     Case: 16-41449    Document: 00514013071     Page: 1   Date Filed: 05/31/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                    Fifth Circuit

                                                                      FILED
                                                                   May 31, 2017
                                  No. 16-41449
                                                                   Lyle W. Cayce
                                                                        Clerk
FAIRMONT CASH MANAGEMENT, L.L.C., doing business as Cash Cow
Pawn,

              Plaintiff - Appellant

v.

TANARRA JAMES, Director of Industry Operations, Bureau of Alcohol,
Tobacco, Firearms and Explosives,

              Defendant - Appellee




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Based on numerous violations of the federal Gun Control Act, the ATF
decided to revoke Cash Cow Pawn Shop’s federal firearms license (“FFL”).
After an administrative hearing, Cash Cow exercised its right to challenge that
revocation decision in federal court, but the district court granted summary
judgment against it. Cash Cow appealed, asserting error in the grant of
summary judgment, as well as in various discovery and procedural rulings of
the district court. We affirm.
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                                No. 16-41449
                                      I.
      Fairmont Cash Management, LLC, is a Texas company doing business
in Alvin as “Cash Cow Pawn.” Cash Cow is owned and operated by Derek
Munz. Munz has a long history in the pawn shop business, operating at least
a dozen since 1994, all of which held federal firearms licenses permitting them
to sell guns to members of the public provided they complied with applicable
federal regulations. Munz opened Cash Cow in 2007 and obtained an FFL for
it that same year.
      With the privileges attendant to an FFL come burdens; in addition to
stringent   documentation    requirements,     FFL-holders    are   subject   to
unannounced compliance inspections by the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, the federal agency charged with administering FFL
licensure. To Cash Cow’s credit, it was subject to one such inspection in 2010,
and received an entirely clean bill of compliance. The ATF thereafter left it
alone until early in 2013, when the agency received an anonymous tip that
Cash Cow had unlawfully sold firearms to people federally prohibited from
possessing them.
      As a result, the ATF launched an undercover investigation of Cash Cow.
On three different occasions, the agency sent an agent into Cash Cow’s store
to attempt to purchase a firearm in a way that would have been unlawful as
apparent to Cash Cow. On the first occasion, Cash Cow’s store manager,
Nelson Alonso, sold a firearm to the undercover ATF agent even though the
agent told Alonso that he was a convicted felon not lawfully in the United
States. When Alonso ran the required background check on the agent, he
misspelled the name given to prevent the national registry from retuning any
flags. On the second occasion, the same agent attempted another firearm
purchase from Cash Cow. This time, Alonso correctly input the name into the
national registry, which returned an instruction to deny the sale. Nonetheless,
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                                 No. 16-41449
Alonso completed the transaction, concealing the true purchaser by adding the
record of the transaction to an earlier sale to a different, legitimate customer.
On the third occasion, the same agent attempted yet another firearm purchase
from Cash Cow. This time, he brought his “girlfriend” (another ATF agent) to
fill out any paperwork and be subject to the background check instead of the
true purchaser—a so-called “straw purchase.” Alonso sold three firearms to the
agent by subjecting his “girlfriend” to a background check instead of him.
      The ATF understandably chose to arrest and prosecute Alonso. It
obtained and executed a search warrant at Cash Cow’s store for the transaction
records incriminating Alonso. Alonso was charged with selling a firearm to a
felon and pleaded guilty. The ATF made Munz aware of the matter, but took
no further action against Cash Cow at that time.
      A year later, in early 2014, the ATF conducted an unannounced
compliance inspection on Cash Cow to review all of its firearms-related
business activity since the Alonso incident. The inspection revealed numerous
violations of the Gun Control Act both stemming from and going beyond the
Alonso incident. Finally satisfied that perhaps Cash Cow should no longer be
in the business of dealing firearms, the ATF sent Cash Cow notice that it
intended to revoke Cash Cow’s FFL.
      Cash Cow invoked its right to an administrative hearing to contest the
revocation, at which it was represented by counsel. The ATF appointed a
hearing officer to preside, and ATF division counsel represented the
government. After hearing and reviewing the evidence, the hearing officer
concluded that Cash Cow had willfully violated the Gun Control Act and
recommended that the ATF uphold the revocation of its FFL. He entered an
extensive memorandum recounting the events of the hearing and announcing
his findings. The ATF’s Houston Director of Industry Operations, who had


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                                 No. 16-41449
observed the hearing, agreed and issued Cash Cow a final notice that its FFL
was revoked.
     The ATF’s final list of violations committed by Cash Cow employees,
none of which Cash Cow contests, is as follows:
  • On three different occasions, selling a firearm to a person known to be
     subject to a federal firearm prohibition in violation of 18 U.S.C.
     § 922(d)(1), (5) and 27 C.F.R. § 478.99(c)(1), (5);
  • Failing to timely and accurately report the sale of two or more
     semiautomatic rifles to the same person in violation of 18 U.S.C.
     § 923(g)(5)(A) and 27 C.F.R. § 478.125;
  • On twelve different occasions, failing to timely and accurately report the
     sale of two or more pistols or revolvers to the same unlicensed person in
     violation of 18 U.S.C. § 923(g)(3)(A) and 27 C.F.R. § 478.126a;
  • On seven different occasions, failing to timely and accurately record the
     disposition of a firearm in violation of 18 U.S.C. § 923(g)(1)(A) and 27
     C.F.R. § 478.125(e);
  • Selling a firearm to an unlicensed person without waiting for the
     applicable period of time to trigger an exception in violation of 18 U.S.C.
     § 922(t) and 27 C.F.R. § 478.102(a)(2)(ii);
  • On two different occasions, selling a firearm to an unlicensed person
     without any exception available in violation of 18 U.S.C. § 922(t) and 27
     C.F.R. § 478.102(a);
  • Making a false statement on a federal firearm form in violation of 18
     U.S.C. § 923(m) and 27 C.F.R. § 478.128(c);
  • Selling a firearm without recording the transaction in violation of 18
     U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(a)(1);
  • On four different occasions, failing to execute the required paperwork in
      violation of 18 U.S.C. § 922(m) and 27 C.F.R. § 478.21(a);
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                                  No. 16-41449
   • On sixteen different occasions, failing to get the required documentation
      from the transferee upon sale of a firearm in violation of 18 U.S.C.
      § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(1);
   • On ten different occasions, selling a firearm without verifying the
      transferee’s identity in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R.
      § 478.124(c)(3)(i);
   • On fourteen different occasions, selling a firearm without recording
      national database information on the required paperwork in violation of
      18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(3)(iv);
   • On three different occasions, selling a firearm without indicating on the
      required paperwork what firearm was sold in violation of 18 U.S.C.
      § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(4);
   • On three different occasions, failing to sign and certify the required
      paperwork in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R.
      § 478.124(c)(5).
      Cash Cow then exercised its right to challenge the revocation of its FFL
in federal court; it filed a complaint against the ATF’s Houston Director of
Industry Operations (styled as the respondent in this lawsuit). Cash Cow
sought a temporary restraining order allowing it to keep its FFL and stay in
business during the pendency of the federal-court challenge. However, it then
withdrew that application because the ATF agreed not to issue the formal
revocation until the lawsuit was resolved.
      The ATF moved for summary judgment. In response, Cash Cow moved
for a stay of summary judgment under Federal Rule of Civil Procedure 56(d)
to allow more time for discovery, arguing that it should be permitted to discover
several documents and recordings in the ATF’s possession relating to the
investigation against Cash Cow. The district court granted the motion in part
and extended the time Cash Cow had to respond to summary judgment. It also
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                                No. 16-41449
informed Cash Cow that, even after its response was due, it would be permitted
to supplement its response with any additional information discovered. Cash
Cow simultaneously filed its summary judgment response and a motion to
compel the ATF to turn over its internal files relating to the Alonso
investigation—files that the ATF claimed were privileged and unnecessary.
      In the same opinion, the district court both denied Cash Cow’s motion to
compel and granted the ATF’s motion for summary judgment. The court was
satisfied that the ATF had followed the correct administrative procedure and
that the undisputed evidence in the administrative record established that
Cash Cow had committed at least one willful violation of the Gun Control Act.
It decided that it did not need the evidence that Cash Cow sought to compel
discovery of because the administrative record was sufficient.
      Shortly after the court ruled, Cash Cow filed an “emergency motion to
enforce F.R.C.P. 62(a) automatic stay.” It explained that the ATF had agreed
to allow Cash Cow to stay in business with an FFL during the judicial review
process, but had taken action to strip Cash Cow of its FFL privileges within an
hour of the district court’s summary judgment ruling. According to Cash Cow,
this violated Federal Rule of Civil Procedure 62(a)’s 14-day automatic stay of
execution of judgment. The ATF replied that it would not deny Cash Cow any
FFL privileges during those 14 days, so the motion was moot. The district court
denied the motion, finding that the ATF’s authority to revoke Cash Cow’s FFL
was statutory, not the result of a judgment. Moreover, though Cash Cow did
not seek a stay pending appeal (it sought only a 14-day automatic stay), the
district court considered one sua sponte but declined to impose such a stay.




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                                      No. 16-41449
                                            II.
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. 1 Summary judgment may be
affirmed for any reason raised to the district court and supported by the record,
and we are not bound by the grounds articulated by the district court. 2 “The
court shall grant summary judgment 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.” 3 “When considering a motion for summary judgment, the
court views all facts and evidence in the light most favorable to the non-moving
party.” 4 Unlike in other cases in which we take appeal from administrative
action, we are instructed to provide “de novo judicial review” of the ATF’s
revocation decision. 5 We review discovery rulings for abuse of discretion. 6
                                           III.
      Cash Cow appeals (A) the district court’s grant of summary judgment,
(B) the court’s denial of its motion to compel, and (C) the court’s denial of its
motion to enforce the automatic stay.
                                            A.
      With begin with Cash Cow’s primary challenge, which is to the district
court’s grant of summary judgment against it.
1. Applicable Principles
      The Gun Control Act of 1968 requires every person engaged “in the
business of importing, manufacturing, or dealing in firearms, or importing or




      1 Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).
      2 Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir. 1993).
      3 FED. R. CIV. P. 56(a).
      4 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
      5 18 U.S.C. § 923(f)(3).
      6 Duke v. Univ. of Tex. at El Paso, 729 F.2d 994, 995 (5th Cir. 1984).

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                                  No. 16-41449
manufacturing ammunition” to be properly licensed by the Attorney General. 7
This license is called a federal firearms license, or FFL. Even after a person
has been licensed, “[t]he Attorney General may, after notice and opportunity
for hearing, revoke any license issued under this section if the holder of such
license has willfully violated any provision of this chapter or any rule or
regulation prescribed by the Attorney General under this chapter.” 8
      A licensee whose FFL the Attorney General decides to revoke has several
procedural rights. First:
      [A]ny holder of a license which is revoked shall receive a written
      notice from the Attorney General stating specifically the grounds
      . . . upon which the license was revoked. Any notice of a revocation
      of a license shall be given to the holder of such license before the
      effective date of the revocation. 9
Second:
      If the Attorney General . . . revokes[] a license, he shall, upon
      request by the aggrieved party, promptly hold a hearing to review
      his . . . revocation. In the case of a revocation of a license, the
      Attorney General shall upon the request of the holder of the license
      stay the effective date of the revocation. A hearing held under this
      paragraph shall be held at a location convenient to the aggrieved
      party. 10
Third:
      If after a hearing held under paragraph (2) the Attorney General
      decides not to reverse his decision to . . . revoke a license, the



      7 18 U.S.C. § 923(a).
      8 Id. § 923(e).
      9 Id. § 923(f)(1).
      10 Id. § 923(f)(2).

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                                      No. 16-41449
       Attorney General shall give notice of his decision to the aggrieved
       party. The aggrieved party may at any time within sixty days after
       the date notice was given under this paragraph file a petition with
       the United States district court for the district in which he resides
       or has his principal place of business for a de novo judicial review
       of such denial or revocation. In a proceeding conducted under this
       subsection, the court may consider any evidence submitted by the
       parties to the proceeding whether or not such evidence was
       considered at the hearing held under paragraph (2). If the court
       decides that the Attorney General was not authorized to deny the
       application or to revoke the license, the court shall order the
       Attorney General to take such action as may be necessary to
       comply with the judgment of the court. 11
The Attorney General has delegated these functions to the ATF. 12
       “A district court employing a de novo standard of review should not
attach any presumption of correctness to the ATF’s decision; however, a court
may give the ATF’s determination as much weight as the court deems
appropriate.” 13 Although review must be de novo, the court is “not required to
hold an evidentiary hearing and may enter judgment solely based upon the
administrative record.” 14 The court may consider evidence not presented at the
administrative hearing, but it is within the discretion of the district court




       11 Id. § 923(f)(3).
       12 28 C.F.R. § 0.130.
       13 Arwady Hand Trucks Sales, Inc. v. Vander Werf, 507 F. Supp. 2d 754, 758 (S.D. Tex.

2007); see also Stein’s, Inc. v. Blumenthal, 649 F.2d 463, 466–67 (7th Cir. 1980).
       14 Arwady, 507 F. Supp. 2d at 758.

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                                      No. 16-41449
whether to do so. 15 The Administrative Procedures Act does not apply to
revocation hearings by the ATF. 16
      In reviewing the ATF’s decision, the question is whether it was
authorized to revoke the petitioner’s FFL. 17 Here, Cash Cow admits that all of
the violations detected by the ATF occurred, but insists that they were not
committed “willfully” as required for revocation by § 923(e).
      A license holder commits a willful violation under § 923 if the
      licensee knew of his legal obligation and purposefully disregarded
      or was plainly indifferent to the record-keeping requirements.
      Additionally, a violation is willful if the licensee has been informed
      of the regulations, warned of violations, and continually violates
      those requirements. Furthermore, knowledge of the particular
      regulation violated is not required so long as the licensee
      disregarded a known legal obligation. Section 923 does not require
      evidence of a “bad purpose” or “evil motive” in order to support a
      showing of willfulness. “Factors tending to establish ‘willfulness’
      as a matter of law include (1) a licensee’s proven knowledge of its
      record keeping obligations, (2) persistent failure ‘to comply with
      . . . the same or similar’ provisions, and (3) receipt of a warning
      letter ‘advising [the licensee] that repeated violations of the
      regulations could result in the revocation of its license.’” “[W]here
      a licensee understands his or her legal obligations under the GCA,
      yet fails to abide by those obligations, his or her license can be




      15 Id. (citing Strong v. United States, 422 F. Supp. 2d 712, 720 n.12 (N.D. Tex. 2006)).
      16 Id. at 758–60.
      17 Id. at 761.

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                                     No. 16-41449
      denied or revoked on the basis that the dealer ‘willfully’ violated
      the GCA.” 18
A single willful violation authorizes the ATF to revoke the violator’s FFL,
regardless how severe, though the frequency and severity of the violations can
be relevant to willfulness. 19 Bearing these principles in mind, we turn to the
facts of this case.
2. Discussion
      First, to what is undisputed. Cash Cow admits that its employees
committed all of the violations of the Gun Control Act found by the ATF to have
occurred. It further acknowledges that it was aware of all of its obligations
under that Act—as mentioned, its owner, Munz, is an FFL veteran who prides
himself on having an exemplary FFL compliance record. Finally, it concedes
that Alonso himself acted willfully when he violated the Act. Cash Cow
disputes first whether Alonso’s actions can here be imputed to it; and second
whether any individual violation committed by an employee other than Alonso
was committed willfully.
      First, Cash Cow argues that Alonso was a “rogue employee” whose
actions cannot be imputed to it for the purpose of the Gun Control Act. We
disagree. Under the Act, “where . . . the licensee is a corporation, it is
chargeable with the conduct and knowledge of its employees.” 20 While
acknowledging this, Cash Cow urges us to import into this context the
conceptual framework of Monell v. Department of Social Services of City of New
York, which bars respondeat superior liability of municipalities under 42
U.S.C. § 1983 and requires a showing of the culpability of the municipality


      18  Arwady, 507 F. Supp. 2d at 761–62 (citations omitted).
      19  Id. at 762 n.11.
       20 Stein’s, Inc., 649 F.2d at 467–68; see also Moreno v. Bureau of Alcohol, Tobacco,

Firearms, Explosives, 113 F. Supp. 3d 916, 923 (W.D. Tex. 2015); Arwady, 507 F. Supp. 2d at
763 n.12.
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                                     No. 16-41449
itself. 21 Cash Cow Pawn Shop, however, is not a municipality, and this is not a
case under § 1983. Cash Cow is vicariously liable for the illegal acts of its
employees regardless whether it approved of them. We reject its argument to
the contrary. Alonso’s multiple undisputedly willful violations of the Gun
Control Act are attributable to Cash Cow and authorized the ATF to revoke its
FFL. Summary judgment was proper on this basis.
      We need go no further; a single willful violation suffices to sustain the
ATF’s revocation decision. Nonetheless, we address as an alternative holding
Cash Cow’s second argument about the violations committed by its employees
other than Alonso. As it goes, those numerous other violations were mere
“paperwork violations” that the ATF frequently overlooks and that we, too,
should overlook. This misses the mark. Our question is not whether the ATF
fairly distributes its revocation decisions among FFL-holders who violate the
Gun Control Act; it is whether the ATF was authorized by the Act to revoke.
And the fact that Cash Cow’s violations were paperwork violations does not
make them any less serious or less willful. The Gun Control Act imposes
significant record-keeping obligations upon firearms dealers as part of
Congress’s carefully crafted plan to ensure that firearms do not end up in the
wrong hands.
      The sheer volume of violations admitted by Cash Cow here makes
willfulness nigh inescapable. On more than fifty different occasions other than
the Alonso incident, Cash Cow employees failed to satisfy their burden under
the Act. And a significant number of those occurred after the store was the
subject of a federal criminal investigation resulting in the arrest and conviction
of its store manager. When well-trained employees under the supervision of an



      21 436 U.S. 658, 694–95 (1978); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001).
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                                     No. 16-41449
FFL veteran commit the volume of violations described above against that
backdrop, there can be little doubt that at least one of the violations, and likely
more, was committed with reckless disregard to known federal obligations—
willfully.
      This court has, albeit in unpublished cases, affirmed summary judgment
for the ATF upholding FFL revocation on less extreme facts than here. For
example, in Athens Pawn Shop Inc. v. Bennett, the pawn shop did not dispute
the found violations, but argued “that revocation of its license was not
warranted because the violations were not willful and were due to inadvertent
and technical record-keeping mistakes.” 22 We affirmed summary judgment for
the ATF:
      [T]he evidence showed that Athens Pawn Shop had been cited on
      at least three prior occasions for the same or similar violations of
      the requirements for maintaining accurate acquisition and
      disposition records. It was also specifically warned that its license
      was contingent on compliance with federal regulations and that
      future violations would be considered willful and could jeopardize
      its license. It is indisputable that Athens Pawn Shop was aware of
      its legal obligations but committed numerous subsequent
      infractions. Repeated violation of known legal requirements is
      sufficient to establish willfulness. 23
Similarly, in Weaver v. Harris, the former licensee did not challenge any of the
found violations, but rather argued that revocation was not warranted because
his violations of the federal recording requirements were not willful. 24 Again,
we affirmed summary judgment for the ATF:


      22 364 F. App’x 58, 59 (5th Cir. 2010) (unpublished).
      23 Id. at 59–60.
      24 486 F. App’x 503, 505 (5th Cir. 2012) (unpublished).

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                                      No. 16-41449
      Weaver’s 2009 violations, which stemmed from his failure to record
      the disposition of 213 firearms in his Acquisitions and Dispositions
      book, were not the first time he was cited for the same recording
      violation. In 1998, Weaver was cited for failing to account for seven
      firearms in his Acquisitions and Dispositions book. Yet despite this
      previous violation and his knowledge of federal firearm recording
      requirements, Weaver violated those same requirements in 2009.
      And not only did he violate the same requirements, the number of
      violations increased dramatically. Moreover, even after he was
      informed of the 2009 violations, Weaver failed to take immediate
      action to rectify the recording deficiencies. Because the “[r]epeated
      violation of known legal requirements is sufficient to establish
      willfulness,” we conclude that the district court properly granted
      summary judgment in favor of the Director. 25
Summary judgment is even more compelling here.
                                           B.
      We turn to Cash Cow’s appeal of the district court’s discovery ruling. As
explained, Cash Cow asked the district court to compel the ATF to turn over
its internal investigation file on Cash Cow. The ATF opposed on the grounds
that its internal files were privileged, irrelevant, and unnecessary to the court’s
summary judgment ruling because the case could be decided on the
administrative record alone. The district court denied the motion to compel
because it found that it needed no additional evidence beyond the
administrative record to rule on the pending motion for summary judgment.
      That decision was not an abuse of discretion. The administrative record
in this case is robust, with some hundreds of pages of testimony and exhibits.


      25   Id. (citations omitted).
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                                     No. 16-41449
Cash Cow did not object to any of the evidence presented at the hearing. By all
accounts, the ATF representative who testified at the hearing recounted all of
the evidence pertaining to the Cash Cow investigation. Moreover, the fact that
Cash Cow does not dispute any of the violations found by the ATF makes
unclear exactly what is sought. Cash Cow wants a full trial on the issue of
willfulness alone, but both in its brief and at oral argument, it was unable to
point to a genre of relevant evidence it hopes to discover through the ATF’s
internal investigation file. We affirm the district court’s denial of Cash Cow’s
motion to compel.
                                          C.
      We conclude with Cash Cow’s argument that the district court erred by
declining to enforce the automatic stay provided by Federal Rule of Civil
Procedure 62(a). Under that Rule, with an exception not relevant here, “no
execution may issue on a judgment, nor may proceedings be taken to enforce
it, until 14 days have passed after its entry.” 26
      Apparently, mere hours after the district court’s grant of summary
judgment, the ATF began the process of withdrawing Cash Cow’s access to the
national firearms database—the first concrete step in the process of actually
revoking an FFL. Cash Cow filed an emergency motion urging the district court
“to enforce F.R.C.P. 62(a) automatic stay,” arguing that it was entitled to a 14-
day window during which to maintain its FFL privileges. The ATF conceded to
giving it that window to moot the motion. Nonetheless, the district court ruled
on the merits, holding that ATF’s authority to revoke Cash Cow’s FFL was
statutory, not the result of a judgment, and therefore that the automatic stay
did not apply.




      26   FED. R. CIV. P. 62(a).
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                                  No. 16-41449
      It is not clear to us what relief Cash Cow seeks by raising this challenge.
Even if we wholly agreed, that would mean only that Cash Cow was entitled
to a 14-day period last year during which to file an application for a stay
pending appeal (which it never did). Passing on the merits of the district court’s
holding at this point would bring an advisory opinion, which we cannot offer.
                                       IV.
      The district court’s grant of summary judgment and its denial of Cash
Cow’s motions are affirmed.




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