William H. Rehnquist: We'll hear argument now in Number 01-704, United States v. Bean. Mr. Kneedler.
Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court: In each year's annual Appropriations Act, Congress has prohibited the Bureau of Alcohol, Tobacco, and Firearms from investigating or acting upon applications for discretionary relief from firearms disabilities under 18 U.S.C. 925(c). The court of appeals held that, in the face of that statutory bar, a Federal district court could itself grant respondent relief from firearms disabilities. That holding is contrary to fundamental principles of judicial review of agency action under the Administrative Procedure Act. Under the APA--
Antonin Scalia: Mr. Kneedler--
Edwin S. Kneedler: --Yes.
Antonin Scalia: --you call it a statutory bar. I thought there was some difference in appropriations statutes from ordinary, ordinary laws. Are the two exactly the same? Could Congress create a substantive obligation, for example, in an appropriations law, provide that, oh, I don't know, nobody shall sell stock on Tuesdays? Could they put that in an appropriations measure?
Edwin S. Kneedler: Yes. An appropriations law is, for purposes of Congress's lawmaking authority, no different from any other sort of law.
William H. Rehnquist: That's our holding in Roberts, isn't it?
Edwin S. Kneedler: Yes. Now, what the Court has said is that if a subsequent appropriations statute is said to repeal or suspend the application of a prior law, that intention has to be made clear, but here we think that there's no question that the annual Appropriations Act is clear. There's nothing implied about what Congress did here. There is an express prohibition against ATF either investigating or acting upon applications for relief.
Speaker: You call this a suspension of the law?
Edwin S. Kneedler: Yes. I mean, effectively. It's a suspension... it's an annual... a suspension for a period of 1 year.
Anthony M. Kennedy: I suppose Congress... well, maybe... I mean, I suppose Congress could say, this law that we enacted a year ago is suspended for 10 years. It will not go into effect for 10 years. I suppose it could say that.
Edwin S. Kneedler: Yes, absolutely. Congress could certainly do that.
William H. Rehnquist: Well, that's the holding of Dickerson, is it not?
Edwin S. Kneedler: Yes. So what we have here is an express prohibition against ATF exercising the power that Congress conferred on it. Under the Administrative Procedure Act, the only power a court has in judicial review of agency action is to review what the agency did, and it may only set aside the agency action if the agency action is arbitrary or capricious or contrary to law.
Anthony M. Kennedy: I don't know if it really bears on the case, but suppose Congress had a completely different scheme, and it said that the firearms violator's license could be restored if he applied to United States district court, no agency at all, you just go to court. Would that be a violation of Article III?
Edwin S. Kneedler: Well, I think there would be a question about that. As I recall, there was, and I think it still may be true that courts may grant applications for naturalization, but the court I believe concluded that there was at least an implicit adversarial process in the sense that the Government could appear on the other side of the case and oppose it, but I think you raise a very good point in terms of what would be the traditional way that something like this would be accomplished, and that is that it would be natural, and this is what Congress did in 925(c), to confer this authority on the executive branch, and it did it in very broad and general terms and then provided that a person whose application is denied may file a petition in district court for judicial review of such denial. In other words, under 925(c) it is the denial by the ATF, not the application itself, that is the subject of judicial review.
Sandra Day O'Connor: Is the refusal of the ATF to act on an application pursuant to this provision in the appropriation a de facto denial that's reviewable?
Edwin S. Kneedler: We think it is not. As we explained in our brief, we believe the word denial in that context means a denial on the merits, and this is what a number of the courts of appeals that have looked at the question have held, and what Congress said in the Appropriations Act is that ATF is barred from even acting upon the application. In other words, it can't either grant or deny the application for relief, and therefore the predicate for judicial review under 925(c) is missing. We're not saying that there is no judicial review at all. The general provisions of the APA remain available and, under 5 U.S.C. 703, the avenue for judicial review, or the form of the judicial review is either the special statutory review procedure, in this case 925(c), or in the absence of that or its inadequacy, then another appropriate form, in other words, the general provisions of the APA. But once again, the power of a court under the general provisions of the APA is simply to review the agency's action and to set it aside if contrary to law, and here the action was not contrary to law, it was compelled by law. The most direct avenue that respondent could have challenged the agency's approach in this case, its failure to act, was under section 706(1), which provides for a court in reviewing agency action to set aside agency action that is... or excuse me, to compel agency action that is unreasonably delayed or unlawfully withheld; and, again, there was nothing unlawful about ATF's withholding of a decision on respondent's application for relief, because Congress compelled that withholding.
Ruth Bader Ginsburg: Mr. Kneedler, there was an alternate argument that a foreign conviction shouldn't count for this purpose. Has the United States ever taken a position on that?
Edwin S. Kneedler: Yes. Yes, we have. It is the position of the United States that foreign convictions are covered by the act. Now, that is not before the Court. The... in fact, below respondent conceded that a foreign conviction is a proper predicate under 922(g)(1), and the Eleventh Circuit expressly declined to reach that question. It wasn't presented in the petition and it's not before this Court. Indeed, the question of whether a foreign conviction would be a proper predicate is something that would be raised under 922(g) in a prosecution. As we point out in our brief, there is a circuit conflict on that question, but that conflict has arisen in cases, criminal prosecutions brought under 922(g), and that would be the proper place to begin to make that claim. Neither the general provisions of the APA nor 925(c) provides someone who is wondering whether he may or may not be covered by a provision of the Federal criminal laws to bring a declaratory judgment against the United States to determine whether conduct he hopes to engage in would be covered by a particular criminal statute. So even though it... it isn't before this Court, but we also believe that this would not be the proper avenue in which to raise such a claim in any event. Respondent has argued that what is going on here is an implied repeal of the judicial review provisions or the jurisdiction of the Federal courts to act in a case such as this and, as I've said, there's nothing implied. What Congress did was expressly bar ATF, and it otherwise left the court's authority unaffected. 925(c) remains in effect. It's just that, by virtue of Congress's prohibiting ATF from acting on applications for relief, there is no denial which could be the predicate for review under that, under that special statutory review procedure.
Antonin Scalia: Well, do you think that that's 100 percent clear? I mean, in Robertson, the amendment of a prior statute was affected not by the simple means of withholding appropriations. I mean, it set forth different language that was going to govern the matter. Here, the only thing that has happened is they're not given any appropriations, and you think it is not a matter... you think it's entirely clear that when the Secretary receives an application and says, I cannot act on this application because the appropriations rider forbids me, do you think it's entirely clear that that does not amount to a denial of the application?
Edwin S. Kneedler: I think that's the better reading of the statute.
Antonin Scalia: Well, it may be the better one, but is it clear? I mean, the law is that unless you make it quite clear in the appropriations statute that you are intending to amend the prior law, the prior law is not amended.
Edwin S. Kneedler: Again, the... our position is not that Congress amended the judicial review provision of 925(c). What it did was prohibit ATF from acting. 925(c)'s judicial review procedure is still in effect. The question is whether the... whether Congress's directive to ATF not to even act upon applications for relief constitutes a denial and, as I say, ATF is barred from either granting or denying relief, and I would refer the Court also to the general definition of agency action under the APA, which we cite in our brief. This is 5 U.S.C. 551 (13). It defines agency action as an agency rule, order, license, sanction, relief, or the equivalent, or the denial thereof, or a failure to act. So under the APA, which is the general statute governing traditional review of agency action, Congress itself has defined a denial of relief as something different from a failure to act, and I think there's every reason to look at 925(c)'s reference to a denial as being consistent, rather than inconsistent with the general definitions that Congress has applied under the APA. I would also add, though, that it doesn't matter, that even if the ATF's decision were viewed as a denial within the meaning of 925(c), the general APA standards for reviewing that denial still apply. As we point out in our brief, this Court's decision in Zurko and the prior decision in the Brotherhood of Locomotive Engineers both make clear that, even where you do have a special statutory review procedure that establishes the form for judicial review, the nature and character, as the Court said in Brotherhood of Locomotive Engineers, of that judicial review is defined by the general provisions of the APA, section 706; and again, under those provisions the court can only set aside agency action that is contrary to law; and again, here, the ATF's action was compelled by law, not contrary to it. So whichever avenue this suit was thought to have been brought under, there was no basis for the district court to grant relief at all, and we also think that that is entirely consistent with the Congress's purposes in enacting the appropriations bar. The legislative history which respondent has produced as an appendix to his brief explains that Congress had become concerned about the inherently subjective nature of the inquiry that ATF was undertaking, and the severe consequences that could result if ATF had made a mistake, and also that Congress believed that the money that was being spent for that purpose, $4 million a year for 40 positions at ATF, would be better served--
William H. Rehnquist: Why didn't it just repeal the thing, then, because it didn't have the votes?
Edwin S. Kneedler: --Well, what it decided to do is to proceed on an annual basis. It would... which means it could be subject to revision each year. It was a practical compromise. The Third Circuit explained in Pontarelli that the same people who were supporting a permanent repeal in 1992 were also the movants for the annual appropriations rider on the theory that it accomplished essentially the same thing on an annual basis.
Anthony M. Kennedy: This was in the appropriations law just for the ATF, or for the whole Treasury Department?
Edwin S. Kneedler: It's in the provision for ATF.
Anthony M. Kennedy: Suppose that the Secretary had some other agency... the Secret Service didn't have much to do that month; could he direct them to process some of these applications?
Edwin S. Kneedler: I think not, for there is another sentence in the appropriations provision for ATF which says that no money may be spent to transfer functions from ATF to another department or agency, and I think the reference to agency in that provision would probably include other provisions... or excuse me, other agencies within the Department of the Treasury, and the Secretary of the Treasury personally couldn't be expected to act on applications like this. The Secretary, as this Court pointed out in the Dunne decision, has--
Anthony M. Kennedy: Well, would he abuse his discretion if he took that function away from ATF? You say that there's a provision in the statute that he... that the Secretary himself cannot transfer the function?
Edwin S. Kneedler: --It says, no funds shall be spent... I believe it says, under this act, to transfer functions to another agency within ATF.
William H. Rehnquist: Well, how much money does the... would the Secretary spend if he signed an order transferring a function?
Edwin S. Kneedler: Well, the clear import of what Congress directed is, the function shall not be transferred. That was clearly what Congress was driving at.
Antonin Scalia: It wouldn't be a transfer to another agency if the Secretary did it himself.
Edwin S. Kneedler: Right, but the Secretary... first of all, as Congress well knew when it passed this appropriations rider, the Secretary has delegated the authority for acting on these applications to ATF. That is the legal framework against which--
Antonin Scalia: What he gave he could withdraw.
William H. Rehnquist: He could revoke.
Edwin S. Kneedler: --Perhaps he... I mean, he presumably could, but the proper avenue for a respondent to pursue in that situation would be to request ATF... or excuse me, the Secretary to revoke the regulation that produced the delegation, and then if the Secretary declined to do that, to seek review of that under the APA on an arbitrary and capricious standard. Respondent has not pursued that avenue, and we think it would manifestly not be arbitrary and capricious for the Secretary to withdraw that delegation and take on that function himself with all the other functions that are before the Secretary of the Treasury with respect to the Nation's economy and banking and all those other matters, and in particular it would not be arbitrary and capricious for the Secretary to decline to do that in the face of the appropriations bar that Congress has enacted, with the... again, with the clear understanding that it didn't want these applications to be acted on administratively, but in any event--
Ruth Bader Ginsburg: Mr. Kneedler--
Edwin S. Kneedler: --I'm sorry.
Ruth Bader Ginsburg: --Mr. Kneedler, if we shift the focus from the agency to the court, is it your essential argument that Congress provided for an appellate, essentially an appellate role for the district court and not a first instance role?
Edwin S. Kneedler: Yes, that--
Ruth Bader Ginsburg: So that the only authority the court would have would be to review a decision made by an executive official, but there is a provision in this law for the district court to take additional evidence. Usually when a court is performing a review function it doesn't take any evidence.
Edwin S. Kneedler: --Excuse me. That's correct, but it would... but even the admission or acceptance of additional evidence would be in aid of the APA review, which is, again, of the agency's decision. A court receiving evidence is not unheard of under the APA, even under the arbitrary and capricious standard. As this Court pointed out in Overton Park, occasionally there will be situations in which additional evidence or an explanation from the agency could be received in judicial review, but that's only supplemental of the record that was before the agency.
Antonin Scalia: Well, but the agency doesn't always have to make a record. I mean, suppose the agency just, you know, just makes a decision. Why can't this Court treat it as a matter of review? That is, the issue before the Court will be whether the action here, assuming it's a denial, was unreasonable?
Edwin S. Kneedler: The question before the Court would be whether it was arbitrary and capricious or unlawful, and again, it wasn't unlawful because Congress compelled it. Congress compelled the Secretary or ATF not to act on the application. Now, whether or not that's called a denial, the bottom line, the failure to afford any relief, was compelled by Congress, so the agency could not set... or, excuse me, the court could not set that aside. Looked at another way, the only relevant evidence that would be introduced in court would be evidence of the fact that respondent had applied during a time when the statutory bar on ATF's action was pending. That is the only relevant evidence that--
John Paul Stevens: Mr. Kneedler, can I ask you a question? Supposing the Secretary or the head of the ATF, either or both... say they spent the weekend together sometimes. They read through the papers on their own time on a Sunday afternoon and said, gee, this is a case of rank injustice, I think we're going to grant the petition, and they entered some kind of an order granting it, would that have violated any statutes?
Edwin S. Kneedler: --It would. It would violate this statute. The order, whatever they might have read on their own time the order would be taken in their official capacity, and the... and--
Speaker: But suppose they drafted it on Saturday and signed it on Saturday?
Edwin S. Kneedler: --It would still be a... the second--
John Paul Stevens: It would be in their official capacities but it wouldn't have cost the Government a dime.
William H. Rehnquist: Doesn't... the statute doesn't say, official capacity. It says, expend funds.
Edwin S. Kneedler: --It says expend funds, but it means to act... but it says, to... it is directed to the actions of the ATF in its official capacity. Only an official act of ATF could relieve someone from firearms disabilities.
Antonin Scalia: I suppose the argument is that the... certainly the Secretary, and perhaps all Federal officials, don't get paid by the hour, they get paid for all the official actions that they take during the year, so that even if they take it on a Saturday they're being compensated for it.
Edwin S. Kneedler: That's correct, and--
Antonin Scalia: Minimally, but compensated.
Speaker: [Laughter]
Edwin S. Kneedler: --They are paid for the office, not for the work that they are performing, nor could the Secretary direct ATF to grant it, because again he would be directing an unlawful act. If there are no further questions, I'd like to reserve the balance of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Kneedler. Mr. Goldstein, we'll hear from you.
Thomas C. Goldstein: Mr. Chief Justice, and may it please the Court: Congress, in section 925(c), provided individuals like Respondent Tommy Bean two rights vis a vis the Secretary of the Treasury of the United States of America. Individuals may apply to, quote, unquote, "the Secretary" for relief from firearms disabilities and, if the Secretary denies that application, they may secure judicial review. The obvious flaw in the Government's position this morning, as several of the later questions identified, is that Congress has never, expressly or impliedly repealed those rights vis a vis the Secretary. The appropriations statutes that are before you address only the Bureau of Alcohol, Tobacco, and Firearms. Congress has set aside a separate and special budget for the Department of the Treasury generally, which is under the control of the Secretary, it's for $123 million, and the right to proceed before the Secretary is unaffected.
William H. Rehnquist: Well, now, did your client seek to proceed before the Secretary?
Thomas C. Goldstein: Yes. Page 27 of the joint appendix is the application. It's directed to the Secretary of the Treasury, care of BATF. We went, as the statute directs, to the Secretary of the Treasury. The Secretary of the Treasury told Tommy Bean that he was not going to restore firearms rights.
William H. Rehnquist: Well, this was not a personal conversation between the two, I take it.
Speaker: [Laughter]
Thomas C. Goldstein: We don't have his number. That's right. We wrote him a letter, as the statute requires.
Antonin Scalia: Well, he didn't say, denied. He said, I'm not going to act upon it.
Thomas C. Goldstein: And that--
Antonin Scalia: Whereupon, your remedy under the Administrative Procedure Act would be to sue in district court for agency action unreasonably withheld.
Thomas C. Goldstein: --With respect, the premise and the conclusion are not... of your question are not correct. The ATF on behalf of the Secretary said, I'm not going to grant you this relief. The definition of denial... the statute does not say, denial on the merits. The definition of denial is a refusal to grant the requested relief. That's--
Ruth Bader Ginsburg: Mr. Goldstein, may I back you up just a bit, because I'm looking at the letter you cited. It is addressed to the Secretary, but it's care of Director of the Bureau of Alcohol, Tobacco and Firearms, and Congress passes all kinds of laws giving the Secretary authority to do this or that, which the Secretary invariably delegates, and I can't think of an instance where a regime of this order is taken over by the Secretary herself, rather than by some delegatee, but this is the kind of thing that's made to order for, not the top person, but for it to be delegated.
Thomas C. Goldstein: --Can I address both the question of whether there are other examples of the scheme we've described, which is to say, the agency head does it, and then the question of whether or not, if this were a novel scheme, it would matter? The premise that there aren't parallels for this is not correct. I can give you three examples. The Attorney General is required to personally certify any person who's going to be subject to the Federal death penalty. That's 42 U.S.C.... 18 U.S.C. 3593. Under the Civil Rights for Institutionalized Persons Act, which is 42 U.S.C. 1997(a), the Attorney General is required to personally certify a prosecution, and there are various Federal criminal prosecutions for civil rights violations, which are at 18 U.S.C. 245.
David H. Souter: How does the statute make it clear that it's a personal obligation or a nondelegable obligation? What are the words that it uses, or that those statutes use?
Thomas C. Goldstein: It's the two in combination. 925(c) says the Secretary. 921(a)(17) defines the Secretary to mean that individual or the delegate. Then, what Congress did is, it came along in the appropriations action, act and said, we recognize... well, I'll give... the literal language is that the ATF may not investigate or act upon--
David H. Souter: No, no, I'm sorry, my question wasn't clear. I want to go to the examples that you were giving of personal obligation.
Thomas C. Goldstein: --I apologize.
David H. Souter: And you used the adverb, personally--
Thomas C. Goldstein: Yes.
David H. Souter: --certify, et cetera. How do they provide for that so-called personal action?
Thomas C. Goldstein: They generally say, the Attorney General shall certify, and the courts have interpreted that... I believe there is an example that says, personally.
David H. Souter: Which we don't have here.
Thomas C. Goldstein: We definitely do not have here, but we have the equivalent, and then I'll get to Justice, the underlying question of Justice Ginsburg's, and that is, does it matter if this is done in a different way. We have here the parallel, because what happened is that Congress defined the Secretary to be that individual or the delegate, and in the appropriations laws has told ATF, as the delegate, that they may not act on anything else, and the parallel provision that Mr. Kneedler pointed to, which is that the Secretary may not transfer to any other division or agency. What Congress did not say... and this is extraordinarily important. It's the key to the entire case. Congress did not say that no funds in this or any other act, or no funds in the subsection dealing with the budget of the Secretary of the Treasury, may be used. Now, it is that--
David H. Souter: Well, maybe it didn't say that because it thought it was perfectly clear that if it didn't want public money used under... by the delegate, it presumably wouldn't want public funds used for the same purpose by everybody else, which seems like a fairly reasonable assumption.
Thomas C. Goldstein: --Maybe--
David H. Souter: I mean, why isn't it a reasonable assumption?
Thomas C. Goldstein: --It may be, but what--
David H. Souter: Well, if it is a reasonable assumption, haven't we got to take that into consideration in interpreting the annual bar, and hold against you, otherwise we'll be clearly... we would clearly be going against the intent of Congress?
Thomas C. Goldstein: --No, and that's the underlying point to Justice Ginsburg's questions. This Court--
Ruth Bader Ginsburg: My first question started out, it seems that you in the beginning of this process understood that the Bureau of Alcohol, Tobacco, and Firearms was the relevant actor, because you addressed the Secretary care of that agency, not the Secretary--
Thomas C. Goldstein: --And let me explain why. The 27 C.F.R. 178144(a), which has never been repealed, required us to send it to ATF. We had no choice. There's a regulation on the books that says we have to submit it to the Director. We didn't have a choice, but to make perfectly clear that it was directed to the Secretary we say, we send it to the Secretary care of ATF. But I need to return to Justice Souter's question, which is, is it good enough in this case, as in many other instances of statutory construction, to say, we get the general sense of what Congress was trying to do? The answer is no. In this area of law uniquely, Congress has to turn square corners. The relevant text of any statute is section 925(c). It's never been repealed. It says--
William H. Rehnquist: --What you're saying is that Congress was just wasting its time here. It was trying to do something. It just didn't accomplish it.
Thomas C. Goldstein: --No, Mr. Chief Justice, and let me get to that point, and that is, I agree with you that it would be foolish to say that the appropriations acts are completely ineffective, and if our interpretation were to deprive them of any value, we agree it would be highly questionable. It is not. The scheme that results is clearly one under which the Secretary will grant only those applications where the right to relief is perfectly clear. Where, as in this case, it is--
William H. Rehnquist: How do you know that? You say the scheme that results, I don't see how you can see that from the enactment in question.
Thomas C. Goldstein: --Because, Mr. Chief Justice, what Congress did is, it created a system under which the subdivisions underneath the Secretary may not investigate or act. It's left to the Secretary, and now it is--
William H. Rehnquist: But the... that just doesn't fit with the real world. The idea that the Secretary on his way to the International Monetary Fund meeting is going to address an application like this just doesn't make sense.
Thomas C. Goldstein: --Mr. Chief Justice, with respect, we... well, first of all, the text of the statute we think is enough on its face, but on the question of whether or not it makes sense, we think it does, because... and I will point you to several other examples in Federal firearms law where Congress has adopted categorical rules allowing felons to have their rights restored. We believe this is a safety valve. We're not saying that the Secretary has to grant any particular application. What we're saying is that Congress recognized that there would be extraordinary cases. What Congress was faced with was that ATF had spent $20 million granting 3,000 applications, and that's what the legislative history shows that Congress was trying to cut off. What we are describing is a very different animal. It is an animal that's in the text of the statute, and that is, the Secretary is still empowered to grant relief. Now, Justice Ginsburg, one of the premises of your question was that there's a delegation here. The delegation here is not exclusive. The delegation here provides that... and this was in 19... when the BATF was created, the Secretary provided that the Director shall act under the general supervision of the Secretary and under... excuse me, and under the supervision of the Assistant Secretary. The parallel that's drawn by the Solicitor General is to United States v. Nixon and to the Accardi case, and those were exclusive delegations. In United States v. Nixon this Court said... and this is at page 695 of the opinion... that the special prosecutor had plenary authority, and the regulation provided that the Attorney General shall not interfere with the special prosecutor's decision, and in Accardi, and this is at page 266, the Court said that... the scheme in Accardi was that the Attorney General would act only after the Bureau of Immigration Affairs, and that clearly contemplated that the AG would stay out of the process. In any event, not only is this not an exclusive delegation, but our fundamental point is that it's an illegal delegation.
Ruth Bader Ginsburg: Mr. Goldstein, I would... you are concentrating on the agency end of it. Looking at it from the perspective of a court, you seem to be making of the district court an entity that doesn't exist in the U.S. system. You're having the district court in effect being an examining magistrate. There is no adverse party. You're having the district court determine whether there's sufficient evidence to warrant restoring the license. We don't have district judges performing that kind of mixed function, proceeding in that ex parte way. It would be extraordinary for Congress to make such a provision, and yet you want us to infer it.
Thomas C. Goldstein: No, Justice Ginsburg. Here's how it works. The statute contemplates when there's a denial, and we will take up, probably, the question further of whether or not there's a denial here, but to focus only on the judicial review aspect, when there's a denial, you file a petition with the Federal district court. What happens in all the cases would be what happened here, and that is that the district judge orders the United States and the Secretary made the party defendant. They come into the case, and they have the opportunity to put on evidence, to examine the witnesses... that happened here--
Ruth Bader Ginsburg: But the United States came in and said, we are disabled. Congress doesn't want us to play a part in that. It seems to me then the... you fight that out, and if the agency isn't disabled, the district court orders the agency to act. But that's not what you asked for. You asked the district court to restore this person's license, and that's the relief you got.
Thomas C. Goldstein: --Justice Ginsburg, you are correct what we asked for. You are, with respect, not correct about what the Government said in this case. The Government did not come in and say, our hands are tied. The Government did press its argument that there wasn't jurisdiction, but it absolutely did participate on the factual side of the case. I can give you examples. J.A. 51 is the examination of Tommy Bean, and then the cross-examination by the Assistant United States Attorney. J.A. 55 is the opportunity given to the United States to cross-examine the chief of police. We--
Ruth Bader Ginsburg: Did the United States take the position that this license shouldn't be restored?
Thomas C. Goldstein: --No. Precisely the opposite. J.A. 37 is the United--
Ruth Bader Ginsburg: I don't understand how there was an adversary proceeding, then.
Thomas C. Goldstein: --What happened is, they came in... I'm... I've confused you with the timing. On January 20, 199... on 2000, there was a hearing held before the Federal district judge, Judge Fisher. The United States participated. It did not say, we are prohibited from participating. They had been given the opportunity to take witnesses, and let me detour very briefly, and that is to say that while the appropriations statutes prohibit ATF from acting on applications, we are now talking about, as you've pointed us to, the petition, and there is nothing... and that's the distinction drawn in section 925(c). ATF is not disabled from participating in the district court. To return. There was this hearing on January 20. The United States was given the opportunity to put on evidence and cross-examine witnesses, as I was just describing. Immediately afterwards, the Respondent Bean submitted proposed findings of fact and conclusions of law after that adversary proceeding. At J.A.--
Ruth Bader Ginsburg: In what sense it was adversary? Usually, if the bureau hadn't been disabled by Congress it would say, deny an application, and then there would be a determination on the merits, but here, apparently there was no position taken on the merits.
Thomas C. Goldstein: --I'm almost there. There was. J.A. 37 is the United States' response to our proposed findings of fact, and they conclude at J.A. 37 that our proposed findings of fact are supported by the evidence. Finding of fact 27 is that petitioner... that... he... we were the petitioner there. Petitioner, based on the circumstances of his disability and based on his record and reputation, would not represent a threat to the public safety, and finding of fact 28 that they conceded was that granting petitioner the relief he requested would not be contrary to the public interest. What happened here is that the evidence was so overwhelming. We had six chiefs of--
Anthony M. Kennedy: Well, why... if the United States was a party, as I suppose is the purport of what you're saying, why isn't that a violation of the appropriations rider, so that we must disregard it?
Thomas C. Goldstein: --Because, Justice Kennedy, nothing in the appropriations rider prohibits either of the two following things: First, the United States Attorney showing up and representing the United States, relatedly the Secretary of the Treasury showing up; or the ATF participating at the petition stage, as opposed to the application stage. I think it's very important to recognize here that this case has proceeded up until today on the understanding of the parties that the evidence about Mr. Bean's entitlement to relief was overwhelming. Six chiefs of police, a priest, a local--
Stephen G. Breyer: I don't know that that's an argument. I mean, I concede that. I'm still left back at Justice Scalia's question, because I thought in response to his question you... I had the impression you were suggesting that the Secretary had somewhere written a piece of paper that in effect denied the application, and I looked through this appendix... I've been doing that and listening at the same time--
Thomas C. Goldstein: [Laughter]
Stephen G. Breyer: --and I cannot find that letter.
Thomas C. Goldstein: --Right.
Stephen G. Breyer: All I find in the appendix is something written by Ms. Pamela Potaczek, who is from the ATF, and what that says is, because of the restriction we are returning Mr. Bean's application for restoration. That's the end of that. He can apply again. Now, is there some other piece of paper?
Thomas C. Goldstein: No.
Stephen G. Breyer: No.
Thomas C. Goldstein: Our position is--
Stephen G. Breyer: Well then, if there is no other piece of paper, what is the response to Justice Scalia's question, which was simply that there has been no denial? They return the application, and if your client felt that they should have acted on it, he should file a request in the district court for... of course, as soon as you do that, the Secretary will come in and say, of course I didn't act on it. That's what Congress meant. And then the question will be whether that's a reasonable interpretation of this statute, and then, of course, the Government thinks of course it's a reasonable interpretation, and even if it's an incorrect interpretation, at least reasonable.
Thomas C. Goldstein: --Right.
Stephen G. Breyer: Now, that's where I am, which is, I think, what Justice Scalia was raising.
Thomas C. Goldstein: Justice Breyer, you have several questions. Let me deal with them in the following terms: was there a denial here, second, does it matter whether there was a denial here, and third, is it sufficient that the Government's position and interpretation is reasonable, as opposed to compelled by the statutory language? The plain meaning of the word denial is a refusal to grant the relief requested. Our position is that when ATF turns around and sends us a letter saying, we're not going to act, that is... it's not a failure to act, it's a refusal to act. That is a denial, and I can point to their own regulation that means it must be so. Under subsection (i)(1)(3) of the governing regulation, which unfortunately is not reproduced in any of the documents... we do cite it, I apologize, but it is not quoted in any of the appendices. Under that provision, ATF said that any person who is a firearms licensee... let me briefly draw the distinction here, and that is, there are people who are allowed to have firearms under State law, but there are federally licensed dealers, importers, collectors. In the latter class, any person who submits an application to ATF is allowed to continue operating for 30 days, until 30 days after the denial. If the Government is... and that's a quote, of the denial of the application. If the Government is correct here, it would make the profoundly... have the profoundly illogical consequence that no licensed collector has ever been denied, and they all have the right to continue operating.
Speaker: Well, that's true if we assume your first premise, that a failure to act is a denial, and that's the question.
Thomas C. Goldstein: Oh, no, just the reverse, Justice Souter. Let me be clear. The regulation says that you get to keep operating under your license until 30 days after the denial. What I'm saying is, if you accept Mr. Kneedler's premise that all these letters that ATF has been sending out are not denials--
David H. Souter: No, but the... that provision assumes that there is going to be action upon the request, that the ATF or the Treasury will take it under advisement and in effect say, yes, we'll tell you yes or no when we've had time, and that's not what is happening here, and if that, in fact, is a fair distinction, then the statute you're just referring to doesn't even apply.
Thomas C. Goldstein: --Justice Souter, if the Government is correct... and I won't belabor this point. If the Government is correct that the ATF letters don't count as denials, then every licensed dealer in the United States can continue operating indefinitely.
David H. Souter: Well, once again, we're just going around in a circle. If we accept your premise, sure. If we don't accept your premise that a refusal to act and, in fact, a very candid refusal to act is tantamount to a denial, then your conclusion doesn't follow and the statute that you refer to doesn't apply.
Thomas C. Goldstein: I'll move on, then. I respectfully disagree, but I... and I think the language will track in our direction, but let me move on, because Justice Breyer had two subsidiary questions.
Stephen G. Breyer: In respect to that, is there an instance where they sent a letter back to a firearms licensee saying, well, we aren't going to process this because of the statute, and then the firearms licensee said, well, you haven't denied it, I'll stay in business, and then they went to the firearms licensee and said, no, you can't stay in business?
Thomas C. Goldstein: I don't know the answer to that question.
Stephen G. Breyer: All right. Well, if we don't know the answer to that, we don't know, in other words, whether or not this reg does or does not stand in the way.
Thomas C. Goldstein: Well, my impression--
Stephen G. Breyer: So I understand--
Thomas C. Goldstein: --My impression is that it's a form letter that goes out to everyone.
Stephen G. Breyer: --Uh-huh.
Thomas C. Goldstein: Now, you... I had promised to come back to the question of whether, in this case, it matters that we didn't get what this Court would conclude to be a technical denial letter, notwithstanding if you accept the rest of our argument that we have the right to compel the Secretary to give us one, So to play this out, our position is that the Secretary had the duty to act. The question back to us is, well, maybe the Secretary didn't act here. My point is, that doesn't matter. The question presented by... before this Court, if I could take you to it, is that... is fundamentally, and this is the text of it, whether a Federal district court has the authority to grant relief. The Government has never contended, again, in the district court that there was an insufficient premise for us to be in district court. The question before this Court is whether or not the right... excuse me, the provision for judicial review in section 925(c) has been repealed, and that takes us back to your third question, Justice Breyer, or third subsidiary one, and that is, is it enough... and this is Justice Souter's point. Isn't it enough for us to recognize basically what Congress was after here, and I will turn to the answer. It is no. TVA v. Hill, Will, Robertson, many other, Dickerson, of this Court's precedents make perfectly clear, and this was the question that Justice Scalia started out with, that an appropriations repeal has to be categorical. The conflict between the two statutes, section 925(c) and the appropriations law, have to be irreconcilable, and that is not the case here.
William H. Rehnquist: I don't know that that was the holding of Dickerson. I mean, they went into legislative history... you couldn't just say it jumped out at you.
Thomas C. Goldstein: Well, Mr. Chief Justice, then I will take you to TVA v. Hill, which does address this issue. The Court has made perfectly clear that the kind of legislative history here is the kind of legislative history that would draw Justice Souter and possibly Justice Breyer to the conclusion that we know basically what Congress was trying to do. Those are Appropriations Committee reports, and this Court could not have been more clear that those are not an accurate indicia of congressional intent. There are--
Ruth Bader Ginsburg: Mr. Goldstein, before we get into legislative history and how it bears on this, I see Congress having established traditional roles where the executive was going to be the investigator, the court was going to be the reviewer. The agency says, we have no authority to act. When a court says, we don't have authority to act, it's not granting or denying the relief requested, so isn't that the proper way to look at what the agency is doing? When it says, we have no authority to act, it isn't granting or denying. And then on the court, the court said, Congress set us up to be a court of review, not first view. The agency hasn't looked at it because it says it has no authority to do it. Congress did not give us the authority, ever, to take a first view of this.
Thomas C. Goldstein: --Justice Ginsburg, let me... can I start at the end of what I think is the consequence of several of these questions, and then come back to the difference between administrative review and judicial review, and whether this would just be unknown to American law? The very best we think that the Government can get out of this argument is a judgment of this Court that says we were entitled to a remand to the Secretary. When we came to Federal district court and asked for relief, the best the Government could do was an order that says, no, you should have acted. What can't be the case, we believe, is that the Secretary would be able to just let these things pile up on his desk and say, I've never denied them, tough. Now, the... what we take--
Speaker: He didn't deny them. He said the agency has no authority to rule on these applications.
Thomas C. Goldstein: --Right, and if we conclude that's not a denial, we can't get into court. The Government's answer, I think, if we move down the road, will be that we should file another lawsuit, an APA lawsuit that says, to compel agency action unreasonably withheld, and if you take that position, if you conclude that this is agency inaction instead of an agency refusal to act, the surreply to that, the answer is that you should treat this as an APA action. The provision that Mr. Kneedler is quoting to you, 5 U.S.C. 703, says that the form of an action under the APA shall be the special review provision provided by statute, and that's section 925(c). If we were required to file under the APA we did. That's--
Stephen G. Breyer: The serious underlying question here is, I agree with you that you found a literal way around this, and so you're saying, well, if there's a literal way around it, and you have a statute saying do it, that you ought to do it, whatever the form of the action is to get the case here, and I guess the underlying thing is, well, my goodness, everyone knows what Congress wants here. It's perfectly obvious. And so a Secretary who said, I'm not going to enforce this statute because Congress doesn't want me to even though there's a literal way I could do it without technically violating the actual language of the prohibition, does the Secretary have the right to do that? Well, I would think the answer to that question's yes.
Thomas C. Goldstein: --The answer--
Stephen G. Breyer: Because otherwise Congress can't work.
Thomas C. Goldstein: --Well, the answer to the question is no, and let me explain why. [Laughter] Mr. Kneedler... thankfully. Mr. Kneedler framed the question as whether or not the Secretary abused his discretion by not withdrawing the delegation, by saying, I knew what Congress was up to, this is my agency, I know how this thing works. The answer is that this is not a question of abuse of discretion. It is a question of a clear statutory command. Section 925(c) says, we can apply to the Secretary, and clearly contemplates that the Secretary will act on these things. It's not an option.
John Paul Stevens: Mr. Goldstein, let me just be sure about one thing. Is your submission limited to cases that you think are totally clear on their face, or does it cover cases when there are marginal issues of fact?
Thomas C. Goldstein: The right to apply to the Secretary would remain. We think it's clear that the Secretary, once his obligation to act is recognized, will set up standards. He'll say things like, I'm only going to grant relief if it's an... the legislative history refers to a technical or unintentional violation where there are sworn statements in front of me that make perfectly clear this person is no threat whatsoever. That will be up to the Secretary. The Secretary will get to decide, and if he's granting too many applications, Congress will come along and say, no funding under this or any other act shall be expended to investigate or act on appropriation, on 925(c) applications. The critical thing, and the... is that the Government does not dispute that this appropriations rider ever since 1993 is in the subdivision that applies only to ATF. If you want to talk about Congress working, they need clear instructions. We can't have the executive branch out here saying, I don't really like this statute, and so I'm going to infer that it's been repealed, and we can't have the courts doing that, too. It will take no effort whatsoever, if this is what Congress really intends, to strip away the statute and to do it in appropriations law.
Antonin Scalia: So I'm still left with... assuming all that, I'm still left with the problem that you've asked for the court to make the decision rather than asking to have the Secretary make the decision.
Thomas C. Goldstein: Okay. We have a, now, I think, a different question of administrative law, and that is the fundamental principle, in the APA context or a parallel like 925(c), is it only the court that can enter the order saying, you have a right to relief? Or does... where's the proper order, send it to the Secretary and saying, it would be an abuse of discretion, it's absolutely clear under the statute you're entitled to it. Now, the court here did the latter. If this Court decided that was technically incorrect, it could reverse on that ground and say, no, no, no, the correct technical judgment is to put it back in the hands of the Secretary.
Antonin Scalia: But you didn't ask for it to be put back in the hands of the Secretary.
Thomas C. Goldstein: And neither did the Government.
Antonin Scalia: You're saying that the court had an obligation to give you something you didn't even ask for?
Thomas C. Goldstein: Mr. Justice Scalia, they gave us what we asked for. I apologize for that. If--
Antonin Scalia: That was the wrong thing.
Thomas C. Goldstein: --If they should have-- [Laughter] If they should have done something else, then this Court can tell it so, but we... I don't think it's fair to hold us to the position that the Government did not object, that only the Secretary... in this case, when you go through the district court record, that the only proper remedy is an order to the Secretary to grant us relief, as opposed to granting us relief personally. Remember, as I quoted to you from the findings of fact, the Government left the playing field here. It admitted that with all of the evidence we had, no one could reasonably dispute that Tommy Bean was perfectly entitled and represented no threat. The only question... they participated on the fact side of the case. Their only argument that they attempted to advance was that the district court was powerless to do anything at all. With respect, we did what we were supposed to do to get relief here, and if the Court decides that it only should have gone to the Secretary, that's a minor change in the judgment.
Anthony M. Kennedy: I still think participation by ATF in the judicial proceeding is within 925(c), and Congress was forbidden that, too.
Thomas C. Goldstein: Justice Kennedy, let me be clear on what money was spent, because there were technical questions about this. The United States Attorney's Office participated here, not--
Anthony M. Kennedy: There was an ATF agent who testified, and that's within 925... the purview of 925(c), and Congress says you can't do that.
Thomas C. Goldstein: --With respect, there was one agent who was one witness. The appropriations statute says you may not investigate, which was not what he was doing, and you may not act upon, which was not what he was doing, upon applications, which this was not. It was a petition under section 925(c). There was no prohibition, and the ATF agent did not object that I'm not allowed to be there. We did... we put the witnesses on that we were supposed to.
Antonin Scalia: Can I ask, under your view of things can the Secretary use assistance, or would that constitute a delegation?
Thomas C. Goldstein: He can. What he can do is, he can take and is required to take up into his own hands, as the three examples I gave to Justice Ginsburg, the responsibility. He can detail. He has a budget of $123 million, $141,000, and he can take them up into his hands and say, look, I've got these sworn statements, and he could require, I want 10 sworn statements. He could require, I want 20, and he can have someone confirm that that's the right person. But what we do think, and this goes back to the Chief Justice's question, is that we do not think that Congress contemplated that the Secretary would spend $20 million granting 3,000 applications. If he decided--
William H. Rehnquist: Thank you, Mr. Goldstein.
Thomas C. Goldstein: --Thank you, Mr. Chief Justice.
William H. Rehnquist: Mr. Kneedler, you have 10 minutes remaining.
Edwin S. Kneedler: Mr. Chief Justice, the argument that the Secretary could have granted relief was never raised below in this case. It was not raised in the court of appeals, it wasn't raised in the brief in opp, it was raised for the first time in respondent's brief, and again if... we think the proper avenue for that would be a suit to the... suing the Secretary under the APA or--
Stephen G. Breyer: No, but his point, and actually although he raised it late, is certainly a factor. That seems to me the most powerful argument, that there's no point sending it back to the Secretary, really, even though that's the correct procedural route, if the Secretary under the law has no choice, and what he's saying is, the Secretary under the law has no choice, and the reason is because literally this appropriations measure doesn't cover the Secretary's action. And given the absence of that, the Secretary's under a statute that tells him, act, and moreover, he adds, this is a very bad way to repeal a statute, that really under normal legislative principles if they want to repeal it, repeal it; and therefore it isn't wrong for us to consider this literally in this circumstance. So that, I think, is... that's an argument that's worth hearing what the reply is.
Edwin S. Kneedler: --Well, I... first of all, I think it is wrong. It would be a different disposition of the judgment, but with respect--
Stephen G. Breyer: Well, maybe we'd reach a different--
Edwin S. Kneedler: --Right.
Stephen G. Breyer: --The disposition would be one thing--
Edwin S. Kneedler: Right.
Stephen G. Breyer: --but he's saying, that's really what the heart of this is about.
Edwin S. Kneedler: There's... first of all, let me make another point which I think goes very much to the Secretary's authority. We point out on page 4 and 5 of our reply brief general principles of appropriations law that are really a particular application of the general principle that the specific governs the general, and under appropriations law, when Congress appropriates a pot of money for a particular task, that's all that can be spent for that task. Money can't be drawn from some other pot to perform that task. We think that principle should apply a fortiori, or at least it's a reasonable interpretation for the Secretary to make, that when Congress has prohibited the expenditure of any funds by the agency to whom the Secretary has delegated that authority, that Congress did not expect money to be drawn from some other pot. That is a general principle of appropriations law. At the very least, the Secretary should be given the opportunity--
William H. Rehnquist: What is the authority for saying that's a general principle of appropriations law?
Edwin S. Kneedler: --There are a number of Comptroller General opinions that we cite at the bottom of page 4 of our reply brief, and it's against principles like that that agencies always act in deciding how they're going to spend money. But if this argument was going to be made, the right disposition would be to present it to the Secretary, so the Secretary can construe this statute, just like all the other statutes that need to be administered, and the way to do that--
Antonin Scalia: It's one thing to say that when Congress says we give $500,000 to subunit B to perform this function, you cannot use $2 million from somewhere else to perform the same function. That's one thing. It's something quite different, however, to say that when you have forbidden one unit from doing something, and there is a general statute which allows the Secretary to do it, that that prohibition also applies to the Secretary. I just don't think it's parallel.
Edwin S. Kneedler: --Well, at the very least it would not be arbitrary and capricious for the Secretary to decline to withdraw the delegation. That, we think, is the question that would arise in that situation, because the Secretary now may not act on these applications. He... the ATF acts under the general direction of the Secretary, but if the Secretary directed ATF to grant one of these applications, he would be directing an illegal act. He would have to withdraw the delegation. He hasn't been asked by respondent to do that, which would require a petition for rulemaking. The Secretary, in deciding whether to take this power back to himself, could at the very least take into account what Congress has said about not wanting these applications to be acted upon by ATF, and also the reasons the Congress gave, which is that this is a very subjective undertaking, with high risk, and Congress decided, we don't want this function being performed because of the potential consequences. We want this money to be used for other purposes in fighting crime. All of that would make it entirely reasonable for the Secretary not to take on this function himself. The other important point to notice is that--
Antonin Scalia: Well, he has a statutory obligation to perform the function--
Edwin S. Kneedler: --I was just going to--
Speaker: --which has not been canceled by the appropriations law.
Edwin S. Kneedler: --He does not... nothing in the statute says that the Secretary must act on applications. It says the Secretary may grant relief. It does not require him to grant relief, and the Secretary could very easily withhold action, which is, after all, what Congress required ATF to do.
Anthony M. Kennedy: What, on the ground that it's like the pardon power, it's like a matter of grace, or something like that?
Edwin S. Kneedler: Yes, very much so. It's... it's, or, as the Court said four or five terms ago in the Yang case that we cite in our brief with respect to relief from deportation, it is exactly like the pardon power, and it's written in very broad terms. It establishes several preconditions, whether the person would be dangerous to the public safety, and whether granting it would not be contrary to the public interest, and even then the Secretary is not required to grant relief. This is a very broad discretionary power, and I think it ties into what Justice Ginsburg was asking earlier, wouldn't this be an extraordinary power to give to the Federal district courts. Indeed it would, because the question is not just whether the person might be dangerous, but whether granting relief would be contrary to the public interest. That's not the sort of determination a court can make in the first instance. It's something that Congress has assigned to the Secretary. In this case, even if respondent is correct that he wouldn't be dangerous, it doesn't follow that restoration of firearms abilities would be consistent with the public interest. That's a judgment that Congress invested in the Secretary, not in the courts, and as Justice Kennedy pointed out, ATF could not investigate an application for relief in connection with a judicial proceeding any more than it could in an administrative proceeding. The ATF agent who testified in this case was one of respondent's witnesses. He was not called by the Government.
Stephen G. Breyer: Is testifying investigation?
Edwin S. Kneedler: Pardon me?
Stephen G. Breyer: Is testifying investigation?
Edwin S. Kneedler: Well, that would be... we did not object, the Government did not object in the district court to his testifying. He was just testifying as to what he had looked up in the records, but an investigation involves far more than that. In fact, the AUSA in this case cross-examined Mr. Bean and a couple of other witnesses, but that's far short of the investigation that Congress expected ATF to undertake when it was performing these functions, and that it did undertake, which involved an investigation of the crime, neighbors, not just the people whom respondent has put forward, but ATF would go out and develop its own independent leads. None of that capability exists when the Government is responding to an application filed in court. So for these reasons we think it is--
John Paul Stevens: Mr. Kneedler--
Edwin S. Kneedler: --Yes.
John Paul Stevens: --if you've had a chance to complete your rebuttal, I had one question. Do you think the Secretary's authority under the statute is broad enough so, even without any act of Congress or anything in the appropriation, the Secretary could have adopted a policy, we would rather use our money on other purposes and so we're not going to process any applications?
Edwin S. Kneedler: I do believe it's... it is broad enough. I think the Secretary... all it says is, the Secretary may grant relief. I think the Secretary could decide, and in fact the regulations, 144(d) has some categorical exclusions that the Secretary had adopted but the district court in this case ignored. Even... we think the court couldn't act at all, but it even ignored the standards that the Secretary had adopted in the public interest to implement what would be a public interest standard under the statute. The district court ignored them, so we think that the Secretary could make a categorical determination not to grant relief.
William H. Rehnquist: Thank you, Mr. Kneedler. The case is submitted.