Scott L. Braum (pro hac vice to be submitted) Email: slb@braumlaw.com Timothy R.

Rudd (pro hac vice to be submitted) Email: trr@braumlaw.com SCOTT L. BRAUM & ASSOCIATES, LTD. 812 East Franklin Street, Suite C Dayton, Ohio 45459 Telephone: (937) 396-0089 Facsimile: (937) 396-1046 S. Gary Werley (Texas Bar 21187000) Email: sgwerley@werleylaw.com LAW OFFICES OF S. GARY WERLEY 306 West 7th Street, Suite 508 Fort Worth Club Building Fort Worth, TX 76102 Telephone: (817) 335-4300 Facsimile: (817) 335-4335 Attorneys for Petitioner IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AT DALLAS Brinks, Incorporated Petitioner, v. MEGAN A. BENNETT Director of Industry Operations Bureau of Alcohol Tobacco Firearms and Explosives, ) ) ) ) ) ) ) ) ) )

Case No.:

_________________

District Judge:__________________ Magistrate Judge:_______________ FRCP 27(C) VERIFIED PETITION FOR DISCOVERY )

Now comes the Petitioner, Brinks Incorporated, by and through counsel, and for its Petition pursuant to F.R.C.P. 27(C) for perpetuation of testimony of Megan A. Bennett, states as follows:

1.

This is a petition under F.R.C.P. 27(c) to take the deposition of Megan A. Bennett

concerning information relevant to the revocation of Petitioners federal firearm license (FFL). F.R.C.P. 27(c) reads as follows: Perpetuation by an Action. This rule does not limit a courts power to entertain an action to perpetuate testimony. PARTIES 2. Petitioner is a corporation duly licensed and organized under the laws of the State

of Texas. Petitioner that does business within the State of Texas. 3. Respondent, Megan A. Bennett (DIO Bennett") is the Director of Industry

Operations (DIO) for the Dallas Field Division of the Bureau of Alcohol Tobacco Firearms and Explosives ("ATF"). JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331, as it arises under the Constitution and laws of the United States, specifically 18 U.S.C. 923(f)(3), et seq, and its related regulations. 5. Venue is proper in the Northern District of Texas, as Respondent resides within the

district, however her addresses are not being included in this pleading for privacy reasons. BACKGROUND 6. The Brinks Company is a publically held Fortune 500 corporation that employs

over 70,000 people worldwide and, while serving customers in over 100 countries, has been part of the American industrial fabric since 1859. 7. Brinks, Incorporated is a wholly owned subsidiary of The Brinks Company, and

specializes in worldwide security transportation and cash logistics.

8.

In the United States, The Brinks Company and its subsidiaries (BRINKS)

operate approximately 220 branches and employ roughly 9,000 employees. 9. years. 10. In August 2000, when its operations moved from Darien, CT to Coppell, TX, an BRINKS has owned firearms as part of its security services for at least the last 130

executive decision was made to apply for a new FFL applicable specifically to the TX location to replace the FFL existing in CT. 11. BRINKS owns over 14,000 firearms in the United States and the FFL enables the

company to purchase (and sell for replacement purposes) in volume, which reduces overhead in the cost of equipment. 12. October 2000 and November 2002, ATF compliance inspections were conducted in

Coppell, TX and while violations were noted, no administrative action was initiated. ATF again inspected BRINKS Coppell, TX location in January 2005 and December 2006. No violations were noted on either inspection, and hence no Reports of Violations were issued. 14. BRINKS has never received an ATF Warning Letter, nor been asked to attend an

ATF Warning Conference, at any time in the past. 15. Following inspection of the Coppell, TX location in December 2010, ATF reported

certain alleged violations, resulting in the March 6, 2012 issuance of Notice of Revocation of Petitioners FFL by DIO Bennett. 16. Brinks has requested a revocation hearing, which has been scheduled for

September 18, 2012. 17. ATF has internal procedures to govern its handling of license revocations.

18.

In July 2004, the Office of Inspector General issued a report highlighting glaring

problems within ATF prior to 2004, including but not limited to ATFs system of inspection, reporting, and enforcement which resulted in non-uniform and inconsistent treatment of FFLs with regard to adverse actions such as the revocation of licenses: To ensure that all FFLs are treated consistently, and that the FFL inspection program is as efficient as possible to maximize the number of inspections conducted annually, a national ATF policy should require that inspections be conducted in a uniform manner, that inspections procedures are limited to the steps needed to accomplish a valid review, and that violations are processed in a uniform and appropriate manner. See, Exhibit A: (D.O.J. Report No. I-2004-005 (July 2004)). 19. Following the July 2004 report, ATF implemented its National Federal Firearms

License Adverse Action Policy which emphasized the importance of fairness and consistency when deciding whether it should revoke a license or take some lesser action: A national policy for administering adverse actions is necessary to promote consistent and fair resolution of violations. Revocation should be undertaken for willful violations of the GCA or its regulations that could affect public safety or hamper the Bureaus ability to reduce violent crime. See, ATF B 5370.2 at 2(b). This policy was revised in 2009 via ATF Order 5370.1A, the National Firearms Licensee Adverse Action Policy. 20. Where a federal agency announces and follows by rule or by settled course of

adjudication a general policy by which its exercise of discretion will be governed, an irrational departure from that policycould constitute action that must be overturned as arbitrary, capricious, [or] an abuse of discretion See, INS v. Yang, 519 U.S. 26, 32 (1995); See also, 5 U.S.C. 706(2)(A) (permitting court to find unlawful agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.); Morton v. Ruiz, 415 U.S.

199, 235 (1974) (agencies must follow their own procedures even where the internal procedures are possibly more rigorous than otherwise would be required.). 21. Upon information and belief, ATFs revocation of Petitioners FFL was contrary to

the law and its established policies. 22. Petitioner has requested an administrative hearing, at which time a hearing officer

(also an attorney for ATF) will hear evidence and issue a recommendation as to whether to overturn or uphold the revocation of Petitioners FFL. 23. Petitioner wishes to make inquiry into the basis for revocation of its FFL in view of

the ATFs established procedures. 24. In order to ensure that Petitioner has an opportunity to inquire concerning issues

that will have a direct bearing on the matters at issue in the hearing and, if necessary, in any judicial review of such, Petitioner has requested that the following individuals be made available as witnesses at the upcoming hearing: DIO Bennett, Deputy Assistant Director (Industry Operations) Harry L. McCabe, Industry Operations Investigator Andrea Hill, and the Area Supervisor. Each of these individuals was involved in one capacity or another in the events leading up to the revocation of Petitioners FFL. 25 Petitioner has requested these individuals attendance at the hearing so that inquiry

may be made into the decision to revoke the FFL at issue, whether and how ATF policies and procedures concerning such were applied in this instance, and the overall events at issue in this case. 26. ATF has refused to make any of the above individuals available, thus foreclosing

the opportunity for Petitioner to inquire into key issues involving ATFs action on its license.

27.

Apart from the relief requested, Petitioner will be proceeding in a quasi-judicial

hearing without any compulsory process to require the presence of persons that it believes have relevant information. 28. Apart from the relief requested, in the event that it is necessary to seek judicial

review following the hearing, the record will be insufficient due to Petitioners inability to produce important witnesses because of a lack of compulsory process. 29. It is in the interest of judicial economy to permit Petitioner to obtain and present all

of its evidence at the hearing and thus establish a full record on the vital issues upon which the court can make an informed review if necessary. WHEREFORE, Petitioner hereby requests that this Court exercise its authority to order Respondent to present herself for deposition at a time and place within the jurisdiction of this Court to be determined in the future. Respectfully submitted,

_____________________________ S. Gary Werley (Texas Bar 21187000) Email: sgwerley@werleylaw.com LAW OFFICES OF S. GARY WERLEY 306 West 7th Street, Suite 508 Fort Worth Club Building Fort Worth, TX 76102 Telephone: (817) 335-4300 Facsimile: (817) 335-4335 Scott L. Braum (pro hac vice to be submitted) Email: slb@braumlaw.com Timothy R. Rudd (pro hac vice to be submitted) Email: trr@braumlaw.com SCOTT L. BRAUM & ASSOCIATES, LTD. 812 East Franklin Street, Suite C Dayton, Ohio 45459 Telephone: (937) 396-0089

Facsimile: (937) 396-1046 Attorneys for Petitioner

VERIFICATION I, ___________________, verify under the pains and penalties of perjury that I am a duly authorized representative of Brinks, Inc., that I am personally aware of the facts regarding this matter, and that the facts set forth in the foregoing Verified Complaint are true and correct to the best of my knowledge, information, and belief.

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