Armalite, Inc. v. Lambert, 07-4290.

• Decision Date: 14 October 2008
• Docket Number: No. 07-4290.,07-4290.
• Citation: 544 F.3d 644
• Parties: ARMALITE, INC., Petitioner-Appellant, v. Marcia F. LAMBERT, Director of Industry Operations, Columbus Field Division, Bureau of Alcohol, Tobacco, Firearms & Explosives, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

544 F.3d 644

ARMALITE, INC., Petitioner-Appellant, v. Marcia F. LAMBERT, Director of Industry Operations, Columbus Field Division, Bureau of Alcohol, Tobacco, Firearms & Explosives, Respondent-Appellee.

No. 07-4290.

United States Court of Appeals, Sixth Circuit.

Argued: July 23, 2008.

Decided and Filed: October 14, 2008.

ARGUED:

Richard E. Gardiner, Fairfax, Virginia, for Appellant. Robert G. Young, Assistant United States Attorney, Toledo, Ohio, for Appellee.

ON BRIEF:

Richard E. Gardiner, Fairfax, Virginia, for Appellant. Robert G. Young, Assistant United States Attorney, Toledo, Ohio, for Appellee.

Before: SUTTON and COOK, Circuit Judges; ROSE, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Armalite is an Illinois corporation licensed to sell guns in Ohio. In this appeal, it asks us to reverse the Bureau of Alcohol, Tobacco, Firearms & Explosives's (ATF) revocation of its license for "willfully" violating the Gun Control Act of 1968(GCA), 18 U.S.C. §§ 921-928. We affirm.

I.

In 1999, Armalite acquired a federal license to sell guns in Ohio. As a licensee, Armalite had to comply with several record-keeping requirements administered by the ATF. See 18 U.S.C. § 923. In July 1999, the ATF inspected Armalite's operations and educated the company's president, Mark Westrom, about those duties. Westrom acknowledged that the "information was thoroughly explained ... and any questions ... were answered." JA I at 104.

In 2004, the ATF inspected Armalite's transaction records, known as Form 4473 records, which the GCA requires licensees to keep to verify that all over-the-counter transactions involve qualified purchasers. See 27 C.F.R. § 478.124. The ATF officials found several deficiencies, including: failing to complete a background check through the National Instant Background Check System (two times); omitting identification from the buyer (three times); improperly executing and completing a form (eleven times); and neglecting separately to file Forms 4473 for transactions not culminating in sales (four times). The ATF also cited Armalite's unauthorized use of an electronic Acquisition and Disposition Record (A & D Record).

The ATF mailed Westrom a report of the violations, including copies of the faulty forms with errors highlighted and corrective instructions. The ATF cautioned that "[w]e will conduct a follow-up inspection in the future," and "[a]ny violations, either repeat or otherwise, could be viewed as willful and may result in the revocation of your license." JA I at 167. Westrom again acknowledged that the ATF explained the law's requirements to him.

A 2005 inspection revealed more violations—some of the same type, some not. In addition to its continued failure to obtain permission to compile an electronic A & D Record, Armalite implemented the unapproved format poorly: Eighteen weapons in Armalite's physical inventory were unrecorded; six disposed-of guns were not entered; four others were entered but given incorrect serial numbers; and Armalite entered multiple acquisitions of the same gun on four occasions. ATF officials also reviewed 74 Form 4473 records, finding more mistakes, including: failing to date the form properly (eight times); failing to include aspects of the buyer's identification (five times); failing to fill in each required block (eleven times); and failing to identify the type of firearm sold (six times). Forty forms erroneously reported or omitted background-check information. Armalite also failed to prepare a required "Report of Multiple Sale" when it sold two handguns to one person, and it also impermissibly transferred a handgun to a non-Ohioan. In view of these findings, the ATF charged Armalite with violating the GCA in thirteen counts and gave Armalite notice that, subject to a hearing, the agency intended to revoke its license.

At the revocation hearing, Westrom challenged the ATF's conclusion that Armalite acted willfully. In response to Count One—transferring a handgun to a non-licensee who did not reside in Ohio— Westrom explained that Armalite rarely sold handguns and thus had little experience preparing the forms for those sales. He offered a similar response to the failure to complete the Report of Multiple Sale. The company's vice president attributed many of the mistakes to human error, and Westrom echoed the point by saying that the Form 4473 omissions were "[p]rocessing errors." JA II at 125. Problems with the A & D Record, Westrom explained, stemmed from mixed-up computer disks, and mistakes with the serial numbers were "self-healing" in that any inconsistencies later became apparent and were easily corrected. JA II at 123. Westrom also believed, until informed otherwise at the 2005 inspection, that Armalite had been given permission to use the computerized A & D Record.

The hearing officer was not persuaded. The officer labeled Armalite's handgun transfer to a non-resident "troubling in that it is a very basic understanding by the firearms dealer community that you cannot sell a handgun to a non-licensed resident of another state.... The fact that Mr. Westrom seemed to explain this error because they are used to doing business in Illinois and this is an Illinois resident seems strained." JA I at 67. Westrom's explanations for failing to prepare a Report of Multiple Sale, the officer added, would have had more of "a mitigating effect had Mr. Westrom not been the recipient of two educational efforts (in 1999 and 2004) and [had] he [not] acknowledged giving the regulations a brief look each year." JA I at 68. The officer made similar findings on most of the other counts. (The officer amended one charge to show that Armalite had listed the background-check information in the wrong block rather than omitted it, and he did not consider one of the proposed counts.)

On October 10, 2006, the ATF issued a Final Notice of Revocation. Relying on this court's decision in Appalachian Resources Development Corp. v. McCabe, 387 F.3d 461, 464 (6th Cir.2004), the ATF concluded that "[w]here a Federal firearms dealer knows his legal obligations and purposefully disregards or is plainly indifferent to these obligations, such violations are committed willfully." JA 99. As measured by that standard, the ATF concluded, Armalite's violations were clearly willful:

In that the Government has demonstrated previous, similar deficiencies in the inspection of 2004, in that the violations found in 2005 had significantly increased from those found in 2004, in that Armalite took no positive action to ensure the violations of 2004 would not reoccur by reviewing employee actions and required record entries, in that the licensee introduced no evidence of the "switched disk" error, in that Mr. Westrom testified that he did not, in fact, make the effort to specifically examine the 18 firearms not found in the record and the 6 firearms not timely entered as disposed in the record, in that the licensee could simply not find two firearms that should have been in inventory which required the submission of a theft and/or loss report to ATF, in that significant correspondence from ATF was not given the attention it deserved, and in that Mr. Westrom was the beneficiary of two separate educational efforts, I find that the licensee has exhibited a plain indifference, and one might even argue a careless disregard, to their legal requirements under the Gun Control Act and the violations herein at issue were willfully committed. The actions by the licensee do not demonstrate those of a company who has taken the problems found in 2004 to heart.

JA 97.

Armalite sought judicial review of the ATF's decision under 18 U.S.C. § 923(f)(3), which permits "de novo judicial review" of a license revocation. The district court granted the government's motion for summary judgment. See Armalite, Inc. v. Lambert, 512 F.Supp.2d 1070 (N.D.Ohio 2007). Armalite appealed, principally arguing that the district court incorrectly applied the GCA's willfulness requirement.

II.

Under § 923(e), "the Attorney General may, after notice and opportunity for hearing, revoke any license issued under this section if the holder of such license has willfully violated any provision of this chapter or any rule or regulation prescribed by the Attorney General under this chapter." 18 U.S.C. § 923(e) (emphasis added). Because the government may revoke a license if the licensee willfully violates "any" provision of the GCA, id., a single willful violation of the GCA, or of its rules and regulations, suffices to revoke a firearms license. Appalachian Resources, 387 F.3d at 464. Summary judgment is therefore appropriate if no genuine issue of material fact exists about whether Armalite willfully violated an applicable statutory or regulatory provision.

That leaves two questions for us to answer: (1) What does it mean to violate the GCA "willfully," and (2) did Armalite "willfully" violate the statute?

A.

The parties offer competing interpretations of "willfully" as used in § 923(e). Armalite maintains that a willful violation occurs only when a dealer intentionally, knowingly or recklessly violates known legal obligations. The government responds that, so long as a dealer appreciates its duties under the GCA, the statute punishes even negligent violations. In refereeing this dispute, we start by considering what our own precedents have said about the matter.

In Appalachian Resources, this court defined "willful" violations of the GCA in this way: "[W]here a licensee understands his or her legal obligations under the GCA, yet fails to abide by those obligations, his or her license can be denied or revoked on the basis that the dealer `willfully' violated the GCA." 387 F.3d at 464. What this articulation of the standard leaves unclear is whether the "understand[ing]" that the licensee must have of its obligations under the GCA suffices by itself to establish the requisite mens rea for a violation or whether the violation itself still...