next case simpson versus attorney general number seventeen dash three seven one eight to reserve time yes i have your honor i've reserved five minutes if the court would have been that indulgence that's fine that's fine counsel we're very interested in it as you know there's a we've got a not for publication of pinup precedential opinion tailored which deals with the standard that we need to apply willful seems that all the circuits are lined up we don't again have a presidential pinion a place to start is do agree with that formulation of willful i do and i believe that formulation is that the individual knew of his legal or his or her let me say legal obligation and then either purposely disregarded  them or acted in playing indifference to them now that obviously brings up a sub this you how do we define plain indifference and as we argued in our brief and as i don't argue today i'd respectfully suggest that the courts to consider adopting the fourth circuit's definition from r s sam and dean r s m the fourth circuit heard held excuse me when such errors continue or even increase in the face of repeated warnings given by enforcement officials accompanied by explanations of the severity of the failures one may infer as a matter of law that the licensee simply does not care about the legal requirements at that point the failure showed the licensee's plain indifference and therefore become willful i believe that appropriately encompasses what is playing in difference because the licensee needs to know all of his or her legal obligations and to ensure compliance and there after are you are you asserting that they have to know it really by section number no you're on our i believe they need to have a good understanding of the requirements in one of the issues your clients sign repeatedly documents or understand my obligations i'm going to abide by it says that the document we've says we've reviewed it doesn't say that he understands it in the same way as the industry operations inspector explains it and that's part of the difficulty here when i explain something to the court or the court explain something to me it's only when we have a conversation about it that we truly understand if the other truly understands the other's understanding of what's being relayed because otherwise we're left to assume that the other party to the conversation doesn't understand but we don't know for sure and that is really the problem here mr is there a  point there's case law that says it's kind of a fool me once for me twice good thing at a certain point if somebody continues and continues and continues to violate that  compliance inspection at least for the first time if not most of all times in the past the person is mourned about their failure in compliance it is explained there's a one free by rule in your view like you're allowed you're allowed to have as many by aleisha as you want as long as you don't do the same violation again until after the they have comes out point is we're talking with mr simpson this is mr simpson's case we're talking about  this juncture right that is correct our four hundred violations the problem with that argument is they repeat violations and they basically duplicate those violations based on the different arguments that they make and it's not honestly four hundred violation we address this in our reply brief because we take the position that that's absurd and what you have if you have industry operations inspectors who at the administrative hearing were not sequestered and could not agree hearing each other's testimony on whether certain things were violations or not if the administrative agency that is responsible for administering the act can't even train its own employees to understand what the requirements are how  the industry supposed to comply ok just take assume that three quarters of what they said was wrong is still one hundred violations right i mean how what point do you say hundred violations looks like there's some a difference going on here i don't believe you have to show that the person did not in essence to can to establish a willful violation you need to show that they knew what they were doing was wrong a great example of where i would agree in a first occasion revocation is appropriate is if an individual comes in fills out a form to purchase a firearm mox off that he or she is a prohibited person the dealer sees that the owner then performs the background check from f b i and then proceeds to give the firearm to that person i don't think there's anyone who would disagree whether it no matter how long that entity was in business that that single violation warrants revocation immediately and i would agree in that situation it's appropriate but here you have the area supervisor from e t f testified that they had no reason to believe that mr simpson did not intend to comply with the federal law and regulations which is our function here are the judicial review function we just need to find that they violated it once willfully right one willful by we don't have we don't use it abuse of discretion willful violation and again we say based on the record there's no establishment of a willful violation what they address address violent fireworks well yeah i'm fine with the fireworks in that case didn't we in that explosive fireworks context say in fact reject the argument that there had to be some kind of specific ongoing warnings from the a t f that was an argument that was made and we said no that's not right i believe that was under the safe explosives  that but it isn't the same watching in play with firearms as with explosives again i think that the congress specifically amended the gun control act one thousand nine hundred eighty six to add the word willful the prior to nine hundred eighty six willful did not exist in nine twenty three eat so the fact that the congress took that step was to establish that there has to be something more than just violation we're all on the same page here we're just trying to find out what constitutes pointed difference right because plain indifference is willfulness everybody seems to agree on that right and in violent fireworks correct me if i'm wrong we were asking that very question what constitutes plain indifference and in that context the argument was made well we need to have some kind of warnings the very argument you make and house and and i think we said no it's not right you do not have to have any kind of specific ongoing words from the a t f to be found plainly different now if that's true and you're talking about things that blow up why isn't it just as true we're talking about babies to shoot because i think it depends also on the context as i said before we hear no disagreement from me if the individual purposely sold a firearm a prohibited person that it would warrant absent being told by a t f previously that that's a violation that that would be warranted here we're talking about complex technical issues that quite honestly even a t f doesn't put out in an easy to understand format and licensees are confused for example this is why is there evidence that he was told he couldn't sell outside his territory no none now ok he and a great example your honor industry operations inspector whitman knew about it in advance she testified to this and she had no concern to contact him over it so if this was so blatantly clear to be unlawful why would an a t f reach out in advance and say hold on we've got information that you're about to do something that we believe is unlawful can you please explain this to us but that didn't happen and again we have the testimony from the a t f officials themselves they all support the fact they say we have no reason to believe that he didn't intend to comply he was trying to comply he didn't understand how to for example when he received in a receiver they already had all the markings manufacturing marking serial number everything for a t f to trace it he didn't understand that if he turned that receiver into a rifle bit in his acquisition disposition record he had to dispose of it to himself bring it back in as an acquisition but now was a rifle to be able to dispose to someone else he wrote in his acquisition disposition record rifle he was trying  changed form and a t f acknowledged that during the hearing he just didn't understand the proper way in which and that's my we get to use you how do you address the multiple occasions on which the forms were filled out this in our brief there was mr simpson i see my time is up and i can hear you i see that there is was mr simpson there was also gretchen prior who was an employee with a different federal firearms licensee they came and was assisting at such  such as the alexander sportsman event where they transferred the guns there was also mrs simpson so we had three different individuals completing records and that's why you do see some discrepancies tween them also i would say that with regards to the forms all the information tended to be there with the forms are produced second is he responsible for who forms the mayor who's filling out is he the one that we're responsible for under eighty exposition of a responsible person whoever is in the corporation l l c or if it's how individual that individual person who holds that trade name does become responsible regardless of whether they know about it or not that's a t f position and there is no definition of responsible person under the gun control act it's something the a t f has made up a whole cough without going through the will make in process i acknowledge there is a definition hundred six plosives act but there are two completely different acts as i see my time is up i will be happy to address any further question to difference i think the court can look to for guidance of the safeco decision in the supreme court about ten years ago where in that case the court said that in the civil context both illness equals recklessness so the government's position is that plain indifference essentially means recklessness and so when you have a licensee who it's undisputed knows at least generally of his legal obligations and knows it's also undisputed about some of the specific obligations and then for whatever reason whether it be in convenience or just not taking me the requirement seriously chooses not to comply that amounts to recklessness to go with one of those direct but your direct example example of him  knowing something in advance and it's undisputed being i think the most straightforward example is the firearm transaction records the forty four seventy three needs where he failed to sign a single form there's also numerous we're talking dozens upon dozens of places where he did not fill in certain aspects of that form and if you look at his brief he does not say that he didn't understand you say he didn't he didn't cite a single one isn't the  of just not understanding i think the most logical conclusion is just indifference so if you look at the forty four seventy three we're talking about a document that is about two and a half pages of information to fill out it's fairly straight for the last block on that form directs the seller to sign and certify that he has no reason to believe that the disposition is unlawful it's incredibly straightforward but even to figure ours example about i'll provide another example so there are times on the forty four seventy three where there are boxes of information that are completed on some forms and then on other forms those same boxes of information are not complete and we catalogued those instances in our greed and so that shows that at least in some cases you understood that that information needed to be completed but then for whatever reason on numerous other occasions he elected not to complete those boxes in the forty four seventy three i would propose as one of the most straightforward requirements of federal firearms licensee has to comply with it's the bread and butter of what they're doing on a day to day basis how exactly did he know what to do with with the form yes so he met with a t f industry operations investigators on at least three occasions the acknowledgment forms that are at record page eight zero to reach one of those encounters indicates that the form was discussed with mr simms and he initial next to that next that indication he also signed the form and at the end of the form he indicated that all these topics were discussed including the forty four seventy three s and he understood that the bottom line was as the licensee he had the obligation to make sure that he understood what the requirements of federal law were that's the bottom line here the obligation was on him to provide another example of instances in which he clearly understood his obligations and we discussed in the brief now under the dealers license that he had there were about thirty to forty times in his acquisition and disposition book acknowledgment forms that he signed during those meetings with miss whitman and the other investigators he indicated that he discussed the premises of the business operation with them additionally he applied for an application he applied to move his license in early twenty fourteen that i think is almost dispositive evidence that he understood that if you were going to change his location of business he needed to get that approval from the f is is it does the evidence have to be disputed evidence in order for you to rely on it for a revocation it does not need to be undisputed so obviously like this they're going to be instances in which the licensee is saying that he might not have understood something or he might even dispute some of the violations themselves so it doesn't need to be undisputed and then in the administrators of realm there can be hearing which occurred here and then if the license you choose is to ask her to novo review and district court the district court has the discretion to hold another hearing perhaps even a trial to resolve factual disputes but in this case both the government and mr simpson concluded that we don't want another hearing and we agreed to resolving the case in the district court on dispositive motions now even if you were to grant that there might be some disputed issues in this case there are at least some instances in which are undisputed facts that he knew his obligations and didn't comply with those requirements is ours if you just want to give us give us that your hip read there the easiest ones if you read one right there that's right i'd go back to the forty four seventy three days first you have the fact you didn't sign those forms even if you say that could indicate that in understanding he was supposed to do i would say at a minimum that's recklessness but moving on to the other violations on the forty four seventy three is there are dozens of instances in which he did not ensure that all the boxes were completed as he was required you having the inconsistency shows that he understood ok and then you have him dealing firearms and ridgeley west virginia even though again he applied to move his licensed operation in twenty fourteen indicating that he knew that he was not allowed to sell farms away from his license to operate operation or a legitimate gun show and you also have the instances under the dealers lies and where he did not properly record the information that he needed to record in his acquisition and disposition records and if you look at his brief he doesn't dispute that those violations occurred he says that a t f was basing those violations on his and the acquisition and disposition records that's not true at all if you look at the final revocation that was issued by the director industry operations he clearly said he was not basing revocation on the use of did a but that leaves another thirty or so times where he just did not complete the required information in the acquisition in this position books respond to the argument that there's an obligation free this is a very complex area of the law there's lots of regulations there's lots of requirements and that a t f has a responsibility to educate you now these people they're out there in good faith trying to do what they're supposed to do and you can you can make it you can make a guy an offender for a word so to speak or for lack of a word because they don't fill something in just right so if it's really if it's really you know one misstep in your business and you livelihood is gone that that too harsh i can't really be the standard that's the i want to you know mr prince do a better job working this case and i am but i think that could be that the nature of your argument what is the government's answer to that that you there's a there's a million different ways somebody can trip up and if you just fall somebody for making a mistake that's that's not willful and that's not plain difference as just that's heavy handed government interference and a good faith effort to run a business so my first response is rather talking about one even a handful of mistakes we're talking about hundreds of violations additionally the bottom line is the obligation that congress has and through the gun control act is on the licencee as the supreme court said i'm busy well when someone chooses to enter a pervasively regulated market a marketplace pervasively regulated for very good reason the obligation is on the licensee to ensure that he understands those obligations and complies with change th firearms context had adopted that definition additionally i think your honor your point you made a good point when you were discussing violin with mr prince that i think violent did establish that the fact that there aren't  that there are prior citations is actually irrelevant to the analysis the relevant question is whether there was one willful violation in this occasion on this occasion and getting back to jordan to your question about whether the government has an obligation to educate although i don't think the statute or the attorney general's regulations impose upon the government a duty to educate it is oftentimes in the government's interest that actually try to educate as much as possible and that's exactly what you see happened in this case industry operations investigators met with mr simpson on numerous occasions to go over the requirements that he had to comply with but in the end it was ultimately his obligation to make sure that he complied with those requirements it's interesting statutory area as you know you know you appear before a fair bit you know the times you do substantial evidence there's no particular deference owed to the cheers decision here really that's correct on a no particular deference i think it's something akin to like skidmore deference in the chevron context that you just showed the agency decision as much deference as you think it deserves i will say though that i do think substantial evidence is the correct type of standard to be applying here by a district court because when you look at the a t f regulations as to what's required to revoke a t f has to conclude it has to find that there is reason to believe that the licensee committed a willful violation and i think that amounts to the substantial evidence standard in this court it's not really disputed issue at least in the simpson case but if the court wants to look at an analysis on the substantial evidence interaction with the de novo review standard in the statute there's the steins case from the seventh hundred eighty i think was one of the first cases to really deal with the statutory framework and look at the substantial evidence standard and if you look at the cases the district court cases especially and similar situations most of those cases are talking about substantial evidence but the reason is not an issue in this case is because even if the district court i was applying a preponderance of the evidence type standard clearly there's enough evidence here to show that mr simpson please the court i'd like to start with one question and it's a rhetorical one but if mr simpson intended to act plainly indifferent to the gun control act and his obligations why on february second two thousand and fourteen did he specifically ask industry operations inspector trom to review his records to ensure his compliance i why trump testified that that is exactly what mr simpson did and what did i said that all of his records look good told him it was fine issued an assignment report saying no violations when ninety percent plus of the now violations that the government contends occurred were all prior to that that inspection looks like he's never been through one prior to the april third two thousand and fourteen when i why trama is there who are you think is the position you're taking that he thought when somebody came in to speak to  him and i can remember was this in connection with his desire to move his voice yes your honor he says i want to move my license somebody has a talk about that he says he take a look at my records he was under the under the impression that that was the sort of compliance review that the assignment report saying no violations now the government takes the position that it was no violations in respect to a qualifying inspection if it's a qualifying inspection for a new license you'd never have violations because the license doesn't even exist to review records in relation to so the whole argument doesn't make sense and nine twenty three g does not differentiate between different forms of inspections whether it was qualifying whether it was compliance whatever when they came there to do the original qualifying inspection mr simpson asked for help he wanted to make sure he was doing everything right east toby's doing everything right and then two months later they come back to establishment can control what the fifths purposes are because that's what it sounds like you're saying somebody is somebody's permit if it goes in response to requests for a change of location for a license and goes to discuss that with your client your client says your client says hey how are my records that that if an i o i as a courtesy looks at records and says they look ok to me that that action prevent f from itself under its own schedule and with its own purpose and with its own selected as the gaiters from coming in and looking i think there's two different issues one is in plain indifference the other is in relation to their ability to conduct a warrantless inspection once a year or every twelve months i think the statute says and so it really goes sounds like you're making an argument it's bridging both the whatever that you're you're saying look they came in two months later and that wasn't fair which is you're on authorize search argument but you're also seemed to be saying that because he said he'd take a look that anything that i o i truong did at that point constituted  a blessing and have solution for your client for anything that may have happened i do or that point in time i don't know that it's an absolute of a violation but what i would say it clearly shows that the licensee is not acting with plain indifference if you go to the administrative agency that's responsible for enforcing an act and you say look i'm a licensee of yours i need to know if i'm doing things right i don't want to violate this act i want to make sure of my compliance and they say yep you're good the person has a right to rely on trama could've said no we don't do this at this point in time or i am not prepared to do it i'll send someone out he didn't do that he said let me look he testified that mr simpson asked him that it was to ensure the accuracy of his records i see him out of time obviously if the court has any further questions i'm happy to answer him but we just ask otherwise that the court please reverse the decision directive reassurance of his license and remanded to the district court for discussion and motions on attorneys fees and cost thank you your honor thank you counsel i will take the case