Dimartino v. BuckleyDimartino v. Buckley
Case Information
*1 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Affirmed by unpublished per curiam opinion.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 *2 Unpublished opinions are not binding precedent in this circuit.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
,
*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.
,
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