Graham v. Albro
| Docket Number | 1:22cv708 |
| Decision Date | 07 August 2023 |
| Parties | JACK H. GRAHAM, III, Plaintiff, v. STEVE ALBRO, Defendant. |
| Court | U.S. District Court — Middle District of North Carolina |
This case comes before the undersigned United States Magistrate Judge for a recommendation on Defendant's Motion for Summary Judgment (Docket Entry 13 (the "Motion); see also Docket Entry 14 (the "Supporting Brief")). For the reasons that follow, the Court should grant the Motion.
Plaintiff petitioned this Court, pursuant to 18 U.S.C. § 923(f)(3), to review and overturn Defendant's decision to revoke Plaintiff's federal firearms license ("FFL"). (See Docket Entry 1 at 1.) According to the Complaint, Plaintiff owns and operates a pawn shop in this District, out of which he has "acquire[d] and [old] firearms . . . since September 1996." (Id.) The Complaint alleges further that Defendant (Director of Industry Operations for the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Charlotte Field Division), after issuing Plaintiff a Notice of Revocation and holding a hearing on the matter, revoked Plaintiff's FFL in July 2022. (See id. at 2.) The Complaint contends this Court should overturn Defendant's decision one two grounds: because (1) "[t]he revocation of P[laintiff]'s license was based in part on acts occurring more than five (5) years prior to the beginning of the enforcement proceeding” (id. at 4), i.e beyond the relevant statute of limitations (see id. at 3-4), and because (2) "P[laintiff] did not willfully violate [the Gun Control Act ("GCA”) and its implementing regulations in that] the alleged failures . . . were inadvertent and[] technical errors which were not done intentionally and purposely” (id. at 4) . In lieu of an answer, Defendant filed the Motion. (See Docket Entry 13.)
Along with the Motion, Defendant submitted the administrative record before Defendant when he reached the decision to revoke Plaintiff's FFL. (See Docket Entry 12 at 2.)[1] That record reflects that Plaintiff, at the time of his FFL revocation hearing, had operated his business for 34 years, including for the last 26 years as its sole proprietor. (See Docket Entry 12-1 at 80.)[2] The first ATF compliance inspection of Plaintiff's business disclosed in the record occurred in 2001, at which point Plaintiff "was cited for one violation." (Id. at 103.)
The next compliance inspection of Plaintiff's business took place in September 2006 (see id. at 15); then, Plaintiff received a report of violations detailing that he had (1) failed to timely record the disposition of firearms, and (2) failed to ensure the accuracy and/or completeness of ATF transaction records (referred to as "Form 4473s") (see id. at 120-26 ()). The ATF conducted a third inspection in November 2008 (see id. at 15); that inspection revealed additional violations for Plaintiff's failure to ensure the accuracy and/or completeness of Form 4473s (see id. at 123 () .)
In March 2014, the ATF carried out its fourth compliance inspection of Plaintiff's business. (See id. at 126.) That inspection resulted in a report of approximately 100 violations, including for (1) failing to timely record the disposition of firearms, (2) failing to ensure the accuracy and/or completeness of Form 4473s, and (3) failing to perform background checks for firearm transfers to North Carolina law enforcement personnel. (See id. at 120-126.) During this inspection, an ATF investigator reviewed with Plaintiff a checklist "of regulations pertaining to the FFL." (Id. at 16; see also id. at 127-28 ().) After the inspection, the record reflects that Plaintiff wrote to the ATF, and expressed his intent to thereafter "complete [ Form 4473s] in full before the firearm is allowed to leave the building [,] . . . double check[ Form 4473s] to ensure all information is recorded and transferred correctly" (id. at 130), and establish several other remedial measures to ensure compliance with the GCA (see id.) . Plaintiff also "attended a warning conference following [the] 2014 compliance inspection." (Id. at 103.)
The next year, in August 2015, the record shows that the ATF conducted a fifth compliance inspection of Plaintiff's business. (See id. at 134.) The report from that inspection details approximately 15 violations (see id. at 131-34), all of which constituted repeat violations from prior compliance inspections (see id. at 21-23 ()) . During this inspection, the ATF investigator again reviewed pertinent regulations with Plaintiff (see id. at 23), and Plaintiff again signed a document expressly acknowledging his "responsib[ility] for familiarizing [him]self with all of the laws and regulations governing [his] licensed firearms business" (id. at 136).
The next compliance inspection, which served as the catalyst for the revocation of Plaintiff's FFL, took place in September 2021. (See id. at 103.) The resulting Notice of Revocation catalogs approximately 130 violations that the ATF investigator discovered during the inspection, which include (1) failing to conduct a background check (id.), (2) failing to record a background check transaction number on a Form 4473 (id.), (3) failing to ensure that firearm purchasers correctly completed Form 4473s (id. at 104), (4) failing to report certain sales wherein purchasers obtained multiple firearms (id.), (5) failing to ensure the accuracy and/or completeness of Form 4473s (id.), (6) failing to document background check information on Form 4473s (id. at 105), (7) failing to verify and/or record identification documents on Form 4473s (id.), (8) failing to note the firearm description on Form 4473s (id.), and (9) failing to perform a background check for a firearm transfer to a North Carolina law enforcement officer (id. at 106) . Several of these violations constituted repeat violations from previous compliance inspections. (See id. at 104.)
As a result of the September 2021 inspection, the ATF provided Plaintiff, on March 29, 2022, with "notice ... of the revocation of [Plaintiff's FFL because the ATF] has reason to believe that [Plaintiff] willfully violated the provisions of the [GCA]." (Id. at 103.) The ATF also informed Plaintiff of his right to a hearing on the issue of FFL revocation. (See id. at 109-10.) Plaintiff thereafter "request[ed] a hearing in review of the revocation, suspension, and/or fine of [his FFL]." (Id. at 114.) The ATF set the hearing for June 16, 2022. (Id. at 115.)
At that hearing, the record documents that the ATF presented evidence, through one of its investigators, of the multiple violations comprising the 2021 compliance inspection report. (See id. at 23-60.) Plaintiff then testified. (See id. at 68-72, 7899.) In that testimony, Plaintiff addressed the allegation that he failed to conduct a background check for one purchaser by testifying that he did conduct a background check on that occasion, but, while "[he] was on the phone with the FBI . . ., [his] soon-to-be ex came in the business" (id. at 69) and created a disturbance, which caused Plaintiff to forget to record the background check transaction number on the Form 4473 (see id. at 70).[3] As to one other type of violation, Plaintiff testified that, although he at times used outdated and obsolete Form 4473s, he only did so because he ran out of the new version of the form, and shipping delays from the ATF prevented him from maintaining an inventory of current forms. (See id. at 78-80.)[4] As for the other violations, Plaintiff did not dispute that they occurred. (See generally id. at 78-98.) Rather, Plaintiff described the violations, which principally consisted of omitting certain information from Form 4473s, as "oversights" (id. at 81), "[]n[o]t intentional" (id. at 87), "for whatever reason, [ ]n[o]t done" (id.), "oversights . . . going through everything [he] was at the time" (id. at 88), and "oversight, human [error], making a mistake" (id. at 92; see also id. at 93 ( )) . Plaintiff also confirmed that he possessed knowledge of his obligations under the GCA and relevant regulations, including how to properly complete Form 4473s. ( )( )( ).)
After the hearing, Defendant found that Plaintiff had willfully violated the GCA on approximately 100 occasions. (See Docket Entry 12-4 at 31-37.) Based on those findings, Defendant revoked Plaintiff's FFL. (See id. at 37.) Plaintiff thereafter filed the Complaint (Docket Entry 1), Defendant filed the Motion (Docket Entry 13), Plaintiff filed a Response (Docket Entry 21), and Defendant filed a Reply (Docket Entry 23).
"The [C]ourt shall grant summary...
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