Mershimer v. Bowers , 395 F. App'x 993 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2172
JERRY LYNN MERSHIMER; LORI LORAINE MERSHIMER, d/b/a Spirit
Gun Shop,
Plaintiffs – Appellants,
v.
CARLTON BOWERS, Director of Industry Operations Charlotte
Field Division, Bureau of Alcohol, Tobacco, Firearms &
Explosives,
Defendant – Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (2:07-cv-00025-LHT)
Submitted: September 17, 2010 Decided: September 29, 2010
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia, for Appellants. Edward
R. Ryan, Acting United States Attorney, Sidney P. Alexander,
Assistant United States Attorney, David C. Lieberman, Associate
Chief Counsel, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lynn and Lori Loraine Mershimer, d/b/a Spirit
Gun Shop (“Spirit”), appeal the district court’s order granting
summary judgment in favor of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) and dismissing its petition for
review of the ATF’s final administrative decision revoking
Spirit’s firearms dealer’s license for violations of the Gun
Control Act of 1968 (“GCA”), 18 U.S.C. §§ 921-30 (2006), and its
implementing regulations. Spirit argues that the district court
erred in granting summary judgment on the basis of the
administrative record and because its violations were not
willful. We affirm.
We review de novo the district court’s adverse grant
of summary judgment and construe the facts in the light most
favorable to Spirit. Rowzie v. Allstate Ins. Co., 556 F.3d 165,
167 (4th Cir. 2009). Summary judgment may be granted only when
“there is no genuine issue as to any material fact and . . . the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c)(2). After notice and opportunity for a hearing,
the Attorney General may “revoke any license issued pursuant to
18 U.S.C. § 923 if the holder of such license has willfully
violated any provision of the GCA or any rule or regulation
prescribed by the Attorney General under the GCA.” Am. Arms
Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009) (internal
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quotation marks, alterations, and ellipsis omitted). Summary
judgment in favor of the ATF is proper “if no genuine issue of
material fact exists about whether the licensee willfully
violated an applicable statutory or regulatory provision.” Id.(internal quotation marks and alteration omitted). A willful
violation of the GCA or its implementing regulations is present
where a licensee deliberately disregards or exhibits plain
indifference toward his known legal obligations. Id. at 84.
We have reviewed the record and the parties’ briefs
and conclude that summary judgment in the ATF’s favor was
proper. Spirit admitted violating the GCA and implementing
regulations by failing to timely record the disposition of
twenty-seven firearms, and we have no trouble concluding that
Spirit’s violations were willful.
As a firearms licensee, Spirit was required by the GCA
and applicable regulations to comply with a number of
recordkeeping requirements administered by the ATF. See 18
U.S.C. § 923. In accordance with the GCA and applicable
regulations, Spirit was also subject to compliance inspections
of its premises. In April 1997, the ATF conducted an inspection
and cited Spirit for failing to properly record transferee
identification information, in violation of 27 C.F.R.
§ 478.124(c) (2010), and failing to maintain a repair record, in
violation of 27 C.F.R. § 478.125(e) (2010). The inspector
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reviewed his violations report with principal Jerry Mershimer.
A warning letter was subsequently sent to Spirit, reminding it
that its license was conditioned upon compliance with federal
firearms laws and regulations and that repeat violations “will
be viewed as willful, and may result in the revocation of [the]
license.”
The ATF conducted its next inspection in March 2002,
and the inspector’s violations report cites Spirit for, among
other violations, failing to timely record the sale or
disposition of fifteen firearms in the acquisition and
dispositions record, in violation of 27 C.F.R. § 478.125(e).
The inspector reviewed the violations report and relevant
provisions of the GCA and regulations with Jerry Mershimer.
Included in this regulatory review was a list of Spirit’s
recordkeeping obligations under 27 C.F.R. § 478.125(e).
In January 2006, the ATF conducted another inspection,
and the inspector’s violations report cites Spirit for, among
many other violations, failing to timely record the purchase or
other acquisition of over 180 firearms and failing to timely
record the sale or other disposition of twenty-one firearms in
the acquisitions and dispositions record, in violation of 27
C.F.R. § 478.125(e). As before, the inspector reviewed both the
violations report and relevant provisions of the GCA and
regulations with Jerry Mershimer. On February 16, 2007, the ATF
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issued a Notice of Revocation of License (“NORL”) to Spirit.
Four days later, the ATF conducted yet another inspection, and
the inspector determined that, since the 2006 inspection, Spirit
had again violated 27 C.F.R. § 478.125(e) by failing to timely
record the disposition of six firearms in the acquisition and
dispositions record. In May 2007, the ATF issued an amended
NORL to Spirit, alleging six charges of numerous willful
violations of the GCA and implementing regulations as grounds
for the revocation of its firearms dealer’s license.
At Spirit’s request, the ATF held a hearing in June
2007. The hearing officer determined that Spirit willfully
violated the GCA and its implementing regulations by failing to
timely record the disposition of twenty-seven firearms, in
violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R.
§ 478.125(e), and falsely recording the transfer of two
firearms, in violation of 18 U.S.C. § 922(m) (2006). Following
the hearing, the ATF served Spirit with a final NORL.
Spirit filed a petition for de novo judicial review of
the revocation of its license, pursuant to 18 U.S.C.
§ 923(f)(3). It contested the ATF’s conclusions that it
willfully violated the GCA and regulations. The Respondent ATF
official moved for summary judgment. In response, Spirit
maintained that, although it had failed to timely record the
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disposition of the twenty-seven firearms, its failures were not
willful.
Based on our review of the record, we agree with the
district court that Spirit’s admitted violations were willful.
The facts readily reveal that, by the time of the 2007
inspection, Spirit had known for nearly a decade that its
firearms license was conditioned upon its compliance with the
GCA and its implementing regulations, and that such compliance
included adherence to the recordkeeping requirements of
27 C.F.R. § 478.125(e). Despite this knowledge, however, in the
ensuing years prior to the issuance of the original NORL, Spirit
failed to comply with those recordkeeping provisions in at least
216 instances. Such failures occurred even though the ATF had
conducted reviews of the violations reports and a regulatory
review with Jerry Mershimer. Moreover, Spirit’s recording
failures continued even after the issuance of the original NORL.
The violations reports, warning letter, regulatory review, and
even the issuance of a revocation notice were not enough to
bring Spirit into compliance. In view of these circumstances,
we conclude that Spirit was plainly indifferent toward its legal
obligations.
We also reject Spirit’s claims of error, raised for
the first time on appeal, concerning the authentication of the
administrative record and the district court’s reliance on it.
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See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227
(4th Cir. 1998). We therefore affirm the district court’s
order. We dispense with oral argument because the facts and
legal contentions are adequately set forth in the briefs and
argument would not aid the decisional process.
AFFIRMED
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