United States District Court, D. New Hampshire
James R. Sheppard
Kenneth Houchens, Director of Industry Operations for the Bureau of Alcohol, Tobacco, Firearms, and Explosives Opinion No. 2016 DNH 079
McCAFFERTY, District Judge.
Sheppard brings this action against Kenneth Houchens, the
Director of Industry Operations for the Bureau of Alcohol,
Tobacco, Firearms, and Explosives ("ATF"), seeking
judicial review of the denial of his application for a
firearms license. Houchens moves to dismiss the amended
complaint (doc. no. 7) ("first amended complaint"),
on the ground that Sheppard failed to exhaust his
administrative remedies. In response, Sheppard filed both an
objection to the motion to dismiss and a motion for leave to
file a second amended complaint (doc. no. 19) ("motion
to amend"). Houchens objects to the motion to amend,
arguing that Sheppard's failure to exhaust his
administrative remedies renders futile his attempt to amend
his complaint. For the reasons that follow, Sheppard's
motion to amend is denied, and Houchens' motion to
dismiss is granted.
case concerns James Sheppard's application to ATF for a
federal firearms license ("License"). The
procedures which must be followed by ATF in such
circumstances, and the ways in which an applicant may seek
judicial intervention, are of particular importance in this
case. Therefore, the court first outlines the regulatory
framework governing such applications, and then provides the
specific facts pertaining to Sheppard's application and
request for judicial review.
18 U.S.C. § 923(a), a person is prohibited from "dealing
in firearms... until he has filed an application with and
received a license to do so" from ATF. ATF must process
License applications in accordance with 18 U.S.C. § 923, and
its implementing regulations, 27 C.F.R. Part 478. Section
923(d)(2) requires ATF to approve or deny an application for
a License "within the 60-day period beginning on the
date" the application "is received." See also
27 C.F.R. § 478.47(c). If ATF "fails to act within such
period, the applicant may file an action under section 1361
of title 28 to compel" ATF to act upon the application.
18 U.S.C. § 923(d)(2); see also 27 C.F.R. § 478.47(d). In the
event ATF denies the application, it must provide written
notice of its decision, "stating specifically the
grounds upon which the application was denied...." 18
U.S.C. § 923(f)(1); see also 27 C.F.R. § 478.71 (decision
must "set forth the matters of fact and law relied upon
in determining that the application should be denied").
denies an application for a License, it must, "upon
request by the aggrieved party, promptly hold a hearing to
review his denial...." 18 U.S.C. § 923(f)(2); see also
27 C.F.R. § 478.72 (hearing must be scheduled "as
expeditiously as possible").
If after a hearing held under paragraph (2) the Attorney
General decides not to reverse his decision to deny an
application or revoke a license, the Attorney General shall
give notice of his decision to the aggrieved party. The
aggrieved party may at any time within sixty days after the
date notice was given under this paragraph file a petition
with the United States district court for the district in
which he resides or has his principal place of business for a
de novo judicial review of such denial or revocation.
923(f)(3). The regulations describe the process of obtaining
judicial review as follows: "If [an applicant] is
dissatisfied with a posthearing decision... denying the
application... he may, pursuant to 18 U.S.C. § 923(f)(3),
within 60 days after receipt of the final notice denying the
application..., file a petition for judicial review of such
action...." 27 C.F.R. § 478.78.
federal law provides two avenues for a License applicant to
seek judicial intervention. First, an applicant may file a
petition for a writ of mandamus, pursuant to 28 U.S.C. §
1361, to compel action on an application when ATF fails to
act within the 60-day period. See 18 U.S.C. § 923(d)(2); 27
C.F.R. § 478.47(d). Second, after requesting and receiving an
administrative hearing on his denial, an applicant may
petition the court to conduct a de novo review of ATF's
denial of his License application. 18 U.S.C. § 923(f)(3); 27
C.F.R. § 478.78.
December 5, 2013, James Sheppard applied to ATF for a
License. Sheppard submitted the application on behalf of 209
Storage, a business which he owns as sole proprietor. 209
Storage is located at 60 Pine Street, Unit M, Methuen,
not receiving a decision from ATF within 60 days, Sheppard
filed a "petition for judicial review" in this
court on July 14, 2015 (doc. no. 1). Sheppard's petition
requests that the court order ATF to issue him a License.
After being notified of the lawsuit, ATF issued a written
denial of Sheppard's application on August 3, 2015.
Sheppard amended his complaint to reflect the denial, and
again requested that the court order ATF to issue him a
License. See doc. no. 7. Sheppard has not yet had an
moves to dismiss the first amended complaint. In support,
Houchens argues that the court lacks subject matter
jurisdiction because Sheppard failed to exhaust his
administrative remedies. Houchens acknowledges that a License
applicant who has not received a ...