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U.S. Supreme Court Gun Case (Bean v. ATF)
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THOMAS LAMAR BEAN, Petitioner-Appellee,versusBUREAU OF ALCOHOL, TOBACCOAND FIREARMS; UNITED STATESOF AMERICA, Respondents-Appellants.
Appeal from the United States District Courtfor the Eastern District of Texas, Beaumont
June 20, 2001Before POLITZ, DeMOSS, and STEWART, Circuit Judges.POLITZ, Circuit Judge: The Government appeals the trial court's finding that it had jurisdiction toreview the application of Thomas Lamar Bean for relief from the federal firearmdisabilities resulting from a conviction in Mexico, as well as its grant of said relieftherefrom. We affirm.BACKGROUND The facts of this case illustrate in caps underscored why Congress added therelief provision to the Federal Firearms Act, giving certain convicted felons an avenueto regain the right to possess a firearm. They are set forth in great detail in the trialcourt's opinion; we merely summarize them here. In March 1998, Bean, a Bureau of Alcohol, Tobacco and Firearms licensedfirearms dealer, was in Laredo, Texas, participating in a gun show. One evening heand three assistants decided to cross the border into Mexico for dinner. He directedhis assistants to remove any firearms and ammunition from his vehicle, a ChevroletSuburban, before crossing the border; however, a box of ammunition containingapproximately 200 rounds inadvertently was left in the back. The box was in plainview and Mexican customs officers saw it when they sought to enter the Mexican Portof Entry at Nuevo Laredo, Tamaulipas, Mexico. At the time importing ammunitioninto Mexico was considered a felony.(1) The three assistants were subsequentlyreleased but Bean, as the owner of the Suburban and the ammunition, was charged andconvicted of the felony of unlawfully importing ammunition.(2) Bean was incarcerated in Mexico for approximately six months before beingreleased to the custody of the United States under the International Prisoner TransferTreaty. He thereafter spent another month in federal prison before being releasedunder supervision. As a convicted felon, under 18 U.S.C. ? 922(g)(1) Bean lost allrights to possess firearms. Section 925(c) of the statute, however, provides a meansfor relief from the firearms disabilities. Upon completion of his period of supervisionin July, 1999, Bean petitioned the BATF for such relief so that he might return to hisbusiness. At issue herein is the action and inaction of Congress since 1992. For this nighdecade, Congress has stated in its annual budget appropriation bill that "none of thefunds appropriated herein shall be available to investigate or act upon applications forrelief from Federal firearms disabilities under 18 U.S.C ? 925(c)."(3) Because the BATFcould not use any appropriated funds to fulfill its responsibilities under the statute, itsent Bean a notice that it would not act upon his request due to the congressionalaction. Bean then petitioned the district court, contending that the BATF's letterdenied his petition and exhausted his administrative remedies. The district court, in its detailed Memorandum Opinion, discussed the statute,congressional actions, the various circuit opinions on this issue, including our decisionin United States v. McGill,(4) and determined that it did, in fact, have jurisdiction to hearBean's appeal. In granting Bean's petition it further found that the facts of this caseunderscore why ? 925(c) permitted not only judicial review, but judicialsupplementation of the record to prevent a miscarriage of justice.ANALYSISJurisdiction In McGill we noted that Congress, through its appropriations acts, had reflectedan intent to suspend the relief provided to individuals by ? 925(c). As a consequencewe opined that we lacked subject matter jurisdiction. As the Government correctlynotes, ordinarily an inferior court is not at liberty to disregard the mandate of asuperior court.(5) But in the instance herein presented, we must examine carefully thereasons and analysis by the trial court, and our earlier decision in light of, notably, theintervening passage of time and its effect. The trial court, as had the McGill panel, extensively detailed the legislativehistory of the relief provisions and reached a different conclusion, noting: "Ultimately,the Court recognizes that an advocate can find an abundance of legislative history tosupport his position."(6) We do not here parse the committee or floor commentary but,rather, examine congressional action/inaction and its continuing effect. As noted in the trial court's opinion, Congress first amended the FederalFirearms Act in 1965 to provide the potential and mechanism for certain convictedfelons to obtain relief from federal firearms disabilities by petitioning the Secretary ofthe Treasury. It amended the relief provision in 1986 to provide for judicial review ofexecutive decisions in order to better ensure that relief was available for those felonswhose convictions were based on technical or unintentional violations. In large measure, as a result of newspaper editorials about the cost to taxpayersof performing the investigations necessary under the relief provision,(7) as well as areport published by the Violence Policy Center listing instances wherein convictedfelons had their firearms privileges restored and committed violent crimes,(8) a senatebill entitled the Stop Arming Felons (SAFE) Act was introduced in 1992 to eliminatethe relief provision.(9) That bill, however, was never reported out of the SenateJudiciary Committee. Although it obviously has the power, Congress has not enacted legislationeliminating or amending ? 925(c). Rather, both the House and Senate AppropriationsCommittees proposed language for the Treasury, Postal Service, and GeneralGovernment Appropriations Act for Fiscal Year 1993 that precluded the BATF fromusing any appropriated funds to investigate petitions for such relief.(10) That languagewas incorporated in the appropriations bill ultimately passed that year and has beenincluded in each subsequent annual appropriations act relating to BATF funding.(11) We observed in McGill that "Congress has the power to amend, suspend orrepeal a statute by an appropriations bill, as long as it does so clearly."(12) We citedRobertson v. Seattle Audubon Soc.(13) as authority for that proposition. Robertsonopined "[A]lthough repeals by implication are especially disfavored in theappropriations context . . . Congress nonetheless may amend substantive law in anappropriations statute, as long as it does so clearly."(14) The "especially disfavored" language hales from the high court's opinion inTennessee Valley Authority v. Hill, et al.,(15) wherein the Court stated that the doctrinedisfavoring repeals by implication "applies with ever greater force when the claimedrepeal rests solely on an Appropriations Act."(16) In the subsequent Will case, uponwhich the Robertson Court relied, it addressed Congress' failure to fund promisedfederal pay raises previously authorized by statute by refusing to appropriate funds forthose raises in each year's Appropriation Act. In Will the Court found Congress'actions were clear and intentional, and thus effectively rescinded the authorized raisefor each year.(17) That decision led to the Court's comments in Robertson, notedabove, upon which the McGill panel relied. We find the facts at bar readily distinguishable from Will, and thusdistinguishable from Robertson. Will involved authorized salary increases, a purelyfinancial right, that Congress refused to fund. When it passed the Executive SalaryCost-of-Living Adjustment Act (18) in 1975 Congress promised certain federalemployees annual cost-of-living salary increases, based upon certain financial criteria. It then changed its mind and rescinded that year's increase in each of the four yearsbeginning in 1977.(19) In the case at bar, Congress is not merely promising money then changing itsmind and not making it available. Nor is it directly suspending a statutory provision. In enacting ? 925(c) Congress granted certain persons administrative and judicialrights. The SAFE Act proposed to withdraw those rights, but Congress did not adoptthat withdrawal. The Government insists, however, that Congress indirectly hasabrogated those rights by necessarily recognizing same but declining expenditure ofany funds for their enforcement. We find that action clearly distinguishable from thefacts in the cited precedential cases and inimical to our constitutional system of justice. In its early review of this conundrum, the McGill panel relied on Robertson. Inaddition to the noted factual differences of Robertson, Will, and Dickerson, we havea critical additional factor, the intervening passage of time and the resulting reality ofthe effective non-temporary "suspension" of statutorily created rights. We mustconclude that Congress seeks to abrogate administrative and judicial rights it created,by using funding bills, after declining to address actual amendments to or revocationof the creating statute. Section 925(c) was enacted for apparently valid reasons, andcitizens like Bean are entitled to the rights therein created and authorized unless anduntil Congress determines to change same. We must now conclude that merelyrefusing to allow the agency responsible for facilitating those rights to use appropriatedfunds to do its job under the statute is not the requisite direct and definite suspensionor repeal of the subject rights. We further hold that when the BATF notified Bean thatit would not act on his petition, his administrative remedies de facto were exhausted.(20) Accordingly, the trial court had jurisdiction to entertain this appeal.The Merits The Government cites as error the trial court's grant of relief, contendingwithout citing any authority that when reviewing the actions of an administrative agencythe court "stands in the shoes" of that agency and is bound by the applicable federalregulations. Here the Government contends 27 C.F.R. ? 178.144(d) precludes reliefwhere the petitioner is prohibited from possessing all types of firearms in the state inwhich he resides. It asserts that because Bean resides in Texas and under Texas lawa convicted felon cannot possess firearms for five years after being released fromconfinement or supervised release,(21) it could not have granted his petition for relief inany event; therefore, the district court erred as a matter of law in doing so. At the threshold we unqualifiedly reject the suggestion that a court stands in theshoes of an agency and is bound by all of its implementing regulations. Substantivefederal regulations carry the force and effect of federal law; however, interpretiveregulations serve merely to guide a court in applying a statute.(22) Generally, where aregulation "appears supported by the plain language of the statute and is adoptedpursuant to the explicit grant of rulemaking authority," that regulation is considered ashaving legislative effect and accorded more than mere deference.(23) We find nothingin 27 C.F.R. ? 178.144(d) that would come under such a definition. Nothing in ?925(c) authorizes the Secretary to restrict relief only to those cases where relief isavailable at the state level; indeed, nothing in the statute pertaining to relief even refersto the states. Section 925(c) pertains strictly to federal firearms disabilities and to relieffrom those federal disabilities. Absent any statutory language tying federal disabilitiesto state disabilities, or authorizing the Secretary to do so, we must hold that 27 C.F.R.? 178.144(d) is merely an interpretive regulation and does not bind the district courtin its determination.(24) Concluding that the trial court did not err as a matter of law ingranting the relief requested, we need not and do not address its determination thatBean's foreign conviction was not a predicate offense triggering the provisions of 18U.S.C. ? 922(g)(1).CONCLUSION We are mindful of the serious concerns articulated about convicted felonsregaining the right to possess firearms, and of the need for congressional review andenhancement of the safeguards and procedures for appropriately accomplishing thisapparently worthy goal, but we are faced herein with the almost incredible plight ofThomas Bean who, at most, was negligent in not ensuring that his associatescompletely performed the simple task directed, and who served months in Mexicanand U.S. prisons for a simple oversight. We do not believe that any reasonableobserver is persuaded that his offense creates a likelihood he represents a threat to thepublic's well-being, and it is beyond peradventure to believe that Congress, or thoseseeking to rescind ? 925(c), intended for someone like Bean to lose his livelihood onthe basis of the facts such as are before us. Neither equity nor the law require suchan injustice. The judgment appealed is AFFIRMED.1. Purportedly because of the publicity arising from this case the offense has beenreduced to a misdemeanor.2. The record reflects the difficulties experienced by Bean during his arrest andinitial incarceration, primarily based upon procedural issues which were compoundedby his unfamiliarity with the Spanish language. Bean and the trial court both refer tothese difficulties as raising constitutional concerns. Our disposition of this appealdoes not rely thereon.3. See Treasury, Postal Service and General Government Appropriations Act, 1993,Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992). The first year Congress denied theBATF funds to investigate any convicted felon. Beginning in Fiscal Year 1994, andin all subsequent appropriation acts applying to the BATF, a provision was addedallowing funds to be used to investigate convicted corporate felons. See infra note 11.4. 74 F.3d 64 (5th Cir. 1996)(finding that federal courts have no jurisdiction to hearappeals from individuals).5. See e.g., Gegenheimer v. Galan, 920 F.2d 307 (5th Cir. 1991).6. Bean v. United States, 89 F. Supp. 2d 828, 835 (E.D. Tex. 2000).7. See, e.g., Why Are We Rearming Felons?, Washington Post, Sept. 25, 1991, atA24 (describing the relief provision as a "loophole"); and Felon Gun Program ShouldBe Disabled, Chicago Sun-Times, July 1, 1992, at 31.8. Josh Sugarman, Putting Guns Back Into The Hands Of Felons: 100 Case Studiesof Felons Granted Relief From Disability Under Federal Firearms Laws, ViolencePolicy Center (1992). The Center is a Washington, D.C. based gun-control advocacygroup. 9. See 138 Cong. Rec. S2674-04, S2675 (daily ed. March 3, 1992)(floor commentson S. 2304 by its co-sponsor, Sen. Lautenberg (D-N.J.)). We note with particularirony that according to Sen. Lautenberg the original relief provision was enactedspecifically to rescue the Winchester Firearms Co., whose parent corporation OlinWinchester had pleaded guilty to felony counts on a kickback scheme and whose veryexistence was threatened by the subsequent denial of its ability to possess and sellfirearms. As previously noted, beginning in 1993 Congress amended itsappropriations language to permit the BATF to process petitions for relief made bycorporations. In the case at bar we are presented with a situation that is virtuallyindistinguishable from that used to justify those actions, i.e., absent the ability topossess and sell firearms Bean will lose his business. Bean is his "corporation," andthe inequities of the situation are readily apparent. To the suggestion that acorporation, unlike an individual, cannot be a physical threat to use firearms to harmthe public we note that the record is replete with testimony from legislators, lawenforcement officers and BATF agents as to Bean's lawful character.10. See H.R. Rep. 102-618 (1992); S. Rep. 102-353 (1992).11. Treasury, Postal Service, and General Government Appropriations Act, 1994,Pub. L. No. 103-123, 107 Stat. 1226, 1228 (1993); Treasury, Postal Service, andGeneral Government Appropriations Act, 1995, Pub. L. No. 103-329, 108 Stat.2382,2385 (1994); Treasury, Postal Service, and General Government AppropriationsAct, 1996, Pub. L. No. 104-52, 109 Stat. 468, 471 (1995); Omnibus ConsolidatedAppropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-319 (1996); Treasuryand General Government Appropriations Act, 1998, Pub. L. No. 105-61, 111 Stat.1272, 1277 (1997); Omnibus Consolidated and Emergency SupplementalAppropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681-485 (1998); Treasuryand General Government Appropriations Act, 2000, Pub. L. No. 106-58, 113 Stat.430, 434 (1999); and Treasury and General Government Appropriations Act, 2001,Pub. L. No. 106-554, 114 Stat. 2763, 2763A-129, (2000). 12. McGill, 74 F.3d at 66.13. 503 U.S. 429 (1992).14. Robertson, 503 U.S. at 440 (citing United States v. Will, et al., 437 U.S. 153(1978)).15. 437 U.S. 153 (1977).16. Id. at 190 (emphasis in original).17. With the exception of federal judges for two of the four years in question, wherethe Appropriation Act violated the Compensation Clause.18. Pub. L. No. 94-82, 89 Stat. 419 (1975).19. The Supreme Court considered and rejected the contention that the authorizedincrease remained outstanding but unfunded, concluding that the raise itself wasrescinded. Will, 449 U.S. at 224. In support of its position the Court cited UnitedStates v. Dickerson, 310 U.S. 554 (1940). Dickerson also pertained to statutorilyauthorized financial payments that were rescinded by an Appropriation Act, in thatcase the payment of an enlistment allowance for those military personnel who re-enlisted during the fiscal year. Like Will, Dickerson pertained to purely financial rightsthat Congress then rescinded by expressly refusing to fund same, and isdistinguishable herefrom.20. The BATF advised that it was not accepting petitions from individuals forrestoration of rights, and told Bean he could apply "if and when Congress acts toremove the restriction currently imposed." This is not a case of mere agency delay inprocessing his petition, it is complete preclusion of administrative remedies for anindefinite, possibly infinite, period of time. Bean's administrative options wereforeclosed, and thus exhausted for purposes of ? 925(c).21. Tex. Penal Code Ann. ? 46.04(a)(1)(Vernon 1994).22. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1976).23. Atkins v. Rivera, 477 U.S. 154, 162 (1985).24. For similar reasons we find that the provision in ? 178.144(d) stating that theDirector will not ordinarily grant relief if the applicant has not been discharged fromparole or probation for a period of at least 2 years is also interpretive, particularly inlight of its qualified language. http://laws.lp.findlaw.com/5th/0040304cv0.html
Appeal from the United States District Courtfor the Eastern District of Texas, Beaumont
June 20, 2001Before POLITZ, DeMOSS, and STEWART, Circuit Judges.POLITZ, Circuit Judge: The Government appeals the trial court's finding that it had jurisdiction toreview the application of Thomas Lamar Bean for relief from the federal firearmdisabilities resulting from a conviction in Mexico, as well as its grant of said relieftherefrom. We affirm.BACKGROUND The facts of this case illustrate in caps underscored why Congress added therelief provision to the Federal Firearms Act, giving certain convicted felons an avenueto regain the right to possess a firearm. They are set forth in great detail in the trialcourt's opinion; we merely summarize them here. In March 1998, Bean, a Bureau of Alcohol, Tobacco and Firearms licensedfirearms dealer, was in Laredo, Texas, participating in a gun show. One evening heand three assistants decided to cross the border into Mexico for dinner. He directedhis assistants to remove any firearms and ammunition from his vehicle, a ChevroletSuburban, before crossing the border; however, a box of ammunition containingapproximately 200 rounds inadvertently was left in the back. The box was in plainview and Mexican customs officers saw it when they sought to enter the Mexican Portof Entry at Nuevo Laredo, Tamaulipas, Mexico. At the time importing ammunitioninto Mexico was considered a felony.(1) The three assistants were subsequentlyreleased but Bean, as the owner of the Suburban and the ammunition, was charged andconvicted of the felony of unlawfully importing ammunition.(2) Bean was incarcerated in Mexico for approximately six months before beingreleased to the custody of the United States under the International Prisoner TransferTreaty. He thereafter spent another month in federal prison before being releasedunder supervision. As a convicted felon, under 18 U.S.C. ? 922(g)(1) Bean lost allrights to possess firearms. Section 925(c) of the statute, however, provides a meansfor relief from the firearms disabilities. Upon completion of his period of supervisionin July, 1999, Bean petitioned the BATF for such relief so that he might return to hisbusiness. At issue herein is the action and inaction of Congress since 1992. For this nighdecade, Congress has stated in its annual budget appropriation bill that "none of thefunds appropriated herein shall be available to investigate or act upon applications forrelief from Federal firearms disabilities under 18 U.S.C ? 925(c)."(3) Because the BATFcould not use any appropriated funds to fulfill its responsibilities under the statute, itsent Bean a notice that it would not act upon his request due to the congressionalaction. Bean then petitioned the district court, contending that the BATF's letterdenied his petition and exhausted his administrative remedies. The district court, in its detailed Memorandum Opinion, discussed the statute,congressional actions, the various circuit opinions on this issue, including our decisionin United States v. McGill,(4) and determined that it did, in fact, have jurisdiction to hearBean's appeal. In granting Bean's petition it further found that the facts of this caseunderscore why ? 925(c) permitted not only judicial review, but judicialsupplementation of the record to prevent a miscarriage of justice.ANALYSISJurisdiction In McGill we noted that Congress, through its appropriations acts, had reflectedan intent to suspend the relief provided to individuals by ? 925(c). As a consequencewe opined that we lacked subject matter jurisdiction. As the Government correctlynotes, ordinarily an inferior court is not at liberty to disregard the mandate of asuperior court.(5) But in the instance herein presented, we must examine carefully thereasons and analysis by the trial court, and our earlier decision in light of, notably, theintervening passage of time and its effect. The trial court, as had the McGill panel, extensively detailed the legislativehistory of the relief provisions and reached a different conclusion, noting: "Ultimately,the Court recognizes that an advocate can find an abundance of legislative history tosupport his position."(6) We do not here parse the committee or floor commentary but,rather, examine congressional action/inaction and its continuing effect. As noted in the trial court's opinion, Congress first amended the FederalFirearms Act in 1965 to provide the potential and mechanism for certain convictedfelons to obtain relief from federal firearms disabilities by petitioning the Secretary ofthe Treasury. It amended the relief provision in 1986 to provide for judicial review ofexecutive decisions in order to better ensure that relief was available for those felonswhose convictions were based on technical or unintentional violations. In large measure, as a result of newspaper editorials about the cost to taxpayersof performing the investigations necessary under the relief provision,(7) as well as areport published by the Violence Policy Center listing instances wherein convictedfelons had their firearms privileges restored and committed violent crimes,(8) a senatebill entitled the Stop Arming Felons (SAFE) Act was introduced in 1992 to eliminatethe relief provision.(9) That bill, however, was never reported out of the SenateJudiciary Committee. Although it obviously has the power, Congress has not enacted legislationeliminating or amending ? 925(c). Rather, both the House and Senate AppropriationsCommittees proposed language for the Treasury, Postal Service, and GeneralGovernment Appropriations Act for Fiscal Year 1993 that precluded the BATF fromusing any appropriated funds to investigate petitions for such relief.(10) That languagewas incorporated in the appropriations bill ultimately passed that year and has beenincluded in each subsequent annual appropriations act relating to BATF funding.(11) We observed in McGill that "Congress has the power to amend, suspend orrepeal a statute by an appropriations bill, as long as it does so clearly."(12) We citedRobertson v. Seattle Audubon Soc.(13) as authority for that proposition. Robertsonopined "[A]lthough repeals by implication are especially disfavored in theappropriations context . . . Congress nonetheless may amend substantive law in anappropriations statute, as long as it does so clearly."(14) The "especially disfavored" language hales from the high court's opinion inTennessee Valley Authority v. Hill, et al.,(15) wherein the Court stated that the doctrinedisfavoring repeals by implication "applies with ever greater force when the claimedrepeal rests solely on an Appropriations Act."(16) In the subsequent Will case, uponwhich the Robertson Court relied, it addressed Congress' failure to fund promisedfederal pay raises previously authorized by statute by refusing to appropriate funds forthose raises in each year's Appropriation Act. In Will the Court found Congress'actions were clear and intentional, and thus effectively rescinded the authorized raisefor each year.(17) That decision led to the Court's comments in Robertson, notedabove, upon which the McGill panel relied. We find the facts at bar readily distinguishable from Will, and thusdistinguishable from Robertson. Will involved authorized salary increases, a purelyfinancial right, that Congress refused to fund. When it passed the Executive SalaryCost-of-Living Adjustment Act (18) in 1975 Congress promised certain federalemployees annual cost-of-living salary increases, based upon certain financial criteria. It then changed its mind and rescinded that year's increase in each of the four yearsbeginning in 1977.(19) In the case at bar, Congress is not merely promising money then changing itsmind and not making it available. Nor is it directly suspending a statutory provision. In enacting ? 925(c) Congress granted certain persons administrative and judicialrights. The SAFE Act proposed to withdraw those rights, but Congress did not adoptthat withdrawal. The Government insists, however, that Congress indirectly hasabrogated those rights by necessarily recognizing same but declining expenditure ofany funds for their enforcement. We find that action clearly distinguishable from thefacts in the cited precedential cases and inimical to our constitutional system of justice. In its early review of this conundrum, the McGill panel relied on Robertson. Inaddition to the noted factual differences of Robertson, Will, and Dickerson, we havea critical additional factor, the intervening passage of time and the resulting reality ofthe effective non-temporary "suspension" of statutorily created rights. We mustconclude that Congress seeks to abrogate administrative and judicial rights it created,by using funding bills, after declining to address actual amendments to or revocationof the creating statute. Section 925(c) was enacted for apparently valid reasons, andcitizens like Bean are entitled to the rights therein created and authorized unless anduntil Congress determines to change same. We must now conclude that merelyrefusing to allow the agency responsible for facilitating those rights to use appropriatedfunds to do its job under the statute is not the requisite direct and definite suspensionor repeal of the subject rights. We further hold that when the BATF notified Bean thatit would not act on his petition, his administrative remedies de facto were exhausted.(20) Accordingly, the trial court had jurisdiction to entertain this appeal.The Merits The Government cites as error the trial court's grant of relief, contendingwithout citing any authority that when reviewing the actions of an administrative agencythe court "stands in the shoes" of that agency and is bound by the applicable federalregulations. Here the Government contends 27 C.F.R. ? 178.144(d) precludes reliefwhere the petitioner is prohibited from possessing all types of firearms in the state inwhich he resides. It asserts that because Bean resides in Texas and under Texas lawa convicted felon cannot possess firearms for five years after being released fromconfinement or supervised release,(21) it could not have granted his petition for relief inany event; therefore, the district court erred as a matter of law in doing so. At the threshold we unqualifiedly reject the suggestion that a court stands in theshoes of an agency and is bound by all of its implementing regulations. Substantivefederal regulations carry the force and effect of federal law; however, interpretiveregulations serve merely to guide a court in applying a statute.(22) Generally, where aregulation "appears supported by the plain language of the statute and is adoptedpursuant to the explicit grant of rulemaking authority," that regulation is considered ashaving legislative effect and accorded more than mere deference.(23) We find nothingin 27 C.F.R. ? 178.144(d) that would come under such a definition. Nothing in ?925(c) authorizes the Secretary to restrict relief only to those cases where relief isavailable at the state level; indeed, nothing in the statute pertaining to relief even refersto the states. Section 925(c) pertains strictly to federal firearms disabilities and to relieffrom those federal disabilities. Absent any statutory language tying federal disabilitiesto state disabilities, or authorizing the Secretary to do so, we must hold that 27 C.F.R.? 178.144(d) is merely an interpretive regulation and does not bind the district courtin its determination.(24) Concluding that the trial court did not err as a matter of law ingranting the relief requested, we need not and do not address its determination thatBean's foreign conviction was not a predicate offense triggering the provisions of 18U.S.C. ? 922(g)(1).CONCLUSION We are mindful of the serious concerns articulated about convicted felonsregaining the right to possess firearms, and of the need for congressional review andenhancement of the safeguards and procedures for appropriately accomplishing thisapparently worthy goal, but we are faced herein with the almost incredible plight ofThomas Bean who, at most, was negligent in not ensuring that his associatescompletely performed the simple task directed, and who served months in Mexicanand U.S. prisons for a simple oversight. We do not believe that any reasonableobserver is persuaded that his offense creates a likelihood he represents a threat to thepublic's well-being, and it is beyond peradventure to believe that Congress, or thoseseeking to rescind ? 925(c), intended for someone like Bean to lose his livelihood onthe basis of the facts such as are before us. Neither equity nor the law require suchan injustice. The judgment appealed is AFFIRMED.1. Purportedly because of the publicity arising from this case the offense has beenreduced to a misdemeanor.2. The record reflects the difficulties experienced by Bean during his arrest andinitial incarceration, primarily based upon procedural issues which were compoundedby his unfamiliarity with the Spanish language. Bean and the trial court both refer tothese difficulties as raising constitutional concerns. Our disposition of this appealdoes not rely thereon.3. See Treasury, Postal Service and General Government Appropriations Act, 1993,Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992). The first year Congress denied theBATF funds to investigate any convicted felon. Beginning in Fiscal Year 1994, andin all subsequent appropriation acts applying to the BATF, a provision was addedallowing funds to be used to investigate convicted corporate felons. See infra note 11.4. 74 F.3d 64 (5th Cir. 1996)(finding that federal courts have no jurisdiction to hearappeals from individuals).5. See e.g., Gegenheimer v. Galan, 920 F.2d 307 (5th Cir. 1991).6. Bean v. United States, 89 F. Supp. 2d 828, 835 (E.D. Tex. 2000).7. See, e.g., Why Are We Rearming Felons?, Washington Post, Sept. 25, 1991, atA24 (describing the relief provision as a "loophole"); and Felon Gun Program ShouldBe Disabled, Chicago Sun-Times, July 1, 1992, at 31.8. Josh Sugarman, Putting Guns Back Into The Hands Of Felons: 100 Case Studiesof Felons Granted Relief From Disability Under Federal Firearms Laws, ViolencePolicy Center (1992). The Center is a Washington, D.C. based gun-control advocacygroup. 9. See 138 Cong. Rec. S2674-04, S2675 (daily ed. March 3, 1992)(floor commentson S. 2304 by its co-sponsor, Sen. Lautenberg (D-N.J.)). We note with particularirony that according to Sen. Lautenberg the original relief provision was enactedspecifically to rescue the Winchester Firearms Co., whose parent corporation OlinWinchester had pleaded guilty to felony counts on a kickback scheme and whose veryexistence was threatened by the subsequent denial of its ability to possess and sellfirearms. As previously noted, beginning in 1993 Congress amended itsappropriations language to permit the BATF to process petitions for relief made bycorporations. In the case at bar we are presented with a situation that is virtuallyindistinguishable from that used to justify those actions, i.e., absent the ability topossess and sell firearms Bean will lose his business. Bean is his "corporation," andthe inequities of the situation are readily apparent. To the suggestion that acorporation, unlike an individual, cannot be a physical threat to use firearms to harmthe public we note that the record is replete with testimony from legislators, lawenforcement officers and BATF agents as to Bean's lawful character.10. See H.R. Rep. 102-618 (1992); S. Rep. 102-353 (1992).11. Treasury, Postal Service, and General Government Appropriations Act, 1994,Pub. L. No. 103-123, 107 Stat. 1226, 1228 (1993); Treasury, Postal Service, andGeneral Government Appropriations Act, 1995, Pub. L. No. 103-329, 108 Stat.2382,2385 (1994); Treasury, Postal Service, and General Government AppropriationsAct, 1996, Pub. L. No. 104-52, 109 Stat. 468, 471 (1995); Omnibus ConsolidatedAppropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-319 (1996); Treasuryand General Government Appropriations Act, 1998, Pub. L. No. 105-61, 111 Stat.1272, 1277 (1997); Omnibus Consolidated and Emergency SupplementalAppropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681-485 (1998); Treasuryand General Government Appropriations Act, 2000, Pub. L. No. 106-58, 113 Stat.430, 434 (1999); and Treasury and General Government Appropriations Act, 2001,Pub. L. No. 106-554, 114 Stat. 2763, 2763A-129, (2000). 12. McGill, 74 F.3d at 66.13. 503 U.S. 429 (1992).14. Robertson, 503 U.S. at 440 (citing United States v. Will, et al., 437 U.S. 153(1978)).15. 437 U.S. 153 (1977).16. Id. at 190 (emphasis in original).17. With the exception of federal judges for two of the four years in question, wherethe Appropriation Act violated the Compensation Clause.18. Pub. L. No. 94-82, 89 Stat. 419 (1975).19. The Supreme Court considered and rejected the contention that the authorizedincrease remained outstanding but unfunded, concluding that the raise itself wasrescinded. Will, 449 U.S. at 224. In support of its position the Court cited UnitedStates v. Dickerson, 310 U.S. 554 (1940). Dickerson also pertained to statutorilyauthorized financial payments that were rescinded by an Appropriation Act, in thatcase the payment of an enlistment allowance for those military personnel who re-enlisted during the fiscal year. Like Will, Dickerson pertained to purely financial rightsthat Congress then rescinded by expressly refusing to fund same, and isdistinguishable herefrom.20. The BATF advised that it was not accepting petitions from individuals forrestoration of rights, and told Bean he could apply "if and when Congress acts toremove the restriction currently imposed." This is not a case of mere agency delay inprocessing his petition, it is complete preclusion of administrative remedies for anindefinite, possibly infinite, period of time. Bean's administrative options wereforeclosed, and thus exhausted for purposes of ? 925(c).21. Tex. Penal Code Ann. ? 46.04(a)(1)(Vernon 1994).22. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1976).23. Atkins v. Rivera, 477 U.S. 154, 162 (1985).24. For similar reasons we find that the provision in ? 178.144(d) stating that theDirector will not ordinarily grant relief if the applicant has not been discharged fromparole or probation for a period of at least 2 years is also interpretive, particularly inlight of its qualified language. http://laws.lp.findlaw.com/5th/0040304cv0.html
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