Cusick v. DOJ - Affirmation of District Court Dismissal

UNPUBLISHED UNITED STATES COURT OF AP PEALS FOR THE FOURTH CIRCUIT No. 23 - 1963 JAMES P. CUSICK, SR., Plaintiff - Appellant, v. U.S. DEPAR TMENT OF JUS TICE, Defendant - Appellee. Appeal from the United States District C ourt for the District of Mary land, at Greenbelt. Theodore D. Chuang, District Judge. (8:22 - cv - 01611 - TDC) Submitted: November 10, 202 5 Decided: February 10, 2026 Before KING, HARRI S, and QUATT LEBAUM, Circuit Judges. Affirmed by unpublished per curiam opinion. ON BRIEF: John J. Korzen, Director, Trinity J. Chapman, Miriam Drap er, William Gilchrist, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston - Salem, No rth Carolina, for Appellant. Brett A. Shumate, Assistant Attorney General, Michael S. Raab, Kev in B. Soter, Civil Division, U NITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Kelly O. Hayes, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, G reenbelt, Maryland, for Appellee. Unpublished opinions are not binding p recedent in this circuit.

2 PER CURIAM: John P. Cusick, Sr., appeals the district court’s memo randum opinion and order granting the Government’s motion to dismiss under Fed eral R ule of Civ il P rocedure 12(b)(1). Proceeding pro se, Cusick sued the Department of Ju stice after Dick’s Sporting Goods refused to sell him a fir earm due to his answer s on ATF Form 44 73. In his complaint, he conceded that he h ad a previous conviction for a crim e punishable by a prison sentence in excess of on e year. But he nevertheless asserted that 18 U.S.C. § 922(g)(1), which prohibit s any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from possessing a firearm, violates the Second Amendment. He also claimed that § 922(g) (4), which prohib it s any person “adjudicated as a mental defective or who has been committed to a mental institutio n” from possessing a firearm, is u nconstitutionally vague. J.A. 6. Finally, Cusick allege d the N ational Instant Criminal Background Check System (NICS) violated his due process rights because it did not afford him the opportunity to appeal the denial based on Form 4473. The district court granted th e government’s motion to dismiss. Construing his § 922(g)(1) challenge as a facial ch allenge, it held that § 922(g)(1) did “n ot infringe on the Second Amendment right as currently defined by the Supreme Court” in New York St ate Rifle & Pistol Ass ociation, Inc. v. Bruen, 597 U.S. 1 (2022) and District of Columbia v. Heller, 554 U.S. 570 (2008). J.A. 57 – 60. As for his § 9 22(g)(4) challenge, the d istrict court determined that his claim failed for lack of standing because, on ce Cusick acknowledged he was prohibited from po ssessing a firearm under § 922(g)(1) and the court found that provision constitutional, any ruling on § 922(g)(4) would not redress his injury. As to his

3 due process claim s regarding t he NICS, the c ourt held those failed largely because he conceded he had qualifying conviction s. Cusick appealed. 1 Initially, we held Cusick’s appeal in abeyance pending this court’s decision i n United States v. Canada, 1 23 F.4th 159 (4th Cir. 2024). Canada held that § 922(g)(1) is facially constitutional. Id. at 161. Thu s, Canada forecloses Cusick’s facial challen ge. All but conceding that, for the first time in his openi ng brief, Cusick argu es the district court erred in c onstruing his complaint as a facial ch allenge — that it really was an as applied challenge. A ccording to Cu sick, this distinction also means his claim s regard ing § 922(g)(4) and the NICS are still viable since the district court’s dismissal of those claims was based on its decision th at § 922(g)(1) was facially constitutional. We disagree. First, Cusick’s informal brief failed to take issue with the district court’s ruling on § 922(g)(1) at all, instead focus ing on his claims challenging § 922(g)(4) and the NICS. That alone suggests Cusick’s argum ent on § 922(g)(1) is waived. S ee Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”). But even looking past any waiver issue and constr uing Cusi ck’s pro s e compla int liberally, we agree with the district court that Cusick only raised a facial challeng e to § 922(g)(1). Cusick s ought only a broad re medy — that the court “overrule[] and invalidate[]. . . 18 U.S.C. § 922(g) and any o ther corresponding lines or statutes.” J.A. 14. And Cusick ’s complaint cited no specific fact in support of any ar gument that § 922(g)(1) 1 We have appellate jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 1331.

4 was unconstitutional as applied to him. See White Coat Waste Project v. G reater Richmond Transit Co., 35 F.4th 179, 204 (4t h Cir. 2022) (“An as - applied challenge is one which depends on the identity or circumstances of t he plaintiff.”). Having found Cusick failed to raise an as applied challenge, w e find no reversible error in the district court’s d ecision. Therefore, we affirm its memorandum opini on and order. We also deny Cusick’s motion s fo r summary disposition, appoint ment of c ounsel and remand. We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED