PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PHILIP SACCACIO,

Plaintiff-Appellant,

v.

No. 99-1242

BUREAU OF ALCOHOL, TOBACCO &

FIREARMS,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, District Judge.

(C-98-70-C)

Argued: April 7, 2000

Decided: April 26, 2000

Before LUTTIG, Circuit Judge, Roger J. MINER,

Senior Circuit Judge of the United States Court of Appeals

for the Second Circuit, sitting by designation, and

Patrick Michael DUFFY, United States District Judge

for the District of South Carolina, sitting by designation.

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Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Senior Judge Miner and Judge Duffy joined.

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COUNSEL

ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appellant.

Thomas Mark Bondy, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. ON BRIEF: David W. Ogden, Acting Assistant Attorney

General, Robert P. Crouch, Jr., United States Attorney, Mark B.

Stern, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Imelda M. Koett, Associate

Chief Counsel, David C. Lieberman, Office of Chief Counsel,

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Washington, D.C., for Appellee.

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OPINION

LUTTIG, Circuit Judge:

Plaintiff-appellant Philip Saccacio appeals from the district court's

order dismissing his petition for review of defendant-appellee Bureau

of Alcohol, Tobacco and Firearms' alleged denial of his application

for relief from federal firearms disabilities. Because we conclude that

the district court correctly held that it lacked subject-matter jurisdiction over Saccacio's petition, we affirm.

I.

Appellant Philip Saccacio is prohibited under 18 U.S.C.

§ 922(g)(1) from possessing, shipping, transporting, or receiving firearms in interstate commerce, because he was previously convicted of

a crime punishable by imprisonment for a term exceeding one year.1

Two years ago, Saccacio applied for relief from these federal firearms

disabilities. Appellee Bureau of Alcohol, Tobacco and Firearms

("ATF") responded by informing Saccacio that it could not "act upon"

his application, J.A. 8a-9a, because the appropriations act for the

Department of the Treasury has, since 1992, provided as follows:

[N]one 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)[.]

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1 Saccacio was convicted of making a false statement to a federal agent,

in violation of 18 U.S.C. § 1001.

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113 Stat. 430, 434. Saccacio then filed the instant petition for review

of the ATF's alleged denial of his application for relief from federal

firearms disabilities. The district court dismissed Saccacio's petition,

pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject-matter jurisdiction.

II.

Saccacio argues that the district court erred in dismissing his petition for review for lack of subject-matter jurisdiction. Specifically, he

contends that the district court erred in concluding that the ATF's failure to process his application did not qualify as a denial of his application within the meaning of 18 U.S.C. § 925(c), which provides in

relevant part:

Any person whose application for relief from[federal firearms] 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.

Id. (emphases added). At oral argument, Saccacio conceded that the

ATF did not, merely by failing to act upon it, actually deny his application for relief. Nevertheless, he maintained that he had satisfied the

jurisdictional requirement of section 925(c) because the ATF had not

processed his application.

We conclude that the jurisdictional requirement of section 925(c)

is not satisfied merely by the ATF's failure to process Saccacio's

application. As the Ninth Circuit has held, we believe that, as used in

section 925(c), "the word `denial' means an adverse determination on

the merits," rather than merely "a refusal to act." Burtch v. United

States Dep't of the Treasury, 120 F.3d 1087, 1090 (9th Cir. 1997).

Because the ATF's failure to investigate or act upon Saccacio's application is not "an adverse determination on the merits," it follows that

the ATF's action does not constitute a "denial of his application"

within the meaning of section 925(c). It may be that Saccacio has not

been afforded the ultimate relief for which he applied, but it is simply

not the case that his application for relief has been denied by the

agency.

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Saccacio did not cast his argument as one that his application was

"constructively denied," and thus "denied" within the meaning of section 925(c). Even if he had so cast his argument, however, we would

be hesitant to conclude that the passage of less than six months -- the

maximum amount of time that elapsed between Saccacio's submission of his application for relief and ATF's letter in response that it

could not at that time act upon his application-- would, by itself,

qualify as a predicate for a constructive denial. Moreover, were we of

the view that a constructive denial would satisfy the jurisdictional

requirement of section 925(c), we do not believe that Saccacio could

claim such a constructive denial, given that the agency has not acted

for only a relatively short period of time, that the agency informed

Saccacio of its willingness to act upon his application at such time as

funds were made available by the Congress, J.A. 9a, and, that, as a

formal matter, we cannot assume that funds will remain unavailable

to the ATF for the purposes at issue here in perpetuity.

Accordingly, because section 925(c) authorizes judicial review of

only the denial of an application for relief, and the ATF's failure to

process Saccacio's application during the less than six-month period

prior to his filing of this action in district court is not the denial of an

application, the district court correctly concluded that it was without

subject-matter jurisdiction to adjudicate Saccacio's petition for

review. See, e.g., Owen v. Magaw, 122 F.3d 1350, 1354 (10th Cir.

1997) (same); Burtch v. United States Dep't of the Treasury, 120 F.3d

1087, 1090 (9th Cir. 1997) (same); cf. United States v. McGill, 74

F.3d 64, 66-67 (5th Cir.) (affirming dismissal of petition for review

brought under section 925(c) because "it is clear to us that Congress

suspended the relief provided by § 925(c)"), cert. denied, 519 U.S.

821 (1996).2

The district court's order dismissing said petition therefore is

affirmed.

AFFIRMED

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2 In Rice v. United States, 68 F.3d 702, 707 (3d Cir. 1995), the Third

Circuit held that section 925(c) is a judicially waivable exhaustion

requirement, rather than a jurisdictional prerequisite. In so holding, that

court was not obliged to -- and did not -- construe the "denial of application" language of section 925(c), which we only construe herein.

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