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Wilborn v. Bureau of Alcohol

United States District Court, N.D. Alabama, Northeastern Division

October 30, 2014

DENNIS HAL WILBORN, d/b/a Wilborn Outdoors, Petitioner,
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Respondent.


ABDUL K. KALLON, District Judge.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("the ATF") stripped Dennis Wilborn, doing business as Wilborn Outdoors, of his federal firearms license after repeat violations of the Gun Control Act ("GCA"). As a result, Wilborn petitioned the court for a de novo review of the ATF's decision. Doc. 1. The ATF has filed a motion to dismiss and, alternatively, a motion for summary judgment, docs. 6, 7, which is fully briefed, see docs. 11, 12, and ripe for review. Because the parties have submitted affidavits and other exhibits in support of and in opposition to the motion, the court construes this motion solely as a motion for summary judgment. See Garfield v. NDC Health Corp., 466 F.3d 1255, 1260 (11th Cir. 2006). Based on the evidence and the law, for the reasons stated fully below, the court finds that the ATF has established that Wilborn willfully violated the GCA, and that its motion is due to be granted.


"Notwithstanding the posture of this action as an appeal from an ATF administrative decision, the summary judgment standard is unchanged." Willingham Sports, Inc. v. ATF, 348 F.Supp.2d 1299, 1307 (S.D. Ala. 2004) (hereinafter Willingham Sports I ). Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a license revocation by the Attorney General, summary judgment is appropriate where "there is no genuine issue of material fact about whether [a licensee's] continued and repeated failure to comply [with the GCA] was willful." Willingham Sports, Inc. v. ATF, 415 F.3d 1274, 1278 (11th Cir. 2005) (hereinafter Willingham Sports II ).

The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in the Plaintiff's favor when sufficient competent evidence supports the Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).


Wilborn held a Federal Firearms License authorizing him to sell firearms at his store in Cullman, Alabama.[1] Doc. 7-3 at 1. In 2011, the ATF inspected Wilborn Outdoors and determined that Wilborn failed to timely record the acquisition and disposition of multiple firearms, in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.125(e), and to report the multiple sale of handguns, in violation 18 U.S.C. §923(g)(3)(A) and 27 C.F.R. § 478.126(a). Doc. 7-30 at 1-6. An ATF investigator subsequently reviewed the violations with Wilborn and requested corrective action. Id. at 1. Additionally, a senior ATF official held a "warning conference" with Wilborn, id. at 3; doc. 7-38 at 14-16, which the ATF followed up with a letter informing Wilborn that additional violations "could be viewed as willful" and "may result in the revocation of [his federal firearms] license, and that further inspections by the ATF should be expected." Doc. 7-32 at 1-4.

In response to the citations and warnings, Wilborn implemented new record keeping processes, spending "thousands of dollars in employee time training [his] staff and updating [his] procedures." Doc. 11-1 at 2; see also docs. 7-1 at 1;7-39 at 22; 7-40 at 1-3. Wilborn also rearranged the store to better protect his guns from theft. Doc. 11-1 at 1. Finally, Wilborn and several staff members tried to attend an ATF training seminar at the Madison Library in Madison, Alabama, but found out that the seminar was actually at a different library with a similar name. Docs. 7-2; 7-39 at 15-17.

Consistent with the warning letter, ATF Investigator John Woodruff ("Woodruff") inspected Wilborn Outdoors in May and June of 2013. Doc. 7-29 at 1-5. After reviewing the records and inventory, doc. 7-37 at 14-16, Woodruff determined that Wilborn Outdoors had violated several provisions of the GCA. First, Wilborn failed to timely record firearms sales and failed to file multiple-firearm-sales reports.[2] Docs. 7-29 at 1, 5; 7-38 at 13. Specifically, Wilborn violated 18 U.S.C § 923(g)(1)(A) and 27 C.F.R. § 478.125(e) when he failed to timely record the sale or disposition of 39 firearms identified in his acquisition and disposition records (ADR). Docs. 7-4 at 2-4; 7-29 at 1. Second, Woodruff could not find 13 of the 39 firearms in Wilborn Outdoors' inventory even though the store's records indicated that it had them in stock. Doc. 7-4 at 2-4. Third, Wilborn also failed to keep his ADR consistent with his Firearms Transactions Records. Doc. 7-37 at 15-16. Finally, Wilborn violated 18 U.S.C. § 923(g)(3)(A) and 27 C.F.R. § 478.126(a) when he failed to file multiple-firearm-sales-reports on nine separate occasions. Doc. 7-4 at 4-5.

In light of these new violations, the ATF served Wilborn with a Notice of Revocation of License based on his failure to timely record the sale or disposition of 39 firearms and his failure to file nine multiple-firearm-sales reports. Id. at 2, 4. Wilborn requested an administrative hearing, docs. 7-5 at 1; 7-8 at 1, which the ATF held on February 11, 2014, doc. 7-8 at 1. At the hearing, Wilborn admitted the violations, and acknowledged that he had knowledge of the GCA's requirements after the 2011 inspection, that the ATF explained the 2011 violations to him at a warning conference, and that the ATF notified him by letter that it may revoke his license if he again violated the GCA. Docs. 7-39 at 10-13, 19-22; 7-40 at 1-2, 7-8, 12. Despite his admissions, Wilborn contested the revocation by detailing the remedial steps he implemented after the 2013 inspection[3], and argued that he had only inadvertently, rather than willfully, violated the GCA. Docs. 7-1 at 1; 7-2 at 1; 7-38 at 21-22; 7-39 at 1-3, 13-17; 7-40 at 13.

The hearing officer issued a memorandum to the ATF's Director of Industry Operations, finding that a substantial basis existed to believe that Wilborn had knowledge of the requirements of the GCA and its attendant regulations prior to the 2013 violations, and that Wilborn's violations were the result of "purposeful disregard or plain indifference." Doc. 7-33 at 8. Based on this finding, Kevin Boydston, a regional ATF Director of Industry Operations, issued a Final Notice of Revocation and informed Wilborn that he could petition the court for a review pursuant to 18 U.S.C. § 932(f)(3). Doc 7-34 at 1-8. Wilborn exercised his right and filed the petition with this court. Docs. 1, 10.


The court has before it the ATF's motion in which it asserts that Wilborn's admitted violations rise to the level of willfulness as a matter of law and, therefore, the Attorney General was entitled to revoke ...

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