United States District Court, W.D. Wisconsin
JUSTIN C. HOELSCHER, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Justin C. Hoelscher brings this action seeking a declaration
from the court that he is allowed to legally possess a
firearm under federal law, despite his convictions in state
court for disorderly conduct, unlawful phone use, and
stalking. Specifically, Hoelscher is asking the court to
determine whether he is prohibited from possessing a firearm
under 18 U.S.C. § 922(g)(9) on the ground that one or
more of his state court convictions qualify as a
“misdemeanor crime of domestic violence” under 18
U.S.C. § 921(a)(33).
the United States of America now moves to dismiss the
complaint, contending that the court lacks subject matter
jurisdiction and that Hoelscher lacks standing to sue.
Because Hoelscher has failed to meet his burden that the
court can exercise jurisdiction over this case, the court
will grant the motion to dismiss.
deciding a motion to dismiss on jurisdictional grounds, the
court may consider well-pleaded allegations in the complaint,
affidavits, and written materials. Kipp v. Ski Enter.
Corp. of Wis., 783 F.3d 695, 697 (7th Cir. 2015). And
where the material facts are not disputed, the court can
decide the issue on the written evidence alone, without an
evidentiary hearing. See Lexington Ins. Co. v. Zurich
Ins. (Taiwan) Ltd., 286 F.Supp.3d 982, 985 (W.D. Wis.
2017) (citing Hyatt Int'l Corp. v. Coco, 302
F.3d 707, 713 (7th Cir. 2002)). Here, the court draws the
following undisputed facts from Hoelscher's amended
complaint, the parties' the affidavits submitted by the
parties, and the parties' written submissions.
has been convicted of multiple misdemeanors under Wisconsin
law, including disorderly conduct, in violation of Wis.Stat.
§ 947.01; unlawful phone use, in violation of Wis.Stat.
§ 947.012(1)(a); and stalking, in violation of Wis.Stat.
§ 940.32(2)(a). Dkt. 13, ¶¶ 5, 7. These
convictions all involved a victim with whom Hoelscher shared
a federally recognized domestic relationship. Dkt. 13,
¶¶ 6, 8.
922(g)(9) forbids the possession of firearms by anyone
convicted of a “misdemeanor crime of domestic
violence.” The meaning of the term “misdemeanor
crime of domestic violence, ” is set forth in §
921(a)(33), and has recently been interpreted by the Supreme
Court in United States v. Castleman, 572 U.S. 157
(2014) and Voisine v. United States, 136 S.Ct. 2272
(2016). In those cases, the Court interpreted the phrase
“use of physical force” in § 921(a)(33)(A)
to determine what elements a state statute must have to
qualify as a predicate offence under § 921(g)(9).
has previously filed suit in this court, seeking to clarify
whether his convictions have the necessary elements to
qualify as misdemeanor crimes of domestic violence. See
Justin Hoelscher v. Federal Bureau of Investigation, No.
16-cv-404 (W.D. Wis. filed June 10, 2016). In that case, the
court dismissed Hoelscher's action for lack of standing
because he did not allege that he had applied for, or planned
to apply for, a permit to purchase a firearm. Nor did he
allege that he intended to possess a firearm in the future.
Hoelscher has applied for permits to purchase a firearm. On
November 9, 2016, he completed an ATF firearms purchase
application form and indicated that he had been convicted of
a misdemeanor crime of domestic violence. Dkt. 13, ¶ 13.
His application was denied. Then on October 23, 2017, he
again completed the ATF application, this time indicating
that he had not been convicted of a misdemeanor crime of
domestic violence. Dkt. 17, at 2. This application was
approved, but he declined to actually purchase a firearm
because he cannot tell if any of his convictions actually
qualify as misdemeanor crimes of domestic violence under
§ 922(g)(9). Dkt. 13, ¶ 19; Dkt. 20, at 7.
court begins and ends with the question whether the court has
subject matter jurisdiction. Hoelscher relies on 28 U.S.C.
§ 1331, which applies to “civil actions arising
under the Constitution, laws, or treaties of the United
States.” But he does not identify any federal law that
his complaint “aris[es] under.” He also cites 28
U.S.C. § 2201, the Declaratory Judgment Act, but it is
well established that § 2201 “is procedural
only.” Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667, 671 (1950). It does not provide an
independent basis for exercising jurisdiction. Wisconsin
v. Ho-Chunk Nation, 512 F.3d 921, 935 (7th Cir.
general rule is that a “suit arises under the law that
creates the cause of action.” American Well Works
Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916).
But Hoelscher doesn't cite a law that creates a cause of
action for him. His claim cannot arise under the criminal
laws at issue because he is not contending that the
government is “violating” those laws. He is
simply asking the court to construe what he contends is an
what distinguishes Hoelscher's case from the cases he
cites in his brief. In both Ezell v. City of
Chicago, 651 F.3d 684 (7th Cir. 2011), and Dearth v.
Holder, 641 F.3d 499 (D.C. Cir. 2011), the plaintiff was
raising a claim that a statute or ordinance violated the
Second Amendment. Although Hoelscher refers to his Second
Amendment “expression” throughout his opposition
brief, he does not contend that § 922(g)(9)
violates the Second Amendment, even if the statute
encompasses his conduct. Nor does he contend that §
922(g)(9) is unconstitutionally vague. Rather, his request
for relief is limited to a declaration that “he is not
prohibited from possessing a firearm or ammunition under
federal law.” Dkt. 13, ¶ 24.
cites no case in which a federal court exercised
jurisdiction over a “claim” in which the only
request for relief was the construction of a federal statute.
The only case that either side cites involving a similar
situation is Lieberman v. MacMaster, and in that
case the court concluded that “‘section
921(a)(33)(A)(ii) is not a jurisdictional statute, nor does
it create a federal cause of action.'” No.
12-cv-95, 2013 WL 4500573, at *4 (D. Me. Aug. 21, 2013)
(quoting Woods v. City & Cty. of Denver, 62
Fed.Appx. 286, 287 (10th Cir. 2003)). Hoelscher attempts to
distinguish Lieberman on the ground that it
“is a federalism case.” Dkt. 20, at 10. But that
is simply incorrect. It is true that the court stated that
the plaintiff's claim “sound[ed] in wrongful
termination or perhaps breach of contract” because the
plaintiff was concerned about the effect of his ...