Dimartino v. Buckley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY DIMARTINO; LARRY 
DIMARTINO, t/a Baltimore Gunsmith,
Plaintiffs-Appellants,
v.
BRADLEY A. BUCKLEY, Director,  No. 01-1166
Bureau of Alcohol, Tobacco and
Firearms; MARY JO HUGHES,
Director of Industry Operations,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-00-1860-JFM)
Submitted: August 31, 2001
Decided: September 25, 2001
Before TRAXLER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin Lipsitz, Baltimore, Maryland, for Appellants. Stephen M.
Schenning, United States Attorney, Andrea Leahy-Fucheck, Assistant
United States Attorney, Baltimore, Maryland, for Appellees.
2 DIMARTINO v. BUCKLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony and Larry DiMartino, father and son, appeal the district
court’s order granting summary judgment in favor of the Bureau of
Alcohol, Tobacco, and Firearms (ATF) and dismissing their petition
for review of the ATF’s final administrative decision denying the
DiMartinos’ applications for federal licenses to sell firearms. See 18
U.S.C.A. § 923(f)(3) (1994). The DiMartinos contend on appeal that
the district court erred in granting summary judgment because there
remained genuine issues of material fact with respect to the willful-
ness of their alleged violations of federal firearms laws and with
respect to the extent of Larry DiMartino’s involvement in those viola-
tions. The DiMartinos also suggest that the district court erred in
declining to hold an evidentiary hearing and that the ATF’s licensing
procedure violates the Due Process Clause of the Constitution. Find-
ing no merit to any of the DiMartinos’ contentions on appeal, we
affirm the district court’s order.
A district court may grant summary judgment when reviewing a
firearms license revocation pursuant to 18 U.S.C. § 923(f)(3), pro-
vided no issues of material fact are in dispute. Cucchiara v. Secretary
of Treasury, 652 F.2d 28, 29-30 (9th Cir. 1981). This Court reviews
an award of summary judgment de novo. Higgins v. E.I. Dupont de
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judg-
ment is appropriate when there is no genuine issue of material fact,
given the parties’ burdens of proof at trial. Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
determining whether the moving party has shown that there is no gen-
uine issue of material fact, a court must assess the factual evidence
and all inferences to be drawn therefrom in the light most favorable
to the non-moving party. Smith v. Virginia Commonwealth Univ., 84
F.3d 672, 675 (4th Cir. 1996) (en banc).
DIMARTINO v. BUCKLEY 3
However, the non-moving party may not rely upon the mere allega-
tions of his complaint. Rather, his response must, with affidavits or
other verified evidence, set forth specific facts showing that there is
a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Cray Communications, Inc. v.
Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir. 1994). If
the adverse party fails to so respond, summary judgment, if appropri-
ate, shall be entered. Fed. R. Civ. P. 56(e). After a review of the
record and the evidence before the district court, we conclude that
there was no genuine issue of material fact created by the evidence
of record. Accordingly, the district court did not err in granting sum-
mary judgment in favor of the ATF.
Neither did the district court abuse its discretion in declining to
hold an evidentiary hearing. Perri v. Department of Treasury, 637
F.2d 1332, 1335 (9th Cir. 1981). A good reason to hold such a hear-
ing must either appear in the administrative record or be presented by
the party petitioning for judicial review. Stein’s Inc. v. Blumenthal,
649 F.2d 463, 466 (7th Cir. 1980). No such good reason appears in
the record before us. Finally, the district court did not err in rejecting
the DiMartinos’ contention that the ATF’s licensure procedure itself
violated their due process rights because the agency combined the
investigatory and adjudicatory roles in one entity. The district court
correctly determined that this argument was foreclosed by the
Supreme Court’s holding in Withrow v. Larkin, 421 U.S. 35, 54-55
(1976).
Finding no error, we affirm the district court’s order granting sum-
mary judgment in favor of the ATF and dismissing the petition. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED