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MCHUGH v. RUBIN

April 23, 1999

DENNIS MCHUGH, PLAINTIFF,
v.
ROBERT RUBIN, SECRETARY OF THE DEPARTMENT OF THE TREASURY, AND THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge.

MEMORANDUM AND ORDER

Before the Court is a Motion to Dismiss brought by defendants Robert Rubin ("Rubin"), Secretary of the Department of the Treasury, and the Bureau of Alcohol, Tobacco & Firearms ("ATF") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendants' Motion to Dismiss is denied.

Background

The underlying facts in this case are not disputed. On August 5, 1994, plaintiff John McHugh was convicted in District Court, Suffolk County of misdemeanor domestic violence offenses, to wit, Assault in the Third Degree and Criminal Contempt, after physically assaulting his wife. Plaintiff was sentenced to three years probation, although this period was terminated early because of plaintiff's exemplary conduct.

At the time of his conviction, plaintiff was employed as a New York State Park Police Officer. On December 20, 1996, plaintiff's employer placed him on "in-pay" status and removed him from active duty because his misdemeanor domestic violence conviction rendered him ineligible to carry a firearm pursuant to the 1996 West page 107 amendment to the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. Specifically, section 922(g)(9) provides that "[i]t shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition. . . ." 18 U.S.C. § 922 (g)(9) (1998).*fn1

In response, plaintiff applied for and received a Certificate of Relief from Civil Disabilities from the State of New York on March 20, 1997. This State Certificate entitled plaintiff to relief from "all disabilities and bars to employment, excluding the right to be eligible for public office." Compl. ¶ 13, Ex. A. Notwithstanding this Certificate, plaintiff received notice on April 3, 1997 that the New York State Office of Parks, Recreation and Historic Preservation was seeking to terminate his employment due to his inability to carry a firearm under federal law. On June 2, 1998, the Office formally terminated plaintiff's employment, reasoning that the "Certificate of Relief from Civil Disabilities [issued by the State did] not restore [plaintiff's] ability to possess a firearm." Compl. ¶ 15, Ex. A.

On June 16, 1998, plaintiff filed a petition with defendants Rubin and ATF for relief from federal firearm disabilities pursuant to section 925(c), which provides, in relevant part, that:

  [a] person who is prohibited from possessing,
  shipping, transporting, or receiving firearms or
  ammunition may make application to the Secretary for
  relief from the disabilities imposed by Federal laws
  with respect to the acquisition, receipt, transfer,
  . . . or possession of firearms, and the Secretary may
  grant such relief if it is established to his
  satisfaction that the circumstances regarding the
  disability, and the applicant's record and
  reputation, are such that the applicant will not be
  likely to act in a manner dangerous to public safety
  and that the granting of the relief would not he
  contrary to the public interest. Any person whose
  application for relief from. disabilities is denied by
  the Secretary may file a petition with the United
  States district court for the district in which he
  resides for a judicial review of such denial. The
  court may in its discretion admit additional evidence
  where failure to do so would result in a miscarriage
  of justice. . . .

18 U.S.C. § 925 (c) (1998) (emphasis added).

In 1992, Congress enacted the Treasury, Postal Service, and General Government Appropriations Act (the "Appropriations Act"), mandating 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)." Pub.L. No. 102-393, 106 Stat. 1729, 1732 (1992). Since then, Congress has imposed similar funding limitations for each fiscal year. See Pub.L. No. 105-61, 111 Stat. 1272, 1277 (1997); Pub.L. No. 104-208, 110 Stat. 3009, 3319 (1996); Pub.L. No. 104-52, 109 Stat. 468, 471 (1995); Pub.L. No. 103-329, 108 Stat. 2382, 2385 (1994); Pub.L. No. 103-123, 107 Stat. 1226, 1228 (1993). Over the last two years, however, Congress has restored funding for the limited purpose of investigating applications for firearms relief submitted by corporations under section § 925(c).

Based on these appropriations restrictions, Christopher Cuyler, Chief of the ATF Firearms Program Division, informed plaintiff that the agency would not review his application for restoration of federal firearms privileges. Specifically, Mr. Cuyler stated that:

  [s]ince October 1992 . . . ATF's annual appropriation
  has prohibited the expending of any funds to
  investigate or act upon applications for relief from
  Federal firearms disabilities. . . . As long as this
  provision is included in ATF's appropriations
  legislation, ATE cannot act upon applications for
  restoration of Federal firearms privileges as
  submitted by individuals.

Compl. Ex. B, at 1. Without such relief, plaintiff remained ineligible to possess, receive or transport firearms under 18 U.S.C. § 922 (g)(9) and 921(a)(33)(A).

Accordingly, plaintiff commenced the instant action on July 21, 1998, seeking an Order of Mandamus compelling defendants to process and act upon plaintiff's ...


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