Bruce Barany v. Janet Van Haelst , 459 F. App'x 587 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRUCE R. BARANY, No. 11-35005
Plaintiff - Appellant, D.C. No. 2:09-cv-00253-RMP
v.
MEMORANDUM *
JANET C. VAN HAELST, Acting
Director of Industry Operations Seattle
Field Division Bureau of Alcohol Tabacco
Firearms and Explosives,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief District Judge, Presiding
Argued and Submitted October 13, 2011
Seattle, Washington
Before: KOZINSKI, Chief Judge, PAEZ, Circuit Judge, and COLLINS,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.
Barany appeals from the district court’s grant of summary judgment to the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) on his claim that
the ATF improperly denied his federal firearms license (“FFL”) application.
Barany argues that ATF lacked authority to deny his application on the basis of
willful violations of the Gun Control Act and its regulations committed by the
General Store, Inc. See General Store, Inc. v. Van Loan, 560 F.3d 920 (9th Cir.
2009).
Barany was listed as a “responsible person” on the General Store’s corporate
FFL. He was one of two corporate officers and one of two shareholders in a small
family-run corporation in which he actively participated in the management of the
day-to-day activities of the store. Moreover, it is apparent from the administrative
record, and specifically from the information disclosed in his FFL application and
in his interview with an ATF inspector, that Barany was applying for an FFL in
order to revive the General Store’s former gun department under another business
name and thus to evade the consequences of the revocation of the General Store’s
FFL. Under these circumstances, ATF was authorized under 18 U.S.C. §
923(d)(1)(C) to deny his FFL application based on the willful violations committed
by the General Store, Inc.
Because denial of an FFL application is not the enforcement or assessment
of a civil penalty, the statute of limitations imposed by 28 U.S.C. § 2462 does not
apply here. Rivera v. Pugh, 194 F.3d 1064, 1068-69 (9th Cir. 1999).
The district court therefore did not err in concluding that ATF was
authorized to deny Barany’s FFL application.
AFFIRMED.