Augustson v. Holder

• Decision Date: 29 July 2010
• Docket Number: No. CIV 09-00617 BB/RLP,CIV 09-00617 BB/RLP
• Citation: 728 F.Supp.2d 1279
• Parties: David E. AUGUSTSON d/b/a August Arms and Fullautos.Com, Plaintiff, v. Eric HOLDER, United States Attorney General, Defendant.
• Court: U.S. District Court — District of New Mexico

728 F.Supp.2d 1279

David E. AUGUSTSON d/b/a August Arms and Fullautos.Com, Plaintiff,

v.Eric HOLDER, United States Attorney General, Defendant.

No. CIV 09-00617 BB/RLP.

United States District Court,

D. New Mexico.

July 29, 2010.

Colin Lambert Hunter, Hunter Law Firm, Albuquerque, NM, for Plaintiff.

Jan Elizabeth Mitchell, United States Attorneys Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION

BRUCE D. BLACK, District Judge.

THIS MATTER comes before the Court on cross-motions for summary judgment filed by Plaintiff David E. Augustson and Defendant, Attorney General Holder [Docs. 18 and 20]. Plaintiff brought this action pursuant to the Gun Control Act of 1968, 18 U.S.C. §§ 921-928 ("GCA"), seeking de novo review of the revocation of his federal firearms license by the Bureau of Alcohol, Tobacco, Firearms and Explosives ("the ATF"). After reviewing the submissions of the parties and the relevant law, this Court finds that Defendant's motion for summary judgment should be GRANTED and Plaintiff's cross-motion for summary judgment should be DENIED.

I. Factual Background

David E. Augustson and Shirley J. Augustson,¹ proprietors of August Arms ("August Arms"), received a federal license to sell firearms in 1991. The GCA,18 U.S.C. §§ 921- 931, authorizes the ATF to inspect licensed firearm businesses in ensuring compliance with federal firearms license regulations. See 18 U.S.C. § 923(g). The ATF inspected August Arms on five separate occasions between 2000 and 2007. Each compliance inspection revealed significant violations of the GCA. Most commonly, the ATF noted that August Arms failed to (1) ensure proper completion of Firearms Transaction Records, Form 4473,² as required by 27 C.F.R. § 478.124; and (2) accurately maintain a bound book recording the acquisition and disposition of firearms,³ as required by 27 C.F.R. § 478.125(e). After each compliance inspection, the ATF issued a Report of Violations, informing August Arms of the violations and the required corrective action. Mr. Augustson signed the Report of Violations indicating that he understood the violations and that each had been explained to him. Additionally, on two occasions, the ATF conducted warning conferences with Mr. Augustson to review record-keeping requirements and warn him that any willful violation may result in the revocation of his federal firearms license.

After the April 2007 compliance inspection, which revealed repeat violations involving record-keeping errors and omissions,⁴ the ATF revoked August Arms' federal firearms license. In August, 2008, the ATF served August Arms with a Notice of Revocation. August Arms promptly requested a hearing to review the proposed license revocation, which was held in December 2008. The ATF was unable to locate its file regarding August Arms' compliance history before the hearing.⁵ As a result, Hearing Officer Alford Norris refused to consider GX-94-the ATF's proffered summary narrative of August Arms' past violations-as evidence. Nevertheless, Hearing Officer Norris recommended that the license be revoked. On April 21, 2009, the ATF issued a Final Notice ofRevocation. Mr. Augustson timely petitioned this Court for a de novo review, contesting all ten grounds cited in the Final Notice as the basis for the license revocation. Both he and the Defendant ("the Government") now move for summary judgment.

In his briefing, Mr. Augustson largely acknowledges that the violations occurred, but disputes that they had been committed "willfully." First, he asserts that he did not commit a single violation "willfully" because many of the violations were the result of errors and omissions of another employee-Ms. Shirley Augustson ⁶-and Mr. Augustson therefore had no knowledge or reason to have knowledge of the alleged violations. Second, Mr. Augustson contends that the partial errors cited in the Final Notice of Revocation were not repeat violations; rather, Mr. Augustson's errors-as opposed to Ms. Shirley Augustson's errors-were limited to only three out of the ten Grounds cited in the Final Notice of Revocation.

In response, the Government makes two primary arguments. First, it contends that even if Ms. Augustson was responsible for many of the errors and omissions in the record-keeping book, Mr. Augustson is still responsible for ensuring compliance with the GCA, and his responsibility extends to the actions of other employees. Second, the Government argues that a total of seven violations is significant when the Act requires compliance with all provisions. Even if some of the violations were only partial errors that were not repeat violations, the law only requires a single violation of the GCA to establish a basis for revoking an existing license.

II. Standard of Review

A. De Novo Review under 18 U.S.C. § 923(f)(3)

A revocation of a federal firearms license by the ATF is subject to de novo judicial review pursuant to 18 U.S.C. § 923(f). Under § 923(f)(3), if the district court decides that "the Attorney General was not authorized to ... revoke the license, the court shall order the Attorney General to take such action as may be necessary to comply with the judgment of the court." The reviewing court can consider any evidence submitted by the parties regardless of whether the evidence was submitted in the administrative proceeding. See 18 U.S.C. § 923(f)(3); DiMartino v. Buckles, 129 F.Supp.2d 824, 827 (D.Md.2001). Although a de novo judicial review is authorized by 18 U.S.C. § 923(f)(3), a de novo hearing is not required. Absent genuine issues of material fact, a court may properly grant summary judgment without an evidentiary hearing. See, e.g., Cucchiara v. Secretary of the Treasury, 652 F.2d 28, 30 (9th Cir.1981).

B. Summary Judgment Standard

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, a court must "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party."Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir.1999).

The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir.2002). If this burden is met, the nonmovant cannot rest on the pleadings, but must set forth specific facts by reference to affidavits, deposition transcripts, or other exhibits to support the claim. See Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir.2006) (citing Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party must present facts such that a reasonable jury could find in its favor. Id. Although this case involves cross-motions for summary judgment, each motion must be considered independently. Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir.1979). The denial of one does not require the granting of the other. Id.

III. Discussion

A. Admissibility of Evidence

August Arms contends that the Court should not consider any of the ATF reports submitted by the Government. The 2000, 2001, 2004, and 2005 ATF inspection reports and letters were submitted to the Court as attachments to the Declaration of ATF Area Supervisor, Elise M. Morse. Because the ATF reports were missing at the time of the 2008 revocation hearing, the Government attempted to use GX-94-a two page summary of the missing documents-to prove that August Arms committed numerous repeat violations. Ultimately, the ATF hearing officer determined that GX-94 was not admissible, but still concluded that August Arms had committed willful violations of the GCA.

After the 2008 revocation hearing, the ATF reports were subsequently located at the Tucson, Arizona ATF Field Office and submitted to this Court. August Arms objects to the introduction of these reports on two grounds: (1) because they were unavailable at the time of the revocation hearing; and (2) because they are allegedly inadmissible.

The District Court in a de novo review may "consider any evidence submitted by the parties to the proceeding whether or not such evidence was considered at the [administrative] hearing ... [.]" 18 U.S.C. § 923(f)(3). Accordingly, the Court may consider the ATF documents that were missing at the time of the 2008 revocation hearing.

Additionally, August Arms argues that the ATF reports should not be considered because they are inadmissible. The Court disagrees with this contention. To be admissible, "documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." See Ortiz v. Wingard, 173 F.Supp.2d 1155, 1163 (D.N.M.2001); see also 10A Charles A. Wright et al., Federal Practice and Procedure § 2722 at 384 (3d ed.1998). In the instant case, the ATF reports were authenticated by the Declaration of Elise M. Morse pursuant to Rule 56(e).⁷ Ms. Morse authenticated the ATF reports by establishing that they are publicreports, kept in a public office, where reports of that type are kept. See Fed.R.Evid. 901(b)(1, 7) ("Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept."). Ms. Morse is...