Charles Gilbert, Jr. v. Gary Bangs ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2008
CHARLES RICHARD ALSOP GILBERT, JR.,
Plaintiff - Appellant,
v.
GARY BANGS,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cv-01440-AW)
Submitted: May 4, 2012 Decided: June 6, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia, for Appellant. Rod J.
Rosenstein, United States Attorney, Larry D. Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Richard Alsop Gilbert, Jr., appeals the
district court’s order granting summary judgment in favor of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and
dismissing his petition for review of ATF’s final administrative
decision denying his application for a federal firearms license
for violations of the Gun Control Act of 1968 (“GCA”), 18 U.S.C.
§§ 921-30 (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm.
We review the district court’s grant of summary
judgment de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694
(4th Cir. 2007) (en banc). Summary judgment shall be granted
“if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In determining whether a
genuine issue of material fact exists, we must view the evidence
in the light most favorable to the nonmoving party. Blaustein &
Reich, Inc. v. Buckles, 365 F.3d 281, 286 (4th Cir. 2004).
However, “a nonmovant cannot defeat summary judgment with merely
a scintilla of evidence.” Id.The Attorney General is authorized to deny an
application for a federal firearms license if the applicant
“willfully violated” any provision of the GCA. 18 U.S.C.
§ 923(d)(1)(C). A single willful violation of the Act is
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sufficient to authorize the denial of an application for a
federal firearms license. Appalachian Res. Dev. Corp. v.
McCabe, 387 F.3d 461, 464 (6th Cir. 2004); Arwady Hand Trucks
Sales, Inc. v. Vander Werf, 507 F. Supp. 3d 754, 763 (S.D. Tex.
2007); DiMartino v. Buckles, 129 F. Supp. 3d 824, 827 (D. Md.
2001).
Gilbert previously served as the owner and chief
responsible person for American Arms International (“AAI”),
which secured a federal firearms license to sell firearms and
ammunition in 1984. After a series of compliance inspections
revealed a myriad of violations, ATF revoked AAI’s license in
2005. Gilbert petitioned for judicial review, and the district
court awarded ATF summary judgment, finding that the revocation
of AAI’s license “was not only ‘authorized’ but well justified”
where Gilbert “continued to commit hundreds of violations of the
GCA after repeated warnings about the unlawfulness of [his]
prior noncompliance.” Am. Arms Int’l v. Herbert, No. DKC 2006-
2468 (D. Md. Feb. 19, 2008) (unpublished). This court affirmed
the district court’s judgment, noting that “[i]n the more than
twenty years that Gilbert has been in business, [ ] he has shown
a profound indifference to ATF's numerous efforts to bring him
into compliance.” Am. Arms Int’l v. Herbert, 563 F.3d 78, 87
(4th Cir. 2009).
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On October 20, 2008, Gilbert filed an application for
a federal firearms license in his personal capacity. ATF denied
Gilbert’s application on June 23, 2009, reasoning that Gilbert
had willfully violated the GCA by: (1) serving as the chief
responsible person for AAI, which committed thousands of
violations of the GCA from 1984 to 2003, resulting in the
revocation of its federal firearms license; (2) attempting to
circumvent the revocation decision through a series of straw
applications from 2004 to 2007; and (3) continuing to order and
sell firearms in February and March 2008 following the
revocation of AAI’s federal firearms license. Following a
hearing, ATF issued Gilbert a Final Notice of Denial of
Application, and Gilbert petitioned for judicial review in the
district court. The district court granted ATF’s motion for
summary judgment, finding that substantial evidence existed to
support a finding of hundreds of willful violations of the GCA
that serve as a valid basis for ATF’s denial of Gilbert’s
license application.
On appeal, Gilbert asserts that the district court
erred in granting ATF summary judgment because the five-year
statute of limitations set forth in 28 U.S.C. § 2462 bars
consideration of Gilbert’s willful violations committed under
AAI’s license prior to 2003. In addition, Gilbert contends that
he did not willfully violate the GCA by: (1) failing to file a
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theft report for nineteen firearms; (2) ordering firearms in
2008 after AAI’s license was revoked; and (3) making material
misrepresentations on the applications of other individuals.
The district court declined to interpret 28 U.S.C. §
2462 as barring ATF’s ability to consider Gilbert’s acts under
AAI’s license that occurred more than five years before ATF
denied Gilbert’s application in June 2009. We concur. Section
2462 provides, in relevant part, that the United States may not
commence an “action, suit or proceeding for the enforcement of
any civil fine, penalty, or forfeiture, pecuniary or otherwise”
more than five years after the claim first accrued. 28 U.S.C.
§ 2462. Because the United States did not “commence” the
proceedings that have led to this appeal, and, in any event, the
denial of a federal firearms application is not the enforcement
or assessment of a civil penalty, the statute of limitations
imposed by 28 U.S.C. § 2462 does not apply here.
Although Gilbert contests the factual basis for some
violations cited by ATF that postdate the revocation of AAI’s
license, Gilbert does not dispute the thousands of violations
committed under AAI’s license from 1984 to 2003. As ATF is
authorized to deny an application for a federal firearms license
based upon a single violation, ATF was clearly authorized in
denying Gilbert’s application. Accordingly, the district court
properly awarded ATF summary judgment.
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We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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