MEMORANDUM OPINION
Federal law bars convicted felons from possessing firearms. The Attorney General may grant relief from this prohibition if it is established to his satisfaction that certain conditions have been met.
See
18 U.S.C. § 925(c);
United States v. Bean,
Plaintiff Rex Black, a convicted felon, has brought this suit in an effort to force the Attorney General to act upon his § 925(c) application. To this end, he both seeks a writ of mandamus and makes a claim under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1), to “compel administrative action unlawfully withheld or unreasonably delayed.” Plaintiff argues that the funding restriction imposed on ATF does not bar the Attorney General himself from granting applications made under § 925(c). In the alternative, he claims that insofar as the appropriations ban does effectively foreclose individualized relief from federal firearms disabilities, such a prohibition would itself violate the Due Process Clause, as federal law would then contain an irrebuttable presumption that every person convicted of a felony is too dangerous to be trusted with guns. The Court is not persuaded by these arguments and therefore will grant defendant’s motion for summary judgment.
BACKGROUND
The Gun Control Act of 1968 makes it unlawful for any person convicted of a crime punishable by imprisonment for more than one year to “ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1). However, such persons are permitted to apply to the Secretary of the Treasury “for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’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.” 18 U.S.C. § 925(c). In 1972, the Secretary delegated this authority to ATF, where it has remained ever since.
At the time of this original delegation, ATF was part of the Treasury Department. Effective January 24, 2003, however, the Homeland Security Act moved the Bureau (rechristened as the “Bureau of Alcohol, Tobacco, Firearms, and Explosives”) to the Department of Justice, and transferred the Secretary of the Treasury’s power to act upon § 925(c) applications to the Attorney General. See Pub.L. No. 107-296, title XI, 116 Stat. 2135 (Nov. 25, 2002). Soon thereafter, the Attorney General delegated that authority back to ATF. See 28 C.F.R. § 0.130(a)(1); 68 Fed. Reg. 4923, 4926 (Jan. 31, 2003); cf. 28 U.S.C. § 510 (allowing the Attorney General to “make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General”). The parties agree that this governmental reorganization has no effect on the merits of plaintiffs suit, although it does require that the Attorney General be substituted for the Secretary of the Treasury as the sole defendant. See FED. R. CIV. P. 25(c). 2
*24
More relevant is Congress’ decision, first made in 1992 and continued each year thereafter, to prohibit the federal funds appropriated annually for ATF from being used “to investigate or act upon applications for relief from Federal firearm disabilities under 18 U.S.C. § 925(c).” Treasury, Postal Service and General Government Appropriations Act, Pub.L. No. 102-393, 106 Stat. 1729, 1732 (Oct. 6, 1992). To the present day, every ensuing ATF appropriation has contained the same restriction on the processing of individual applications (although since 1994 Congress has allowed ATF to use its appropriated funds to act upon § 925(c) applications made by corporations).
See Bean,
In 1986, plaintiff was convicted in California of possessing narcotics for sale, which under the law of that state is punishable by more than one year’s imprisonment. On August 26, 2000, plaintiff (now a resident of Texas) submitted to the Secretary of the Treasury an application under § 925(c) for restoration of his right to possess firearms. Acting on the Secretary’s behalf, ATF invoked the appropriations restrictions and informed plaintiff on December 15, 2000, that his application could not be processed. On December 21, plaintiff filed the present action against the Secretary/Attorney General. In his complaint, plaintiff asks for two different forms of relief. First, invoking both the writ of mandamus and the APA, he seeks to compel the Secretary/Attorney General (rather than ATF) to act on his application. Second, in the event that it is determined that the appropriations restrictions operate as a defacto repeal of § 925(c), plaintiff seeks a declaration that Congress’ decision to leave convicted felons without a mechanism under federal law for the restoration of their right to bear arms violates the Due Process Clause of the Fifth Amendment.
This case was temporarily put on hold after the Fifth Circuit held that a district court could itself order individual relief under § 925(c), even in the absence of action by ATF.
See Bean v. ATF,
ANALYSIS
I. Plaintiff’s APA Claim
The APA authorizes federal courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Here, plaintiff asserts that the Secretary/Attorney General’s failure to take action on his § 925(c) application warrants this remedy. The Court cannot agree. To begin, there can be little doubt that plaintiffs APA claim would fail had it been brought against ATF itself. The appropriations restriction manifestly forbids ATF from expending any money to engage in the action that plaintiff seeks to compel. As the Second Circuit has written:
Congress could not have stated more clearly that the ATF is prohibited from acting on applications submitted by individuals pursuant to § 925(c). The parties have not suggested that the ATF has access to any funds other than those affected by the relevant spending limitation, nor are we aware of any such funds. Thus, while the annual appropriations statutes speak in terms of the ATF’s ability to spend appropriated funds, their affect on the agency is obvious: It may neither grant nor deny applications falling within the scope of the funding restriction.
McHugh v. Rubin,
Accordingly, the question in this case becomes whether that result should be different merely because plaintiff has sued the Secretary/Attorney General rather than ATF. No court has directly confronted this issue, although the Supreme Court in Bean expressed significant doubt about the viability of such a claim:
First, it appears that the Secretary delegated to ATF the exclusive authority to act on petitions brought under § 925(c); such delegation is not unreasonable. Second, even assuming the Secretary has retained the authority to act on such petitions, it is not clear that respondent would prevail were he to file a requisite action under 5 U.S.C. § 706(1) (providing for judicial review to “compel agency action unlawfully withheld or unreasonably delayed”). Not only does the Secretary, by the explicit terms of the statute, possess broad discretion as to whether to grant relief, but congressional withholding of funds from ATF would likely inform his exercise of discretion.
The law, however, does not appear to support this proposition. In
U.S. v. Nixon,
In the present case, it is clear that the Secretary/Attomey General’s delegation to ATF with respect to § 925(c) is still operative. See 28 C.F.R. § 0.130(a)(1) (providing that ATF “shall ... exercis[e] the functions and powers of the Attorney General under ... [18 U.S.C. § 925(c) ]”). As long as this is so, Nixon suggests that the authority (and any concomitant duty) to act upon applications for relief belongs exclusively to ATF. While the Secretary/Attorney General could rescind that delegation, unless and until that happens, he lacks the power to grant or deny § 925(c) applications on his own. And, because any such action would therefore be ultra vires, it could hardly be unlawful or unreasonable for the Secretary/Attorney General to refrain. From this it follows that plaintiffs § 706(1) claim cannot succeed.
Moreover, even assuming that, despite the delegation, the Secretary/Attorney General did retain some residual power over plaintiffs application, the Court has little difficulty concluding that there has been no “unlawful” withholding of action in this case. First, the language of § 925(c) vests broad discretion in the Secretary/Attorney General: he
“may
grant such relief if
it is established to his satisfaction ”
that certain conditions relating to the public safety and the public interest have been met. 18 U.S.C. § 925(c) (emphasis added). As such, the action that plaintiff here seeks to compel is in no way required by the statute; the use of the word “may” (rather than “shall”) indicates that the Secretary/Attorney General has no duty to act, but instead a choice as to when such action is appropriate.
Cf. Appalachian Power Co. v. EPA,
In addition, the trigger for that choice is not an objective determination, but instead a subjective one: whether the official has been satisfied that the relevant conditions have been met, not whether the condition
*27
has in fact been met. By making the option to act hinge upon the Secretary/Attorney General’s mental state, the statute confers upon him “virtually unbridled discretion” and leaves a reviewing court with “no meaningful standard against which to judge [his] exercise of discretion.”
Drake v. FAA,
Of course, on top of this ample discretion stands the appropriations ban itself. For, even if that ban does not formally prohibit the Secretary/Attorney General from acting pursuant to § 925(c), its existence (as the Supreme Court noted in Bean) surely and properly informs his exercise of discretion. In enacting the restriction each year since 1992, Congress has sent a clear signal that it wished to disable the firearms relief provision. The legislative history of the ban confirms this.
See
S. Rep. NO. 102-253 (July 31, 1992); H.R. Rep. NO. 102-618 (June 25, 1992). As the Third Circuit recently observed, these committee reports “indicate that Congress wanted to suspend § 925(c)’s relief procedure because it was concerned that dangerous felons were regaining their firearms privileges and because it believed that the resources allocated to investigad ing felons’ applications would be better used to fight crime.”
Pontarelli v. Dep’t of Treasury,
Against this backdrop, it would have been most unusual for the Secretary/Attorney General to circumvent congressional expectations by taking it upon himself to act on plaintiffs request for relief. Certainly, Congress has provided no indication that it intended the Secretary/Attorney General to take on the task that it had specifically prevented ATF from doing. Nor does the fact that Congress extended the appropriations ban only to ATF itself help plaintiff in this regard. In light of the Secretary/Attorney General’s long-standing and ongoing delegation to the ATF, it would have been entirely reasonable for Congress to conclude that defunding ATF would be sufficient to stop all § 925(c) applications from being processed. Indeed, it is likely that Congress did not impose a similar appropriations restriction on the entire Treasury and Justice Departments simply because it did not believe such a restriction was necessary in order to effectively suspend operation of the firearms relief statute. Because executive branch officials are entitled (if not obliged) to pay *28 attention to changes in the broader legal landscape in deciding how to exercise the discretion granted them by particular statutes, the Court cannot conclude that the Secretary/Attorney General acted unlawfully or unreasonably in refusing to process plaintiffs application. 6
II. Plaintiff’s Due Process Claim
As an alternative argument, plaintiff argues that insofar as the Secretary/Attorney General lacks the power to grant a § 925(c) application, the absence of a mechanism for the restoration of federal firearms privileges itself violates the Due Process Clause. The claim here is that § 922(g) operates on the assumption that convicted felons are too dangerous to possess firearms, an assumption that is only constitutional insofar as there is some individualized opportunity for felons to demonstrate otherwise. Otherwise the statute creates an “irrebutable presumption” of the sort that a line of older Supreme Court cases suggests is constitutionally suspect.
The irrebuttable presumption doctrine on which plaintiff relies reached its pinnacle in
Vlandis v. Kline,
it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresi-dence, when that presumption is not necessarily or universally true, in fact, and when the State has reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to the in-state rates.
Id.
at 452,
forced the government to grant hearings to persons who claimed to have been wrongly trapped inside overinclusive classifications; the idea was that even if *29 a person clearly fell within a legislative class, due process required that he be given the opportunity to show that he “really” (that is, according to the “true” purpose or justification for the distinction) belonged on the other side of the legislative line.
Brennan v. Stewart,
There can be little doubt, however, that more recent developments in constitutional law have significantly limited, if not altogether abrogated, the irrebutable presumption doctrine. Indeed, shortly after
Vlandis
and
LaFleur
were decided, the Court limited, if not eviscerated, the mode of analysis adopted by those cases. In
Weinberger v. Salfi,
The Court dealt specifically with
Vlan-dis
in two ways. First it limited the irre-buttable presumption doctrine to situations where a statute purports to be concerned with one issue (in
Vlandis,
it was the residency of university applicants), but at the same time denies individuals “the opportunity to show factors clearly bearing on that issue.”
Id.
at 771,
Second, the Court put forward a general rule of law that seems to replace the exacting irrebutable presumption analysis with a far more deferential set of standards:
Under those standards, the question raised is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute. Such a rule would ban all prophylactic provisions, and would be directly contrary to our holding in Mourning [v. Family Publ’ns Serv., Inc.,411 U.S. 356 ,93 S.Ct. 1652 ,36 L.Ed.2d 318 (1973) ].... The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it *30 legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule.
Id.
at 777,
While the Court has never expressly overruled
Vlandis,
the irrebuttable presumption doctrine has been essentially moribund since
Salfi
was decided.
8
After
Salfi,
the doctrine has never been used to strike down a legislative enactment, and indeed (at least outside of the context of residency requirements for in-state tuition) has not even been suggested as a possible basis for doing so since 1976.
See Usery v. Turner Elkhorn Mining Co.,
These developments have led a leading constitutional treatise to conclude that the doctrine has now been “abandoned as a generally acceptable approach,” and that if it survives today, it does so only where there are “independent reasons” for heightened scrutiny, such as where “fundamental interests” are threatened. Gunther
&
Sullivan, at 915 & n. 4. In this sense, the irrebuttable presumption analysis has simply collapsed into the ordinary equal protection/due process analysis, which applies heightened scrutiny only to those classifications that burden particular
*31
rights or classes of persons to which the courts have afforded special protection.
See, e.g., Reno v. Flores,
Indeed, many of the statutory schemes assessed in such cases have features that could have been construed as irrebuttable presumptions; nevertheless, the Court has not elected to evaluate them in those terms, but instead has simply asked whether — in the absence of a fundamental right or suspect class — the state interest asserted is a legitimate one and whether the line drawn by the legislature represents a reasonable means of advancing that interest.
9
This is the approach that the Court will follow here. Doing so, it is clear that heightened scrutiny is not appropriate. Convicted felons have not been recognized as a suspect class.
See Baer v. City of Wauwatosa,
*32
Where neither fundamental rights nor suspect classes are threatened, the analysis — whether under due process or equal protection — is the same. The law at issue is presumed to be constitutional, and survives review so long as it rationally may be thought to further a legitimate governmental interest.
See Washington v. Glucksberg,
Applying rational basis review, Lewis had little trouble concluding that Congress’ decision to preclude all felons from possessing firearms was reasonable:
The legislative history of the gun control laws discloses Congress’ worry about the easy availability of firearms, especially to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm.
While the Supreme Court’s ratification of that judgment is sufficient to end this analysis, it is worth pointing out that constitutional claims of the sort advanced here have consistently been rejected by the federal courts.
See United States v. McKenzie,
It may be, however, that plaintiffs claim, though styled in terms of the irre-buttable presumption doctrine, is really one of
'procedural
due process. While the Supreme Court has suggested that the irrebuttable presumption analysis is rooted in
substantive
due process,
see Michael H.,
To be sure, this demand differs from a standard procedural due process case, in which plaintiffs typically seek a hearing to show that they have been improperly assigned to the disfavored group. 12 Here, in contrast, plaintiff concedes that he is a convicted felon. At the same time, however, he wants an individualized opportunity *34 to prove that the general reason for which the classification was established does not apply in his individual circumstances. In other words, plaintiff seeks a hearing in which he hopes to show that the “true purpose” of the legislative classification (which, he suggests, is to keep guns out of the hands of violent individuals) is not actually furthered by applying the sanction to him. See Irrebuttable Presumptions, at 1547 (“The concern of the Court [when applying the irrebuttable presumption doctrine] is not whether the complainants do in fact belong to the group disadvantaged by the classification, but rather whether the individuals disadvantaged by the classification have been accurately grouped with respect to the statutory purpose.”)
That is, plaintiff is asking not for a determination that Congress’ decision to preclude all felons from possessing firearms is impermissible, but is instead asserting that he may not be deprived of his right to bear arms without first being afforded the chance to show that he is not dangerous. The Court believes, however, that such an argument is foreclosed by the Supreme Court’s recent decision in
Connecticut Department of Public Safety v. Doe,
The Supreme Court held that individualized hearings were not required because the state had made clear that the registration requirement was based “on the fact of previous conviction, not on the fact of current dangerousness.”
Id.
at 1163. Under such circumstances, a hearing dealing with the question of dangerousness would be a “bootless exercise.”
Id.
at 1164. After
Doe,
then, it-remains true that in certain instances, before liberty may be taken away, due process requires the government to afford individuals a hearing “to prove or disprove a particular fact or set of facts.”
Id.
However, where the fact to be proven at the hearing is not relevant to the legal scheme responsible for the deprivation (that is, where it is clear that the government would strip the individual of his liberty even if he were able to prove or disprove the particular the fact or set of facts), such a hearing would be an exercise in futility, which is not required by
procedural
due process.
Cf. Bell v. Burson,
This understanding of due process dooms any procedural challenge to § 922(g)(1). The plain language of that provision makes clear Congress’ decision to bar
all
convicted felons (not merely those with violent tendencies or who otherwise present an ongoing danger to society) from possessing firearms. Just as Connecticut may have been trying to prevent further sex offenses by requiring the registration of those likely to commit such crimes again, it may be, as plaintiff assumes, that Congress’ ultimate goal in enacting the statute was to minimize the social risk associated with guns by withholding them from those likely to use them illegally. However, in both cases, the laws actually enacted are not so limited. Both
*35
schemes make the deprivation turn solely on the fact of the prior conviction — not the significance of that conviction for future behavior.
See Lewis,
CONCLUSION
For the reasons given above, the Court grants defendant’s motion for summary judgment as to all counts.
ORDER
For the reasons given in the attached Memorandum Opinion, it is hereby
ORDERED that defendant’s Motion to for Summary Judgment [20-2] is GRANTED; and it is
FURTHER ORDERED that this case is dismissed WITH PREJUDICE.
This is a final appealable order.
Notes
. Before November 2002, the power to review and act upon applications under § 925(c) belonged to the Secretary of the Treasury. That power was transferred to the Attorney General by the Homeland Security Act of 2002, Pub.L. No. 107-296, § 1112(f)(6), 116 Stat. 2135 (Nov. 25, 2002).
. To avoid confusion, the Court will follow the parties' lead and refer to defendant as the “Secretary/Attorney General.”
. Like its predecessors, the most recent incarnation of this appropriations restriction authorizes a sum of money for ATF’s "necessary expenses" followed by a proviso: "That 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).” Consolidated Appropriations Resolution, Pub.L. No. 108-7, 117 Stat. 11 (Feb. 20, 2003).
. It should be noted, however, that ATF's mandated inaction does not necessarily mean that a convicted felon is forever barred from possessing firearms. Under 18 U.S.C. § 921(a)(20), any conviction "which has been expunged, or set aside, or for which a person has been pardoned or has had civil rights restored” is not considered a conviction for purposes of the federal Gun Control Act. Thus, an individual who seeks and obtains a pardon or expungement of his underlying criminal conviction may once again possess a firearm without fear of federal criminal liability under § 922(g).
. This doctrine both derives from and embodies the general principle that agencies are obligated to follow their own regulations.
See Parsons v. Dep’t of Air Force,
. The considerations described above also doom plaintiff's bid for a writ of mandamus. The mandamus statute gives federal district courts jurisdiction "of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a
duty
owed to the plaintiff.” 28 U.S.C. § 1361 (emphasis added). Thus, in the absence of a duly — whether imposed by statute, regulation, or some other legal source. — there can be no relief.
See Shoshone Bannock Tribes v. Reno,
. Thus,
Salfi
distinguished the Connecticut residency requirement by observing that "[u]nlike the statutory scheme in
Vlandis,
the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible.”
. In
Elkins
v.
Moreno,
. For example, in
Murgia,
the Court upheld a Massachusetts law that forced state police officers to retire at age 50. Despite that fact that such a law could readily be described as applying an irrebuttable presumption that officers beyond that age were unfit for service, the Court upheld the statute applying only rational basis review. "This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is particularly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.”
Similarly, in
Vance v. Bradley,
These cases provide an particularly stark example of the move away from the irrebutta-ble presumption approach in evaluating classifications. Thus, whereas
Vlandis
demanded a rigorous showing that the basis for the government's presumption is "universally” true, the Court in
Vance
held that when a due process challenge to a classification turns on a "disputed historical fact,” the party “challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.”
Id.
at 111,
. The Court recognizes the debate currently taking place over the degree to which the Second Amendment grants an individual the right to bear arms.
Compare Silveira v. Lockyer,
. Section 1202(a) criminalized the possession of a firearm by any person "convicted by a court of the United States or of a State or any political subdivision thereof of a felony.”
Lewis,
. Examples of this kind of procedural due process case abound.
See, e.g., Zinermon v. Burch,