Gilbert, Jr. v. Bangs
Filing
32
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 8/22/11. (cms, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARLES R.A. GILBERT, JR.,
Petitioner,
vs.
GARY BANGS,
Director of industry Operations
Baltimore Field Division
Bureau of Alcohol, Tobacco,
Firearms and Explosives
Respondent.
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Civil Action No. 10-cv-1440-AW
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MEMORANDUM OPINION
The matters currently before the Court are a motion for summary judgment by
Respondent Gary Bangs, the Director, Industry Operations of the Baltimore Field Division of the
Bureau of Alcohol, Tobacco, Firearms and Explosives (hereinafter “ATF”), with the U.S.
Department of Justice, see Doc. No. 13, and a motion for leave to file a surreply by Petitioner
Charles Gilbert (“Gilbert”), see Doc. No. 29. Gibert’s complaint seeks judicial review of ATF’s
denial of his application for a license to deal in firearms. Doc. No. 1. The issues are fully briefed
and the Court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For
the reasons stated more fully below, the Court will GRANT ATF’s motion for summary
judgment and DENY Gilbert’s surreply.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are either undisputed or construed in the light most favorable to
Gilbert, and are based primarily on documents in the administrative record (cited as “AR”),
which was filed on October 1, 2010, and contains the much of the evidence referenced by the
parties in this matter. Gilbert is the present owner of Gilbert Indoor Range, LLC, (“GIR”), which
operates an indoor firearms range, and the former owner of American Arms International
(“AAI”).
At some point around 1984, AAI secured a federal firearms dealers license to sell
firearms and ammunition. AAI’s license was later revoked in administrative proceedings
beginning in 2006 because an inspection of Gilbert’s operations revealed a multitude of recordkeeping and other violations of the Gun Control Act of 1968 (“GCA”), as amended, 18 U.S.C.
§§ 921-930, Pub.L. No. 90-618, 82 Stat. 213 (1968).1
Under 18 U.S.C. § 923(g)(1)(A), every licensed firearms dealer must maintain such
records of importation, production, shipment, receipt, sale, or other disposition of firearms at his
place of business for such period, and in such form, as the Attorney General may by regulations
prescribe. It is unlawful for a licensed dealer knowingly to make any false entry in, to fail to
make appropriate entry in, or to fail to properly maintain, any record which he is required to keep
pursuant to section 923 or regulations promulgated thereunder. 18 U.S.C. § 922(m). The
Attorney General may revoke a license for willful violations of this statute, after notice and
opportunity for a hearing. 28 U.S.C. § 923(e). After a revocation, the aggrieved party may
petition for de novo review to the United States District Court within 60 days. 18 U.S.C. §
923(f)(3).
1
The District Court for the District of Maryland (Judge Chasanow) upheld the revocation in 2008, Am. Arms
Int’l v. Herbert, No. DKC 2006-2468, 2008 WL 8098466 (D. Md. Feb. 19, 2008) (unpublished disposition).
The Fourth Circuit affirmed the District Court in 2009, Am. Arms Int’l v. Herbert, 563 F.3d 78 (4th Cir. 2009).
ATF inspectors found violations of the provisions detailed above after inspections of
Gilbert’s businesses in 1984, 1987, 1991, 2000, and 2003. Following the August 2003
inspection, as detailed in the Fourth Circuit’s opinion:
ATF issued a notice of Revocation of License to AAT on January 21, 2005. The
Notice indicated that AAI had willfully violated the provisions and regulations of the
GCA and it detailed the aforementioned history of noncompliance. On January 13,
2006, the ATF issued a Notice of Denial for GIR’s application for renewal of its federal
firearms license.
At Gilbert’s request, a hearing regarding these decisions was held before an ATF
Hearing Officer on March 30, 2006. At this hearing, Gilbert, represented by
counsel, introduced no evidence to contest the factual basis for the revocation and denial,
and he refused to testify when called as a witness by the Government. On May 22, 2006,
the Hearing Officer issued his report, recommending revocation and denial.
On June 24, 2006, ATF’s Director of Industry Operations for the Baltimore Field
Division, Arthur Herbert, issued a Final Notice of Revocation/Denial to Gilbert. The
Final Notice stated that Gilbert had “willfully engaged in repeat violations of the Gun
Control Act.” At Gilbert’s request, ATF stayed the effective date of the revocation
pending review by the United States District Court for the District of Maryland pursuant
to 18 U.S.C. § 923(f) (3) (2006).
Gilbert's petition for review asked the district court to “1) decide that ATF erred
and was not authorized to revoke AAI's license or to deny GIR's license application; 2)
order ATF to withdraw the revocation and denial; and 3) award such other relief,
including costs and attorney's fees ... as appropriate.” Instead, the district court granted
summary judgment to ATF on February 19, 2008.
Am. Arms Int’l, 563 F.3d at 81 (citations omitted).
Following the August 2003 inspection, ATF found that Gilbert engaged in subsequent
violations of the GCA and related regulations which served as additional bases for denying his
application for a license.
First, the Director of Industry Operations (DIO) found that, following the August 2003
inspection, Gilbert had willfully failed to report the theft/loss of nineteen firearms in violation of
18 U.S.C. § 923 (g) (6) and 27 C.F.R. § 478.39a. AR at 9. Gilbert was notified both during the
August 2003 inspection and on October 14, 2003, that he needed to report firearms missing from
his inventory. See id. According to Gilbert, he did not know the 19 firearms were missing, see
Doc. No. 21 at 27.
Second, inspections conducted in 2008 following the revocation of AAI’s firearms
license February 20, 2008, revealed subsequent conduct by Gilbert or his employees taking
orders for firearms and accepting payments for firearms. AR at 9-11.The ATF found that these
actions constituted the continued business of dealing in firearms in violation of 18 U.S.C. §§
922(a)(1)(A) and 18 U.S.C. § 921(a)(21)(C), (a)(22). Specifically, Gilbert or his employees
continued to take orders for the purchase of new firearms on February 21, 2008 and March 4, 7,
and 10, 2008, after Gilbert had been advised not to do so. AR at 9-11. Gilbert contended that his
employees took the orders for the firearms rather than himself, Doc. No. 21at 29, but the Director
of Industry Operations rejected this argument, AR at 9-12.
The underlying facts regarding these sales are not contested. Once an order was taken
from a customer, Gilbert or his employees would put in an order to a supplier. Pursuant to an
agreement with Engage Armament, a federally licensed firearms dealer, the firearms would be
received and transferred through Engage’s license in exchange for Engage’s sharing $30 in the
sale proceeds. HT 316-319. Payment to the supplier was made from Gilbert’s business account.
HT at 310-11. The firearms would be shipped to Engage, the licensed dealer, and run through
Engage’s books, but customers would pay Gilbert’s business for the firearm. HT at 312-13, 316.
Third, On March 6 and March 21, 2008, Gilbert ordered firearms, paid for with business
funds. Gilbert received and signed for the March 21, 2008 order at his place of business. The
ATF found these transactions to violate 18 U.S.C. § 922(a) (1) (A), (6), and (a) (3). Gilbert
acknowledged that he personally ordered the firearms but stated that he had ordered them prior
to the revocation of AAI’s license, and that they were sent to his place of business in error, and
that he signed for the packages not knowing what they contained. Doc. No. 1 at 21-23.
According to the Administrative Record filed with the Court, after the revocation of
AAI’s federal firearms dealers license, Gilbert submitted an application to the ATF for a new
license on approximately October 20, 2008. AR at 946-953. Gilbert listed his own name as the
“Name of Owner or Corporation.” AR at 948. Gilbert provided the address where he had sold
firearms during his business’ last year of licensed activity in the section of the form requesting
“Business Address” Id. The application form also asked whether the “Applicant or any Person
[previously identified as an Individual Owner, Partner, and Other Responsible Person[ ] in the
Business]” had previously “Held a Federal Firearms License,” “Been an Officer in a Corporation
Holding a Federal Firearms License,” “Been an Employee of a Federal Firearms Licensee,” or
“Had a Federal Firearms License Revoked.” AR at 949-50. Gilbert marked “Yes” as his response
for all of those questions. AR at 950.
ATF denied Gilbert’s application in an initial Notice of Denial on June 23, 2009, on the
basis that Gilbert was the chief responsible person for his AAI and GIR businesses and that he
was responsible for multiple willful violations that supported revocation of AAI’s license. AR at
3, 9. Following an administrative hearing, Gilbert received on April 23, 2010 a Final Notice of
Denial of his application along with findings of fact and conclusions of law from the
administrative hearing. Doc. No. 1 at 2.
II.
STANDARD OF REVIEW
Gilbert challenges the ATF’s denial of his license application pursuant to 18 U.S.C. §
923(f). The district court exercises de novo review. 18 U.S.C. § 923 (f) (3). Under the de novo
standard of review for a decision of the ATF, the district court may give the agency’s finding and
decision “‘such weight as it believes they deserve,’ but need not accord any particular deference
to those findings.” Article II Gun Shop, Inc. v. Ashcroft, No. 03-4598, 2005 WL 701053 (N.D.
Ill. Mar.25, 2005) (quoting Stein's Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir.1980)). Where
appropriate, the reviewing court can receive and consider evidence in addition to that submitted
in the administrative proceeding. DiMartino v. Buckles, 129 F. Supp.2d 824, 827 (D. Md. 2001).
The court can grant summary judgment, however, without conducting an evidentiary hearing if it
is clear from the pleadings and exhibits that no genuine issue of material fact exists. Id. The
revocation “may be upheld if the court concludes, in its own judgment, that the evidence
supporting the ... decision is ‘substantial.’” Stein's, 649 F.2d at 467. Notwithstanding the posture
of this case as an appeal of an administrative decision, the summary judgment standard is the
same as in any other civil action.
Summary judgment is only appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). The Court must “draw all justifiable inferences in
favor of the nonmoving party, including questions of credibility and of the weight to be accorded
to particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
To defeat a motion for summary judgment, the nonmoving party must come forward with
affidavits or other similar evidence to show that a genuine issue of material fact exists. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact
presents a genuine issue “if the evidence is such that a reasonable jury could return a verdict for
the non-moving party.” Anderson, 477 U.S. at 248. Although the Court should believe the
evidence of the nonmoving party and draw all justifiable inferences in his or her favor, a party
cannot create a genuine dispute of material fact “through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
III.
ANALYSIS
ATF has moved for summary judgment contending that ATF was authorized to deny
Gilbert’s application based on hundreds of willful violations that supported revoking AAI’s
firearms license. In his opposition, Gilbert argues that: (1) the court may not consider the
administrative record in this case; (2) the five-year statute of limitations in 28 U.S.C. § 2462 bars
consideration of any acts by Gilbert under AAI’s license; (3) the material facts remain in dispute;
and (4) willful violations by AAI cannot be attributed to Gilbert.
The primary question here is whether the ATF, in exercising its authority to revoke or
deny firearms licenses, was “authorized” to deny Mr. Barany's application. 28 U.S.C. § 923(f)(3)
(describing the scope of judicial review); 28 C.F.R. § 0.130(a)(1) (Attorney General’s delegation
of authority to the ATF to revoke or deny firearms licenses); see also Pinion Enterprises, Inc. v.
Ashcroft, 371 F. Supp. 2d 1311, 1315 (N.D. Ala. 2005) (finding that § 923(f)(3) “does not call
upon this Court to decide whether it would revoke the license in it[ ]s own judgment, but whether
all of the evidence presented is sufficient to justify the Attorney General's revocation of the
license.”).
A.
Consideration of the Administrative Record
Gilbert contends that the administrative record should not be considered in this Court’s
summary judgment determination because it is not part of the pleadings, discovery, or disclosure
materials on file as required by Rule 56 (c) (2). Doc. No. 21 at 4. Gilbert argues that the
administrative record is unsworn and unauthenticated, and analogizes to Orsi v. Kirkwood, a
Fourth Circuit case in which the court found that it is “well established that unsworn,
unauthenticated documents cannot be considered on a motion for summary judgment.” 999 F.2d
86, 92 (4th Cir. 1993). The case in Orsi arose under the Interstate Land Sales Full Disclosure Act,
and the unsworn and unauthenticated documents at issue were three letters, only one which was
signed, and the unsigned minutes of a homeowner’s meeting. See id. at 91.
The Court finds that Orsi is not on point for two reasons. First, the matter presently
before this Court is subject to review under 18 U.S.C. § 923(f)(3), which states that the court
may consider any evidence submitted by the parties to the proceeding whether or not such
evidence was considered at the hearing. Second, the documents comprising the administrative
record are, inter alia, the Firearms Theft/Loss Report, AR at 576-580, Gilbert’s Affidavit, AR at
590-604, Transcripts of the Hearing denying Gilbert’s application for a firearm’s license, AR at
123-272, and the Opinions of this Court and the Fourth Circuit Court of Appeals in the
revocation of AAI’s license, AR at 62-85. These materials comprised the record at Gilbert’s
administrative hearings where he had an opportunity to challenge their authenticity. They do not
raise the same concerns as the unsigned letters in Orsi.
Furthermore, this Court finds that the Fourth Circuit’s decision to consider the
administrative record in American Arms International v. Herbert is directly on point. See 563
F.3d 78, 86 (4th Cir. 2009). In that case, which involved the denial of AAI’s license, Gilbert
raised the same argument, and the court held that “an administrative record is a duly
authenticated record that enjoys a presumption of verity.” Id. at 86 n.12 (citing Langston v.
Johnson, 478 F.2d 915, 917-18 (D.C.Cir.1973)). The court went on to note that “[i]n an appeal of
agency action, that record, unless somehow contradicted, satisfies the agency's initial burden of
demonstrating the absence of any genuine issue of material fact.” Id. (citations omitted). Gilbert
failed to present facts demonstrating that the administrative record in this case is any less
trustworthy than the record the Fourth Circuit found to be “duly authenticated” in American
Arms. In fact, the administrative record in American Arms contains many of the same documents
present in this administrative record. Accordingly, the Court finds that consideration of the
administrative record is proper in this case.
B.
Statute of Limitations
Gilbert contends that the ATF improperly relied on all the violations that occurred before
the October 27, 2003 inspection of AAI in denying Gilbert’s application because of a five year
statute of limitations contained in 28 U.S.C. § 2462 (Time for commencing proceedings).
That statute provides in full:
Except as otherwise provided by Act of Congress, an action, suit or proceeding for the
enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be
entertained unless commenced within five years from the date when the claim first
accrued if, within the same period, the offender or the property is found within the United
States in order that proper service may be made thereon.
28 U.S.C. § 2462.
However, Gilbert provides no authority that persuades the Court that the limitations
statute applies here. Gilbert relies on Article II Gun Shop, Inc. v. Gonzales to show that section
2462 applies to GCA administrative proceedings. See 44 F.3d 492, 496 (7th Cir. 2006). However,
that case never reached the issue of whether section 2462 applied; the court merely decided that
ATF inspections reports from over five years ago could be considered by the court as evidence
that Gun World, the plaintiff, had knowledge of the Act’s requirements. Other courts have
similarly rejected Gilbert’s interpretation of Article II Gun Shop. See Barany v. Van Haelst, No.
CV-09-253-RMP, 2010 WL 5071053 at *8 (E.D. Wash. Dec. 6, 2010); see also Dick’s Sport
Center, Inc. v. Alexander, No. Civ. 204CW74482, 2006 Wl 799178 at *5 (noting that the
petitioner did not provide and the court did not find any instances in which section 2462 had ever
been applied to GCA license revocations).
Moreover, the statute on its face states that it applies only to actions, suits, or proceedings
instituted by the United States “for the enforcement of any civil fine, penalty, or forfeiture.” 28
U.S.C. §2462. See 3M v. Browner, 17 F.3d 1453, 1455-58 (D.C. Cir. 1994). Because Gilbert
brought this action rather than the ATF or another federal agency, section 2462 does not apply.
See Erie Basin Metal Products, Inc. v. U.S., 150 F. Supp. 561, 566 (Ct. Cl. 1957) (“The
limitation of section 2462 applies only to actions instituted by the Government.”).
Finally, although the rejection of Gilbert’s application for a firearms license may appear
as a penalty or forfeiture to him, see Doc. No. 21 at 12, the Court regards the ATF’s rejection not
as a penalty but as a remedial measure meant to protect the public. Gilbert points to Johnson v.
Securities & Exchange Commission, a case in which the D.C. Circuit held that section 2462
applied to an administrative proceeding by the SEC which resulted in a suspension from acting
in a supervisory capacity. 58 F.3d 484, 488 (D.C. Cir. 1996). In that case, the SEC instituted a
disciplinary suspension on a securities industry supervisor, and the court found that such action
was not remedial and clearly resembled punishment in the ordinary sense of the word. Id.
In this case, on the other hand, ATF did not suspend or revoke Gilbert’s license as a
punishment but instead refused to grant him a license in the first place -- not as a punishment to
Gilbert, but as part of ATF’s duty to protect the public by screening applicants whose conduct
may pose a safety risk. This comports with the general understanding that “[w]hen a firearms
dealer cannot account for guns or fails to ensure that guns are sold to authorized persons, the
public safety is directly and meaningfully implicated.” RSM, Inc. v. Herbert, 466 F.3d 316, 324
(4th Cir. 2006). Also, interpreting ATF denials of license applications as remedial measures
rather than penalties upholds ATF’s discretion, granted by the Attorney General, to make such
determinations based on all the evidence before it. Accordingly, this court declines 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 ago.
C.
Dispute of Material Facts
Although Gilbert contests the factual basis of some of the violations, ATF’s burden does
not require that the court sustain every violation in order to uphold the denial. Instead, the denial
may be upheld if the record establishes substantial evidence in support of the decision. Stein’s
Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir. 1980). Gilbert does not dispute the thousands of
violations which occurred from 1984-2000 that served as grounds for ATF’s denial. Gilbert does
not dispute the 101 violations associated with properly completing form 4473 in violation of 27
C.F.R. § 478.21(a) . Doc. No. 21 at 17.
Additionally, the facts regarding the violations that occurred after 2003 are not in dispute.
Gilbert does not contest that he failed to report the theft of 19 firearms, arguing instead that he
had no duty to do so because he did not discover that they were missing. Id. at 18. The evidence
is not in dispute that Gilbert was on notice that several hundred firearms were stolen from his
business in 2003, and that ATF directed him to report the missing firearms. See Doc. No. 21 at
25. Although Gilbert was not notified specifically to report the 19 missing firearms, and may not
have actually known they were missing, he was effectively put on inquiry notice to inspect his
inventory and report all missing firearms pursuant to ATF’s 2003 notifications.
Furthermore, Gilbert does not contest the material facts underlying the 2008 transactions
found to constitute the purchase or sale of firearms without a license. Instead, Gilbert argues that
his employees engaged in the proscribed conduct and that he is not responsible. For the reasons
discussed below, the Court rejects this argument.
Accordingly, it is undisputed that substantial evidence exists 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.
D.
Attribution of previous Willful Violations by AAI to Gilbert
Principally, Gilbert argues that the ATF was not authorized to base its denial of his
federal firearms license application on the willful violations that supported revocation of AAI’s
license, or the subsequent conduct of his employees, because AAI, GIR, and Gilbert’s employees
are separate entities from Gilbert. ATF responds that Gilbert has consistently stated that he is the
sole person in charge of his businesses, and is thus the person responsible for his businesses’
GCA violations. ATF contends that the Gun Control Act authorizes the Attorney General to deny
an application if the applicant has “willfully violated” any provision of the Act. 18 U.S.C. §
923(d)(1)(C). Specifically, the Act provides in 18 U.S.C. § 923(d)(1):
Any application submitted under subsection (a) or (b) of this section shall be approved
if—
(A) the applicant is twenty-one years of age or over;
(B) the applicant (including, in the case of a corporation, partnership, or association, any
individual possessing, directly or indirectly, the power to direct or cause the direction of
the management and policies of the corporation, partnership, or association) is not
prohibited from transporting, shipping, or receiving firearms or ammunition in interstate
or foreign commerce under section 922(g) and (n) of this chapter;
(C) the applicant has not willfully violated any of the provisions of this chapter or
regulations issued thereunder;
(D) the applicant has not willfully failed to disclose any material information required, or
has not made any false statement as to any material fact, in connection with his
application;
In RSM, the United States Court of Appeals discussed the standard for determining
“willful” within the GCA. The court stated that: “when determining the willfulness of conduct, [a
court] must determine whether the acts were committed in deliberate disregard of, or with plain
indifference toward, either known legal obligations or the general unlawfulness of the actions.”
466 F.3d at321-322. It clarified that, “a court may infer willful omission from a defendant’s plain
indifference to a legal requirement to act if the defendant: (1) knew of the requirement; or (2)
knew generally that his failure to act would be unlawful.” Id. at 322. Finally, in applying the
“willfulness” standard to the case before it, the court:
conclude[d] that the long history of repeated failures, warnings, and explanations of the
significance of the failures, combined with knowledge of the legal obligations, readily
amounts to willfulness as used in 18 U.S.C. § 923(e). While we need not here delineate at
what point in the course of [the petitioner's] repeated failures willfulness could have been
inferred, their number and seriousness in this case in the face of repeated warnings
undoubtedly satisfy the willfulness requirement.
Id.
Similarly, in American Arms, the Fourth Circuit found that AAI had acted with
“willfulness” by repeatedly violating regulations despite knowledge of them and repeated
warnings. See 563 F.3d at at 87 (“Plain indifference can be found where nine times out of ten a
licensee acts in accordance with the regulations, if he was plainly indifferent to the one-in-ten
violation.”).
Although Gilbert presents many arguments for why the violations of AAI should not be
attributed to him, Gilbert’s own representations on his October 20, 2008 firearms license
application are reason enough to determine that the violations of Gilbert’s businesses should be
attributed to him personally, under the language of the GCA. As discussed earlier, Gilbert
represented that he had: (1) previously held a firearms license; (2) been an officer in a
corporation holding a federal firearms license; and (3) had a federal firearms license revoked.
AR at 950. To be eligible for a federal firearms license under the Gun Control Act, “the
applicant” must not have “willfully violated any of the provisions of this chapter or regulations
issued thereunder.” 18 U.S.C. § 923(d)(1). By his own statements in the application, Gilbert
directly associated himself with the previous license-holder, AAI, whose license was revoked for
willfully violating provisions of the GCA. Therefore, under 18 USC § 923(d)(1), ATF was
authorized in denying his application.
Furthermore, the record from the hearing testimony convened after Gilbert’s initial denial
suggests in other respects that Gilbert’s new firearms business would have been closely unified
with his previous businesses for which the licenses were revoked (in the case of AAI) or denied
(in the case of GIR). Gilbert’s application lists the same address as the address from which
Gilbert or his employees sold firearms during the last year of licensed activity. AR at 948. If
granted a license, Gilbert would have resumed selling the former inventory of the revoked
license and purchasing weapons from some of the same wholesalers. HT at 142.
The various links from AAI to Gilbert’s proposed license support the conclusion that
AAI’s actions, including willful violations of the GCA, are attributable to Gilbert. Therefore,
ATF was authorized in denying Gilbert’s application. See Barany v. Van Haelst, No. CV-09253-RMP, 2010 WL 5071053 at *6-7 (E.D. Wash. 2010 Dec. 6, 2010) (affirming denial of a
federal firearms license because the business operations of the applicant were “substantially
indistinguishable from the firearms business for which the license had been revoked.”).
E.
Gilbert’s Motion for leave to File a Surreply
Unless otherwise ordered by the court, surreply memoranda are not permitted to be filed.
Local Rule 105.2(a). “Surreplies may be permitted when the moving party would be unable to
contest matters presented to the court for the first time in the opposing party’s reply.” Khoury v.
Meserve, 268 F. Supp. 2d 600, 605 (D. Md. 2003) (citing Lewis v. Rumsfeld, 154 F. Supp. 2d 56,
61(D.D.C. 2001).
Gilbert argues that he is justified in filing a surreply because ATF has raised two new
issues in its reply memorandum: (1) new evidence: an affidavit; and (2) extensive case law,
especially concerning compliance with Rule 56 and the statute of limitations. Doc. No. 29.
However, ATF’s affidavit merely synthesized information already discussed extensively in
Gilbert’s filings, Doc. No. 1 at 6; Doc. No. 21 at 25, and already known to the Court and
available in the administrative record. See HT at 65-70, 91; see also AR at 9, 576-589. This
affidavit does not address a new matter.
Likewise, the issue of compliance with Rule 56 under 18 U.S.C. § 923(f) (3), the statute
governing review in this case, was raised by ATF in its initial motion for summary judgment.
Doc. No. 13 at 4-5. In ATF’s reply to Gilbert’s opposition brief, ATF merely expounded on this
issue in response to Gilbert’s argument that the administrative record was inadmissible. Doc. No
27 at 2-7. Gilbert had the opportunity to support his position in his opposition brief; a surreply
would not provide Gilbert with his first chance to address this issue. Finally, the statute of
limitations issue was raised first by Gilbert in his Petition for judicial Review, Doc. No. 1 at 6,
contested and briefed thoroughly by ATF in its motion for summary judgment, Doc. No. 13 at
29-33, and also thoroughly addressed by Gilbert in his opposition brief, Doc. No. 21 at 9-15.
Because none of these issues were new matters raised in ATF’s reply, the Court will therefore
deny Gilbert’s motion for leave to file a surreply.
I.
Conclusion
For the reasons stated above, ATF’s motion for summary judgment, Doc. No. 13, will
be GRANTED, and Gilbert’s motion for leave to file a surreply, Doc. No. 29, will be
DENIED. A separate order will follow.
August 22, 2011
Date
/s/
Alexander Williams, Jr.
United States District Judge
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