     Case: 12-60202     Document: 00511965574         Page: 1     Date Filed: 08/22/2012




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

                                                                            FILED
                                                                          August 22, 2012

                                    No. 12-60202                           Lyle W. Cayce
                                  Summary Calendar                              Clerk



RALPH PAUL WEAVER, JR., doing business as Guns & Ammo,

                                                  Plaintiff-Appellant
v.

JILLAIR HARRIS, 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 Mississippi
                                  (1:10-CV-574)


Before KING, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ralph Paul Weaver, Jr. sought judicial review of a determination by the
Bureau of Alcohol, Tobacco, Firearms and Explosives revoking his federal
firearms license. After both parties filed motions for summary judgment, the
district court granted the ATF Director of Industry Operations’s motion for




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-60202

summary judgment, and denied Weaver’s motion. Presently before the court is
Weaver’s appeal of the district court’s judgment. We affirm.
      The Attorney General may, after notice and opportunity for hearing,
revoke a firearms dealer’s license if the licensee willfully violates a rule or
regulation applicable to firearms dealers. 18 U.S.C. § 923(e). In 2009, Weaver
was found to have violated the applicable regulations by failing to record the
disposition of 213 firearms in his Acquisitions and Dispositions book. These
violations provided a basis for the revocation of his federal firearms license.
      Weaver does not challenge these violations, but rather argues that the
revocation of his license was not warranted because his violations of federal
recording requirements were not willful. Rejecting the willfulness label, Weaver
specifically maintains that these violations were the product of deficient internal
controls that had not evolved in step with his business, which grew from 1998
to 2009.
      “Summary judgment is proper pursuant to Rule 56 of the Federal Rules
of Civil Procedure ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment
as a matter of law.’” Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Our review, like that
of the district court, is limited to the specific question of whether the Director’s
decision was authorized by law. See Stein’s, Inc. v. Blumenthal, 649 F.2d 463,
464 n.2 (7th Cir. 1980) (citing 18 U.S.C. § 923(f)(3)). In considering this specific
question, federal courts review the Director’s factual and legal determinations
de novo. See 18 U.S.C. § 923(f)(3) (noting that judicial review of the denial or
revocation of a license is conducted de novo).
      “To prove that a firearms dealer ‘willfully’ violated the law, [the Director]
must show that the dealer either intentionally and knowingly violated its

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                                   No. 12-60202
obligations or was recklessly or plainly indifferent despite the dealer’s awareness
of the law’s requirements.” Athens Pawn Shop Inc. v. Bennett, 364 F. App’x 58,
59 (5th Cir. 2010) (citations omitted). Here, 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,” Athens Pawn Shop, 364 F. App’x at 60, we conclude that the
district court properly granted summary judgment in favor of the Director.
      Two other issues warrant brief mention. First, Weaver challenges the
district court’s refusal to grant a motion he filed under Federal Rule of Civil
Procedure 56(d). Under Rule 56(d), if “a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify
its opposition [to a motion for summary judgment], the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” Fed.
R. Civ. P. 56(d).    To justify a continuance, the Rule 56(d) motion must
demonstrate (1) why the movant needs additional discovery; and (2) how the
additional discovery will likely create a genuine issue of material fact. Stearns
Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534-35 (5th Cir. 1999) (citation
omitted). We review the denial of a Rule 56(d) motion for abuse of discretion.
See id. at 534.

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                                  No. 12-60202
      In this case, the district court did not abuse its discretion. Weaver asked
the district court to defer its consideration of the Director’s motion for summary
judgment, and requested additional discovery to respond to the Director’s
motion. Specifically, Weaver requested discovery of internal ATF materials to
show that his revocation was “highly irregular, procedurally inexplicable, and
statutorily improper.” The district court rejected Weaver’s request on the
grounds that Weaver’s proposed inquiry was “completely unrelated to the issue
of Weaver’s willfulness,” and thus would not be “reasonably calculated to lead
to the discovery of admissible evidence.” Given the scope of its review, the
district court did not abuse its discretion in denying Weaver’s Rule 56(d) motion.
      Second, Weaver asserts that his license was taken from him without due
process.   While he provides various generalized examples of additional
procedures he wishes were in place during his revocation proceedings, he fails
to provide any persuasive reason as to why those procedures are mandated by
the Due Process Clause. AFFIRMED.




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