Morgan v. ATF ( 2007 )


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  •                            RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 07a0478p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Plaintiff-Appellant, -
    KERRY L. MORGAN,
    -
    -
    -
    No. 07-1358
    v.
    ,
    >
    FEDERAL BUREAU OF ALCOHOL, TOBACCO &                 -
    -
    Defendant-Appellee. -
    FIREARMS,
    -
    N
    Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.
    No. 05-73373—Gerald E. Rosen, District Judge.
    Argued: November 27, 2007
    Decided and Filed: December 13, 2007
    Before: MARTIN, SILER, and ROGERS, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, Wyandotte, Michigan, for
    Appellant. Derri T. Thomas, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
    Appellee. ON BRIEF: Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, Wyandotte,
    Michigan, for Appellant. Derri T. Thomas, ASSISTANT UNITED STATES ATTORNEY, Detroit,
    Michigan, for Appellee.
    _________________
    OPINION
    _________________
    ROGERS, Circuit Judge. Plaintiff Kerry Morgan appeals the district court’s grant of
    summary judgment in favor of the defendant, the Bureau of Alcohol, Tobacco and Firearms.
    Mr. Morgan, who deals in firearms from his residential premises in Redford Township, Michigan,
    applied in 2003 for a renewal of his federal firearms license. Based on an opinion of the Township’s
    legal counsel that Morgan’s firearms business violated Redford zoning regulations, ATF denied his
    renewal application. Morgan filed a petition for judicial review of ATF’s final denial pursuant to
    18 U.S.C. § 923(f)(3), and the district court granted ATF’s motion for summary judgment. Because
    ATF properly relied on Redford Township’s interpretation of its own zoning laws in denying
    Morgan’s federal firearms license, and because Morgan has presented no genuine issue of material
    fact, we affirm the district court’s grant of summary judgment.
    1
    No. 07-1358              Morgan v. ATF                                                                      Page 2
    Morgan first obtained a federal firearms license in 1993, authorizing him to deal in firearms
    from his Sumner Avenue home in Redford Township, Michigan. This location, which Morgan
    identified on his license application as the relevant “business address,” is a single-family residence
    classified as “residential” under Redford Township zoning regulations.
    Morgan timely sought renewal of his firearms license every three years, as required by
    federal regulations. See 27 C.F.R. §§ 478.45, 478.49. Beginning in 1994, applicants for new or
    renewed firearms licenses were required to certify that “the business to be conducted under the
    license is not prohibited by State or local law.” 18 U.S.C. § 923(d)(1)(F). Morgan signed the
    appropriate Certificate of Compliance with State and Local Law for each renewal application.
    During the course of his renewals, the Bureau of Alcohol, Tobacco and Firearms began to express
    concerns that Morgan’s operation of a firearms business out of his home might violate local Redford
    Township zoning laws. ATF nevertheless renewed Morgan’s firearms license in 1994, 1997, and
    2000. Apparently troubled by ATF’s concern that his firearms business may violate local zoning
    law, Morgan secured an opinion letter from a local attorney in 1994 stating that his firearms business
    was a permissible home occupation within the meaning of Redford Township zoning regulations.
    When Morgan applied for a license renewal in 2003, however, ATF inspector Gail Sullivan
    sought and obtained a written opinion from Redford Township’s legal counsel regarding Morgan’s
    compliance with local zoning laws. Through its counsel, the Township determined that Morgan’s
    operation of a firearms business from his home in a residential district was not permitted under the
    town’s zoning ordinance. Based on this information, Ms. Sullivan recommended that Morgan’s
    request for a license renewal be denied, and ATF notified Morgan that his license would not be
    renewed because “the business to be conducted under the license would not comply with state and
    local law.”
    Morgan timely requested an administrative hearing to review the denial pursuant to 18
    U.S.C. § 923(f)(2). Following a hearing on October 27, 2004, the hearing officer issued a report in
    which he recommended that Morgan’s application be denied. ATF issued its final decision denying
    Morgan’s renewal application on July 21, 2005.
    Morgan sought de novo judicial review of ATF’s decision pursuant to 18 U.S.C. § 923(f)(3).
    The district court granted ATF’s motion for summary judgment, concluding that ATF’s reliance on
    Redford Township’s interpretation       of local zoning law was an appropriate basis for denying
    Morgan’s renewal application.1 See Morgan v. United States Dep’t of Justice, Bureau of Alcohol,
    Tobacco, Firearms & Explosives, 
    473 F. Supp. 2d 756
    (E.D. Mich. 2007). The court noted and
    rejected Morgan’s argument that de novo review required the district court to “independently
    construe local zoning law” in order to make a “wholly independent inquiry whether he has satisfied
    the various prerequisites for license renewal. . . .” 
    Id. at 765.
    The court explained that even if it
    were to assess Morgan’s renewal entitlement without reference to the agency’s decision, the court
    would reach the same result, citing the traditional federalism principle that, in ruling on matters of
    state law, federal courts defer to the decisions of the state’s highest court and generally follow the
    decisions of inferior state courts unless convinced that the state’s highest court would rule otherwise.
    
    Id. The court
    concluded:
    Thus, the concept of “de novo” review does not confer upon this Court the
    freestanding authority to decide for itself what a state or local enactment might allow
    or prohibit. Rather, as a starting point, at least, the Court would consult the very
    1
    The district court addressed various other claims and theories raised by Morgan, none of which are at issue
    on appeal.
    No. 07-1358           Morgan v. ATF                                                             Page 3
    same source that the Defendant agency looked to in this case—namely, the local
    authorities.
    
    Id. Turning to
    the question of whether ATF proceeded appropriately in denying Morgan’s
    renewal application on the basis of his lack of compliance with local law, the court noted that ATF
    has a duty to investigate whether an applicant has established entitlement to a federal firearms
    license by satisfying the statutory criteria, and reasoned that this duty includes ensuring the
    truthfulness of statements made on the applicant’s firearms license. 
    Id. at 763
    (citing 27 C.F.R.
    § 478.47(a) and Fattahi v. Bureau of Alcohol, Tobacco & Firearms, 
    195 F. Supp. 2d 745
    , 747 n.5
    (E.D. Va. 2002), aff’d, 
    328 F.3d 176
    (4th Cir. 2003)). The court again rejected Morgan’s contention
    that ATF must “independently analyze and ‘confirm . . . the accuracy’ of a local government
    official’s interpretation of local law,” explaining that, even assuming that no deference had to be
    accorded to ATF’s reasoning, ATF could properly defer to the Township’s interpretation of its own
    ordinance. “Just as this Court defers to the state courts and other relevant authorities as to issues of
    state and local law, the Defendant agency surely should be permitted to do so as well.” 
    Id. at 765-
    66. Finding no basis for the conclusion that ATF’s chosen method of ascertaining the meaning of
    the Township’s zoning ordinance was “unauthorized” or improper, the district court granted ATF’s
    motion for summary judgment.
    Morgan filed a motion for reconsideration, which the district court subsequently denied.
    Morgan now appeals, arguing that the district court erroneously applied a deferential standard of
    review instead of the statutorily mandated “de novo” judicial review, which, he argues, requires the
    district court to conduct an analysis of whether he is entitled to a license renewal without deference
    to the decision of ATF. Morgan suggests that, “[h]ad the Court applied the correct standard, [his]
    argument regarding the Township’s insupportable reading of its own ordinance and the agency’s
    absolute uncritical deference to that reading, would require a different outcome by the lower court.”
    Appellant’s Br. 6. Morgan also argues that the court erred in requiring him to establish compliance
    with local zoning law to obtain license renewal, in light of Morgan’s interpretation of § 923(d)(1)(F)
    as providing a grace period for coming into compliance.
    ATF appropriately relied on Redford Township’s interpretation of its own zoning laws in
    denying Morgan’s federal firearms license, and Morgan has presented no genuine issue of material
    fact by which he may avoid summary judgment. We therefore affirm the decision of the district
    court.
    Although Morgan argues that the district judge accorded undue deference to ATF in light
    of the statutory requirement of de novo review, resolution of that issue is not necessary to decide this
    case. Assuming, without deciding, that Morgan is correct that 18 U.S.C. § 923(f)(3) requires the
    reviewing court to conduct “‘non-deferential’ review of [ATF’s] decision through a review of the
    administrative record,” we independently agree with the district court’s conclusion that ATF
    properly denied Morgan’s license renewal and is entitled to summary judgment.
    To the extent Morgan argues that ATF and the federal courts are obligated independently to
    construe and interpret the meaning of local law, without regard to the locality’s interpretation of its
    own law, this argument lacks merit for the reasons given by the district court. See Morgan, 473 F.
    Supp. 2d at 765-66. As the district court explained, ATF’s deference to local officials was entirely
    appropriate in determining that Morgan is not in compliance with local law: “Just as this Court
    defers to the state courts and other relevant authorities as to issues of state and local law, the
    Defendant agency surely should be permitted to do so as well.” 
    Id. Of course,
    the Township legal
    opinion upon which ATF relied is not as authoritative as a state court ruling. As the district court
    noted, however, Morgan has failed to offer a superior method of ascertaining the meaning of
    No. 07-1358           Morgan v. ATF                                                             Page 4
    Redford Township’s zoning ordinance that does not involve requiring federal courts and agencies
    to second-guess state and local interpretations of state and local law. Because, under the present
    circumstances, deferring to Redford Township’s interpretation of its own law is the most appropriate
    way of ascertaining whether or not Morgan is in compliance with local law as required by
    § 923(d)(1)(F), ATF’s decision to deny Morgan’s license renewal would properly be affirmed under
    any standard of review, whether de novo or more deferential.
    Moreover, the district court’s grant of summary judgment was proper notwithstanding
    Morgan’s novel interpretation of § 923(d)(1)(F). Morgan argues that the district court erred in
    construing § 923(d)(1)(F)(i) & (ii) as two separate requirements, requiring him both: (i) to be in
    compliance with local law at the time license renewal is sought, and (ii) to certify that he will be in
    compliance within thirty days after the application is approved and that business will not be
    conducted under the license until local requirements have been met. Morgan contends that (F)(i)
    and (F)(ii) should instead be read as alternatives, requiring him either to be in compliance at the time
    renewal is sought or to certify that he will be in compliance within thirty days. Morgan presented
    this argument for the first time in his motion for reconsideration, however, and the parties did not
    have an opportunity to brief the issue. Thus, Morgan did not preserve this issue for appeal, and the
    court will not entertain it. See Am. Meat Inst. v. Pridgeon, 
    724 F.2d 45
    , 47 (6th Cir. 1984); Thurman
    v. Yellow Freight Sys., Inc., 
    97 F.3d 833
    , 835 (6th Cir. 1996); Amway Distrib. Benefits Ass’n v.
    Northfield Ins. Co., 
    323 F.3d 386
    , 390-91 (6th Cir. 2003).
    For the foregoing reasons, the district court’s grant of summary judgment to ATF is affirmed.