Kelerchian v. Bureau of Alcohol

655 F.Supp.3d 334

Vahan KELERCHIAN, Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES andUnited States of America, Defendants.

CIVIL ACTION NO. 20-0253

United States District Court, E.D. Pennsylvania

Filed February 8, 2023

Joshua Prince, Dillon Harris, Prince Law Offices, P.C., Bechtelsville, PA, Adam J. Kraut, Second Amendment Foundation, Bellevue, WA, for Plaintiff.

Lauren E. DeBruicker, United States Attorney's Office, Philadelphia, PA, for Defendants.

OPINION

WENDY BEETLESTONE, DISTRICT JUDGE

Plaintiff Vahan Kelerchian seeks in his Amended Complaint to assert claims against Defendants Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the United States of America under the Declaratory Judgment Act, the Administrative Procedure Act, Fifth Amendment, and First Amendment. Defendants now move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the case for failure to state a claim. For the reasons that follow, Defendants' motion will be granted.

I. BACKGROUND

The facts of this case and the relevant statutes have been detailed at length. See Kelerchian v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 2021 WL 2910934, at *l-2 (3d Cir. July 12, 2021); Kelerchian v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 2020 WL 4039056, at *1-2 (E.D. Pa. July 17, 2020). In brief, Kelerchian, formerly a federally licensed firearms dealer, was convicted of violating federal firearms law, among other counts. See generally United States v. Kelerchian, 937 F.3d 895 (7th Cir. 2019), cert. denied, — U.S. —, 140 S. Ct. 2825, 207 L.Ed.2d 158 (2020). Kelerchian sought to appeal his conviction by way of a writ of certiorari to the U.S. Supreme Court. The Supreme Court denied the writ upon which denial his conviction became final. ATF then informed him by letter that, pursuant to Sections 922(g) and 925(b) of the Gun Control Act and its implementing regulation, his firearms license would be revoked after thirty days. Id.; 18 U.S.C. §§ 922(g), 925(b); 27 C.F.R. § 478.144(i)(1).

The Gun Control Act of 1968 bans certain classes of persons, including felons, from possessing, receiving, or transporting firearms. See 18 U.S.C. § 922(g). These persons are also ineligible for federal firearms licenses. See 18 U.S.C. § 923(d)(1)(B). The Gun Control Act further provides that any federal firearms license held by a convicted felon becomes void when the conviction becomes final. 18 U.S.C. § 925(b). These federal firearms disabilities are imposed by operation of law; no action by ATF is required to implement them. Id. The implementing regulation requires no action by ATF to revoke a felon's federal firearms license. 27 C.F.R. § 478.144(i)(1). The license becomes void thirty days after the felon's conviction becomes final. Id. (allowing a thirty-day period for licensees subsequently convicted of felonies to wind down their business and transfer prohibited firearms to a valid licensee in an orderly fashion).

ATF informed Kelerchian by letter that he must transfer to ATF machine guns in his possession manufactured after 1986 and his firearms records, or risk criminal liability. ATF also removed Kelerchian from the FFL eZ Check system, the online system listing those with federal firearms licenses. Before his license was revoked Kelerchian applied for relief from his firearms disabilities pursuant to Section 925(c) of the Gun Control Act. 18 U.S.C. § 925(c). This provision as originally written and enacted permits those barred from federal firearms privileges, like felons, to apply to ATF for relief and, while their application is pending, permits applicants to continue operating under their prior firearms license until the U.S. Attorney General¹ decides on the application. Id. Relief could be granted if applicants established, to the Attorney General's satisfaction, that certain preconditions were met—including that the applicant no longer posed a danger to the public and that granting relief would be in the public's interest. Id. Authority to administer the § 925(c) relief-from-disabilities program was delegated to the director of the ATF. 28 C.F.R. § 0.130(a)(1); see also Pontarelli v. U.S. Dep't of the Treasury, 285 F.3d 216, 217 n.2 (3d Cir. 2002) (en banc). Judicial review was available in the federal district court of appropriate jurisdiction only to a "person whose application for relief from disabilities is denied by the Attorney General." 18 U.S.C. § 925(c). In enacting this relief provision, Congress provided that if an applicant held a federal firearms license, that applicant would not be barred from further operations under the license "pending final action" on their application for relief. Id.; see also 27 C.F.R. § 478.144(i)(1) (if an application were timely filed, licensee could continue licensed operations "during the pendency of the application.").

From 1992 onwards, however, Congress consistently used appropriation acts to prohibit funding to act on or investigate Section 925(c) applications. See e.g., Consolidated Appropriations Act of 2020, Division B, P.L. 116-93, 133 Stat. 2317, 2401 (2020) (applicable at the time Plaintiff filed his Section 925(c) application and thereafter); see also e.g., Consolidated Appropriations Act of 2019, Division C, P.L. 116-6, 133 Stat. 13, 107 (2019); United States v. Bean, 537 U.S. 71, 75, 75 n.3, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002) (summarizing appropriation acts every year from 1993 to 2002 preventing funding of act or investigation pursuant to Section 925(c)) (collectively the "Appropriations Ban"). After observing negative impacts of the § 925(c) relief-from-disabilities program, in 1992 Congress set out to defund the program entirely, providing in its appropriations bill that year, becoming effective the year after, "[t]hat none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. [§] 925(c)." Treasury, Postal Service, and General Government Appropriations Act of 1993, Pub. L. 102-393, 106 Stat. 1729, 1732 (1993). Congress has retained and reaffirmed the ban on the use of appropriated funds to process applications for relief filed by individuals every year since. See e.g., Consolidated Appropriations Act of 2020, Division B, P.L. 116-93, 133 Stat. 2317, 2401 (2020); see also Bean, 537 U.S. 71, 75 n.3, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002). The Senate Report accompanying the first appropriations ban in 1992 explained the purposes of the ban:

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. This 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.

S. Rep. No. 102-353, at 8 (1992). The House Report accompanying the renewal of the appropriations ban in 1995 reiterated those reasons three years later:

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 . . . . [T]hose who commit felonies should 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 on to commit violent crimes with firearms. There is no reason to spend the Government['s] time or taxpayer's money to restore a convicted felon's right to own a firearm.

H.R. Rep. No. 104-183, at 15 (1995). As the Third Circuit has found, "[t]he legislative history of the appropriations ban confirms that Congress intended to prevent individual felons from regaining firearms privileges." Pontarelli, 285 F.3d at 231. It was in the context of this background that ATF returned Kelerchian's Section 925(c) application having taken no action on it. Kelerchian submitted a second application, on which ATF took no action and which it did not return. Kelerchian sued to enforce what he alleges are his rights under Section 925(c) to continue operating under his license while his application is pending before ATF.

This Court dismissed the suit for lack of subject matter jurisdiction. Plaintiff moved for reconsideration of the dismissal or to amend his complaint, and this Court denied that motion. Kelerchian then appealed to the Third Circuit which affirmed the dismissal but on different grounds and vacated as moot the prior order denying reconsideration or leave to amend. Specifically, the Third Circuit found subject matter jurisdiction was not foreclosed for three reasons. First, the Third Circuit noted, Bean, 537 U.S. 71, 123 S.Ct. 584, and Pontarelli, 285 F.3d 216, found subject matter jurisdiction lacking in specific circumstances and their holdings "are limited to cases where a district court is asked to review an application and decide whether an applicant is 'likely to act in a manner dangerous to public safety,' § 925(c), without the benefit of a prior ATF decision." Kelerchian, 2021 WL 2910934, at *2. This case, however, the Court of Appeals distinguished: "Kelerchian does not ask the District Court to decide the merits of his § 925(c) application." Id. Second, the Third Circuit noted Kelerchian is not seeking a determination on his Section 925(c) application itself, but rather "protection" under Section 925(c) that prevents applicants from being barred by firearms disabilities by permitting them to operate under their license while their application is pending. Id. at 3. The Third Circuit highlighted differences between being permitted to continue under a prior license, pursuant to Section 925(c), and obtaining relief from firearm disabilities—for example, the inability to obtain a license as a firearms...