicates he should not be barred from benefits under Section

925(c) and should be permitted to use his firearms license while his application is pending. Yet,

Defendants acted pursuant to the laws and regulations that were in effect and which governed

their actions: the Gun Control Act, the Appropriations Ban, and the implementing regulation. 18

U.S.C. § 925(c); see e.g., Consolidated Appropriations Act of 2020, Division B, P.L. 116-93,

133 Stat. 2317, 2401 (2020); 27 C.F.R. § 478.144. The implementing regulation, 27 C.F.R. §

478.144, proscribes the thirty-day delay for revoking firearm licenses if a licensee files a Section

925(c) application. Id. (“A licensee who incurs disabilities under the [Gun Control ]Act . . . shall

not be barred from licensed operations for . . . [thirty] days after the date upon which the

conviction for a crime . . . becomes final.”). While the Appropriations Ban renders Section

925(c) inoperative, the implementing regulation is still in effect, as Congress has not clearly

amended it.5 As such, ATF adhered to the still effective thirty-day delay after Kelerchian’s

conviction was final before his license was revoked. ATF abides by this procedural timeline laid

out without investigating or acting on applications pursuant to Section 925(c). ATF does not,

and cannot, pick and choose which portions of the law to follow. This is precisely why ATF’s

thirty-day delay does not implicate the finality analysis. Procedural aspects of the Gun Control

Act, in light of the Appropriations Ban, may no longer serve their original purpose, but

nevertheless ATF must abide by the law and implementing regulations still in effect until

Congress changes the law or ATF the regulation. Although ATF is the agency responsible for

5 See supra note 4.

writing the relevant regulation, it cannot simply stop adhering to a regulation without a formal

process changing the rule. Indeed, doing so would more than likely be an APA violation in and

of itself. Therefore, ATF’s thirty-day delay before revoking Kelerchian’s license does not lean

in favor of finality and does not change the conclusion that the “internal policy” as described by

Kelerchian is not final agency action.

ii. Final Agency Action: Legal Consequences

Even if ATF’s actions satisfied the first Bennett condition—which they do not—

Kelerchian must also prove that its actions satisfy the second, that legal consequences flow from

the agency’s actions. 520 U.S. at 177-78. If an agency action “does not of itself adversely affect

complainant but only affects his rights adversely on the contingency of future administrative

action[,]” then it is not final. Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 619

(1944) (citing Rochester Tel. Corp. v. United States, 307 U.S. 125, 130 (1939)). Kelerchian

argues that legal consequences flow from the revocation of his license following his conviction

and ATF’s failure to act on his application under its “internal policy” that included sending him

the letter. Namely, Kelerchian maintains that these consequences include his inability to operate

under his firearms license while his Section 925(c) application is pending—as he would

otherwise be permitted to do before the Appropriations Ban—and his removal from the FFL eZ

Check system. Yet, the benefits of a pending Section 925(c) application are non-existent;

Congress rendered them inoperative.6 No legal consequences can flow from a provision no

longer in effect. As such, Kelerchian may be deprived of continuing to operate under his license,

may have received ATF’s letter, and may have been removed from the eZ Check system. But

6 See supra note 4.

these consequences do not flow from Defendant’s final agency actions. As such, ATF’s failure

to act is not final under the second Bennett condition.

Kelerchian’s arguments are not saved by his reliance on ATF’s letter warning of criminal

liability if Kelerchian failed to transfer certain machine guns and firearms records to ATF.

“[D]emand letters, although harsh in their terms and probably unsettling to their recipients” do

not automatically imbue legal consequences, thereby constituting final agency actions. Fanning

v. United States, 346 F.3d 386, 401 (3d Cir. 2003). Letters in which the “burden certainly is

substantial[ are] different in kind and legal effect from the burdens attending what heretofore has

been considered to be final agency action.” F.T.C. v. Standard Oil Co. of Cal., 449 U.S. 232,

242 (1980); see also Golden & Zimmerman, LLC v. Domenech, 599 F.3d 426, 432 (4th Cir.

2010) (finding no final agency action where the document “merely restates . . . the product of

that prior decisionmaking, and it does so only to provide[ ] information designed to help

[licensees] comply with all of the laws and regulations.”) (quotation marks omitted). ATF’s

letter is analogous to one in Solar Turbines Inc. v. Seif, where the Third Circuit found an

Environmental Protection Agency letter was not a final agency action because “even though the

. . . letter seems to threaten civil and criminal liability upon noncompliance, no civil or criminal

liabilities accrue.” 879 F.2d 1073, 1081 (3d Cir. 1989); see also Not an LLC v. Bureau of

Alcohol, Tobacco, Firearms, & Explosives, 2022 WL 2073340, at *7 (W.D. Pa. June 9, 2022)

(relying on Solar Turbines Inc. to find an ATF cease-and-desist letter was not a final agency

action, noting the letter “doesn’t give ATF any new rights . . . and it doesn’t impose any new

obligations on the recipient of the letter. There’s no separate legal violation or cause of action

that ATF can bring for failure to comply with the [letter] because it doesn’t have any legal effect.

Its purpose is one of notice and one of restatement and reminder of what the law is.”). ATF’s

letter in this case is similar: it notifies Kelerchian of legal obligations connected to

Section 922(g)(1) of the Gun Control Act. As in Solar Turbines Inc., ATF’s letter does not

impose additional criminal liabilities. 879 F.2d at 1081. Rather, it similarly informs Kelerchian

of what will happen if he fails to comply. Id. Even if ATF had not communicated to Kelerchian

his obligations under the Gun Control Act or removed him from the eZ Check system,

Kelerchian would still have been required to comply with applicable federal firearms law. As

such, legal consequences flow from Kelerchian’s actions, applicable federal firearms law, their

implementing regulations, but not from ATF’s letter. See e.g., Golden & Zimmerman, LLC, 599

F.3d at 433; see also e.g., Mont. Shooting Sports Ass’n v. Holder, 2010 WL 3926029, at *6 (D.

Mont. Aug. 31, 2010) (“[A]ny legal consequences in this case emanate not from the ATF’s letter,

but from applicable federal firearms laws and their implementing regulations.”). As such,

neither ATF’s letter nor removal from the eZ Check System indicates ATF’s actions are final

under the second Bennett condition. Thus, ATF’s actions are not a final agency action because

they satisfy neither Bennett condition and as such Kelerchian has no valid cause of action under

the APA. Therefore, Count II of the Amended Complaint under the Administrative Procedure

Act fails to state a claim and shall be dismissed.7

7 Even if ATF’s actions were deemed final agency actions, ATF’s actions are not arbitrary and capricious because

Defendants are simply following congressional instruction by not acting on Kelerchian’s application. Final agency

actions may be reviewed, deemed unlawful, and set aside if they are “arbitrary and capricious.” 5 U.S.C. § 706; see

e.g., Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of Health & Hum. Servs., 730 F.3d 291, 305 (3d Cir. 2013).

“An agency action may be arbitrary and capricious ‘if the agency has relied on factors which Congress has not

intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its

decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.’” Id. ((citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “If Congress’ intent is clear from the plain language of the

statute, then our inquiry ends there.” Tate & Lyle, Inc. v. Comm’r, 87 F.3d 99, 104 (3d Cir. 1996) (citing Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). As set forth supra in note four,

congressional intent to abrogate Section 925(c) is clear. Thus, even if ATF’s actions were arguendo final, they are

not arbitrary and capricious.

D. Fifth Amendment

Plaintiff next argues his Fifth Amendment rights were violated when ATF revoked his

license and failed to give him a hearing. To state a Fifth Amendment Due Process Clause claim,

a plaintiff must show that he was deprived of a cognizable property interest, see Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (applying Fourteenth Amendment Due Process

Clause)8, and that the process afforded him in connection with the deprivation was

constitutionally deficient. See Simmerman v. Corino, 27 F.3d 58, 64 (3d Cir. 1994).

While Kelerchian acknowledges he is not entitled to a hearing under Section 925(c) and

does not now seek one, he nevertheless seeks declarative and injunctive relief because he was not

provided an evidentiary hearing pursuant to Section 923(f)(2). Yet, Section 923(f)(2) bears only

on license applications that have been denied by the Attorney General. Since Kelerchian’s

license was revoked under Section 922(g), not Section 923(f)(2), and there is no decision on his

application at all, he is not owed protections pursuant to Section 923(f)(2), including a

deprivation hearing. See e.g., Doe I v. Evanchick, 355 F. Supp.3d 197, 220-21 (E.D. Pa. 2019),

aff’d sub nom. Doe I v. Governor of Pennsylvania, 977 F.3d 270 (3d Cir. 2020) (quoting prior

Third Circuit and district court opinions that a hearing is not required when it would have no

bearing on whether an individual “is subject to the disability imposed by § 922(g).”); see also

e.g., United States v. Hart, 359 F. Supp. 835, 836, 839 (D. Del. 1973) (“The procedural

requirement for a hearing in the event of revocation of an existing license is inapplicable since

Hart’s license had expired [pursuant to a similar provision of the Gun Control Act following his

federal conviction.]”). As such, Kelerchian’s reliance on Section 923(f)(2) is misplaced and his

8 See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment

prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from

depriving any person of property without ‘due process of law.’”).

Fifth Amendment claim cannot be premised on that provision.

E. First Amendment

Finally, Plaintiff avers his First Amendment rights are violated because he is unable to

meaningfully petition the government for redress of his grievance. “[T]he right[] . . . to petition

[the government] for a redress of grievances [is] among the most precious of the liberties

safeguarded by the Bill of Rights.” United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n,

389 U.S. 217, 222 (1967). “[T]he Petition Clause [of the First Amendment] protects the right of

individuals to appeal to courts and other forums established by the government for resolution of

legal disputes.” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387 (2011); U.S. Const.

amend. I; see also e.g., Mirabella v. Villard, 853 F.3d 641, 653 (3d Cir. 2017) (citing United

States v. Cruikshank, 92 U.S. 542, 552 (1875)). Yet, “the right to petition is not ‘[u]nrestrained’

or ‘absolute’.” Mirabella, 853 F.3d at 654 (citing Guarnieri, 564 U.S. at 390 & McDonald v.

Smith, 472 U.S. 479, 484 (1985)). The Petition Clause does not guarantee a remedy and

“[n]othing in the First Amendment or in [the Supreme Court’s] case law interpreting it suggests

that the rights to speak, associate, and petition require government policymakers to listen or

respond to individuals’ communications on public issues.” Minn. State Bd. for Cmty. Colleges v.

Knight, 465 U.S. 271, 285 (1984); see also e.g., Am. Bus Ass’n v. Rogoff, 649 F.3d 734, 739

(D.C. Cir. 2011) (“Far from holding that the Petition Clause requires the possibility of a remedy,

. . . the clause does not even ‘guarantee[ ] a citizen’s right to receive a government response to or

official consideration of a petition for redress of grievances.’”). In short, Kelerchian may

petition ATF or the courts, but ATF and the courts need not “listen or respond”. Kerchner v.

Obama, 612 F.3d 204, 209 (3d Cir. 2010) (citing Knight, 465 U.S. at 285).

Kelerchian goes on to argue that because ATF fails to act on or investigate his Section

925(c) application pursuant to the Appropriations Ban, thereby violating his First Amendment

rights, the Appropriations Ban itself is unconstitutional. The constitutionality of the

Appropriations Ban has been upheld on multiple occasions9 and the Supreme Court has

specifically upheld laws and regulations depriving felons from possessing firearms. See e.g.,

Bean, 537 U.S. at 75-76; see also District of Columbia v. Heller, 554 U.S. 570, 626-27, 627 n.26

(2008) (clarifying that “nothing in our opinion should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons” which the Court deemed to be a

“presumptively lawful regulatory measure[.]”).

Accordingly, Kelerchian fails to state a claim under the First Amendment and as such it

will be dismissed.10

CONCLUSION

For the foregoing reasons, Defendants’ Motion shall be granted, and Plaintiff’s Amended

Complaint shall be dismissed with prejudice.

An appropriate order follows.

BY THE COURT:

/s/Wendy Beetlestone, J.

___________________________

WENDY BEETLESTONE, J.

9 See supra note 4.

10 Lastly, Kelerchian claims that the “rule of lenity” applies if there is any question of ambiguity in the language of

Section 925(c). “T[his] rule applies primarily to the interpretation of criminal statutes . . . [but,] can apply when a

statute with criminal sanctions is applied in a noncriminal context.” Kasten v. Saint-Gobain Performance Plastics

Corp., 563 U.S. 1, 16 (2011). Here, as in Kasten, however, there is no ambiguity in the language of Section 925(c)

or the Appropriations Ban and, as such, the “rule of lenity” does not apply. Id.; Pontarelli, 285 F.3d at 226 (stating

Section 925(c)’s “statutory text[] [is] clear.”); see also e.g., Bean, 537 U.S. at 75-76 (accord); McHugh, 220 F.3d at

59 (“The statutory scheme set forth in Section 925(c) . . . [is] not only ‘fairly discernible’ but abundantly clear

. . . .”); Burtch, 120 F.3d at 1090 (“[Section 925(c)] is clear on its face[.]”).