Gilbert v. U.S. Bureau of Alcohol

Decision Date27 March 2020
Docket NumberNo. 18-1215,18-1215
CourtU.S. Court of Appeals — Fourth Circuit


Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:15-cv-02127-TDC)

Before GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Athan T. Tsimpedes, TSIMPEDES LAW FIRM, Washington, D.C., for Appellants. Robert K. Hur, United States Attorney, Molissa H. Farber, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; David A. Martella, BARRY H. HELFAND, P.A., Rockville, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.


Charles Richard Alsop Gilbert, Jr., Bryon Gossard, and their respective limited liability corporations appeal the district court's judgment dismissing their complaint, which alleged federal constitutional and state law tort claims arising out of the denial of Gossard's application for a federal firearms license. As explained below, all of their appellate arguments are either waived because they were not raised in the district court or else fail on the merits. Accordingly, we affirm the judgment of the district court.


Gilbert operates Gilbert's Indoor Range, a members-only indoor gun range in Rockville, Maryland.1 Gilbert used to sell firearms at the Range, but in the mid-2000s, his company's federal firearm license ("FFL") was revoked after the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") documented thousands of violations of the laws governing such sales. Gilbert challenged that agency decision in federal court and we affirmed it in American Arms International v. Herbert, 563 F.3d 78 (4th Cir. 2009). Thereafter, Gilbert applied for a federal firearms license to sell firearms in his personal capacity. However, ATF denied the application based on its conclusion that the wrongdoing of Gilbert's company could be imputed to him. ATF determined that the record evidence connected him to the company's violations and found evidence that Gilberthad continued circumventing firearms laws in the years since the prior revocation. Gilbert again challenged the agency's decision in federal court and we affirmed that decision as well. Gilbert v. Bangs, 481 F. App'x 52 (4th Cir. 2012) (per curiam). Additional attempts by Gilbert's associates and employees to obtain FFLs to sell firearms at the Range also failed.

Two days after we affirmed the denial of Gilbert's personal FFL application, Gossard became the third Range employee to apply for an FFL to sell firearms at the Range. Gossard purchased the right to sell firearms at the Range under the name "Gilbert Indoor Range, LLC" ("the LLC") from Gilbert for a sale price of $1.00. On his FFL application, Gossard identified himself as the only "responsible person" for the LLC.2

ATF assigned Investigator Gretchen Arlington to review Gossard's application. As part of that process, she conducted interviews with Gossard and inspected the Range. Her interviews probed the relationship between the LLC and the Range, and between Gossard and Gilbert. Arlington allegedly suggested that Gossard's application would be approved. However, shortly after her interviews concluded, Andrew Raymond, a principal of a separate Maryland gun range, Engage Armament, allegedly contacted ATF and reportedthat Gossard used unlawful drugs and was acting as a straw man for Gilbert to sell firearms.3

Thereafter, ATF denied Gossard's application, citing both Gossard's failure to list Gilbert as a responsible person on the application and his unlawful use of marijuana. Gossard appealed the denial of his application, and both the district court and this Court affirmed that decision relying solely on the "responsible person" omission. Gossard v. Fronczak, 701 F. App'x 266 (4th Cir. 2017); Gossard v. Franczak, 206 F. Supp. 3d 1053 (D. Md. 2016).

While Gossard's petition for review of the agency decision was pending in the district court, Gilbert, Gossard, and their respective companies (collectively "Plaintiffs" or "Plaintiffs-Appellants") filed their initial complaint in the U.S. District Court for the District of Maryland. They originally alleged claims against only the United States and the Acting Director of the ATF, asserting that the process surrounding the denial of Gossard's FFL license effectuated an unconstitutional taking.

The district court allowed two amendments to the complaint, and the operative pleading (labeled the "third amended complaint") added claims against ATF investigator Arlington and private defendants Engage Armament and its principals, Raymond and Theodore Sabate.4 The newly-added claims were: a Bivens claim against Arlington and thePrivate Defendants for intentionally interfering with the Plaintiffs' current and prospective business advantage and contract; a § 1983 claim against Arlington and the Private Defendants alleging due process violations for providing or using intentionally false statements relating to Gossard's FFL application; two state tort claims against Arlington and the Private Defendants (intentional misrepresentation and constructive fraud); and a third state tort claim against the Private Defendants only (unjust enrichment).

The Government Defendants (the United States, Director of the ATF, and ATF investigator Arlington) moved to dismiss; the Plaintiffs did not file any response to that motion. Because Sabate had filed for Chapter 7 bankruptcy while the case was pending, the claims against him had been automatically stayed. See 11 U.S.C. § 362(a). But the remaining Private Defendants (Engage Armament and Raymond) moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the Plaintiffs filed an opposition to that motion.

The district court granted the motions and dismissed all claims as to all defendants except for the claims that had been stayed against Sabate.5 Gilbert v. U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, 306 F. Supp. 3d 776 (D. Md. 2018). ThePlaintiffs noted an appeal, raising substantive challenges to the dismissal of the claims against Arlington and the Private Defendants.6

After regular briefing concluded, the Court directed supplemental briefing to address whether we had appellate jurisdiction given the still-pending claims against Sabate. Thereafter, Gilbert also moved in the district court for the court to issue an order under Federal Rule of Civil Procedure 54(b) certifying its prior order as "final" despite not adjudicating all claims against all parties.7 The court granted the motion and entered a Rule 54(b) order. We have considered its explanation under the factors discussed in MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 855 (4th Cir. 2010), and conclude the district court did not abuse its discretion in certifying its prior order as final. Thus, we have appellate jurisdiction under 28 U.S.C. § 1291.


The Plaintiffs-Appellants contend the district court erred in dismissing the due process and tort claims against Arlington. They ask the Court to consider their argumentson appeal despite not filing a response to the Government Defendants' motion to dismiss, asserting in a conclusory manner that they have demonstrated a "fundamental error" that would allow such review. We disagree and conclude that the Plaintiffs-Appellants have waived their right to challenge the dismissal of the claims against Arlington.

As a general rule in civil cases, the Court will not review appellate arguments that were not made in the district court. See In Re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) ("When a party in a civil case fails to raise an argument in the lower court and instead raises it for the first time before us, we may reverse only if the newly raised argument establishes fundamental error or a denial of fundamental justice." (internal quotation marks omitted)). We have considerable discretion in deciding which issues to consider for the first time on appeal, Singleton v. Wulff, 428 U.S. 106, 121 (1976), and "[a]bsent exceptional circumstances," we will decline to exercise that discretion, Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009) (internal quotation marks omitted).

The Plaintiffs-Appellants' arguments take issue with the district court's reasoning, but otherwise do not demonstrate "exceptional circumstances" that constitute "fundamental error or a denial of fundamental justice." This is not a case where the district court solely relied on their lack of response to grant the motion to dismiss. Instead, the district court undertook an extensive review of the merits of the Government Defendants' motion and the nature of the Plaintiffs-Appellants' claims. It offered thorough explanations—and in some cases more than one reason—why the claims were subject to dismissal. Gilbert, 306 F. Supp. 3d at 783-87. And there is nothing obviously incorrect in its determination that the due process claim would be barred by collateral estoppel because(1) this Court had already concluded that the ATF properly denied Gossard's FFL application and (2) the tort claims did not satisfy or fall within the scope of the limited waiver of sovereign immunity found in the Federal Tort Claims Act. See id.; see also In re Under Seal, 749 F.3d at 286 (observing that when a plaintiff in a civil case fails to...

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