The opinion of the court was delivered by: Platt, District Judge.
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.
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
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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)
Accordingly, plaintiff commenced the instant action on July 21, 1998,
seeking an Order of Mandamus compelling defendants to process and act
upon plaintiff's ...