FILED
NOT FOR PUBLICATION AUG 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIS CARUSO, No. 11-35496
Plaintiff - Appellee, D.C. No. 6:10-cv-06026-HO
v.
MEMORANDUM*
U.S. BUREAU OF ALCOHOL,
TOBACCO & FIREARMS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted July 13, 2012
Portland, Oregon
Before: B. FLETCHER and PREGERSON, Circuit Judges, and MARSHALL,
Senior District Judge.**
Defendant-Appellant the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) appeals the district court’s grant of summary judgment in favor of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for Central California, sitting by designation.
Plaintiff-Appellee Louis Caruso (“Caruso”) in an action brought under the
Freedom of Information Act (“FOIA”). This court has jurisdiction pursuant to 28
U.S.C. § 1291. We reverse.
Caruso is the former owner of Valiant Firearms (“Valiant”), located in
Cottage Grove, Oregon. Caruso previously owned Valiant with his wife Carol
Caruso. Through the instant FOIA action, Caruso seeks: (1) “[acquisition and
disposition] books pertaining to Valiant Firearms; (2) all federal 4473 seller
firearms forms pertaining to himself or to Valiant Firearms; (3) all [National
Firearms Act] forms 3 and 4, detailing transfer of machine guns pertaining either to
himself or to Valiant Firearms; and (4) any and all gunsmith books detailing
weapons submitted, traded or exchanged for repairs pertaining either to himself or
to Valiant Firearms.”
The ATF failed to timely respond to Caruso’s FOIA request. Caruso then
brought suit in the Oregon federal district court to compel disclosure of the records
he seeks. The district court, ruling on grounds not briefed by the parties, found
that the ATF is compelled to disclose documents to Caruso based on the provisions
of 18 U.S.C. § 923(g)(1)(D). The ATF’s Motion for Reconsideration of the district
court’s order was granted but ultimately rejected on its merits. ATF timely
appealed.
2
This court reviews interpretations of FOIA de novo. See TPS, Inc. v.U.S.
Dep’t of Def., 330 F.3d 1191, 1194 (9th Cir. 2003). Whether an exemption applies
is a question of law reviewed de novo. See Envtl. Prot. Info. Ctr. v. U.S. Forest
Serv., 432 F.3d 945, 947 (9th Cir. 2005). Moreover, in reviewing a grant of
summary judgment in a FOIA action, this court will “overturn the district court’s
factual findings underlying its decision only for clear error.” See Envtl. Prot. Info.
Ctr., 432 F.3d at 947.
First, in finding that the ATF must provide to Caruso his requested
documents, the district court relied on 18 U.S.C. § 923(g)(D). In doing so the
district court erred. Section 923(g)(D) states in relevant part that “[i]f the Attorney
General seizes [records or other documents other than those records or documents
constituting material evidence of a violation of law], copies shall be provided [to]
the licensee within a reasonable time.” The record, however, does not support a
finding that Caruso was a federal firearms licensee when the ATF received
Valiant’s firearm records or that a seizure of those documents had taken place.
Therefore, there is not an adequate factual basis supporting the district court’s use
of § 923(g)(D) to compel the ATF’s disclosure of documents to Caruso. Thus, the
district court committed reversible error in compelling the ATF to disclose
documents to Caruso based on 18 U.S.C. § 923(g)(D).
3
Second, the ATF contends that its disclosure of Caruso’s records is barred
by FOIA Exemption 3. FOIA Exemption 3 states that records “specifically
exempted from disclosure by statute” are prohibited from disclosure under FOIA.
5 U.S.C. § 552(b)(3). “Under exemption 3, the government must show that the
statute on which it relies qualifies as an exempting statute and that the material
being withheld falls within the exempting statute’s coverage.” Cal-Almond v.
U.S.D.A., 960 F.2d 105, 108 (9th Cir. 1992).
In this instance, the ATF correctly relied on the Appropriations Act of 2010
as a withholding statute explicitly barring disclosure under FOIA Exemption 3.
The Appropriations Act specifically states that no funds appropriated under the Act
“may be used to disclose part or all of the contents of the Firearms Trace System
database maintained by the National Trace Center of the [ATF] or any information
required to be kept by licensees pursuant to section 923(g) . . . and all such data
shall be immune from legal process . . . .” Pub. L. No. 111-117, 123 Stat. 3034,
3128-29 (2009) (emphasis added). Here, Caruso seeks copies of the acquisition
and disposition books pertaining to Valiant, federal firearms forms pertaining to
Valiant and/or Caruso, and gunsmith books detailing weapons submitted, traded, or
exchanged for repairs pertaining to Valiant or Caruso. These items are required to
be kept by a federal firearms licensee per 923(g). See 18 U.S.C. § 923(g)(1)(A).
4
The Appropriations Act explicitly bars the ATF from disclosing any information
required to be kept by licensees under this section. In sum, the information Caruso
seeks squarely falls under the statutory language of the Appropriations Act and
within the scope of Exemption 3. For these reasons, the ATF is not compelled to
disclose any further documents to Caruso.
We have carefully considered the other arguments presented by Caruso and
find that they lack merit.
REVERSED and REMANDED.
5