Albert Kwan v. Bureau of Alcohol, Tobacco Etc ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
ALBERT K. KWAN, No. 20-35132
Plaintiff-Appellant, D.C. No. 2:19-cv-00166-RAJ
v.
BUREAU OF ALCOHOL, TOBACCO, MEMORANDUM*
FIREARMS AND EXPLOSIVES, Division
of the Department of Justice,
Defendant-Appellee,
and
SCENA WEBB; et al.,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted March 5, 2021**
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
Appellant Albert K. Kwan (“Appellant”) challenges the district court’s
decision affirming the denial of Appellant’s Federal Firearms License (“FFL”) by
the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). While
Appellant has received several FFL denials over approximately 20 years, he claims
that his newest application is distinct because District of Columbia v. Heller,
554 U.S. 570 (2008), and its progeny dramatically altered Second Amendment
jurisprudence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court’s grant of summary judgment is reviewed de novo.
3500 Sepulveda, LLC v. Macy’s W. Stores, Inc., 980 F.3d 1317, 1321 (9th Cir.
2020). We “view the evidence in the light most favorable to the nonmoving party,
determine whether there are any genuine issues of material fact, and decide
whether the district court correctly applied the relevant substantive law.” Animal
Legal Def. Fund v. U.S. Food and Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).
The district court properly determined that Appellant’s challenge to the
ATF’s denial of his application is barred. “Issue preclusion . . . bars the relitigation
of issues actually adjudicated in previous litigation.” Janjua v. Neufeld, 933 F.3d
1061, 1065 (9th Cir. 2019) (internal quotation marks omitted). “For issue
preclusion to apply, four conditions must be met: (1) the issue at stake was
identical in both proceedings; (2) the issue was actually litigated and decided in the
prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and
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(4) the issue was necessary to decide the merits.” Id. (internal quotation marks
omitted). Federal courts apply preclusive effect to determinations made by
administrative agencies acting in a judicial capacity, so long as the parties had an
opportunity to litigate the matter. See Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 107-08 (1991); Pauma v. Nat’l Labor Relations Bd., 888 F.3d 1066,
1072 (9th Cir. 2018).
An FFL application “shall be approved if . . . the applicant has not willfully
violated any of the provisions of this chapter or regulations issued thereunder.”
18 U.S.C. § 923(d)(1)(C). The issue at stake in the instant matter — if the
Appellant has willfully violated applicable statutes and regulations — is identical
to a matter already actually and fairly litigated, and decided against Appellant, by
an administrative agency acting in a judicial capacity (ATF) in 2010. See
Solimino, 501 U.S. at 107-08.
The intervening issuance of Heller does not change any of these
conclusions. Appellant has not shown how Heller has any bearing on whether he
is deserving of an FFL. See Teixeira v. County of Alameda, 873 F.3d 670, 690
(9th Cir. 2017) (“[T]he Second Amendment does not independently protect a
proprietor’s right to sell firearms.”).
AFFIRMED.
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