Petitioners Brief — United States v. Bean

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No. 01-704 APRS Oe

In the Supreme Court of the Uutited States

UNITED STATES OF AMERICA, ET AL., PETITIONERS

THOMAS LAMAR BEAN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

MARK B. STERN

THOMAS M. BONDY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Under federal law, a person who is convicted of a

felony is prohibited from possessing firearms. The

Secretary of the Treasury, acting through the Bureau

of Alcohol, Tobacco, and Firearms (ATF), may grant

relief from that prohibition if it is established to his

satisfaction that certain preconditions are established.

See 18 U.S.C. 925(c). Since 1992, however, every

appropriations law for ATF has specified that ATF may

not expend any appropriated funds to act upon appli-

cations for such relief. The question presented is:

Whether, despite the appropriations provision bar-

ring ATF from acting on applications from relief from

firearms disabilities, a federal district court has author-

ity to grant such relief to a person convicted of a felony.

(I)

TABLE OF CONTENTS

reece eecenemeencnnccsnsenenensesnccnesseseseces

Statutory provisions involved ..........cvsssssvessesesesensseseensnseseseees

re peremrnctennneneanenennensnssenescessenasceneeses

ST Ta incercnineecerianensnenencacensnscneuecccsencscsssanesesceees

A district court does not have authority to grant a

convicted felon relief from federal fierearms dis-

A. ATF’s appropriations law suspends ATF’s

authority to act on applications for relief

from firearms disabilities .............cccscsseseeeeeeeerereres

B. Section 925(c) has never authorized district

courts to remove a convicted felon’s firearms

disabilities based on its own independent

assessment that the preconditions for relief

have been satisfied and relief is warranted ...........

C. The appropriations bar effectively precludes

a court from awarding a convicted felon relief

from firearms disabilities .................0seseseseeeeeeeeees

D. Judicial consideration of applications for relief

from firearms disabilities would defeat the

purposes of the appropriations bar ...............0000+0++:

E. Congress’s restoration of ATF’s authority to

remove the firearms disabilities of corporations

confirms that courts lack authority to remove

the firearms disabilities of individuals .................-..

F. The court of appeals’ reasoning is unper-

ITI sneiateciernesenteincesnenenteesenssncnsnsessmnsenscenescensscsssscscssessasesesess

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Bagdonas v. Department of Treasury, 93 F 3d 422 (7th

GE GID ccerrnessesnsesnsseseenmceerernmeemmmeemmenemmraneness 15

Barrett v. U vited States, 423 U.S. 212 (1976) ..........ccc00 10

Bowen v. Yuckert, 482 U.S. 137 (1987) ........cccccccccccseeeeeeeeeee 14

Bradley v. ATF, 736 F.2d 1238 (8th Cir. 1984) ................ 15

Burtch v. United States Dep't of Treasury, 120 F.3d

Oe 10, 14, 17

Camp v. Pitts, 411 U.S. 138 (1978) ............cc.c-csccssessssesseeeees 16

Central Bank of Denver, N.A. v. First Interstate Bank

of Denver, N.A., 511 U.S. 164 (1994) 20.........cccccccsesesesereenees 26

Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402

(1971) = sacecunamnsanentannns 15

Florida Power & Light Co. v. Lorion, 470 U.S. 729

ee munneemenenesinpeens 16

GTE Sylvania, Inc. v. Consumers Union, 445 US.

375 (1980) meme 19

ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S.

270 (1987) suvensnesnnssesssunsmnassmnmmsnessnsussnenssnnssnseuanssnees 15

INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) ...........cc0000 14

Kitchens v. Department of Treasury, 535 F.2d 1197

GREG, CITED cencscssessssnsnnemeesesrereennneeemmsemmenensmmene 3

Lewis v. United States, 445 U.S. 55 (1980) .........cccccccceseseee 10

McHugh v. Rubin, 220 F.3d 53 (2d Cir. 2000) .............. 10, 12,

13, 16, 18, 19, 20

Mullis v. United States, 230 F.3d 215 (6th Cir.

2000) 10, 13-14, 19, 22

OPM v. Richmond, 496 U.S. 414 (1990) 12

Oklahoma Tax Comm'n v. Chicasaw Nation, 515 U.S.

GOED cumin : - 15

Owen v. Magaw, 122 F.3d 1350 (10th Cir. 1997) .... 10, 14, 23

Pontarelli v. United States, No. 00-1268, 2002

WL 480107 (3d Cir. Mar. 29, 2002) 10, 17,

18, 20, 21, 24, 26

Rice v. United States, 68 F.3d 702 (3d Cir. 1995) ............. 10

Cases—Continued: Page

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429

(1DBB) ...2.0-cccecesnsnseeeseresesesesvsnsesnsnsnsnensesensnsnsnsssnsnsasessssssnsssaseses 11,24

Saccacio v. ATF, 211 F.3d 102 (4th Cir. 2000) ............. 10,17

Solid Waste Agency of N. Cook County v. Army Corps

of Engr’s, 531 U.S. 159 (2001) ...sssoosssssssseeeeessseeensnsseeeesen 26

United States v. Atkins, 872 F.2d 94 (4th Cir.),

cert. denied, 493 U.S. 836 (1989) ............csccesesesenenenennenenens 5

United States v. Concha, 233 F.3d 1249 (10th Cir.

eee ee 5

United States v. Dickerson, 310 U.S. 554 (1940) .......... 11, 12,

24, 25

United States v. McGill, 74 F.3d 64 (5th Cir.), cert.

denied, 519 U.S. 821 (1996) .....:..ccscesesnereenenesnensenenenssnenenenes 6

United States v. Mitchell, 109 U.S. 146 (1883) ................ 11

United States v. Will, 449 U.S. 200 (1980) ....... 11, 12, 24, 25

United States v. Winson, 793 F.2d 754 (6th Cir.

I cecencccnnnnsanennsnantsnenneanansenenteeneeeeittaentaneese tte eta NE 5

Your Home Visiting Nurse Servs., Inc. v. Shalala,

TG, CI ccm 18

Constitution, statutes and regulations:

U.S. Const. Art. I, § 9, Cl. 7 (Appropriations Clause) ........ 12

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

5 U.S.C. 551(13) .... sinintisanebinmnsenteenmeiaaneceadetion 18

a 18

OS 3,9

(Cs 18

5 UBC. TRBLEIA) onececcecceccccccesoccccscsscsessesecensensesensesseses 15, 19, 20

Anti-Deficiency Act, 31 U.S.C. 1341 snntnemelene 12

Consolidated Appropriations Act, 2001, Pub. L. No.

106-554, 114 Stat. 27GBA-129 ..........eececereseeesesnenenensnsneneneees 3,11

Federal Firearms Act, Pub. L. No. 89-184, 79 Stat. 788 ... 3

Firearms Owners’ Protection Act, Pub. L. No. 99-308,

|) eT 3

Statutes and regulations—Continued: Page

— and General Government Appropriations

ct:

1998, Pub. L. No. 105-61, 111 Stat. 1277 oo... 3,11

1999, Pub. L. No. 105-277, 112 Stat. 2681-485 ............ 3,11

2000, Pub. L. No. 106-58, 113 Stat. 4340 .o...ccccccccsseeeen 3,11

2002, Pub. L. No. 107-67, 115 Stat. 519 00... 3,11

Treasury, Postal Service, and General Government

Appropriations Act:

1993, Pub. L. No. 102-393, 106 Stat. 1782 ..eccc0-- 3,11

1994, Pub. L. No. 103-123, 107 Stat. 1228 0.0... 4,11

1995, Pub. L. No. 103-329, 108 Stat. 2385. .........cce00 4,11

1996, Pub. L. No. 104-52, 109 Stat. 471 ooo... cece 4,11

1997, Pub. L. No. 104-208, 110 Stat. 3009-319 ............ 3,11

TIED ctpsicnieesicnatesiisieninbiiencstadaieniannninitienpsaiimriaaes 2,5, 10

| Aa ee a eae

I ia a

27 C.F.R.:

ee 5

TTL TR a Aa 2

OUI eccrccntccssssssneensnntnomninitenenenensitanesiimminiatans 2,14

Miscellaneous:

138 Cong. Rec. (1992):

Bs Ge ccreinstennescerremnesenneccnssecnnennsessenenememnntacestcaesanmatseatiaeataazanass 26

Dh, SEINE? cnsessnsecossennenesnenentnisenenenemninenmanatssentngtiampainatmssssasasaaas 13

ee 13

243 Cong. Rec. £7,006 (1906) ..n...cceccessccsccscessesscsscesenscsscsssseees 23

H.R. Rep. No. 708, 89th Cong., Ist Sess. (1965) 0... 3

H.R. Rep. No. 618, 102d Cong., 2d Sess. (1992) ....c.c.c0... 13

H.R. Rep. No. 183, 104th Cong., Ist Sess. (1995) .............. 4,13

S. Rep. No. 583, 98th Cong., 2d Sess. (1984) ................ 3, 15, 20

S. Rep. No. 353, 102d Cong., 2d Sess. (1992) ................ 4, 13, 21

Webster's Third New International Dictionary

(3d ed. 1993) sunseeneaseinsbhteemmnsnectemassatisiaiemassnsaass 18

In the Supreme Court of the Anited States

No. 01-704

UNITED STATES OF AMERICA, ET AL., PETITIONERS:

THOMAS LAMAR BEAN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-11a)

is reported at 253 F.3d 234. The opinion of the district

court (Pet. App. 12a-38a) is reported at 89 F. Supp. 2d

828.

JURISDICTION

The judgment of the court of appeals was entered on

June 20, 2001. A petition for rehearing was denied on

August 21, 2001 (Pet. App. 39a-40a). The petition for a

writ of certiorari was filed on November 19, 2001, and

was granted on January 22, 2002. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

The pertinent statutory provisions—18 US.C.

922(g)(1) and Section 925(c), and the applicable appro-

priations statutes—appear at Pet. App. 4la-43a.

STATEMENT

1. Under federal law, it is unlawful for any person

convicted of a felony to ship or transport any firearm or

ammunition in interstate or foreign commerce, to

possess any firearm or ammunition in or affecting com-

merce, or to receive any firearm or ammunition that has

been shipped or transported in commerce. 18 U.S.C.

922(g)(1). A convicted felon may apply to the Secretary

of the Treasury for relief from the disabilities imposed

by that prohibition. 18 U.S.C. 925(c). The Secretary

“may grant such relief if it is established to his satisfac-

tion 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 dan-

gerous to public safety and that the granting of the

relief would not be contrary to the public interest.”

Ibid. The Secretary has delegated his authority to act

on applications for relief to the Director of the Bureau

of Alcohol, Tobacco, and Firearms (ATF). 27 C.F.R.

178.144(b) and (d). Whenever the Secretary grants

relief to any person pursuant to that provision, “he shall

promptly publish in the Federal Register notice of such

action, together with the reasons therefor.” 18 U.S.C.

925(c).

A person whose application for relief is “denied” by

the Secretary may file a petition with the federal

district court for the district in which he resides “for a

judicial review of such denial.” 18 U.S.C. 925(c). The

court may “admit additional evidence where failure to

do so would result in a miscarriage of justice.” bid.

The scope of judicial review in such an action is gov-

erned he Administrative Procedure Act (APA),

5 U.S.C. 706. See S. Rep. No. 583, 98th Cong., 2d Sess.

27 (1984).'

“— 1908, the annual appropriations law for ATF

provided 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. 925(c).” Treasury, Postal Service, and General

Government Appropriations Act, 1993, Pub. L. No. 102-

393, 106 Stat. 1732. In each subsequent year, Congress

has permitted the use of appropriated funds to process

applications for relief filed by corporations, but it has

retained the bar on the use of appropriated funds to

process applications for relief filed by individuals.

Protection Act, Pub. L. No. 99-308, 100 Stat. 449. A decade before

Congress added the judicial review provision, the Ninth Circuit

had held that an applicant for relief could obtain judicial review

under the APA of a denial of an application. Kitchens v. Depart-

ment of Treasury, 535 F.2d 1197, 1199-1200 (1976).

2 Treasury and General Government Appropriations Act, 2002,

Pub. L. No. 107-67, 115 Stat. 519; Consolidated Appropriations Act,

2001, Pub. L. No. 106-554, 114 Stat. 2763A-129; Treasury and Gen-

eral Government Appropriations Act, 2000, Pub. L. No. 106-58, 113

Stat. 434; Treasury and General Government Appropriations Act,

1999, Pub. L. No. 105-277, 112 Stat. 2681-485; Treasury and Gen-

eral Government Appropriations Act, 1998, Pub. L. No. 105-61, 111

Stat. 1277; Treasury, Postal Service, and Genera! Government

Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 309-319;

The Senate Report accompanying the first appropria-

tions law explained the purposes of the bar:

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. 353, 102d Cong., 2d Sess. 19-20 (1992).

The House Report accompanying the fourth appro-

priations law reiterated those reasons for the ban:

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. 183, 104th Cong., Ist Sess. 15 (1995).

Treasury, Postal Service, and General Government Appropriations

Act, 1996, Pub. L. No. 104-52, 109 Stat. 471; Treasury, Postal Ser-

vice, and General Government Appropriations Act, 1995, Pub. L.

No. 103-329, 108 Stat. 2385; Treasury, Postal Service, and General

Government Appropriations Act, 1994, Pub. L. No. 103-123, 107

Stat. 1228.

2. In March 1998, respondent and three associates

attended a gun show in Laredo, Texas. Pet. App. 12a.

After the show, respondent and his associates drove

respondent’s car to Nuevo Laredo, Mexico. /d. at 12a-

13a. Mexican officials stopped the car at the port of

entry and discovered approximately two hundred

rounds of ammunition in the back of the car. Jd. at 13a.

Respondent admitted ownership of the car and the

ammunition, but asserted that the ammunition had

been inadvertently left in the car. /bid. Respondent

was convicted of importing ammunition into Mexico and

sentenced to five years’ imprisonment. /bid.

After spending four months in a Mexican jail, respon-

dent was transferred to the La Tuna Penitentiary in

the United States, where he spent another month

before being released. Pet. App. 13a. Respondent was

then placed on supervised release under the jurisdiction

of the United States District Court for the Eastern

District of Texas. The district court terminated super-

vision of respondent approximately ten months later, on

August 30, 1999. Jd. at 14a.

By virtue of his felony conviction in Mexico, respon-

dent was prohibited by 18 U.S.C. 922(g)(1) from pos-

sessing, distributing, or receiving firearms or ammuni-

tion. 27 C.F.R. 178.11 (“crime punishable” definition).°

3 There is a conflict in the circuits on whether a foreign con-

viction triggers firearms disabilities. Compare United States v.

Atkins, 872 F.2d 94 (4th Cir.) (foreign conviction triggers firearms

disabilities), cert. denied, 493 U.S. 836 (1989), and United States v.

Winson, 793 F.2d 754 (6th Cir. 1986) (same), with United States v.

Concha, 233 F.3d 1249 (10th Cir. 2000) (foreign conviction does not

trigger firearms disabilities). In this case, however, respondent

conceded (C.A. Br. 18) that his conviction in Mexico triggered fire-

arms disabilities under 18 U.S.C. 922(g)(1), and the court of appeals

Respondent applied to ATF for relief from his firearms

disabilities. Pet. App. 15a. ATF informed respondent

that it could not act on his application because ATF’s

annual appropriations law forbids it from expending

any funds to investigate or act upon applications for

relief from federal firearms disabilities. J.A. 33-34.

Respondent then filed suit in the United States

District Court for the Eastern District of Texas. Pet.

App. 12a. Relying on the judicial review provision in

Section 925(c), respondent asked the district court to

conduct its own inquiry into his fitness to possess a gun,

and to issue a judicial order granting relief from his

firearms disabilities. J.A. 8-15. Respondent attached

various affidavits from persons attesting to his fitness

to possess firearms. J.A. 16-26.

In reliance on the Fifth Circuit’s decision in United

States v. McGill, 74 F.3d 64, cert. denied, 519 U.S. 821

(1996), the government moved to dismiss respondent’s

complaint. Mot. To Dismiss at 2-3. In McGill, the Fifth

Circuit held that the appropriations bar prevents ATF

from acting on applications for relief from firearms

disabilities and that a district court has no authority to

consider an application for relief in the first instance.

74 F.3d at 67.

The district court denied the government’s motion to

dismiss. Pet. App. 12a-38a. The district court con-

cluded that McGill had been incorrectly decided and

declined to follow it. Jd. at 18a-29a. Specifically, the

court concluded that, while the appropriations law pre-

vents ATF from acting on applications for relief from

firearms disabilities, a court retains authority to grant

such relief. Id. at 24a. The court also concluded that

did not address that issue. Pet. App. lla. That question is there-

fore not presented here. See Gov’t Reply Pet. 1-5.

ATF’s failure to act on respondent’s application consti-

tuted an effective denial of his application that was

subject to judicial review. Jd. at 29a-30a. After a

hearing, the court determined that respondent was not

likely to act in a manner dangerous to public safety and

that granting relief from firearms disabilities to him

would not be contrary to the public interest. /d. at 34a-

36a. The court then entered a judgment granting

respondent relief from his firearms disabilities. /d. at

37a-38a.

3. The court of appeals affirmed. Pet. App. la-1la.

The court acknowledged that it had held in McGill that

the annual appropriations laws “reflected an intent to

suspend the relief provided to individuals by § 925(c).”

Id. at 4a. The court nonetheless refused to follow that

decision.

The court noted that the McGill court had relied on

the principle that Congress may amend substantive law

through an appropriations statute. Pet. App. 6a-7a. In

the court of appeals’ view, the decisions of this Court

supporting that principle are limited to the repeal of

“financial right({s].” Jd. at 7a-8a. As a ground for

departing from its earlier decision in McGill, the court

also noted that “we have a critical additional factor, the

intervening passage of time and the resulting reality of

the effective non-temporary ‘suspension’ of statutorily

created rights.” Jd. at 9a. The court also deemed it

significant that Congress had refused to enact a bill

that would have eliminated the relief provision. Jd. at

5a-6a. Based on those considerations, the court held

that it “must now conclude that merely refusing to

allow the agency responsible for facilitating those

rights to use appropriated funds to do its job under the

statute is not the requisite direct and definite

suspension or repeal of the subject rights.” Jd. at 9a.

The court further held that when ATF notified respon-

dent that it would not act on his application, respon-

dent’s “administrative remedies de facto were ex-

hausted,” and “the trial court had jurisdiction to enter-

tain this appeal.” /bid. Finally, the court held that the

district court “did not err as a matter of law” in grant-

_ _——— relief from his firearms disabilities. Jd.

at lla.

SUMMARY OF ARGUMENT

As six courts of appeals have held, a district court

does not have authority to grant a convicted felon relief

from his firearms disabilities. The court of appeals in

this case erred in holding otherwise.

Section 925(c) authorizes the Secretary of the Trea-

sury, through ATF, to grant a convicted felon’s appli-

cation for relief from firearms disabilities when it is

established to the Secretary’s satisfaction that the

preconditions for relief have been satisfied. However,

in every annual appropriations law since 1992, Congress

has expressly prohibited ATF from expending any

appropriated funds to investigate or act upon requests

for relief from firearms disabilities. That appropria-

tions bar suspends ATF’s authority to grant relief from

firearms disabilities. The reasons underlying that pro-

hibition are clear: Congress determined that rearming

convicted felons creates an unwarranted danger to the

public, and that taxpayer funds and government

resources should not be devoted to an inquiry so

fraught with danger.

In disabling ATF from acting, Congress did not

empower district courts to assume the agency’s role. A

district court’s sole authority under Section 925(c) is to

review an ATF denial of relief to determine whether it

Benton See al

wer Omen

is arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law. See 5 U.S.C. 706.

Section 925(c) has never given district courts authority

to remove a convicted felon’s firearms disabilities based

on its own independent assessment that the precondi-

tions for relief have been satisfied and that the

applicant warrants a favorable exercise of discretion.

Moreover, the appropriations bar effectively pre-

cludes a judicial award of relief from firearms disabili-

ties. An essential predicate for judicial review under

Section 925(c) is an ATF “denial” of relief. Because the

appropriations bar prevents ATF from acting on

applications for relief, ATF may neither grant nor deny

such an application. Without an ATF “denial,” a court

has no authority to act under Section 925(c).

Even if ATF’s failure to act on an application trig-

gered judicial review under Section 925(c), that would

simply lead to a consideration of whether ATF’s failure

to act on the application was arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law. ATF’s compliance with a statutory directive not to

use its resources to process applications for relief is

none of those things.

Allowing district courts to grant relief from firearms

disabilities to convicted felons would also create the

very dangers that Congress sought to avert by impos-

ing a bar on the use of appropriated funds by ATF.

District courts are not in a position to undertake the

sort of investigations that would be required to deter-

mine whether an applicant’s firearms disabilities should

be removed, and they have no greater ability than ATF

to ensure that felons who have their firearms privileges

restored will not pose an unacceptable risk to the

public.

ARGUMENT

A DISTRICT COURT DOES NOT HAVE AUTHORITY

TO GRANT A CONVICTED FELON RELIEF FROM

FEDERAL FIREARMS DISABILITIES

The Fifth Circuit in this case held that a district

court has authority to grant relief from federal firearms

disabilities to persons who have been convicted of a

felony. That holding is incorrect. As six courts of

appeals have concluded, ATF’s annual appropriations

law prevents ATF from acting on applications for such

relief, and a district court does not have authority to

assume the responsibility that Congress removed from

ATF. Pontarelli v. United States, No. 00-1268, 2002

WL 480107, at *6 (8d Cir. Mar. 29, 2002) (en banc)

(overruling Rice v. United States, 68 F.3d 702 (3d Cir.

1995)); Mullis v. United States, 230 F.3d 215, 219-221

(6th Cir. 2000); McHugh v. Rubin, 220 F.3d 538, 57-61

(2d Cir. 2000); Saccacio v. ATF, 211 F.3d 102, 104-105

(4th Cir. 2000); Owen v. Magaw, 122 F.3d 1350, 1353- —

1354 (10th Cir. 1997); Burtch v. United States Dep’t of

the Treasury, 120 F.3d 1087, 1090 (9th Cir. 1997).

A. ATF’s Appropriations Law Suspends ATF’s Author-

ity To Act On Applications For Relief From Firearms

Disabilities

Section 922(g)(1) of Title 18 makes it unlawful for any

person convicted of a felony to transport, possess, or

receive firearms or ammunition. Congress’s purpose in

enacting that provision was “broadly to keep firearms

away from the persons Congress classified as poten-

tially irresponsible and dangerous.” Barrett v. United

States, 423 U.S. 212, 218 (1976). Congress’s constitu-

tional authority to enact that prohibition is well estab-

lished. See Lewis v. United States, 445 U.S. 55, 65-66 &

n.8 (1980).

In 18 U.S.C. 925(c), Congress authorized the Secre-

tary of the Treasury, acting through ATF, to grant

convicted felons relief from their firearms disabilities

when “it is established to his satisfaction that the cir-

cumstances 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.” In every ATF appro-

priations statute passed since 1992, however, Congress

has provided 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. 925(c).” 106 Stat. 1732; 107 Stat. 1228;

108 Stat. 2385; 109 Stat. 471; 110 Stat. 3009-319; 111

Stat. 1277; 112 Stat. 2681-485; 113 Stat. 434; 114 Stat.

2763A-129; 115 Stat. 519. That appropriations bar has

the effect of suspending the Secretary’s authority

under Section 925(c) to grant to convicted felons relief

from their firearms disabilities.

This Court has repeatedly held that Congress has

authority under the Constitution to suspend or repeal

substantive law through the enactment of an appropria-

tions law. Robertson v. Seattle Audubon Soc’y, 503

U.S. 429, 440 (1992); United States v. Will, 449 U.S. 200,

222 (1980); United States v. Dickerson, 310 U.S. 554,

555 (1940); United States v. Mitchell, 109 U.S. 146, 150

(1883). In Robertson, the Court explained that “al-

though repeals by implication are especially disfavored

in the appropriations context, * * * Congress none-

theless may amend substantive law in an appropria-

tions statute, as long as it does so clearly.” 503 U.S. at

440. Similarly in Will, the Court stated that “when

Congress desires to suspend or repeal a statute in force,

‘there can be no doubt that * * * it could accomplish

its purpose by an amendment to an appropriation bill,

or otherwise.’” 449 U.S. at 222. “The whole question

depends on the intention of Congress as expressed in

the statutes.” Jbid.

Congress could not have expressed more clearly its

intent to suspend ATF’s authority to grant relief from

firearms disabilities under 18 U.S.C. 925(c). The

appropriations bar expressly prevents ATF from using

appropriated funds to investigate or act on applications

from relief. 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 grant nor deny applications

falling within the scope of the funding restriction.”

McHugh, 220 F.3d at 58.*

The legislative history of the appropriations bar

confirms that Congress intended to suspend ATF’s

authority to act on applications for relief from firearms

disabilities. See Dickerson, 310 U.S. at 561. The legis-

lative history reveals that Congress enacted that prohi-

bition because it concluded that determining whether to

grant relief “is a very difficult and subjective task

which could have devastating consequences for inno-

cent citizens if the wrong decision is made,” and be-

cause it believed that the government’s scarce

resources “would be better utilized to crack down on

‘ ATF may not use fees collected from applicants or any other

source to process applications for relief from firearms disabilities.

Under 31 U.S.C. 3302(b), any funds collected in the form of fees

would have to be deposited in the Treasury, and under the Appro-

priations Clause of the Constitution (Article I, Section 9, Clause 7)

and the Anti-Deficiency Act (31 U.S.C. 1341), money may not be

drawn from the Treasury unless it has been appropriated by an

Act of Congress. See OPM v. Richmond, 496 U.S. 414 (1990).

Gov't Reply Pet. 8.

violent crime.” S. Rep. No. 353, supra, at 19-20. The

bar in each annual appropriations law thus reflects Con-

gress’s considered judgment that “those who commit

felonies should not be allowed to have their right to

own a firearm restored.” H.R. Rep. No. 183, supra, at

15.

Thus, while the relief provision in 18 U.S.C. 925(c)

has not itself been repealed, Congress has deliberately

and unequivocally suspended the Executive’s ability to

implement it. Until such time as Congress removes the

statutory restriction, ATF is legally prohibited from

using its resources to process applications for relief

from firearms disabilities. As the Second Circuit con-

cluded in McHugh, “Congress could not have stated

more clearly that the ATF is prohibited from acting on

applications submitted by individuals pursuant to

§ 925(c).” 220 F.3d at 58. Accord, e.g., Mullis, 230 F.3d

5 See also H.R. Rep. No. 618, 102d Cong., 2d Sess. 14 (1992)

(“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.” The

resources spent on investigations therefore “would be better

utilized by ATF in fighting violent crime.”); 138 Cong. Rec. 24,490

(1992) (Sen. Chafee) (“Dozens of convicted felons who have had

their gun rights reinstated have been rearrested on new charges,

including attempted murder, robbery, and child molestation. * * *

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.”); id. at 24,494 (Sen. Lautenberg)

(“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.”).

at 221; Owen, 122 F.3d at 1353; Burtch, 120 F.3d at

1090.

B. Section 925(c) Has Never Authorized District

Courts To Remove A Convicted Felon’s Firearms

Disabilities Based On Its Own Independent

Assessment That The Preconditions For Relief Have

Been Satisfied And Relief Is Warranted

Congress did not suspend ATF’s authority to provide

relief from firearms disabilities only to have district

courts assume the agency’s role. Prior to its suspen-

sion, Section 925(c) assigned broad discretion to the

Secretary of the Treasury to determine whether a

convicted felon’s application for relief should be

granted: Under Section 925(c), relief from firearms

disabilities could be granted if it was established to the

Secretary’s satisfaction that the statutory preconditions

for relief were satisfied. 18 U.S.C. 925(c). Those pre-

conditions were not only that the applicant would not

be likely to act in a manner dangerous to public safety,

but also that the granting of relief “would not be con-

trary to the public interest.” Jbid. Those preconditions,

moreover, limited the Secretary’s authority to grant

relief, not to deny it. Bowen v. Yuckett, 482 U.S. 137,

148 (1987). Even when the Secretary was satisfied that

the preconditions for relief were met, Section 925(c)

provided only that the Secretary “may” grant relief, not

that he was required to do so, ibid.; accord 27 C.F.R.

178.144(d), and it “impos[e]d no limitations on the

factors that [he] [could] consider in determining who,

among the class of eligible [applicants], should be

granted relief.” Cf. INS v. Yueh-Shaio Yang, 519 U.S.

26, 30 (1996).

Section 925(c) has never assigned any comparable

authority to the district courts. It does not provide that

relief may be granted to a convicted felon when it is

established “to the court’s satisfaction” that the statu-

tory prerequisites for relief have been satisfied. Nor

does it give courts authority to determine what the

“public interest” entails under Section 925(c), to decide

when the granting of relief under that Section would be

consistent with the public interest, or to make policy

judgments concerning who among the class of eligible

persons should be granted relief.

Instead, courts play a far more limited role under

Section 925(c). A 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. 925(c). Under Section 925(c), a dis-

trict court is therefore “a court of review, not one of

first view.” Oklahoma Tax Comm'n v. Chicasaw

Nation, 515 U.S. 450, 457 (1995). Section 925(c), like

other statutory review provisions, incorporates the

standards for judicial review set forth in the Admi-

nistrative Procedure Act, see JCC v. Brotherhood of

Locomotive Engineers, 482 U.S. 270, 282 (1987), includ-

ing the rule that a court ordinarily may set aside agency

action only if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

5 U.S.C. 706(2)(A); see Citizens to Pres. Overton Park,

Inc. v. Volpe, 401 U.S. 402, 413-414 (1971); S. Rep. No.

583, supra, at 26-27; Bagdonas v. Department of Trea-

sury, 93 F.3d 422, 425 (7th Cir. 1996); Bradley v. ATF,

736 F.2d 1238, 1240 (8th Cir. 1984). Under that stan-

dard, a court considers only “whether the [agency’s]

decision was based on a consideration of the relevant

factors and whether there has been a clear error of

judgment.” Overton Park, 401 U.S. at 416. It may not

“substitute its judgment for that of the agency.” /bid.;

see also Florida Power & Light Co. v. Lorion, 470 U.S.

729, 744 (1985) (under the APA, “[t}he reviewing court

is not generally empowered to conduct a de novo

inquiry into the matter being reviewed and to reach its

‘own conclusions based on such an inquiry”). Moreover,

“(ijn applying that standard, the focal point for judicial

review should be the administrative record already in

existence, not some new record made initially in the

reviewing court.” Camp v. Pitts, 411 U.S. 138, 142

(1973).

Thus, from the beginning, Section 925(c) allocated to

the Secretary the authority to decide whether to grant

a convicted felon’s request for relief from firearms

disabilities, and allocated to the courts the more limited

role of determining whether the Secretary’s denials of

relief are arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law. A district

court has never had any freestanding authority under

Section 925(c) to determine independently and in the

first instance that a convicted felon has satisfied the

prerequisites for relief from his firearms disabilities

and should be granted such relief as a matter of dis-

cretion. That division of responsibility between ATF

and the courts reflects Congress’s judgment that

“(aldministrative agencies are far better suited than

are courts to make determinations based on the broad

policy question of what is in the ‘public interest.’”

McHugh, 220 F.3d at 59.

When Congress suspended the Secretary’s authority

under Section 925(c) to grant convicted felons relief

from firearms disabilities, it did not invest district

courts with any new authority. Thus, just as before the

enactment of the annual appropriation statutes, district

courts possess only the authority to determine whether

the Secretary’s exercise of the Secretary’s discretion

oe ~ ae en renee

- ————

ee .

————————

respecting an application for relief is arbitrary, capri-

cious, an abuse of discretion, or otherwise not in accor-

dance with law. They have no authority to construct a

record from scratch and to assess independently

whether the preconditions for relief from firearms

disabilities have been satisfied—much less to decide, if

the preconditions for relief have been satisfied, whether

to grant relief as a matter of discretion. In exercising

that authority in this case, the district court assumed a

role that courts have never had under Section 925(c).

C. The Appropriations Bar Effectively Precludes A

Court From Awarding A Convicted Felon Relief

From Firearms Disabilities

1. The appropriations bar not only precludes ATF

from “investigat{ing] and act[ing] upon” an application

for relief; it also effectively precludes a court from

entering a judgment that relieves a convicted felon of

his firearms disabilities. Judicial review is available

under Section 925(c) only when ATF issues a “denial” of

an application. In the context of Section 925(c), the

meaning of a “denial” is “an adverse determination on

the merits.” Burtch, 120 F.3d at 1090; Saccacio, 211

F.3d at 104; Pontarelli, 2002 WL 480107, at *7.

Because of the appropriations law, ATF no longer has

authority to “deny” applications for relief under Section

925(c). Indeed, the appropriations law forbids ATF

from taking any action on applications for relief: it may

neither grant nor deny them. The appropriations law

therefore not only suspends ATF’s authority to act on

applications for relief, it simultaneously removes any

basis for obtaining the essential predicate for judicial

review—an ATF “denial” of an application. Without an

ATF denial, there is no role for the judiciary to play

under Section 925(c).

That barrier to judicial action under Section 925(c)

may not be circumvented by characterizing ATF’s fail-

ure to act on an application as a “denial” of relief. The

APA expressly distinguishes between agency action

that takes the form of a “denial” of “relief” and agency

action that takes the form of a “failure to act.” 5 U.S.C.

551(13). Because Section 925(c) authorizes judicial

review only when there has been an ATF denial of

relief, and not when there has been a failure to act,

“(t]he federal district courts are no more empowered

(under Section 925(c)] than is the ATF to review

individuals’ applications for relief from federal firearms

disabilities.” McHugh, 220 F.3d at 59; see Pontarelli,

2002 WL 480107, at *7 (“an inability to grant a request

is not commonly understood to constitute a ‘denial’”);

Webster’s Third New International Dictionary 602 (3d

ed. 1993) (defining “denial” as a “refusal to grant, assent

to, or sanction,” or a “rejection of something requested,

claimed, or felt to be due”). Cf. Your Home Visiting

Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 453 (1999)

(declining to equate a “refusal to make a determina-

tion,” with a “final determination”).

The APA does generally authorize judicial review of

final agency action that takes the form of a “failure to

act” when there is no other adequate remedy in a court.

5 U.S.C. 551(13), 704. But respondent sought judicial

review under Section 925(c), not under the provision of

the APA authorizing review of an agency’s failure to

ac.. Respondent’s decision not to seek review of ATF’s

failure to act under the APA is understandable. The

remedy for an impermissible failure to act is a judicial

order “compell{ing] agency action,” not de novo judicial

action as respondent sought. 5 U.S.C. 706(1). More-

over, the APA authorizes relief for a failure to act only

when agency action is “unlawfully withheld or unrea-

sonably delayed.” Jbid. “Given Congress’s explicit

instruction that the ATF should not spend any appro-

priated funds to process applications for the removal of

firearm disabilities, [an applicant] could hardly argue

that the ATF has acted unlawfully or unreasonably

in failing to process his application.” Mullis, 230 F.3d

at 219; ef. GTE Sylvania, Inc. v. Consumers Union,

445 U.S. 375, 386 (1980) (agency documents are not “im-

properly withheld” within the meaning of the Freedom

of Information Act when the agency has been subject to

a district court injunction barring disclosure).

2. Even if ATF’s failure to act on an application

were treated as a “denial” of relief, that would simply

lead to an inquiry into whether the “denial” was “arbi-

trary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. 706(2)(A).

“ATF’s decision to comply with a congressional direc-

tive cannot be said to meet this standard.” McHugh,

220 F.3d at 61. To the contrary, if ATF had proceeded

to decide respondent’s application on the merits, it

would have violated its duty to act “in accordance with

law.” Thus, if a court had authority to review ATF’s

failure to act on an application for relief from firearms

disabilities under Section 925(c), the court would be

required to sustain ATF’s refusal to act on the ground

that the refusal was required by the applicable appro-

priations law. A court could not condemn ATF’s failure

to act as unlawful, much less make its own independent

determination that an applicant should be relieved of

his firearms disabilities.

3. The district court’s limited authority under Sec-

tion 925(c) to “admit additional evidence where failure

to do so would result in a miscarriage of justice” does

not detract from that conclusion. The authority to

admit “additional” evidence assumes that there is al-

ready evidence in an administrative record compiled by

the agency, and thus merely permits a district court “to

supplement the record,” not “to create the record in the

first place.” Pontarelli, 2002 WL 480107, at *6. The

appropriations laws, however, bar the agency from

conducting the “investigat[ion]” necessary to develop

the evidence for an administrative record. Moreover, a

court’s authority to admit “additional” evidence may be

exercised only when the failure to do so would result “in

a miscarriage of justice.” That constraint on the

admission of evidence further “suggests that the initial

adjudication of applications is limited to the Secretary

of the Treasury.” McHugh, 220 F.3d at 59.

In any event, the authority to admit additional evi-

dence exists as a component of a statutory scheme that

makes an ATF “denial” of relief a precondition to judi-

cial review, and limits judicial authority to determining

whether such a denial is arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.

5 U.S.C. 706(2)(A). Thus, the district court’s authority

to admit “additional” evidence may be exercised only in

connection with judicial review of an ATF “denial,” and

then only for the purpose of assisting the court in

deciding whether such a denial is arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law. A court may not use that authority to build a

record from scratch for the purpose of determining

independently whether an application for relief should

be granted. See S. Rep. No. 583, 98th Cong., 2d Sess. 27

(1984) (stating that in a case calling for the admission of

additional evidence, “the court might in its discretion

request the presence of an agent representing the

Secretary, and stay the action for a suitable time to

permit the Secretary to review his finding in light of

—_— aa o-—. ....

the additional evidence. It would then proceed if that

evidence did not alter the Secretary’s determination.”).

D. Judicial Consideration Of Applications For Relief

From Firearms Disabilities Would Defeat The Pur-

poses Of The Appropriations Bar

A court’s assumption of authority to grant convicted

felons relief from their firearms disabilities would also

be inconsistent with Congress’s reasons for suspending

ATF’s authority. Congress barred ATF from granting

such relief because it believed that ATF could easily

make mistakes that could have terrible consequences

for innocent members of the public and because it

believed that taxpayer money should not be spent on a

task that is so fraught with danger. See pp. 4, 12-13 &

note 5, supra. Those concerns are not diminished by

shifting responsibility for decisions from ATF to federal

district courts.

Before making a decision on whether to grant a

convicted felon relief from firearms disabilities, ATF

conducted a thorough investigation. It interviewed the

applicant, his references, probation officer, employers,

neighbors, and friends. Pontarelli, 2002 WL 480107, at

*11. Indeed, before Congress enacted the funding

restriction in 1992, ATF spent “approximately 40 man-

years” annually to investigate and act upon applications

filed pursuant to Section 925(c). S. Rep. No. 353, supra,

at 19-20. Notwithstanding that intensive effort, Con-

gress feared that there was still too great a risk that

ATF would mistakenly remove firearms disabilities

from persons who would pose a danger to the public.

There is no reason to expect that judicial proceedings

could reduce that risk. If anything, judicial proceedings

would be less suited to guard against the risk that

mistakes will be made, with potentially devastating

consequences. As the Sixth Circuit explained in Mullis,

“fwlhile district courts are well equipped to make

credibility judgments and factual determinations, they

are without the tools necessary to conduct a systematic

inquiry into an applicant’s background.” 230 F.3d at

219. Rather than conducting a thorough background

investigation, a district court must necessarily rely

largely on the information that the parties furnish. The

applicant would typically supply the district court “only

with contacts who will supply positive information

concerning the applicant’s record and reputation.” bid.

At the same time, the appropriations law prevents ATF

from conducting an investigation that could counter the

evidence that the applicant presents. As a consequence,

“the court would only be able to conduct a very one

sided inquiry, relying largely on letters of recommenda-

tion and testimony from individuals hand selected by an

applicant.” Jd. at 219-220. That process is particularly

ill-suited to protecting the public from the dangers that

Congress sought to avert. At the very least, it would

not provide any greater protection against the risks

associated with granting relief than the ATF investi-

gations that Congress deemed inadequate.

Nor would shifting responsibility from ATF to the

courts allay Congress’s concern that continued pro-

cessing of applications for relief from firearms dis-

abilities consumes taxpayer money and diverts govern-

ment resources that would be better spent on law

enforcement. In the context of the 1996 version of the

appropriations bar, Senator Simon, a sponsor of the

original appropriations bar, made that very point. He

explained that, if courts assumed ATF’s role in pro-

cessing applications for relief, “[iJnstead of wasting

—-—

—.

taxpayer money and the time of ATF agents, which

could be much better spent on important law enforce-

ment efforts * * *, we would now be wasting court

resources and distracting the courts from consideration

of serious criminal cases.” 142 Cong. Rec. 27,066 (1996).

He further emphasized that the goal of the appropria-

tions bar “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.” /bid.

Thus, a court’s assumption of authority to provide

relief from firearms disabilities cannot be reconciled

with Congress’s decision to suspend ATF’s authority to

grant such relief. As the Tenth Circuit concluded in

Owen, “[t]o infer that Congress intended to transfer

this important and subjective task to the courts simply

flies in the face of Congress’ statements.” 122 F.3d at

1354.

E. Congress’s Restoration Of ATF’s Authority To

Remove The Firearms Disabilities Of Corporations

Confirms That Courts Lack Authority To Remove

The Firearms Disabilities Of Individuals

The history of Congress’s funding for investigating

and acting upon corporate applications for relief from

firearms disabilities confirms that courts do not have

authority to act upon applications for relief filed by

individuals. The initial appropriations bar prohibited

ATF from investigating or acting upon any applications

for relief from firearms disabilities. In the very next

annual appropriations law, Congress provided funding

for ATF to investigate and act upon applications filed

by corporations, but continued to withhold funding for

investigating or acting upon applications filed by indivi-

duals. Every subsequent appropriation has maintained

that distinction. See p.3 & note 2, supra.

If the original appropriations bar had simply shifted

responsibility for processing applications from ATF to

the courts, there would have been no reason for Con-

gress to restore ATF’s authority to investigate and act

upon applications for relief filed by corporations. The

only explanation for that restoration of authority is that

Congress intended for corporations, but not individuals,

to have the opportunity to have their firearms privi-

leges restored. Pontarelli, 2002 WL 481017, at *7.

F. The Court Of Appeals’ Reasoning Is Unpersuasive

The Fifth Circuit gave several reasons for concluding

that a court has authority to grant convicted felons

relief from their firearms disabilities. None is persua-

sive.

1. While acknowledging that cases such as Will and

Dickerson establish that Congress may suspend the

operation of a federal statute through an appropriations

law, the court of appeals sought to distinguish those

cases on the ground that they involved the repeal of

“financial” rights. Pet. App. 7a-8a. But those cases an-

nounced a categorical rule that Congress may suspend

the operations of a statute through an appropriations

law. Will, 449 U.S. at 222; Dickerson, 310 U.S. at 555.

They did not purport to limit that principle to appro-

priations laws that affect financial rights. Jbid. More-

over, in, Robertson, the Court applied the principle that

Congress may suspend or amend a statute through an

appropriations law in a context that did not involve

financial rights. In that case, the Court held that a

provision in an appropriations law effectively amended

a federal environmental statute. Robertson, 503 U.S. at

440. There is therefore no basis for the court of appeals’

view that Congress may only affect financial rights

through an appropriations bill.

2. The Fifth Circuit deemed it significant that Con-

gress had reenacted the ATF appropriations bar

several times, “with the resulting reality of the effec-

tive non-temporary suspension of statutorily created

rights.” Pet. App. 9a. Under this Court’s controlling

precedents, however, the question whether the

operation of substantive law is suspended by passage of

an appropriations law is one of legislative intent. Will,

449 U.S. at 222; see pp. 11-12, supra. Here, it is abun-

dantly clear that Congress intended through each

annual appropriations law to suspend the operation of

Section 925(c). The number of appropriations statutes

does nothing to detract from that inference. To the

contrary, the accumulation of the appropriations bars

only makes congressional intent to suspend the opera-

tion of Section 925(c) all the more emphatic. See

Dickerson, 310 U.S. at 561.

Moreover, under Section 925(c), convicted felons

have never had a “right[]” (Pet. App. 9a) to have their

firearms disabilities removed. Instead, prior to its

suspension, Section 925(c) granted to the Secretary a

discretionary power to lift the firearms bar, and to do

so only if it was established, to the Secretary’s satisfac-

tion, that an applicant would not be likely to act in a

manner dangerous to public safety and that granting

relief would not be contrary to the public interest.

There is every reason to give full effect to an explicit

statutory restriction on the exercise of such a discre-

tionary authority by an Executive Branch official.

3. The court of appeals also viewed it as significant

(Pet. App. 6a, 9a) that the Congress that enacted the

first of the annual appropriations bars failed to enact

the Stop Arming Felons Act (SAFE), a bill that would

have eliminated the relief provision altogether. See 138

Cong. Rec. 4184 (1992). But failed legislative proposals

are almost always an unreliable basis for discerning

Congress’s intent in enacting a different bill. Central

Bank of Denver, N.A. v. First Interstate Bank of

Denver, N.A., 511 U.S. 164, 167 (1994). “A bill can be

proposed for any number of reasons, and it can be

rejected for just as many others.” Solid Waste Agency

of N. Cook County v. Army Corps of Engineers, 531

U.S. 159, 170 (2001). Congress may well have failed to

pass the SAFE bill because it preferred to address the

merits of permitting felons to apply for removal of

firearms disabilities annually, rather than resolving the

issue on a more permanent basis. Pontarelli, 2002 WL

480107, at *10. Congress may also have been concerned

about the SAFE bill’s provision barring felons con-

victed under state law from possessing firearms even

when the States in which they were convicted restored

their civil rights. bid. The reason that Congress failed

to enact SAFE, however, is ultimately unknowable.

That is why Congress’s intent must be derived from the

laws that Congress enacted, and not from bills that

it did not enact. Here, the laws that Congress has

enacted—Section 925(c) and each annual appropriations

law—reveal that Congress intended to preclude ATF

from granting relief from firearms disabilities, and that

it did not intend for the courts to assume the agency’s

role.

4. Finally, the court of appeals observed that re-

spondent had exhausted his administrative remedies.

See Pet. App. 9a & n.20. However, respondent’s ex-

haustion of administrative remedies simply begs the

question whether, following such exhaustion, the dis-

trict court had authority to determine independently

that respondent was entitled to relief from his firearms

disabilities. As discussed above, the court had no such

authority.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.