Albert Kwan v. Bureau of Alcohol, Tobacco Etc

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2021
• Docket: 20-35132
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS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

2 (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.