essentially are the same thing really but whenever we're dealing with an f f l revocation under the gun control act there's one very big distinction from a lot of cases that come before the court and that is that the proceedings below at the administrative stage they are not governed by the administrative procedures act and so that hearing below it's a non a p a hearing it's not conducted by and they conducted by a retired employee of f typically there's no ability to compel witnesses testimonies not taken under oath and none of the other protections that come with an apron a p a proceeding are they able there and so it's it's really important because one of the arguments that i make in these cases is when does the a f l get their day in court and you know if not now when and the answer to that question has to be some time if it's not at the administrative stage because there's no l j i would submit it has to be at the district court level because the government is not able to revoke that license without the license having that proverbial day in court but what do you wish you could have put into evidence that you didn't because it seems to me this is a case there's not a lot of outside discovery you're you have the knowledge within your business of what happened and what your defense is going to be what what do you wish you would told judge hanks that he didn't allow you to get discovery on well there are a couple of very specific things your honor first and foremost at the administrative hearing a t f presented a witness that do their internal investigative file that file is never provided to my client we never had the opportunity to look at what was in that in that file is critical here because the basis of the r is that we're going to take the conduct of a single rogue employee and we're going to impute it to the licensee and so that that information is not within my client's knowledge we don't know what you know what you know what he did this is  nelson right what we know we know the outward conduct but we don't know exactly how he went about it we don't know how he took steps to hide it from my client etc and so they presented a witness not under oath to tell my client and i that hearing what she remembered about reading in some file somewhere and so the first answer your question is that investing in a file that shows i would submit that  cash cow had no knowledge had no involvement had no nothing with respect to this criminal conduct the file wasn't admitted in the administrative proceeding it was just relied on by the witness correct she read it at some point prior to the hearing and told us what she remembered about it and i asked for that file and discovery and i was denied that the second most important thing beyond the file is obviously i'd like the opportunity to depose someone under oath at some point and we were denied that opportunity as well so we have a we have a witness that  were allowed to question anyone in the administrative proceeding right there was a neighbor there question except that single is where she is an investigator who admittedly reviewed the file and i could ask her well what do you remember about reading the file i mean that's you're not disputing that nelson did any of this stuff for you so i guess i'm still having trouble i mean an employee's conduct can make a corporation criminally liable but you're basically saying it shouldn't be able to make them administrative we wobble no absolutely not your honor my point is and this is this is really what i want to focus the court's attention on is context these kinds of cases have to turn on the context in the circumstances the government argues for example that a single violation of the gun control act is sufficient to revoke a license i totally agree with that that is what the law is sometimes willful even then some it may be yes but you have to drill down and see what's going on the government argues that an employee is criminal conduct can be imputed i agree with that sometimes you have to agree what's going on had to have had some employer had had some knowledge some involvement etc in it because there are certainly instances where you could impute that conduct if the employer was aware of it if they had horrible safeguards in place and had been warned that it was occurring under the lawyer i would say that it's not i can tell you why help me with that under the gun control act and again the violations that your honor references fall into two categories all of the violations that related to mr lantis criminal conduct and then i'll say the other violations voiceover ok i'm sorry the violations that related to mr alonzo's criminal conduct and then the other violations and but with respect to both types under the gun control act the government  this basically has four different possible meanings intentional which there's nothing in the record here that would be remotely support that knowingly same point recklessness or plain indifference the case law is clear that negligence is not enough and this is and so while that the buyer writing usa in that box is obviously an intentional act the gun dealer intentionally completed that transaction but the violation itself isn't an intentional isn't tensional conduct you have to draw down to what's going nelson you'd said in response one of my last questions that for the responsibility in a criminal case even to attach to the corporation they have to bless the conduct you cited petroski verse city of houston that's a one nine hundred eighty three case and an inspection actually three there is not vicarious liability for a municipality so you have to prove that the municipality had a practice or policy you have any authority to in criminal cases vicarious liability doesn't apply well again it's our point it's not that it doesn't apply is that you have to look at the circumstances when it can apply in there has to be something in order to base that imputation on you you can't just take the act itself and then automatically make the leap that it's imputed to what it what authority says i because in my experience of a corporation has a few folks overseas paying bribes to get business that makes corporation libel and these days they're paying hundreds of millions of dollars in fines for violating the foreign corrupt practices act because they have a few employees bribing foreign officials with what authority says you're not criminally liable unless there's this you know policy or blessing from the corporation i don't believe that authority specifically out there on it because the case law doesn't deal with it in this context and i would submit that that's a different that's a different situation that is exactly what i mentioned earlier when when that isn't further in the employee's duties when that is within the scope of his employment all of the factors that we would look at you know whether it's under respond it's a period or any other any other basis there must be some basis of imputing that liability to get to that employer and here there is absolutely nothing and literally i mean nothing in this record other than the fact that he worked there and he did it and that the test that's why care is liability and respond in superior that in the testimony at the hearing was even it was even beyond that where mr munson the owner of cash cow testified that a t f told him that mr nelson actually took affirmative steps to to hide this to conceal this conduct because he knew it was a totality of the circumstances the way courts typically establish recklessness are playing in difference in order to meet the willful standard under the gun control act is to look at things like your past compliance history are these repeat violations  the violations themselves aren't sufficient that you have to establish localness in the prior inspection to the twenty fourteen inspection was closed without a single violation whatsoever they all courses commission are souring i believe the declining performance increasing severity of violations that were your client or was he an absentee owner i mean never went to the store oh no absolutely not he was regularly at the store in fact did he ever go when you get the state you know you just use it all in me at some points way into the store down and out of there absolutely i mean mr mr munson ran this store in fact he has a has a twenty year history of running roughly twenty other f l businesses as violations at the hearing never objected to any of the exhibits and i would also like to point out that although the appellant didn't get to see those reports the sales documents that were involved in those illegal sales w regulation but if you're in this hearing a person is getting a cross examined but somehow documents and not in the room and maybe i could understand how you don't give them up but if they're available for the person across a game but that's ok move on but i guess your evidence etc etc so what was the position was a similar to the argument made here yes i had an employee he's a rogue employee he did it i didn't know anything about it was that the way this was presented below es however we believe the law is clear though and you know we heard about this nine hundred eighty three case your honor the key were you were asking questions about and we have we think that doesn't apply to the situation there are court held that if it's for the benefit of the employer and within the scope of employment that the employer or the plod shop could be held accountable for the actions of the employee and your honor i think it's important in this case to note that what the store manager was doing are matters that were squarely within the regulated activities of the gun control as you know we're talking about selling to a convicted felon that's expressly prohibited body and in fact mr martin's trained his employees about those matters selling to persons that are actually purchasing the far as expressly prohibited by god again part of the training but even more importantly you know we heard comments  about well this employee falsified the forms this should not be forseeable well you know actually the gun control act also expressed by prohibits falsifying the form so these are matters squarely within the regulated activities of the gun control standard of review is true to novo like a lawsuit that gets filed in federal court for the first time without any agency proceeding or is it or is the question whether a t f could have found willfulness on these if it's what was there evidence from which the a t f could have found willful violations and i agree with you that's that seems to me to be what most of these cases are doing although we don't have anything published on that exact issue but isn't that just like substantial evidence or view that we have in a social security case or are these others where you just say what was there evidence to support what the agency did so how's that don't know but which congress expressly said it's dunno though you know i don't know i think that takes us back to the s because as i recall the steins case that court was looking at the legislative history and noted that i believe that used the word stand for something along those lines and then they started talking about how judicial economy can pla this especially when we're talking about a motion for summary judgment and that's where we started getting the terms like substantial but stein was that was at a time there was a split some circuit said substantial evidence here some said to know about the statute didn't say and then in the late eighty's congress actually put the words to novo in the statute so it just seems can it seems to me that courts might not be following what congress said of the nobel review is not saying is not saying well will defer to the agency as long as there was evidence to support what they did similar discovery arguments due process arguments that are at issue in this case for raised and rejected by this court in that case as well if it was true to noble review without any deference to what happened in the a t f proceeding with the government be entitled to summary judgment on these facts could you say that again if it were true to know i think we agree if it were if there's this difference between true to know the review and and saying well we're just going to look at whether there was evidence to support what the a t f did let's pretend that came straight to court the a t f did nothing under the noble review would the government be entitled to summary judgment that these are willful violations as a matter of law yes your honor i believe so and again  and then you know i would like to point out it was it will finish usually though it's a manager or a i mean it's usually a fact issue isn't willfulness any issues involving intent or are typically fact issues state of mind or your honor you know and the app always brief we focused a lot of our comments on the the criminal aspect of this case but you know actually our district judge in this case also noted you know in february of tw thirteen when a t f told mr mines you know what was going on in the store so if you if you alternatively if you use that as a point of reference and you alluded to this earlier your honor you know we come back a year later and we have more violation sales you know he was salary you know made the sales the money went to the owner of cash cows not to go so what's the or is there some indication of the words of some the absence of is pieces tendentious or tough to get there after the sting and you know there are these continued validation and there all these other violations that are there so if there was no or insufficient support either stand or review that the wilderness is shown straight up you know because you don't have a lot sold out and the owner no show any got in the money enfold only got no statements they got none of their you know is out and no i'll be at our instincts may tell us he probably knew but they had to burn they didn't put the proof on and so we back off of that misconduct piece i'm just asking clearly the sting occurred clearly this activity occurs or after there always whole string of other violations of judging him and i'm just asking are those alone anough to support the revocation us again these were at the store and i think you're out of the district judges looking at test they're allowed to make reasonable inferences based on the evidence and the posting violations as a showing a willfulness to support revocation of the license primitive for the moment your primary argument i ask you to abandon or concede your initial i'm just you know we can sustain some of the any bases that the record supports and that's not always the case figure we get often in ministry but i'm just kind of asking more as a curiosity not having said that the first argument but i don't know who are asking like what cases you know we've got the argument but which cases best support the position taken and i may have missed it i know with cases you cited stein in terms of saying  to where you have a store owner on notice that these things are roaming so all these prior repeat violation cases i believe what would be relevant to answer your question from this circuit we have a waiver in the athens pawnshop cases those were by an employee  concerns about that which says that this is really really overall proceeding were here before they got to jerk your license for the single violation where oh help me with that that's what that's that's my on of the principles of vicarious liability and we had some discussion about the corporate defendant cases earlier so there is mechanisms in the wall that allows for this again benefit to the employer and within the scope what is it  to defend themselves the government is unable to revoke this license that is why that the novo review at the district court level is so critical because it was a non a p a proceeding below the way algae and none of those protections and in fact the district court specifically erred in that regard on page eight of its opinion when it stated however the standard of review here is limited is limited because it took know improper ordinarily we get that or you may have a party saying you know tribunals below didn't construed the facts in the light most favorable to me as a movement ergo they're  well even though it says de novo there is some deference focus on the statute while it says de novo they say it limits this review to the question whether the denial or revocation of a permit was because the statute is what allows a t f to act but for the statute a t f can't do anything the statute says a t f you can revoke a license if two things are present a violation and  they're not authorized to act and so that really is all one in the same issue because there is no authority to do anything but force that will she was on this and you need that you know review in order to in order to answer that question o you look at two factors the violations and willfulness and so here you know there wasn't an issue with the violation with respect to the willfulness factor again it's a totality of the circumstances that it is by definition it to know whether or not there is a they have that the district court failed to meet its obligation to give cash cow that the novo review to make a true determination in what way well i again that the court in its opinion specifically stated that its review was in fact limited and so it why can't we look at it is that beyond question this is well we do have due process hearing you because your honor that the answer to that is is pretty straightforward the willfulness determination must be made not in a vacuum and so when you look at correct but you have to balance that against a twenty year clean track record of operating if i feel that it's right in judgment of whether or not to proceed now whether it's authorized it's all one of the same with all due respect judge because you can't do that you're not authorized without  not tell me exactly what he's going to he's going to rule that well that's what authorize and i'll write are you going to tell you i would revoke are not revoked but that's the only thing remaining it's open and those are the same question because you can't revoke without being authorized and to enter authorisation you have to look at all the proactive conduct that cash cow took all the employee training the clean compliance history the prior inspection that was closed with no violations whatsoever does because without willfulness in on this record they don't have it there is no authority so it is circular i recognise that put it to you there is beyond question willfulness here it cannot be any other multiple inspections repeat violations and increasing numbers and that is what courts base well fulness on when you've been warned by t f you can you've gotten letters you've been to multiple warning conferences they've told you if you do this again even one time we're going to revoke you and on the record we have here there is simply none of that in fact we have the exact opposite where the record is actually quite good of past compliance and the cases that they say that they rely upon his record in these numeration each of these numeration is deal with four different occasions sixteen different occasion ten different occasions fourteen seven occasion three different occasions three different occasions eccentrics cetera et cetera i'm just trying to understand what you're full record after discovery just like any other civil case before i