Morgan v. ATF ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0478p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
KERRY L. MORGAN,
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No. 07-1358
v.
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FEDERAL BUREAU OF ALCOHOL, TOBACCO & -
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Defendant-Appellee. -
FIREARMS,
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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.
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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.
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OPINION
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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.