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Thomas v. Bureau of Alcohol, Tobacco, Firearms & Explosives

United States District Court, E.D. Louisiana

June 16, 2017

KELVIN R. THOMAS d/b/a/ K&D PAWNSHOP
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES

         SECTION “N” (2)

          ORDER AND REASONS

          KURT D. ENGELHARDT UNITED STATES DISTRICT JUDGE

         Presently before the Court is “Respondent's Motion for Summary Judgment” (Rec. Doc. 13), filed by the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”). Petitioner, Kelvin R. Thomas d/b/a K&D Pawnshop (“Thomas”), proceeding pro se, opposes ATF's motion and has filed a memorandum in opposition (Rec. Doc. 20), to which ATF has replied. (Rec. Doc. 23). Having carefully considered the parties' supporting and opposing submissions, the administrative record, and the applicable law, IT IS ORDERED that ATF's motion is GRANTED for the reasons stated herein.

         I. BACKGROUND

         The instant matter arises out of ATF's revocation of Thomas' federal firearms license due to his alleged failure to comply with the statutory requirements of the Gun Control Act of 1968, 18 U.S.C. §§ 921-931 (“GCA”). Specifically, Thomas seeks review of ATF's decision to revoke his federal firearms license based upon ATF's finding that Thomas committed willful violations of the GCA.

         Thomas acquired his federal firearms license in 1992, and since he acquired his license, ATF has conducted various compliance inspections. (Rec. Doc. 13-1 at p. 2). For simplicity purposes, ATF provided the Court with the following chart, which details the timeline of ATF's compliance inspections of Thomas, along with the findings and outcome of such inspections, since he acquired his license:

DATE

FINDINGS

ACTION(S) TAKEN

October 28, 1994

3 violations (including failure to properly maintain acquisition and disposition records and to properly complete ATF Forms 4473)

Report of Violations and Warning Letter issued to Petitioner

July 16, 1996

2 violations (12 instances of incorrectly completed ATF 4473s and 13 instances of failure to attach ATF Form 5300.35 to Form 4473)

Report of Violations issued to Petitioner

October 23, 2007

8 violations (including over 20 instances of either incompletely or inaccurately filling out Form 4473s; plus a like number of forms missing NICS authorizations; multiple failures to maintain acquisition/disposition log)

Report of Violations issued to Petitioner; Requirements reviewed with Petitioner who signed an Acknowledgment of same; Warning conference subsequently conducted with Petitioner

March 30, 2015

11 violations (3 of [which] were deemed willful: 2 sales to prohibited persons; 3 failures to obtain NICS background checks; 3 transfers not recorded on ATF Form 4473s)

Notice of Revocation, sustained after administrative hearing

See Rec. Doc. 23. ATF's revocation of Thomas' federal firearms license is based upon violations discovered during the March 30, 2015 inspection, which ATF alleges were mostly “repeats of errors/omissions Thomas had previously committed.” (Rec. Doc. 13-1 at p. 13). Specifically, following the March 30, 2015 inspection, ATF issued a “Notice of Revocation” on August 21, 2015, which was based upon three of the eleven violations cited at that particular inspection. Id. at p. 5. After Thomas submitted a timely request for a hearing to contest ATF's revocation of his license, a hearing was held on November 17, 2015, in accordance with 18 U.S.C. § 923(f)(2) and 27 C.F.R. § 478.74. Id. at p. 6.

         After considering the documentary evidence and testimony at the hearing, the hearing officer, Claude Maraist (“Maraist”), submitted a report to the ATF Director, Industry Operations (“DIO”), Mathew Wren (“Wren”), in which he concluded that Thomas had willfully violated federal firearms laws. Id. Wren then issued a “Final Notice of Revocation” on January 22, 2016. Id. Ultimately, Wren concluded that Thomas committed three willful violations of the GCA:

1) Transfer in Violation of Law The Licensee, by and through its agents and employees, willfully sold or delivered a firearm on approximately two occasions to persons he knew or had reasonable cause to believe were subject to Federal firearms disabilities, in violation of 18 U.S.C. § 922(d)(1) and 27 C.F.R. §478.99(c).
2) Background Check Violations
The Licensee, by and through its agents and employees, willfully transferred a firearm to an unlicensed person on three occasions, in violation of 18 U.S.C. §922(t) and 27 C.F.R. §478.102(a).
3) ATF Form 4473 Violations
The Licensee, by and through its agents and employees, willfully sold or otherwise disposed of a firearm to an unlicensed person without recording the transaction on a firearms transaction record, ATF Form 4473, on approximately three occasions, in violation of 18 U.S.C. §923(g)(1)(A) and 27 C.F.R. §478.124(a).

Id. at p. 7. Following the “Final Notice of Revocation, ” Thomas filed a complaint in this Court seeking review of ATF's decision. Thereafter, ATF filed the instant motion for summary judgment.

         In its motion for summary judgment, ATF argues that it is entitled to judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure because Thomas willfully violated GCA provisions, subjecting him to the revocation of his federal firearms license. Id. at p. 1. ATF maintains that the revocation of a federal firearms license is subject to de novo review pursuant to 18 U.S.C. § 923(f). Id. at p. 9. ATF further postures that an evidentiary hearing, which is not required in order for a court to grant summary judgment, is unnecessary under these circumstances because Thomas does not dispute the factual basis for revocation, nor does Thomas allege with particularity any facts that would cast substantial doubt on any of ATF's findings. Id. at p. 10. ATF argues that the issues for this Court to consider are ...


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