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Creager v. Bureau of Alcohol

United States District Court, D. Maryland

March 18, 2016

RICHARD ALLEN CREAGER, JR. d/b/a FREDERICK ARSENAL, Petitioner,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, et al., Respondents

MEMORANDUM OPINION

ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

In this case, petitioner Richard Allen Creager, Jr. d/b/a Frederick Arsenal (“Creager”), seeks judicial review of the decision of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which revoked Creager’s federal firearms manufacturer’s license. ECF 1. He relies on 27 C.F.R. 478.78 and 18 U.S.C. 923(f)(3). ECF 1 at 2.

The parties have filed cross-motions for summary judgment, based on the administrative record. The motions have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant ATF’s motion (ECF 7) and deny petitioner’s motion (ECF 11).

I. Procedural Background

Creager, who is self-represented, filed suit in this Court on May 27, 2015, against the following respondent(s):[1]

Bureau of Alcohol, Tobacco, Firearms and Explosives Nicholas E. O’Leary, Acting Director of Industry Operations, Baltimore Field Office 31 Hopkins Plaza 5th Floor Baltimore, Maryland 21201

Service of the suit was executed upon O’Leary on July 22, 2015, and upon the U.S. Attorney for the District of Maryland on August 17, 2015. ECF 5.

On October 16, 2015, “Respondent” moved to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 (ECF 7), supported by a memorandum (ECF 7-1) (collectively, “Defense Motion”). Respondent also submitted the administrative record (ECF 6), [2] including the transcript of an administrative hearing held on November 19, 2014 (ECF 6-1), and other exhibits. The defense contends that the Complaint was untimely filed. ECF 7-1 at 5. Alternatively, the defense maintains that the license revocation is justified because petitioner “knew and understood the record keeping requirements of the Gun Control Act of 1968 (‘GCA’), but, nevertheless failed to record the acquisition and disposition of more than one thousand firearms.” ECF 7-1 at 2.

Petitioner did not file an opposition to the Defense Motion. Instead, on November 9, 2015, he moved to dismiss, or in the alternative, for summary judgment. ECF 11, “Petitioner’s Motion.” Creager alleges that the Defense Motion should be denied because it was untimely filed, given that O’Leary was served on July 22, 2015. ECF 11 at 1. Petitioner states: “Pursuant to Federal Rule of Civil Procedure 12(a)(2) a motion for summary judgement in favor of Petitioner should be granted as The Defendant, Nicholas E. O'Leary and the United States attorney did not respond to the complaint within . . . 60 days after service. . . .” ECF 11 at 2 (emphasis added).

The defense filed an opposition to Petitioner’s Motion on November 20, 2015 (ECF 12, “Opposition”), contending that, pursuant to Fed.R.Civ.P. 12(a)(2) and Fed.R.Civ.P. 6(d), the Defense Motion was filed within 60 days of service on the U.S. Attorney, effected on August 17, 2015. ECF 12 at 2. The Opposition does not address the effect of service on O’Leary on July 22, 2015. ECF 12.

As a preliminary matter, it is difficult to decipher from the Complaint whether petitioner intended to file suit against O’Leary, the ATF, or both. ECF 1. As indicated, O’Leary’s name appears directly under the ATF, along with a single physical address. Petitioner’s Civil Cover Sheet (ECF 1-2 at 1) and his single proposed summons (ECF 1-2) include the same naming convention that appears on the Complaint. In the Notice of Filing of Administrative Record, the defense identified O’Leary as the sole Respondent. See ECF 6 at 1. And, as indicated, the Defense Motion (ECF 7) refers to a single, unidentified “Respondent.”

Given petitioner’s lack of clarity as to whether he sued both ATF and O’Leary, and the defense’s corresponding lack of clarity as to the identity of the respondent, I requested supplemental briefing from the defense to “explain why its submissions refer to a single respondent” and to “identify that respondent.” ECF 13 at 2. In addition, I asked defense counsel to provide “authority explaining its position that the time to respond to the suit was properly calculated from the date of service on the U.S. Attorney, rather than the date of service on O’Leary.” Id.

On January 27, 2016, the defense submitted supplemental briefing addressing these issues. ECF 14, “Supplement.” The Supplement states: “Given the fact that Plaintiff’s Complaint entails a judicial determination of an agency action, and makes no individual capacity allegations against Mr. O’Leary, the defense interpreted this lawsuit as one against [the ATF].” ECF 14 at 1. The Supplement does not explain why, in filing the Administrative Record, O’Leary was identified as the sole respondent. Additionally, citing Fed.R.Civ.P. 12(a)(3), the Supplement states: “Even assuming, however, that Plaintiff sued Mr. O’Leary in his official capacity . . . the Motion is still timely because the time to respond would not have started until the date of service on the United States attorney.” Id. at 2. Petitioner has not challenged the assertions of ATF in the Supplement.

As the defense points out, there are no allegations in the Complaint as to O’Leary’s conduct. This supports the view that O’Leary’s name was listed on the Complaint merely because of his position as Acting Director, and not because petitioner intended to sue him. Therefore, I shall construe the Complaint as a suit only against the ATF.

As to the timeliness of the ATF’s response to the suit, Fed.R.Civ.P. 12(a)(2) is pertinent. It states, in part:

The United States, a United States agency, or a United States officer or employee . . . must serve an answer to a complaint . . . within 60 days after service on the United States attorney.

The U.S. Attorney was served on August 17, 2015. ECF 5. Therefore, ATF’s filing on October 16, 2015, was timely.

Even if Creager has sued O’Leary, the response is timely. Fed.R.Civ.P. 12(a)(3) is relevant. It provides (emphasis added):

A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

As noted, Creager served the U.S. Attorney after serving O’Leary. Therefore, under Rule 12(a)(3), the 60-day response deadline began to run on August 17, 2015. It follows that the Defense Motion was timely filed on October 16, 2015. ECF 7.

II. Regulatory Framework

The requirements set forth in 27 C.F.R. §§ 478.125(e), 478.125(i), and 478.123 are pertinent. Section 478.125(e) provides record-keeping requirements for licensed firearms dealers, and § 478.125(i) adopts the same requirements for licensed manufacturers. Section 478.125(e) states:

Each licensed dealer shall enter into a record each receipt and disposition of firearms. In addition, before commencing or continuing a firearms business, each licensed dealer shall inventory the firearms possessed for such business and shall record same in the record required by this paragraph. The record required by this paragraph shall be maintained in bound form . . . .The purchase or other acquisition of a firearm shall . . . be recorded not later than the close of the next business day following the date of such purchase or acquisition. The record shall show the date of receipt, the name and address or the name and license number of the person from whom received, the name of the manufacturer and importer (if any), the model, serial number, type, and the caliber or gauge of the firearm. The sale or other disposition of a firearm shall be recorded by the licensed dealer not later than 7 days following the date of such transaction. . . . When such disposition is made to a licensee, the commercial record of the transaction shall be retained, until the transaction is recorded, separate from other commercial documents maintained by the licensed dealer, and be readily available for inspection. . . .

The regulation goes on to provide an example of the format for keeping records. See 27 C.F.R. § 478.125(e). Additionally, as to firearms manufacturers, 27 C.F.R. § 478.123(a) states:

Each licensed manufacturer shall record the type, model, caliber or gauge, and serial number of each complete firearm manufactured or otherwise acquired, and the date such manufacture or other acquisition was made. The information required by this paragraph shall be recorded not later than the seventh day following the date such manufacture or other acquisition was made.

And, “records pertaining to firearms transactions . . . shall be retained on the licensed premises . . . ” (id. § 478.121(a)), unless particular conditions for keeping electronic records are met. See ECF 7-1 at 12 n.4 (citing ATF Ruling, 2013-5 (Dec. 17, 2013), which permits electronic recordkeeping subject to several conditions, including that a “licensee must print or download all records from the system . . . upon request of an ATF officer (must be provided within 24 hours)” (id. at 4) and that “records are readily accessible through a computer device at the licensed premises during regular business hours” (id. at 5)).

III. Factual Background[3]

On June 23, 2014, the ATF sent Creager a Notice of Revocation of License, based on events that occurred in early 2013. ECF 6-2 at 2–4, “Notice.” The Notice explained, inter alia, that Creager “failed to make appropriate entries in, or failed to properly maintain” his Acquisition and Disposition Book (“A & D Book”). ECF 6-2 at 3. Creager was also notified of his right to request a hearing with ATF to review the revocation within 15 days. Id. at 2. By letter dated June 30, 2014, Creager requested a hearing, noting that he had “several questions” regarding the “basis of revocation.” Id. at 5. A Notice of Hearing was sent to Creager on October 3, 2014, which culminated in an evidentiary hearing on November 19, 2014. ECF 6-2 at 8–9. See generally ECF 6-4 (Report of ATF Hearing Officer Ronald L. Johnson). A summary of the evidence adduced at the Hearing follows.

Creager’s business, the Frederick Arsenal, is located in Frederick, Maryland. Creager became a licensed firearms dealer in 1990. ECF 6-1 at 18–19; ECF 6-2 at 10. Creager held that license until May 7, 2013, when he voluntarily surrendered it.[4] ECF 7-1 at 3; see also ECF 6-1 at 64. However, in early 2013, at the time of the ATF ...


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