RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0478p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

KERRY L. MORGAN,

 Plaintiff-Appellant,

v.

FEDERAL BUREAU OF ALCOHOL, TOBACCO &

FIREARMS,

Defendant-Appellee.

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No. 07-1358

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-73373—Gerald E. Rosen, District Judge.

Argued: November 27, 2007

Decided and Filed: December 13, 2007 

Before: MARTIN, SILER, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, Wyandotte, Michigan, for

Appellant. Derri T. Thomas, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for

Appellee. ON BRIEF: Kerry L. Morgan, PENTIUK, COUVREUR & KOBILJAK, Wyandotte,

Michigan, for Appellant. Derri T. Thomas, ASSISTANT UNITED STATES ATTORNEY, Detroit,

Michigan, for Appellee.

_________________

OPINION _________________

ROGERS, Circuit Judge. Plaintiff Kerry Morgan appeals the district court’s grant of

summary judgment in favor of the defendant, the Bureau of Alcohol, Tobacco and Firearms.

Mr. Morgan, who deals in firearms from his residential premises in Redford Township, Michigan,

applied in 2003 for a renewal of his federal firearms license. Based on an opinion of the Township’s

legal counsel that Morgan’s firearms business violated Redford zoning regulations, ATF denied his

renewal application. Morgan filed a petition for judicial review of ATF’s final denial pursuant to

18 U.S.C. § 923(f)(3), and the district court granted ATF’s motion for summary judgment. Because

ATF properly relied on Redford Township’s interpretation of its own zoning laws in denying

Morgan’s federal firearms license, and because Morgan has presented no genuine issue of material

fact, we affirm the district court’s grant of summary judgment.

1
No. 07-1358 Morgan v. ATF Page 2

1

The district court addressed various other claims and theories raised by Morgan, none of which are at issue

on appeal.

Morgan first obtained a federal firearms license in 1993, authorizing him to deal in firearms

from his Sumner Avenue home in Redford Township, Michigan. This location, which Morgan

identified on his license application as the relevant “business address,” is a single-family residence

classified as “residential” under Redford Township zoning regulations.

Morgan timely sought renewal of his firearms license every three years, as required by

federal regulations. See 27 C.F.R. §§ 478.45, 478.49. Beginning in 1994, applicants for new or

renewed firearms licenses were required to certify that “the business to be conducted under the

license is not prohibited by State or local law.” 18 U.S.C. § 923(d)(1)(F). Morgan signed the

appropriate Certificate of Compliance with State and Local Law for each renewal application.

During the course of his renewals, the Bureau of Alcohol, Tobacco and Firearms began to express

concerns that Morgan’s operation of a firearms business out of his home might violate local Redford

Township zoning laws. ATF nevertheless renewed Morgan’s firearms license in 1994, 1997, and

2000. Apparently troubled by ATF’s concern that his firearms business may violate local zoning

law, Morgan secured an opinion letter from a local attorney in 1994 stating that his firearms business

was a permissible home occupation within the meaning of Redford Township zoning regulations.

When Morgan applied for a license renewal in 2003, however, ATF inspector Gail Sullivan

sought and obtained a written opinion from Redford Township’s legal counsel regarding Morgan’s

compliance with local zoning laws. Through its counsel, the Township determined that Morgan’s

operation of a firearms business from his home in a residential district was not permitted under the

town’s zoning ordinance. Based on this information, Ms. Sullivan recommended that Morgan’s

request for a license renewal be denied, and ATF notified Morgan that his license would not be

renewed because “the business to be conducted under the license would not comply with state and

local law.”

Morgan timely requested an administrative hearing to review the denial pursuant to 18

U.S.C. § 923(f)(2). Following a hearing on October 27, 2004, the hearing officer issued a report in

which he recommended that Morgan’s application be denied. ATF issued its final decision denying

Morgan’s renewal application on July 21, 2005. 

Morgan sought de novo judicial review of ATF’s decision pursuant to 18 U.S.C. § 923(f)(3).

The district court granted ATF’s motion for summary judgment, concluding that ATF’s reliance on

Redford Township’s interpretation of local zoning law was an appropriate basis for denying

Morgan’s renewal application.1

 See Morgan v. United States Dep’t of Justice, Bureau of Alcohol,

Tobacco, Firearms & Explosives, 473 F. Supp. 2d 756 (E.D. Mich. 2007). The court noted and

rejected Morgan’s argument that de novo review required the district court to “independently

construe local zoning law” in order to make a “wholly independent inquiry whether he has satisfied

the various prerequisites for license renewal. . . .” Id. at 765. The court explained that even if it

were to assess Morgan’s renewal entitlement without reference to the agency’s decision, the court

would reach the same result, citing the traditional federalism principle that, in ruling on matters of

state law, federal courts defer to the decisions of the state’s highest court and generally follow the

decisions of inferior state courts unless convinced that the state’s highest court would rule otherwise.

Id. The court concluded:

Thus, the concept of “de novo” review does not confer upon this Court the

freestanding authority to decide for itself what a state or local enactment might allow

or prohibit. Rather, as a starting point, at least, the Court would consult the very
No. 07-1358 Morgan v. ATF Page 3

same source that the Defendant agency looked to in this case—namely, the local

authorities.

Id.

Turning to the question of whether ATF proceeded appropriately in denying Morgan’s

renewal application on the basis of his lack of compliance with local law, the court noted that ATF

has a duty to investigate whether an applicant has established entitlement to a federal firearms

license by satisfying the statutory criteria, and reasoned that this duty includes ensuring the

truthfulness of statements made on the applicant’s firearms license. Id. at 763 (citing 27 C.F.R.

§ 478.47(a) and Fattahi v. Bureau of Alcohol, Tobacco & Firearms, 195 F. Supp. 2d 745, 747 n.5

(E.D. Va. 2002), aff’d, 328 F.3d 176 (4th Cir. 2003)). The court again rejected Morgan’s contention

that ATF must “independently analyze and ‘confirm . . . the accuracy’ of a local government

official’s interpretation of local law,” explaining that, even assuming that no deference had to be

accorded to ATF’s reasoning, ATF could properly defer to the Township’s interpretation of its own

ordinance. “Just as this Court defers to the state courts and other relevant authorities as to issues of

state and local law, the Defendant agency surely should be permitted to do so as well.” Id. at 765-

66. Finding no basis for the conclusion that ATF’s chosen method of ascertaining the meaning of

the Township’s zoning ordinance was “unauthorized” or improper, the district court granted ATF’s

motion for summary judgment. 

Morgan filed a motion for reconsideration, which the district court subsequently denied.

Morgan now appeals, arguing that the district court erroneously applied a deferential standard of

review instead of the statutorily mandated “de novo” judicial review, which, he argues, requires the

district court to conduct an analysis of whether he is entitled to a license renewal without deference

to the decision of ATF. Morgan suggests that, “[h]ad the Court applied the correct standard, [his]

argument regarding the Township’s insupportable reading of its own ordinance and the agency’s

absolute uncritical deference to that reading, would require a different outcome by the lower court.”

Appellant’s Br. 6. Morgan also argues that the court erred in requiring him to establish compliance

with local zoning law to obtain license renewal, in light of Morgan’s interpretation of § 923(d)(1)(F)

as providing a grace period for coming into compliance.

ATF appropriately relied on Redford Township’s interpretation of its own zoning laws in

denying Morgan’s federal firearms license, and Morgan has presented no genuine issue of material

fact by which he may avoid summary judgment. We therefore affirm the decision of the district

court. 

Although Morgan argues that the district judge accorded undue deference to ATF in light

of the statutory requirement of de novo review, resolution of that issue is not necessary to decide this

case. Assuming, without deciding, that Morgan is correct that 18 U.S.C. § 923(f)(3) requires the

reviewing court to conduct “‘non-deferential’ review of [ATF’s] decision through a review of the

administrative record,” we independently agree with the district court’s conclusion that ATF

properly denied Morgan’s license renewal and is entitled to summary judgment. 

To the extent Morgan argues that ATF and the federal courts are obligated independently to

construe and interpret the meaning of local law, without regard to the locality’s interpretation of its

own law, this argument lacks merit for the reasons given by the district court. See Morgan, 473 F.

Supp. 2d at 765-66. As the district court explained, ATF’s deference to local officials was entirely

appropriate in determining that Morgan is not in compliance with local law: “Just as this Court

defers to the state courts and other relevant authorities as to issues of state and local law, the

Defendant agency surely should be permitted to do so as well.” Id. Of course, the Township legal

opinion upon which ATF relied is not as authoritative as a state court ruling. As the district court

noted, however, Morgan has failed to offer a superior method of ascertaining the meaning of
No. 07-1358 Morgan v. ATF Page 4

Redford Township’s zoning ordinance that does not involve requiring federal courts and agencies

to second-guess state and local interpretations of state and local law. Because, under the present

circumstances, deferring to Redford Township’s interpretation of its own law is the most appropriate

way of ascertaining whether or not Morgan is in compliance with local law as required by

§ 923(d)(1)(F), ATF’s decision to deny Morgan’s license renewal would properly be affirmed under

any standard of review, whether de novo or more deferential. 

Moreover, the district court’s grant of summary judgment was proper notwithstanding

Morgan’s novel interpretation of § 923(d)(1)(F). Morgan argues that the district court erred in

construing § 923(d)(1)(F)(i) & (ii) as two separate requirements, requiring him both: (i) to be in

compliance with local law at the time license renewal is sought, and (ii) to certify that he will be in

compliance within thirty days after the application is approved and that business will not be

conducted under the license until local requirements have been met. Morgan contends that (F)(i)

and (F)(ii) should instead be read as alternatives, requiring him either to be in compliance at the time

renewal is sought or to certify that he will be in compliance within thirty days. Morgan presented

this argument for the first time in his motion for reconsideration, however, and the parties did not

have an opportunity to brief the issue. Thus, Morgan did not preserve this issue for appeal, and the

court will not entertain it. See Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir. 1984); Thurman

v. Yellow Freight Sys., Inc., 97 F.3d 833, 835 (6th Cir. 1996); Amway Distrib. Benefits Ass’n v.

Northfield Ins. Co., 323 F.3d 386, 390-91 (6th Cir. 2003). 

For the foregoing reasons, the district court’s grant of summary judgment to ATF is affirmed.