The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
This is an action brought under the Gun Control Act, 18 U.S.C. § 923(f)(3),
to review the decision of the Bureau of Alcohol, Tobacco, and
Firearms ("ATF") to revoke the federal license to sell firearms of
plaintiff, Breit & Johnson Sporting Goods, Inc. ("Breit &
Johnson"). Before the court is defendant's motion for summary judgment.
For the reasons stated below, the court grants the motion.
Section 923(f)(3) of the Gun Control Act permits a party whose license
to sell firearms has been revoked by ATF to obtain "de novo judicial
review" of the revocation and, "[i]f the 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." 18 U.S.C. § 923(f)(3).
Under § 923(f)(3), the district court may only determine whether the
Attorney General's decision was "authorized;" the selection of the
penalty is a matter within the discretion of the Attorney General.
Stein's Inc. v. Blumenthal, 649 F.2d 463, 464 n.2 (7th Cir.
1980). The Attorney General's decision may be upheld if the court
concludes, in its own judgment, that the evidence supporting the
Attorney General's decision is "substantial." Id.
"De novo review" may be confined to the administrative record or may be
supplemented by the admission of additional evidence.*fn1 In either
event, although the district court need not accord any particular weight
to the Attorney General's findings and decision, it may, in the exercise
of its discretion, accord them such weight as it believes they deserve.
Stein's, 649 F.2d at 467. Absent genuine issues of material
fact, a court may properly grant summary judgment without an evidentiary
hearing. Cucchiara v. Secretary of the Treasury, 652 F.2d 28, 30
n. 1 (9th Cir. 1981).
Summary judgment obviates the need for a trial where there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). The party seeking
summary judgment bears the initial burden of proving there is no genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). In response, the non moving party cannot rest on bare
pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue
for trial. Id, at 324; Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome
determinative under the governing law. Insolia, 216 F.3d at
598-99. Although a bare contention that an issue of fact exists is
insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court
must construe all facts in a light most favorable to the non
moving party as well as view all reasonable inferences in that parry's
favor. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986).
Breit & Johnson Sporting Goods Company, Inc. ("Breit &
Johnson") has been in business as a sporting goods store since
approximately 1945. (Def. L.R. 56.1 ¶ 1.) The store sells a variety
of sporting goods, including baseball, football, and hockey equipment,
and it outfits teams with uniforms for these sports. (Id. ¶
2.) It also sells firearms. (Id. 13.)
Breit & Johnson is organized as a corporation. (Id. ¶
4.) Sid Breit is the corporate president and store owner. (Id.
¶ 5.) His son, Mark Breit, is the corporate vice president and has
been working at the store fall time since 1973. (Id. ¶ 6.)
Breit & Johnson has been licensed to sell firearms since at least
1972. (Id. ¶ 7.) Mark Breit has been selling guns at Breit
& Johnson since the mid to late 1970s, and he is the
person who runs the store today. (Id. U 8-9.)
ATF has inspected Breit & Johnson on numerous occasions since 1977.
(Id. ¶ 10.) Full compliance inspections of Breit &
Johnson in 1977, 1978, 1994, and 1998 revealed numerous violations of the
Gun Control Act and the regulations promulgated under it. (Id.
¶ 11.) At each full compliance inspection, ATF noted the same types
of violations. (Id. ¶ 12.) Most commonly, ATF noted that
Breit & Johnson (1) failed to ensure proper completion of Firearms
Transaction Records, Forms 4473*fn2, as required by
27 C.F.R. § 178.124, and (2) failed to accurately maintain
a bound book recording the acquisition and disposition of firearms
in and out of its inventory*fn3, as required by
27 C.F.R. § 178.125(e).
In 1977, an ATF inspector found numerous omissions and incomplete
answers on the Forms 4473 he reviewed at Breit & Johnson. In some
cases Breit & Johnson's forms failed to identify the purchaser's date
of birth, place or birth, address and other identifying information. In
other cases, Breit & Johnson failed to obtain sufficient answers to
the certification section of the form to determine if the purchaser was
permitted to purchase a firearm. (Def. L.R. 56.1 ¶ 17.) The 1977
inspection also revealed that Breit & Johnson was not properly
recording in its bound book the acquisition and disposition of firearms
purchased by Breit & Johnson. (Id. ¶ 18.) The ATF
inspection report noted that Breit & Johnson had begun to address
this problem by conducting a physical inventory, closing out entries,
reconciling double entries and beginning new records utilizing a proper
accounting system. (PL Stat. of Add'l Facts ¶ 13.) However, the
inspection report stated,
Although the dealer has corrected the majority of
the violations listed above and has nearly
completed the reconciliation of his bound book
records, I find these discrepancies are serious and
future compliance is vital to the accuracy of the
recordkeeping system. Those violations pertaining
to the bound book records
have been noted previously but the licensee, prior
to this inspection, has failed to take corrective
action. Therefore, I recommend that an admonitory
letter, strongly outlining possible consequences of
future noncompliance, be sent to this licensee to
further emphasize the importance of accurate
(Scouffas Decl., Ex. 1, at 65.) The ATF inspector certified that he
explained all of the violations to Breit & Johnson and left the
original notice of the violations with the store. (Def. L.R. 56.1 ¶
19.) Following the 1977 inspection, ATF held a warning conference with
Breit & Johnson to discuss the violations found at the inspection.
ATF explained the necessity that Breit & Johnson adhere to ATF's
record keeping requirements. (Id. ¶ 20.)
At a 1978 inspection, ATF found some of the same types of violations it
had found the year before. (Id. ¶ 21.) The 1978 inspection
revealed four occasions when Breit & Johnson had transferred guns
despite the fact that purchasers had not fully completed the
certification questions on Form 4473. In one case, the form indicated
that Breit & Johnson transferred a gun to someone who had answered
one of the certification questions affirmatively, indicating that the
person was not entitled to possess a firearm. (Id, ¶ 22.)
ATF also found violations concerning the acquisition and disposition
record keeping requirements. Notably, Breit & Johnson had
failed to record the fact that two firearms had been stolen. It was also
not recording firearms brought in for ...