[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 11, 2005
No. 05-10755
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00121-CV-WS-C
WILLINGHAM SPORTS, INC.,
Plaintiff-Appellant,
versus
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND
EXPLOSIVES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 11, 2005)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
In January 2002 Willingham Sports, Inc. received notice from the Bureau of
Alcohol, Tobacco, Firearms and Explosives that its federal firearms dealer license
was being revoked due to violations of federal regulations. Willingham Sports
timely requested an administrative hearing to review the revocation decision. The
administrative hearing officer determined that Willingham Sports had willfully and
repeatedly violated federal firearms dealer regulations and, on that basis,
recommended that its license be revoked.1 The ATF director accepted that
recommendation and formally denied Willingham Sports’ application for renewal
of the license. Willingham Sports then sought review of that decision in the
district court pursuant to 18 U.S.C. § 923(f)(3), which provides for de novo judicial
review of the denial of a firearms dealer license application.
The district court granted summary judgment to the ATF. It determined that
the material facts developed at the administrative hearing justified nonrenewal and
that Willingham Sports had failed to introduce evidence raising a substantial
question about those facts. In particular, the district court held that Willingham
Sports had willfully violated the federal firearms regulations because it had
engaged in repeated violations of those regulations despite having been advised by
the ATF on several prior occasions of recordkeeping defects. Therefore, the
district court held that the ATF had the authority to deny Willingham Sports’
1
Because Willingham Sports’ license expired during the pendency of the proceedings,
the license revocation hearing was converted to a license renewal hearing by the ATF.
2
application for renewal and affirmed its decision.
“We review a district court’s grant of summary judgment de novo, viewing
the record and drawing all reasonable inferences in the light most favorable to the
non-moving party. Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a
matter of law.” Johnson v. Governor of Fla., 405 F.3d 1214, 1217 (11th Cir.
2005); see also Appalachian Res. Dev. Corp. v. McCabe, 387 F.3d 461, 463 (6th
Cir. 2004) (applying de novo review to the district court’s grant of summary
judgment affirming the ATF’s revocation of a firearms license).
The ATF has the authority to deny an application for a firearms dealer
license only on specified grounds. One of those grounds is that the applicant has
“willfully violated any of the provisions of [the Gun Control Act] or regulations
issued thereunder.” 18 U.S.C. § 923(d)(1)(C). It is undisputed that Willingham
Sports has violated the firearms dealer regulations. Jimmy Ronald Willingham, the
sole proprietor of Willingham Sports, admitted at the administrative hearing that,
during four different ATF inspections over the fourteen years Willingham Sports
held a firearms dealer license, numerous recordkeeping errors and other violations
of the federal regulations were uncovered.2
2
The relevant regulations here are 27 C.F.R. § 478.125(e), which requires licensed
firearms dealers to record “each receipt and disposition of firearms” in what is commonly called
3
Thus, the sole issue on appeal is whether the district court correctly
determined that there is no genuine issue of material fact about whether
Willingham Sports’ violations of the firearms regulations were willful. The term
“willful” is not defined by § 923. Four of the five circuits that have addressed the
matter have concluded that a violation is “willful” for purposes of § 923 where a
firearms dealer “knew of his legal obligation and purposefully disregarded or was
plainly indifferent to the recordkeeping requirements.” Lewin v. Blumenthal, 590
F.2d 268, 269 (8th Cir. 1979); accord Appalachian Res. Dev. Corp. v. McCabe,
387 F.3d 461, 464–65 (6th Cir. 2004); Perri v. Dep’t of the Treasury, 637 F.2d
1332, 1336 (9th Cir. 1981); Stein’s, Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir.
1980). The definition of “willful” adopted by the other of the five circuits to
consider the issue differs only in that the term “plain indifference” is not explicitly
used. Prino v. Simon, 606 F.2d 449, 451 (4th Cir. 1979) (“‘Willful’ means action
taken knowledgeably by one subject to the statutory provisions in disregard of the
action’s legality. . . . A conscious, intentional, deliberate, voluntary decision
properly is described as willful, regardless of venal motive.” (internal marks and
citation omitted)).
a “bound book,” and 27 C.F.R. § 478.124, which requires firearms dealers to complete (or have
the buyer complete) a Form 4473 firearms transaction record for each gun that is sold or
disposed of.
4
In all five of these circuits, a bad purpose or evil motive is not required.
Appalachian Res. Dev. Corp., 387 F.3d at 464–65; Stein’s, Inc., 649 F.2d at
467; Cucchiara v. Sec’y of the Treasury, 652 F.2d 28, 30 (9th Cir. 1981); Lewin,
590 F.2d at 269; see also Prino, 606 F.2d at 451. Instead, the firearms dealer is
considered to have acted willfully under § 923 if, with knowledge of what the
regulations require, the dealer repeatedly violates those regulations. See
Appalachian Res. Dev. Corp., 387 F.3d at 464 (agreeing with the district court’s
determination that violations of firearm regulations were “willful” because the
dealer had knowledge of its obligations and repeatedly violated them); Stein’s,
Inc., 649 F.2d at 468 (same); Cucchiara, 652 F.2d at 30 (same); Lewin, 590 F.2d at
269 (same); see also Prino, 606 F.2d at 450–51.
We agree with those five circuits that a showing of purposeful disregard of
or plain indifference to the laws and regulations imposed on firearms dealers shows
willfulness for purposes of § 923(d)(1)(C). This standard accords with other
decisions of our Court defining “willful” violations in the context of regulatory
schemes that impose civil penalties, as opposed to criminal ones. See J.A.M.
Builders, Inc. v. Herman, 233 F.3d 1350, 1355 (11th Cir. 2000) (“Although the
term ‘willful’ is not defined in the Act, this Court has held that in its simplest form,
a willful violation is an intentional disregard of, or plain indifference to, OSHA
5
requirements.” (internal marks and citation omitted)); Reich v. Trinity Indus., Inc.,
16 F.3d 1149, 1152 (11th Cir. 1994) (same). Further, we agree with the Fourth,
Sixth, Seventh, Eighth and Ninth Circuits that a dealer’s repeated violations after it
has been informed of the regulations and warned of violations does show
purposeful disregard or plain indifference. See Appalachian Res. Dev. Corp., 387
F.3d at 464; Stein’s, Inc., 649 F.2d at 468; Cucchiara, 652 F.2d at 30; Prino, 606
F.2d at 451; Lewin, 590 F.2d at 269.
Applying those standards to this case, we conclude that no reasonable
factfinder could find that Willingham Sports’ violations of the firearm dealer
regulations were anything but willful and that, therefore, the district court properly
granted summary judgment to the ATF. First, the record shows that Willingham
Sports was aware of its recordkeeping obligations under the Gun Control Act.
Jimmy Ronald Willingham testified that he had received a number of
governmental publications, including the Federal Firearms Regulations Guide, that
explained the various regulations. He also testified that he knew Willingham
Sports held its license contingent on compliance with the regulations and that, as a
federally licensed firearms dealer, it was charged with knowing and understanding
all regulations. Furthermore, the record shows that following the 1999 inspection
an ATF officer personally went over the Federal Firearms Regulations Guide with
6
Willingham, explaining the regulations to him and answering any questions that he
had.
Second, the record shows that, although Willingham Sports was aware of its
violations, it persisted in failing to comply with the regulations. The ATF
inspected Willingham Sports on four different occasions between 1987 and 2001.
Each time, Jimmy Ronald Willingham received and signed a report from the ATF
listing the various violations it had found.3 Yet, each time an ATF inspector
returned, the same or similar violations were found. Additionally, after the 1999
inspection, the ATF sent Willingham Sports a warning letter advising it that
repeated violations of the regulations could result in the revocation of its license.
Nevertheless, when the ATF returned to inspect Willingham Sports again in 2001,
it found that many of the same problems still existed. The store’s inventory still
did not correspond with its records and there were numerous errors in the Form
4473’s filled out by buyers. See note 2, supra.
In light of the fact that Willingham Sports was aware of both its obligations
3
While some of the violations recorded by the ATF inspectors seem minor, there were
others that are obviously serious. For instance, every investigation revealed that Willingham
Sports’ acquisition and disposition records incorrectly listed a number of firearms as being in the
store’s physical inventory though they were not there. In 1990, the ATF inspector simply noted
that the disposition records did not match the store’s inventory. In 1992 the ATF inspector
discovered that Willingham Sports’ records showed 27 firearms as being in the store’s inventory
that were not there. In 1999, there were 130 missing firearms, and in 2001 there were 25
missing firearms.
7
under the firearms regulations and its previous violations, we conclude that there is
no genuine issue of material fact about whether its continued and repeated failure
to comply was willful.
AFFIRMED.
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