1 District Judge of the Western District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 95-10342

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KENNETH W. McGILL,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

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January 18, 1996

Before DAVIS AND PARKER, Circuit Judges; BUNTON, 1 District Judge.

DAVIS, Circuit Judge:

McGill, a convicted felon, who lost his right to possess

firearms upon his conviction of a felony, appea ls from the

dismissal of his applic ation to restore his firearms privileges.

We affirm the district court's judgment.

I.

Kenneth W. McGill pleaded guilty to two felony offenses:

making a false statement pursuant to 18 U.S.C. § 1014 and filing

a false tax return pursuant to 26 U.S.C. § 7206. In April 1993, he2

was sentenced to probation for two years. The district court

granted an early release from probation in September 1994.

Title 18 U.S.C. § 922(g)(1) prohibits a convicted felon from

shipping, transporting, or possessing any firearms or ammunition.

Title 18 U.S.C. § 925(c) permi ts any person to apply to the

Secretary of Trea sury for relief from the disabilities imposed

under § 922(g)(1). The Secretary has transferred his authority to

grant this relief to the Director of the Department of Alcohol,

Tobacco and Firearms ("ATF"). 27 C.F.R. § 178.144.

McGill wrote the ATF requesting information about applying for

r elief from the § 922 firearm disability. The ATF informed him

that it was no longer accepting applications for relief authorized

by § 925(c) because Congress had denied funding for the program.

Public Law 103-329 (1994) of the Treasury Department Appropriations

Act specifically stated that "[n]one of the funds appropriated

herein shall be available to investigate and act upon applications

for relief from Federal firearms disabilities under 18 U.S.C.

section 925(c)." Treasury, Postal Service and General Government

Appropriations Act, 1995, Pub.L. No. 103-329, 108 Stat. 2382, 2385

(1994). McGill then filed with the district court an application

for the re moval of his § 922 Federal firearm disability. The

district court promptly dismissed the application on the ground

that it lacked jurisdiction. McGill filed a timely notice of

appeal.

II.3

We review de novo a district court's dismissal for lack of

subject matter jurisdiction. M atter of Bradley

, 989 F.2d 802, 804

(5th Cir. 1993 ). Although we doubt that the district court has

ori ginal jurisdiction to consider an application to remove the

Federal firearm disability, we pretermit that question because it

is clear to us that Congress suspended the relief provided by §

925(c). "In the past, we similarly have reserved difficult

questions of our jurisdiction when the case alternatively could be

resolve d on the merits in favor of the same party." N orton v.

Mathews

, 427 U.S. 524 , 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672

(1976), cited in Texas Employers' Ins. Ass'n v. Jackson , 862 F.2d

491, 497 n.8 (5th Cir. 1988) (en banc), cert. denied

, 490 U .S.

1035, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989).

Congress has the power to amend, suspend or repeal a statute

by an appropriations bill, as long as it does so clearly.

Robertson v. Seattle Audubon Soc.

, 503 U.S. 429, 440, 112 S.Ct.

1407, 1414, 118 L.Ed.2d 73 (1992). "There can be no doubt that

Congress could suspend or repeal the authorization contained in [a

current statute] . . .; and it could accomplish its purpose by an

amendment to an appropriation bill, or otherwise." United States

v. Dickerson

, 310 U.S. 554, 555, 60 S.Ct. 1034, 1035, 84 L.Ed. 1356

(1940). "The whole question depends on the intention of Congress

as expressed in the statutes." U nited States v. Mitchell

, 109 U.S.

146, 150, 3 S.Ct. 151, 153, 27 L.Ed. 887 (1883).

Thus the question of whether the appropriations bill suspended

the relief available under § 925(c) turns on the intent of

Congress. Section 922, part of the Gun Control Act of 1968, was4

enacted in response to the increase in violence resulting from

firearm possession. The act makes it unlawful for a convicted

felon "to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce." 18 U.S.C. 922(g).

Congress also established a statutory framework under which a

convicted felon could seek relief f rom the Federal firearms

disability. Section 925(c) grants relief from § 922 by providing:

A person who i s prohibited from possessing, . . .

firearms or ammunition may make a pplication to the

Secretary for relief from the disabilities imposed by

Federal laws . . ., and the Secretary may grant such

relief if it is established to his satisfaction that the

circumstances regarding the disability, and the

a pplicant'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. 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 dis trict in which he

resides for a judicial review of such denial. The court

may in its discretion admit additional evi dence where

failure to do so would result in a miscarriage of

justice. . . .

18 U.S.C. § 925(c).

The Secretary delegated his authority to the Director of the

ATF and adopted detailed regulations to govern the requirements an

appli cant must meet. 27 C.F.R. § 178.144. The ATF conducts a

broad-based field investigation of the convicted applicant's record

and reputation before ruling on the application. S ee Smith v.

Brady

, 813 F. Supp. 1382, 1383-84 (E.D. Wis. 1993) (describes ATF's

investigative procedures under § 925(c)). By its terms, § 925(c),

gives the applicant the right to seek review in the district court5

only after the Secretary has denied her application. The district

court is given authority to reverse the Secretary's order if the

Secreta ry's denial was arbitrary, capricious or an abuse of

discretion. Bradley v. Bureau of Alcohol, Tobacco, and Firearms

,

736 F.2d 1238, 1240 (8th Cir. 1984).

Even though § 925(c) allows the d istrict court to admit

additional evidence in extraordinary circumstances, the legislative

history of this amendment makes it clear that Congress intended for

district courts to review only the Secretary's denial under an

arbitrary and capricious standard. The Senate report states that

this amendment "empowers the court to consider additional evidence

in making its finding where a failure to do so might yield a

miscarriage of justice. In such a case, the court might in its

discretion re quest the presence of an agent representing the

Secretary, and stay the action for a suitable tim e to permit the

Secretary to review his findings in light of the additional

evidence, then proceed forward in the event the evidence does not

alter his determination." S. Rep. No. 476, 97th Cong., 2d Sess. 24

(1982); see also , David T. Hardy, The Firearms Owners' Protection

Act: A Historical and Legal Perspective , 17 Cumb. L. Rev. 585, 644

(1987). We now turn to the appropriations acts which serve as the

basis for the government's argument that the § 925(c) relief has

been suspended.

In the 1993 Appropriations Act for the Tre asury Department,

Congress specifically barred any funding for ATF "to investigate or

act upon applications for relief from Federal firearms disabilities

under 18 U.S.C. 925( c)." Treasury, Postal Service, and General6

Government Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat.

1729 (1992). This funding limitation was continued with the same

language in the next two appropriations acts

-- Public Law 103-123

(19 93) and Public Law 103-329 (1994). In these last two acts,

however, funds were expressly appropriated to process applications

filed by corporations for relief under § 925(c).

In a report to the Sena te, the Appropriations Committee

explained why it withheld funds in the 1993 Appropriations Act for

ATF action on applications for § 925(c) relief:

Under the relief procedure, ATF officials are requi red to

determine whether a convicted felon, including persons

convicted of violent felonies or serious drug offenses, can be

entrusted with a firearm. 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. T his 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. Therefore, the

Committee has included language in the bi ll which prohibits

the use of funds for ATF to investigate and act upon applications from relief from Federal firearms disabilities.

S. Rep. No. 353, 102nd Cong., 2d Sess. 77 (1992)(emphasis added).

This report e xpresses concern over: (1) use of limited

valuable resources for investigating these difficult cases and (2)

consequences to innocent citizens if ATF makes a mistake and grants

relief to a felon from his firearm disabilities.

By withdrawing funds to the ATF to process these applications

under these circumstances and wit h this explanation by the

appropriations committee, it is clear to us that Congress intended

to suspend the relief provided by § 925(c). We cannot conceive

that Congress intended to transfer the burden and responsibility of7

investigating the applicant's fitness to possess firearms from the

ATF to the fe deral courts, which do not have the manpower or

expertise to investigate or evaluate these applications.

We disagree with the contrary conclusion of the Third Circuit

in Rice v. United States Dept. of Alcohol, Tobacco, and Firearms,

68 F.3d 702, 707 (3d. Cir. 1995). The Rice court concluded that

"[t]he appropriation acts presently before us fail to show a clear

intent to repeal section 925(c) or to preclude judicial review of

BATF's refusal to grant relief from firearms disabilities."

We agree with Moyer v. Secretary of Treasury

, 830 F. Supp. 516

(W.D.Mo. 1993). In that case the court found that the limitation

on ATF's funds reflected a Congressional intent to suspend the

ability of convicted felons to seek relie f from Federal firearms

disabilities.

We also find the hi story of funding for investigating

applicati ons from corporations as evidence of the intent of

Congress to suspend the relief available under § 925(c). The

initial 1993 Appropriations A ct (Pub. L. No. 102-292) barred the

ATF from using funds to investigate any applications. In the 1994

Appropriations Act (Pub. L. No. 103-123) Congress expressly

restored funding to the ATF to investigate applicatio ns from

corporations, but continued to wi thhold funds to investigate

applications from individuals. If Congress thought the courts were

considering applicati ons for relief under § 925(c), this

restoration of funds to provide relief for corporations would have

been u nnecessary. In the 1995 Appropriations Act, Congress

continued to provide funding for ATF to investigate corporate2 We are satisfied that McGill's argument that Congress

intended to suspend § 922 is meritless. The explicit reason

Congress withheld funding from ATF was not to give convicted felons

the right to possess weapons but to allocate those funds to

enforcement. In a 1995 report to the House, the Committee on

Appropriations stated:

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.

The Committee understands the co ntroversial nature of the

underlying law allowing convicted felons to have their right

to own a firearm restored. However, those who commit serious

crimes forfeit many rights and those who commit felonies

shoul d 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 o n to commit

violent crimes with firearms. There is no reason to spend the

Government's time or taxpayer's money to restore a convicted

8 app lications while maintaining its hold on funds to investigate

individual applications.

We there fore conclude that relief from federal firearms

disabilities for individuals under § 925(c) is susp ended by the

last three appropriations acts.

McGill alteratively argues for the first time on appeal that,

if we find § 925(c) as repealed or suspended, we should also find

that § 922(g) was repealed or suspended. We will not consider an

argument raised for the first time on appeal unless it rises to the

standard of plain error. United States v. Olano , 113 S.Ct. 1770,

123 L.Ed.2d 508 (1993). The standard for plain error is a clear or

obvious error that aff ected substantial rights or seriously

affected the fairness or integrity of the judicial proceeding.

United States v. Calverly

, 37 F.3d 160, 162 (5th Cir. 1994) (en

banc), cert. denied

, 115 S.Ct. 1266 (1995). The district court

certainly did not commit obvious error in failing to declare §

922(g) suspended. 2felon's right to own a firearm.

H.R. Rep. No. 183, 104th Cong., 1st Sess. 23 (1995).

9 For the reasons stated above, we conclude t hat Congress has

suspended the relief provided in § 925(c) for individuals. We

therefore affirm the district court's dismissal.

AFFIRMED.