Respondents Brief — Gun Owners of America, Inc., et al., Petitioners v. Merrick B. Garland, Attorney General, et al.
Supreme Court briefMay 24, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-1215
In the Supreme Court of the United States
GUN OWNERS OF AMERICA, INC., ET AL., PETITIONERS
v.
MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
MARK B. STERN
MICHAEL S. RAAB
ABBY C. WRIGHT
BRAD HINSHELWOOD
KYLE T. EDWARDS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the district court abused its discretion in
denying petitioners’ request for a preliminary injunction in this challenge to a final rule interpreting the
term “machinegun,” 26 U.S.C. 5845(b), to encompass
devices known as bump stocks, which permit users to
fire a semiautomatic rifle continuously with a single pull
of the trigger.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument..................................................................................... 14
A. The judgment below is correct and consistent with
the results reached by every circuit court to have
considered the final rule ................................................. 15
B. Petitioners’ two Chevron questions do not warrant
further review .................................................................. 22
C. Further review would be especially unwarranted in
this interlocutory posture ............................................... 32
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Abramski v. United States, 573 U.S. 169 (2014) .......... 26, 28
Akins v. United States,
312 Fed. Appx. 197 (11th Cir.), cert. denied,
557 U.S. 942 (2009)................................................ 5, 7, 16, 20
Amaya v. Rosen, 986 F.3d 424 (4th Cir. 2021) ................... 30
Aposhian v. Barr,
958 F.3d 969 (10th Cir. 2020), vacated on reh’g,
973 F.3d 1151 (10th Cir. 2020), reinstated,
989 F.3d 890 (10th Cir. 2021), petition for cert.
pending, No. 21-159 (filed Aug. 2, 2021) ............. 21, 22, 24
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) ......................................................... 23
Babb v. Secretary, 992 F.3d 1193 (11th Cir. 2021) ............. 30
Babbitt v. Sweet Home Chapter of Cmtys. for a Great
Oregon, 515 U.S. 687 (1995) ............................................... 26
CFTC v. Erskine, 512 F.3d 309 (6th Cir. 2008) ............ 30, 31
(III)
IV
Cases—Continued:
Page
Cargill v. Garland,
20 F.4th 1004 (5th Cir. 2021), petition for reh’g
pending, No. 20-51016 (filed Jan. 28, 2022) .......... 21, 22, 32
Chevron U.S.A. Inc. v. NRDC, Inc.,
467 U.S. 837 (1984).................................................... 9, 14, 26
City of Arlington v. FCC, 569 U.S. 290 (2013) .................... 31
Crandon v. United States, 494 U.S. 152 (1990) .................. 27
Edelman v. Lynchburg Coll.,
535 U.S. 106 (2002).............................................................. 23
Estate of Sanford v. Commissioner,
308 U.S. 39 (1939) ............................................................... 31
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) ............ 32
Guedes v. ATF:
920 F.3d 1 (D.C. Cir. 2019), cert. denied,
140 S. Ct. 789 (2020) ...................................... 21, 22, 24
140 S. Ct. 789 (2020) .................................................. 15, 30
HollyFrontier Cheyenne Ref., LLC v. Renewable
Fuels Ass’n, 141 S. Ct. 2172 (2021) ................................... 31
McCutchen v. United States,
14 F.4th 1355 (Fed. Cir. 2021) ........................................... 21
Mendez v. Barr, 960 F.3d 80 (2d Cir. 2020) ........................ 28
Muscarello v. United States,
524 U.S. 125 (1998).............................................................. 29
Mushtaq v. Holder, 583 F.3d 875 (5th Cir. 2009) ............... 30
New York v. United States Dep’t of Justice,
951 F.3d 84 (2d Cir. 2020), cert. dismissed,
141 S. Ct. 1291 (2021) ......................................................... 30
Perez v. Mortgage Bankers Ass’n,
575 U.S. 92 (2015) ............................................................... 23
Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005),
cert. denied, 549 U.S. 920 (2006) ....................................... 28
V
Cases—Continued:
Page
Sierra Club v. EPA,
252 F.3d 943 (8th Cir. 2001) ............................................... 30
Staples v. United States, 511 U.S. 600 (1994) ............... 17, 29
United States v. Alkazahg,
No. 202000087, 2021 WL 4058360
(N-M. Ct. Crim. App. Sept. 7, 2021) ................................. 22
United States v. Apel, 571 U.S. 359 (2014) .......................... 26
United States v. Balde,
943 F.3d 73 (2d Cir. 2019) .................................................. 27
United States v. Camp,
343 F.3d 743 (5th Cir. 2003) ............................................ 20
United States v. Garcia,
707 Fed. Appx. 231 (5th Cir. 2017) .................................... 27
United States v. Kuzma,
967 F.3d 959 (9th Cir.), cert. denied,
141 S. Ct. 939 (2020) ........................................................... 28
United States v. Mead Corp.,
533 U.S. 218 (2001) .......................................................... 23
United States v. O’Hagan, 521 U.S. 642 (1997) ............ 25, 26
United States v. Olofson,
563 F.3d 652 (7th Cir.), cert. denied,
558 U.S. 948 (2009).............................................................. 19
United States v. Wells, 519 U.S. 482 (1997) ........................ 29
Virginia Military Inst. v. United States,
508 U.S. 946 (1993).............................................................. 32
Wisniewski v. United States,
353 U.S. 901 (1957)........................................................ 29, 31
Constitution, statutes, regulations, and rule:
U.S. Const. Amend. V ............................................................. 9
Act of June 26, 1934, ch. 757, 48 Stat. 1236 ........................... 2
Administrative Procedure Act,
5 U.S.C. 701 et seq. ............................................................ 9
VI
Statutes, regulations, and rule—Continued:
Page
Clean Air Act, 42 U.S.C. 7401 et seq. (1982):
42 U.S.C. 7413(c)(1) ......................................................... 25
42 U.S.C. 7502(a)(1)......................................................... 25
42 U.S.C. 7502(b)(6) ........................................................ 25
Firearms Owners’ Protection Act,
Pub. L. No. 99-308, 100 Stat. 449:
§ 101(6), 100 Stat. 450 (18 U.S.C. 921(a)(23)).................. 2
§ 102(9), 100 Stat. 452-453 (18 U.S.C. 922(o)) ................. 2
Gun Control Act of 1968, Pub. L. No. 90-618,
Tit. II, sec. 201, § 5845(b), 82 Stat. 1231 ............................. 2
National Firearms Act, 26 U.S.C. 5801 et seq.................... 2
26 U.S.C. 5841(c) ............................................................... 3
26 U.S.C. 5845(b) .................................................... passim
Public Safety and Recreational Firearms Use
Protection Act, Pub. L. No. 103-322, Tit. XI,
Subtit. A, 108 Stat. 1996:
§ 110102, 108 Stat. 1996-1998 ........................................... 3
§ 110105, 108 Stat. 2000 .................................................... 3
10 U.S.C. 867 .......................................................................... 22
15 U.S.C. 78n(e) ..................................................................... 26
15 U.S.C. 78ff(a) ..................................................................... 26
16 U.S.C. 1540(b)(1) ............................................................... 26
18 U.S.C. 4 .............................................................................. 28
18 U.S.C. 921(a)(30) (2000) ..................................................... 3
18 U.S.C. 922(v) (2000) ............................................................ 3
18 U.S.C. 926(a) ....................................................................... 7
26 U.S.C. 7801(a)(2)(A)(i) ........................................................ 7
26 U.S.C. 7805(a) ..................................................................... 7
27 C.F.R.:
Section 447.11 ................................................................ 7, 8
Section 478.11 ................................................................ 7, 8
VII
Regulations and rule—Continued:
Page
Section 479.11 ................................................................ 7, 8
28 C.F.R.:
Section 0.130(a)(1) ............................................................. 7
Section 0.130(a)(2) ............................................................. 7
Sup. Ct. R. 10 ......................................................................... 22
Miscellaneous:
ATF, U.S. Dep’t of Justice:
National Firearms Act Handbook
(Apr. 2009) ........................................................ 3, 15, 16
Ruling 2006-2 (Dec. 13, 2006), go.usa.gov/xpbEX ........ 5
82 Fed. Reg. 60,929 (Dec. 26, 2017) .................................... 6
83 Fed. Reg. 7949 (Feb. 23, 2018) ................................... 6, 7
83 Fed. Reg. 13,442 (Mar. 29, 2018) ....................................... 7
83 Fed. Reg. 66,514 (Dec. 26, 2018) ............................ passim
H.R. Rep. No. 1780, 73d Cong., 2d Sess. (1934) ................. 17
H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986) .................... 3
National Firearms Act: Hearings Before the House
Comm. on Ways and Means on H.R. 9066,
73d Cong., 2d Sess. (1934) .................................................. 17
S. Rep. No. 1444, 73d Cong., 2d Sess. (1934) ...................... 17
In the Supreme Court of the United States
No. 21-1215
GUN OWNERS OF AMERICA, INC., ET AL., PETITIONERS
v.
MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The order of the en banc court of appeals affirming
the district court’s judgment by an equally divided vote
and the opinions respecting that order (Pet. App. 1a-75a)
are reported at 19 F.4th 890. The en banc court’s earlier
order vacating the panel decision and granting rehearing
is reported at 2 F.4th 576. The vacated panel opinion
(Pet. App. 76a-172a) is reported at 992 F.3d 446. An earlier order of the court of appeals denying petitioners’
motion for a stay pending appeal is not published in the
Federal Reporter but is available at 2019 WL 1395502.
The opinion of the district court (Pet. App. 173a-193a) is
reported at 363 F. Supp. 3d 823.
JURISDICTION
The judgment of the court of appeals was entered on
December 3, 2021. The petition for a writ of certiorari
was filed on March 3, 2022. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
(1)
2
STATEMENT
1. The National Firearms Act, 26 U.S.C. 5801 et seq.,
defines a “machinegun” as “any weapon which shoots, is
designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C.
5845(b). Since 1968, the term has also been defined to
encompass parts that can be used to convert a weapon
into a machinegun. See Gun Control Act of 1968, Pub.
L. No. 90-618, Tit. II, sec. 201, § 5845(b), 82 Stat. 1231.
A “machinegun” thus includes “the frame or receiver of
any such weapon, any part designed and intended solely
and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the
possession or under the control of a person.” 26 U.S.C.
5845(b).
Congress first regulated the sale or possession of
machineguns in 1934 as part of the internal revenue
laws. See Act of June 26, 1934, ch. 757, 48 Stat. 1236.
In 1986, Congress amended Title 18 of the U.S. Code to
prohibit the sale and possession of new machineguns,
making it a crime “to transfer or possess a machinegun”
unless a governmental entity is involved in the transfer
or possession. Firearms Owners’ Protection Act, Pub.
L. No. 99-308, § 102(9), 100 Stat. 452-453 (18 U.S.C.
922(o)). In enacting that criminal prohibition, Congress
incorporated the definition of “machinegun” from the
National Firearms Act. § 101(6), 100 Stat. 450 (18
U.S.C. 921(a)(23)). The 1986 amendments responded in
part to evidence before Congress of “the need for more
effective protection for law enforcement officers from
3
the proliferation of machine guns.” H.R. Rep. No. 495,
99th Cong., 2d Sess. 7 (1986).
The Department of Justice regularly issues guidance
concerning whether particular weapons or devices constitute machineguns as defined above. In particular,
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) encourages manufacturers to submit novel
weapons or devices to the agency, on a voluntary basis,
for ATF to assess whether the weapon or device should
be classified as a machinegun or other registered firearm under the National Firearms Act. See ATF, U.S.
Dep’t of Justice, National Firearms Act Handbook 41
(Apr. 2009) (NFA Handbook). The classification process enables ATF to provide manufacturers with “the
agency’s official position concerning the status of the
firearms under Federal firearms laws,” to assist manufacturers in “avoid[ing] an unintended classification and
violations of the law” before a manufacturer “go[es] to
the trouble and expense of producing” the weapon or
device. Ibid.; cf. 26 U.S.C. 5841(c) (requiring manufacturers to “obtain authorization” before making a covered firearm and to register “the manufacture of a firearm”). ATF has made clear, however, that “classifications are subject to change if later determined to be erroneous or impacted by subsequent changes in the law
or regulations.” NFA Handbook 41.
2. a. In 2004, a federal ban on certain semiautomatic “assault weapons” expired.1 Since that time, ATF
has received a growing number of classification requests from inventors and manufacturers seeking to
18 U.S.C. 921(a)(30), 922(v) (2000). Those provisions had been
enacted in 1994 with a ten-year sunset provision. See Public Safety
and Recreational Firearms Use Protection Act, Pub. L. No. 103-322,
Tit. XI, Subtit. A, §§ 110102, 110105, 108 Stat. 1996-1998, 2000.
1
4
produce “devices that permit shooters to use semiautomatic rifles to replicate automatic fire,” but “without
converting these rifles into ‘machineguns.’ ” 83 Fed.
Reg. 66,514, 66,515-66,516 (Dec. 26, 2018); see id. at
66,516 (“Shooters use [these] devices with semiautomatic firearms to accelerate the firearms’ cyclic firing
rate to mimic automatic fire.”). Whether such devices
fall within the statutory definition of a “machinegun”
turns on whether they allow a shooter to fire “automatically more than one shot * * * by a single function of
the trigger.” 26 U.S.C. 5845(b).
One such type of device is generally referred to as a
“bump stock.” ATF first encountered bump stocks in
2002, when it received a classification request for the
“Akins Accelerator.” 83 Fed. Reg. at 66,517. The Akins
Accelerator, which attached to a standard semiautomatic rifle, used a spring to harness the recoil energy of
each shot, causing “the firearm to cycle back and forth,
impacting the trigger finger” repeatedly after the first
pull of the trigger. Ibid. Thus, by pulling the trigger
once, the shooter “initiated an automatic firing sequence” that was advertised as firing “approximately
650 rounds per minute.” Ibid.
ATF initially declined to classify the Akins Accelerator as a machinegun because the agency “interpreted
the statutory term ‘single function of the trigger’ to refer to a single movement of the trigger.” 83 Fed. Reg.
at 66,517. In 2006, however, ATF revisited that determination and concluded that “the best interpretation of
the phrase ‘single function of the trigger’ includes a ‘single pull of the trigger.’ ” Ibid. The agency explained
that the Akins Accelerator created “a weapon that ‘with
a single pull of the trigger initiates an automatic firing
cycle that continues until the finger is released, the
5
weapon malfunctions, or the ammunition supply is exhausted.’ ” Ibid. (brackets and citation omitted). Accordingly, ATF reclassified the device as a machinegun
under the statute. See ibid.
When the inventor of the Akins Accelerator challenged ATF’s classification, the Eleventh Circuit upheld the determination. It explained that interpreting
the phrase “single function of the trigger” in 26 U.S.C.
5845(b) to mean “ ‘single pull of the trigger’ is consonant
with the statute and its legislative history,” and that
“[t]he plain language of the statute defines a machinegun as any part or device that allows a gunman to
pull the trigger once and thereby discharge the firearm
repeatedly.” Akins v. United States, 312 Fed. Appx.
197, 200-201 (11th Cir.) (per curiam), cert. denied, 557
U.S. 942 (2009).
In 2006, in anticipation of similar future classification
requests, ATF issued a public ruling announcing its interpretation of “single function of the trigger.” ATF
Ruling 2006-2 (Dec. 13, 2006), go.usa.gov/xpbEX. ATF
explained that, after reviewing the text of the National
Firearms Act and its legislative history, the agency had
concluded that the phrase “single function of the trigger”
includes a “single pull of the trigger.” Id. at 2. When
ATF reclassified the Akins Accelerator, however, it also
advised owners of the device that “removal and disposal
of the internal spring * * * would render the device a
non-machinegun under the statutory definition,” on the
theory that, without the spring, the device would no
longer operate “automatically.” 83 Fed. Reg. at 66,517.
ATF soon received classification requests for bump
stock devices that did not include internal springs.
Those bump stocks replace the standard stock on an ordinary semiautomatic firearm. Unlike a regular stock,
6
a bump stock channels the recoil from the first shot into
a defined path, allowing the weapon contained within
the stock to slide back a short distance—approximately
an inch and a half—and shifting the trigger away from
the shooter’s trigger finger. 83 Fed. Reg. at 66,532.
This separation allows the firing mechanism to reset.
Ibid. When the shooter maintains constant forward
pressure on the weapon’s barrel-shroud or fore-grip,
the weapon slides back along the bump stock, causing
the trigger to “bump” the shooter’s stationary finger
and fire another bullet. Ibid. In a series of classification decisions between 2008 and 2017, ATF concluded
that such devices did not enable a gun to fire “automatically” and were therefore not “machineguns.” Id. at
66,517.
b. In 2017, a shooter used semiautomatic weapons
equipped with bump stock devices of the type at issue
here to murder 58 people and wound 500 more in Las Vegas. 83 Fed. Reg. at 66,516. The bump stock devices allowed the shooter to rapidly fire “several hundred
rounds of ammunition” into a large crowd attending an
outdoor concert. Ibid. The Las Vegas mass shooting led
ATF to review its prior classifications of bump stock devices. Ibid. In December 2017, ATF published an advance notice of proposed rulemaking, seeking public
comment on “the scope and nature of the market for
bump stock type devices.” 82 Fed. Reg. 60,929, 60,930
(Dec. 26, 2017).
On February 20, 2018, after the comment period had
ended, President Trump issued a memorandum concerning bump stocks to the Attorney General. See 83 Fed.
Reg. 7949 (Feb. 23, 2018). The President instructed the
Department of Justice “to dedicate all available re-
7
sources to complete the review of the comments received, and, as expeditiously as possible, to propose for
notice and comment a rule banning all devices that turn
legal weapons into machineguns.” Ibid.
On March 29, 2018, the Attorney General published
a notice of proposed rulemaking regarding amendments
to the definition of “machinegun” in three ATF regulations, 27 C.F.R. 447.11, 478.11, and 479.11. See 83 Fed.
Reg. 13,442, 13,457 (Mar. 29, 2018). The notice stated
that ATF’s post-2006 classification letters addressing
bump stock devices without internal springs did “not reflect the best interpretation of the term ‘machinegun.’ ”
Id. at 13,443. The notice further stated that ATF had
“applied different understandings of the term ‘automatically’ ” over time in reviewing bump stock devices and
that the agency had “authority to ‘reconsider and rectify’ potential classification errors.” Id. at 13,445-13,446
(quoting Akins, 312 Fed. Appx. at 200); see id. at 13,447
(observing that ATF’s classifications between 2008 and
2017 “did not reflect the best interpretation of the term
‘automatically’ ”). The notice proposed to “clarify that
all bump-stock-type devices are ‘machineguns’ ” under
the applicable statutory definitions. Id. at 13,443. The
notice elicited more than 186,000 comments. See 83
Fed. Reg. at 66,519.
ATF published a final rule on December 26, 2018.
83 Fed. Reg. at 66,514.2 The final rule—which is at issue
in this case—amended ATF’s regulations to address the
By delegation, ATF may exercise the Attorney General’s authority to prescribe rules and regulations to carry out the National
Firearms Act, the Gun Control Act, and other firearms legislation.
See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A)(i), 7805(a); 28 C.F.R.
0.130(a)(1) and (2).
2
8
terms “single function of the trigger” and “automatically” as used in the definition of “machinegun,” in order to clarify that bump stock devices are machineguns
under 26 U.S.C. 5845(b). 83 Fed. Reg. at 66,553-66,554.
In the preamble to the rule, the agency stated that it
continued to adhere to its previous understanding that
the phrase “ ‘single function of the trigger’ ” includes a
“ ‘single pull of the trigger,’ ” while clarifying that the
phrase also includes motions “analogous” to a single
pull. Id. at 66,515. The agency also determined that the
term “automatically” includes functioning “as the result
of a self-acting or self-regulating mechanism that allows
the firing of multiple rounds through a single pull of the
trigger,” notwithstanding ATF’s erroneous prior bumpstock classifications. Id. at 66,519; see id. at 66,531. In
the agency’s view, those definitions “represent the best
interpretation of the statute.” Id. at 66,521; see id. at
66,553-66,554 (amending 27 C.F.R. 447.11, 478.11, and
479.11 to incorporate those definitions of “single function of the trigger” and “automatically”).
The agency further explained that, upon review, it
had concluded that bump stocks qualify as machineguns
under those definitions. Bump stocks enable a shooter
to engage in a firing sequence that is “automatic.”
83 Fed. Reg. at 66,531. As the shooter’s trigger finger
remains stationary on the ledge provided by the design
of the device and the shooter applies constant forward
pressure with the non-trigger hand on the barrelshroud or fore-grip of the weapon, the firearm’s recoil
energy is directed into a continuous back-and-forth cycle without “the need for the shooter to manually capture, harness, or otherwise utilize this energy to fire additional rounds.” Id. at 66,532. A bump stock thus constitutes a “self-regulating” or “self-acting” mechanism
9
that allows the shooter to attain continuous firing after
a single pull of the trigger and, accordingly, is a machinegun. Ibid.; see id. at 66,514, 66,518.
Consistent with the amended regulations, ATF rescinded its prior letters concluding that certain bump
stocks were not machineguns. See 83 Fed. Reg. at
66,514, 66,523, 66,530-66,531, 66,549. The agency also
provided instructions for “[c]urrent possessors” of
bump stocks “to undertake destruction of the devices”
or to “abandon [them] at the nearest ATF office” to
avoid liability under the statute, and it specified that the
rule would not take effect until 90 days after publication
in the Federal Register. Id. at 66,530. The agency
stated that individuals who complied with the rule “will
not be in violation of the law or incarcerated as a result.”
Id. at 66,539.
3. Petitioners—Gun Owners of America, Inc., three
of its individual members, and two other gun-owner advocacy groups—brought this action in the Western District of Michigan to challenge ATF’s final rule. Compl.
¶¶ 10-15. The complaint asserts claims under the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., and
the Fifth Amendment. Compl. ¶¶ 132-151. In December
2018, petitioners sought a preliminary injunction, based
solely on their APA claims, to prevent the rule from taking effect. See D. Ct. Doc. 10, at 3-5 (Dec. 26, 2018).
The district court denied petitioners’ motion for a
preliminary injunction. Pet. App. 173a-193a. Although
neither party had asked the court to apply the Chevron
framework, the court viewed itself as obligated by precedent to do so. Id. at 182a-184a; see Chevron U.S.A.
Inc. v. NRDC, Inc., 467 U.S. 837, 842-843 (1984). Under
that two-step framework, the court took the view that
10
the term “automatically” is ambiguous, insofar as Congress did not clearly speak to the degree to which a device may be treated as firing automatically even if it requires some “application of non-trigger, manual forces
in order for multiple shots to occur.” Pet. App. 187a.
The court further determined that ATF’s interpretation
of that term to encompass bump stock devices was “permissible” and entitled to deference. Ibid. The court
also took the view that “the statutory definition of machine gun is ambiguous with respect to the phrase ‘single function of the trigger,’ ” and concluded that ATF
had reasonably resolved the perceived ambiguity in
interpreting that phrase to include a “ ‘single pull of the
trigger.’ ” Id. at 188a. The court therefore determined
that petitioners are not likely to succeed in showing that
the final rule is contrary to the statutory definition. Id.
at 189a. The court also held that petitioners are not
likely to succeed in showing that the rule is arbitrary or
capricious, id. at 189a-191a, and that the balance of equities does not favor petitioners, observing that bump
stocks place “[a]ll of the public * * * at risk,” id. at
192a.
4. The district court denied petitioners’ motion for a
preliminary injunction on March 21, 2019, which was
several days before the rule was scheduled to take effect. Pet. App. 193a; see 83 Fed. Reg. at 66,514. Before
the district court’s decision, petitioners had filed a petition in the court of appeals for a writ of mandamus,
seeking an order that would have required the district
court to enjoin the rule pending a decision on petitioners’ preliminary-injunction motion. 19-1268 Pets. C.A.
Mandamus Pet. 1 (Mar. 19, 2019). In the same filing,
petitioners had asked the court of appeals itself to stay
the rule pending any future appeal. Ibid.
11
On March 22, 2019, after the district court’s decision,
the court of appeals dismissed petitioners’ mandamus
petition as moot and denied petitioners’ motion for a
stay, without prejudice to renewing the motion in the
event of an appeal. 19-1268 C.A. Order 1-2. Petitioners
filed a notice of appeal and renewed their request for a
stay pending appeal. 19-1298 Pets. C.A. Stay Mot. 3-4.
On March 25, the court of appeals denied petitioners’
motion for a stay, holding that petitioners had failed to
show a “likelihood of an abuse of discretion” and that
“the public interest in safety supports the denial of a
stay pending appeal.” 2019 WL 1395502, at *1.
Petitioners then applied to Justice Sotomayor for a
stay of the rule pending appeal. 18A963 Appl. 1-3. Justice Sotomayor referred petitioners’ application to the
Court, which denied it on March 28, 2019, without noted
dissent. 139 S. Ct. 1406 (No. 18A963).
5. After vacating a divided panel opinion that would
have reversed and remanded for entry of a preliminary
injunction (Pet. App. 76a-172a), the en banc court of appeals affirmed the district court’s order by an equally divided vote (id. at 1a-4a).
a. In the vacated panel decision, the panel majority
concluded that the district court had erred in applying
the Chevron framework because, in the majority’s view,
that framework is “categorically” inapplicable when an
agency interprets a statute “that impose[s] criminal penalties.” Pet. App. 88a. The majority acknowledged that
both circuit precedent and prior decisions of this Court
had granted Chevron deference to agency interpretations of statutes carrying both civil and criminal penalties, see id. at 92a-97a, but it found those cases distinguishable on the ground that they did not involve a
12
“purely criminal statute,” id. at 98a. The majority proceeded to analyze the statute without deference to the
agency’s interpretation and concluded that bump stocks
do not “fall within the statutory definition of a machine
gun,” on the theory that firing continuously with a bump
stock involves more than a “ ‘single function of the trigger.’ ” Id. at 120a; see id. at 120a-129a. Judge White dissented, explaining that she would have applied the Chevron framework and affirmed the denial of a preliminary
injunction. Id. at 134a-172a.
b. The government filed a petition for rehearing en
banc, arguing in part that the panel decision was inconsistent with decisions of the Tenth and D.C. Circuits rejecting similar challenges to the same final rule. 19-1298
Gov’t C.A. Reh’g Pet. 1-2. The en banc court of appeals
granted the government’s motion and vacated the panel
opinion. 2 F.4th 576.
c. After additional briefing and argument, the en
banc court of appeals affirmed the district court’s judgment by an equally divided 8-8 vote. Pet. App. 1a-4a.
Judges White and Gibbons issued opinions in support of
affirmance (id. at 4a-33a, 33a-34a), and Judge Murphy
issued a dissenting opinion (id. at 35a-75a).
Judge White, joined by four of her colleagues, stated
that “Chevron supplies the standard of review for assessing the validity” of ATF’s final rule. Pet. App. 9a;
see id. at 3a. Although the government had not invoked
Chevron in the litigation, Judge White stated that
whether and how to apply that doctrine was ultimately
“a question for the court to decide, not an agency’s lawyers.” Id. at 10a n.6. She also explained that the sharp
civil/criminal distinction drawn in the vacated panel decision is “not what the case law says,” emphasizing that
13
“Chevron itself ” involved a statute with criminal penalties. Id. at 12a. And Judge White agreed with the district court that, under Chevron, the agency’s interpretation of the statute was reasonable. Id. at 20a-29a. She
further concluded that, in any event, “ATF’s interpretation of the statute is the best one” even “ignoring all deference.” Id. at 31a. She explained that the definition of
machinegun is best read to encompass “any weapon that
is capable of discharging multiple rounds by means of a
mechanism set in motion by a single function of the trigger.” Id. at 31a-32a.
Judge Gibbons, joined by four of her colleagues, generally agreed with Judge White’s view of Chevron but
wrote separately to emphasize that applying that framework is “unnecessary here” because, as Judge White
concluded in the alternative, “ATF’s interpretation of
‘single function of the trigger’ and ‘automatically’ is unambiguously the best interpretation of the Gun Control
Act using ordinary tools of statutory construction.” Pet.
App. 33a; see id. at 3a. Judge Gibbons explained that
firing more than one shot without manual reloading, by
a single function of the trigger, is “precisely what a bump
stock is designed to allow a gun to do, and that is why
people purchase bump stocks.” Id. at 34a. And Judge
Gibbons warned that petitioners’ contrary view would
“allow gun manufacturers to circumvent Congress’s
longtime ban on machineguns by designing parts specifically intended to achieve machinegun functionality with
a single pull of the trigger so long as the part also requires some minutia of human involvement.” Ibid.
Judge Murphy, joined by the other seven dissenting
judges, would have held that bump stocks do not qualify
as machineguns because rifles equipped with bump
stocks fire continuously only if the trigger is reengaged
14
by contact with the shooter’s stationary finger, which in
turn requires the application of some “manual force”
from the “non-trigger hand.” Pet. App. 41a; see id. at
40a-47a. The dissenting judges also would not have applied the Chevron framework to ATF’s interpretation of
a statute with criminal penalties. See id. at 48a-68a.
ARGUMENT
Petitioners briefly assert (Pet. 14-15) that the definition of “machinegun” in the National Firearms Act, 26
U.S.C. 5845(b), excludes bump stocks that allow semiautomatic rifles to fire continuously at rates of hundreds of bullets per minute with a single pull of the trigger. The courts below correctly rejected that argument, as has every other court of appeals to consider it.
And in this Court, petitioners do not develop their statutory argument in any detail.
Instead, petitioners principally argue (Pet. 16-37)
that this Court should grant certiorari to decide two abstract questions about Chevron U.S.A. Inc. v. NRDC,
Inc., 467 U.S. 837 (1984): Whether an agency may
“waive” Chevron deference in litigation, and whether
Chevron is categorically inapplicable to statutes for
which Congress has authorized criminal penalties. But
this case would be a particularly unsuitable vehicle for
addressing those questions. Throughout this litigation,
the government has consistently maintained that Chevron is not applicable. Instead, the government has argued that the rule reflects the best interpretation of the
statutory definition of “machinegun,” wholly apart from
any deference. Every court of appeals judge who wrote
or joined an opinion supporting the judgment below
agreed. See Pet. App. 31a-32a (opinion of White, J.); id.
15
at 33a-34a (opinion of Gibbons, J.). Whether ATF’s interpretation is eligible for Chevron deference is thus academic.
The judgment below also does not conflict with any
decision of this Court or another court of appeals. Indeed, because the Sixth Circuit affirmed the denial of a
preliminary injunction by an equally divided vote, this
interlocutory case thus far has not resulted in any precedential decision at all. The Fifth, Tenth, and D.C. Circuits have rejected similar challenges to the same final
rule, and this Court has already declined to review the
D.C. Circuit’s decision. See Guedes v. ATF, 140 S. Ct.
789 (2020) (No. 19-296). It should do the same here.3
A. The Judgment Below Is Correct And Consistent With
The Results Reached By Every Circuit Court To Have
Considered The Final Rule
The court of appeals correctly affirmed the district
court’s denial of a preliminary injunction. As ATF explained in adopting the final rule, the definition of “machinegun,” 26 U.S.C. 5845(b), is best understood to encompass bump stock devices. That question of statutory interpretation is not the subject of any conflict of
authority warranting this Court’s review.
1. As explained above (see p. 3, supra), ATF has established a process that allows inventors and manufacturers to obtain a classification of their devices that will
provide “the agency’s official position concerning the
status of the firearms under Federal firearms laws.”
NFA Handbook 41. ATF has made clear, however, that
A petition for a writ of certiorari seeking review of the Tenth
Circuit’s decision remains pending. See Aposhian v. Garland, No.
21-159 (filed Aug. 2, 2021).
3
16
“classifications are subject to change if later determined to be erroneous or impacted by subsequent
changes in the law or regulations.” Ibid. ATF regularly
receives classification requests for devices with rates of
fire comparable to machineguns. In classifying those
devices, the agency considers whether (a) “by a single
function of the trigger” they (b) fire “automatically
more than one shot,” 26 U.S.C. 5845(b). ATF correctly
determined that bump stocks satisfy both requirements.
a. In 2002, when ATF first evaluated the Akins Accelerator, it concluded that the “single function” language was not satisfied where the device is configured
so that the trigger repeatedly bumps the shooter’s stationary finger. 83 Fed. Reg. at 66,517. In reclassifying
that device in 2006, however, ATF recognized that a
“single function of the trigger” includes a “single pull of
the trigger.” See ibid. Like the bump stocks at issue
here, the Akins Accelerator bump stock enabled the
weapon to recoil within the stock, “permitting the trigger to lose contact with the finger” and reset itself.
Ibid. “Springs in the Akins Accelerator then forced the
rifle forward, forcing the trigger against the finger” in
a back-and-forth cycle that enabled continuous firing.
Ibid. The Akins Accelerator “was advertised as able to
fire approximately 650 rounds per minute.” Ibid. In
Akins v. United States, 312 Fed. Appx. 197 (per curiam), cert. denied, 557 U.S. 942 (2009), the Eleventh
Circuit upheld ATF’s interpretation of “single function
of the trigger,” and ATF has applied that interpretation
consistently since then.
ATF’s interpretation of the phrase “single function
of the trigger” reflects the common-sense understanding of how most weapons are fired: by the shooter’s pull
17
on a curved metal trigger. Indeed, this Court has described the statute in exactly those terms, explaining
that a “machinegun” under the National Firearms Act
is a weapon that “fires repeatedly with a single pull of
the trigger.” Staples v. United States, 511 U.S. 600, 602
n.1 (1994).
The same understanding was prevalent when Congress first enacted the definition of “machinegun” in
1934. The relevant committee report noted that the legislation “contain[ed] the usual definition of machine gun
as a weapon designed to shoot more than one shot without reloading and by a single pull of the trigger.” H.R.
Rep. No. 1780, 73d Cong., 2d Sess. 2 (1934); accord
S. Rep. No. 1444, 73d Cong., 2d Sess. 1-2 (1934) (reprinting House committee report’s “detailed explanation” of
the bill’s provisions, including the quoted language).
The then-president of the National Rifle Association
had proposed during earlier hearings that a machinegun should be defined as a weapon “which shoots
automatically more than one shot without manual reloading, by a single function of the trigger.” National
Firearms Act: Hearings Before the House Comm. on
Ways and Means on H.R. 9066, 73d Cong., 2d Sess. 40
(1934) (statement of Karl T. Frederick, President, Nat’l
Rifle Ass’n of Am.). Explaining that proposal, he stated
that “[t]he distinguishing feature of a machine gun is
that by a single pull of the trigger the gun continues to
fire as long as there is any ammunition,” and that any
weapon “which is capable of firing more than one shot
by a single pull of the trigger, a single function of the
trigger, is properly regarded, in my opinion, as a machine gun.” Ibid.
18
The question under the statute is thus whether the
shooter initiates the automatic firing with a single function of the trigger, not—as petitioners suggest (Pet.
14)—whether the trigger moves after that initial function. With respect to the typical protruding curved trigger on a semiautomatic rifle, the action that initiates the
firing sequence is the shooter’s pull on the trigger. On
an unmodified semiautomatic weapon, that single pull
results in the firing of a single shot. For a subsequent
shot, the shooter must release his pull on the trigger so
that the hammer can reset and the shooter can pull the
trigger again. But on a machinegun—including a
weapon equipped with a bump stock—that same single
pull of the trigger initiates a continuous process that
fires bullets until the ammunition is exhausted. Once
the trigger has performed its function of initiating the
firing sequence in response to the shooter’s pull, the
weapon fires “automatically more than one shot, without manual reloading,” 26 U.S.C. 5845(b). The fact that
bump stocks automate the back-and-forth movement of
the trigger rather than the internal movement of the
hammer does not take them outside the statutory definition.
b. The only interpretive change in the 2018 rule concerns the term “automatically.” In reclassifying the
bump stocks at issue here, ATF recognized that it had
not previously provided “substantial or consistent legal
analysis regarding the meaning of the term ‘automatically.’ ” 83 Fed. Reg. at 66,518. The agency explained
that the crucial question is whether the “firing sequence
is ‘automatic,’ ” id. at 66,519, and that its prior classification letters had either provided no analysis of that issue or had erroneously focused on the absence of “mechanical parts or springs” in concluding that certain
19
bump stocks are not machineguns, id. at 66,518. ATF
explained in the rule that a weapon fires “ ‘automatically’ ” when it fires “as the result of a self-acting or selfregulating mechanism that allows the firing of multiple
rounds.” Id. at 66,554; accord United States v. Olofson,
563 F.3d 652, 658 (7th Cir.), cert. denied, 558 U.S. 948
(2009). A bump stock, by design, meets that definition.
Its basic purpose is “to eliminate the need for the
shooter to manually capture, harness, or otherwise utilize th[e] [recoil] energy” of each shot “to fire additional
rounds,” by “ ‘directing the recoil energy of the discharged rounds into the space created by the sliding
stock,’ ” ensuring that the rifle moves in a “ ‘constrained
linear rearward and forward path[]’ ” to enable continuous fire. 83 Fed. Reg. at 66,532 (citation omitted).
c. ATF’s final rule correctly interprets the component terms of the statutory definition of “machinegun,”
correctly applies those interpretations to conclude that
bump stocks are machineguns, and persuasively explains
that ATF’s prior classification of those devices as nonmachineguns was erroneous. The six members of the
court of appeals who authored or joined opinions in support of affirmance were therefore correct to conclude
that “ATF’s interpretation of the statute is the best one.”
Pet. App. 31a (opinion of White, J.); see id. at 33a (opinion of Gibbons, J.) (“The ATF’s interpretation of ‘single
function of the trigger’ and ‘automatically’ is unambiguously the best interpretation of the Gun Control Act using ordinary tools of statutory construction.”).
2. Petitioners assert (Pet. 14-15) that the statute unambiguously excludes bump stock devices. But they fail
to develop that argument in any meaningful way. Indeed, despite notionally seeking this Court’s review of
the question whether bump stocks meet the statutory
20
definition (Pet. i), petitioners devote only a few short
paragraphs to attempting to rebut the careful textual
analysis, summarized above, that ATF gave in adopting
the final rule. Those cursory arguments are unavailing.
The final rule does not “replace” the word “function”
with the word “pull,” Pet. 15 (emphasis omitted), but rather reasonably confirms the agency’s prior view that a
“single function of the trigger” includes a “single pull of
the trigger.” See pp. 16-18, supra. That view is consistent with both ordinary language and common-sense
understandings of how guns work, and it was the basis
for ATF’s decision to classify the original Akins Accelerator as a machinegun. The Eleventh Circuit upheld
that classification in a decision this Court declined to review. Akins v. United States, supra.
Petitioners’ contrary reading of the phrase “single
function of the trigger,” which would apparently exclude any device in which the trigger is mechanically engaged more than once in response to a single pull of the
trigger (see Pet. 14), is impossible to square with Akins.
Petitioners’ interpretation would also call into question
the status of other weapons described in the final rule,
which automate a weapon’s firing sequence in response
to a single trigger pull, see 83 Fed. Reg. at 66,517-66,518
& n.4, as well as comparable devices found to be machineguns by other courts of appeals, see, e.g., United
States v. Camp, 343 F.3d 743, 744-745 (5th Cir. 2003).
Petitioners are also wrong to contend (Pet. 14) that
a rifle equipped with a bump stock does not function
“automatically” because it requires “complex human input” beyond a single pull of the trigger. The only additional human input a bump stock requires after the initial trigger pull is forward pressure by the shooter on
the front of the weapon with the non-trigger hand. But
21
even prototypical machineguns require the shooter to
maintain pressure on the weapon after the initial pull—
in that case, backward pressure on the trigger. A firearm operates “automatically” whether it requires constant backward pressure on the trigger or constant forward pressure on the front of the weapon. Either way,
the weapon is “self-acting under conditions fixed for it.”
83 Fed. Reg. at 66,519 (brackets and citation omitted).
And as Judge Gibbons explained, “[h]olding otherwise
would allow gun manufacturers to circumvent Congress’s longtime ban on machineguns by designing
parts specifically intended to achieve machinegun functionality with a single pull of the trigger so long as the
part also requires some minutia of human involvement.”
Pet. App. 34a.
3. The question whether bump stocks are machineguns is not the subject of any conflict of authority
warranting further review. The judgment below is consistent with the result reached by three other courts of
appeals, which have rejected similar challenges to the
same final rule. In Guedes v. ATF, 920 F.3d 1 (2019)
(per curiam), cert. denied, 140 S. Ct. 789 (2020), the D.C.
Circuit upheld the rule in an appeal from the denial of a
preliminary injunction. The Tenth Circuit did the same
in Aposhian v. Barr, 958 F.3d 969 (2020), vacated on
reh’g, 973 F.3d 1151 (10th Cir. 2020), reinstated, 989 F.3d
890 (10th Cir. 2021), petition for cert. pending, No. 21159 (filed Aug. 2, 2021). And the Fifth Circuit upheld the
rule in an appeal from a final judgment in ATF’s favor.
See Cargill v. Garland, 20 F.4th 1004 (2021), petition
for reh’g pending, No. 20-51016 (filed Jan. 28, 2022).4
The Federal Circuit also rejected takings claims asserted by former bump-stock owners. See McCutchen v. United States, 14 F.4th
1355, 1357-1358 (2021).
4
22
Notably, the Fifth Circuit upheld the final rule as the
best interpretation of the statute and therefore found it
unnecessary to address whether Chevron applies. See
Cargill, 20 F.4th at 1009-1014 & n.4. The D.C. and
Tenth Circuits upheld the final rule under the Chevron
framework. See Guedes, 920 F.3d at 17-32; Aposhian,
958 F.3d at 979-989. That trio of results, in which several courts of appeals all reached the same bottom-line
conclusion with and without relying on Chevron, underscores that the validity of the rule does not turn on the
application of Chevron.
In United States v. Alkazahg, No. 202000087, 2021
WL 4058360 (Sept. 7, 2021) (cited at Pet. 13), the U.S.
Navy-Marine Corps Court of Criminal Appeals concluded that bump stocks do not satisfy the definition of
“machinegun” in the National Firearms Act and, therefore, that a servicemember’s possession of such a device
did not violate the Uniform Code of Military Justice.
See id. at *16. Although the court found the statutory
definition of “machinegun” ambiguous, see id. at *11*12, it stated that the relevant terms are “best read” not
to encompass bump stocks, id. at *12. But the U.S.
Navy-Marine Corps Court of Criminal Appeals is not
the highest court in the military justice system, see 10
U.S.C. 867, and the U.S. Court of Appeals for the Armed
Forces has not yet considered the question. The erroneous decision in Alkazahg thus does not create a conflict warranting this Court’s review. See Sup. Ct. R. 10.
B. Petitioners’ Two Chevron Questions Do Not Warrant
Further Review
Petitioners’ second and third questions, to which most
of the petition is devoted (see Pet. 17-37), are abstract
methodological questions about Chevron. Entertaining
those questions in this case would be anomalous, both
23
because all parties agree that Chevron does not apply,
albeit for different reasons, and because deference is
unnecessary to sustain the final rule, which reflects the
best interpretation of the statute. Cf. Edelman v.
Lynchburg Coll., 535 U.S. 106, 114 (2002) (observing
that “there is * * * no point in asking what kind of deference, or how much,” an agency’s interpretation
should receive if the agency has adopted “the position
[the Court] would adopt” without deference). In any
event, petitioners’ Chevron questions also do not warrant further review.
1. As the government has maintained throughout this
litigation, Chevron does not apply here. The district
court’s contrary conclusion rested on the premise that,
in the final rule, ATF was “speak[ing] with the force of
law,” i.e., adopting a regulation with legal force and effect independent of the statute itself. Pet. App. 184a; cf.
id. at 8a-9a (opinion of White, J.). That premise is unsound.
Agency rules that carry the force and effect of law are
known as “legislative rules.” Perez v. Mortgage Bankers
Ass’n, 575 U.S. 92, 97 (2015); see Azar v. Allina Health
Servs., 139 S. Ct. 1804, 1811 (2019). Legislative rules
are generally eligible to receive Chevron deference.
See, e.g., United States v. Mead Corp., 533 U.S. 218, 232
(2001). By contrast, interpretive rules “do not have the
force and effect of law.” Perez, 575 U.S. at 97 (citation
omitted). Interpretive rules instead serve as a form of
guidance, informing “the public of [an] agency’s construction of the statutes and rules which it administers.”
Ibid. (citation omitted).
The final rule here is interpretive, not legislative.
ATF’s rulemaking notice makes clear that the only
source of legal force for the prohibition on bump stocks
24
is Congress’s statutory ban on new machineguns, not
the rule itself. See, e.g., 83 Fed. Reg. at 66,529 (“[T]he
impetus for this rule is the Department’s belief, after a
detailed review, that bump-stock-type devices satisfy
the statutory definition of ‘machinegun.’ ”); ibid. (“ATF
must * * * classify devices that satisfy the statutory
definition of ‘machinegun’ as machineguns.”); id. at
66,535 (“[T]he Department has concluded that the [National Firearms Act] and [Gun Control Act] require regulation of bump-stock-type devices as machineguns.”).
Thus, ATF determined that bump stocks are machineguns under the statute, not that the agency had
discretionary authority under the statute to classify
them as machineguns.
Some courts have incorrectly concluded that the final
rule is legislative because the preamble refers to Chevron, 83 Fed. Reg. at 66,527; because the rule includes
an effective date; and because the rule was issued via
notice and comment and published in the Code of Federal Regulations. See Aposhian, 958 F.3d at 979-981;
Guedes, 920 F.3d at 17-20. None of those considerations, alone or together, supports disregarding ATF’s
own position that the rule is merely interpretive. The
preamble’s brief discussion of Chevron establishes at
most that the agency believed its interpretation would
be upheld even if the statutory language were deemed
ambiguous; the agency included an effective date to advise the public of the date on which it would begin to
enforce its revised interpretation; and neither the use
of notice and comment nor publication in the Code of
Federal Regulations makes an otherwise interpretive
rule legislative. See Gov’t Br. in Opp. at 22-24, Guedes,
supra (No. 19-296).
25
Petitioners’ Chevron questions would arise only if
the rule were eligible for deference under that framework. But petitioners do not address the distinction between legislative and interpretive rules and do not ask
this Court to address the question whether the final rule
is legislative. That question—which turns on the particular details of this specific rulemaking—does not
warrant this Court’s review. And the presence of that
case-specific antecedent question would make this an
inappropriate vehicle in which to consider petitioners’
Chevron questions even if those questions otherwise
warranted review.
2. In any event, petitioners’ Chevron questions do
not warrant review even on their own terms. Petitioners first seek review of whether the Chevron framework
applies to “criminal statutes.” Pet. i; see Pet. 17-29. But
petitioners fail to identify any conflict of authority on
that question. At bottom petitioners’ attack on the application of Chevron to agency interpretations of statutes carrying potential criminal penalties is “largely
based on policy, analogy, and law review articles, but
not precedent.” Pet. App. 16a-17a (opinion of White, J.)
(footnote omitted).
a. This Court has applied Chevron deference to
agency interpretations of statutes with criminal applications. Indeed, that was true in Chevron itself, in
which the Court deferred to an agency’s interpretation
of the term “stationary source” for purposes of a permitting requirement in the Clean Air Act, 42 U.S.C.
7502(a)(1) and (b)(6) (1982). A knowing violation of that
requirement was a federal crime. 42 U.S.C. 7413(c)(1)
(1982). Similarly, in United States v. O’Hagan, 521 U.S.
642 (1997), this Court applied Chevron in an insider-
26
trading prosecution to defer to the Securities and Exchange Commission’s interpretation of a statute administered by the Commission. The statutory scheme prohibits “fraudulent, deceptive, or manipulative acts and
practices” in connection with tender offers, 15 U.S.C.
78n(e); authorizes the Commission to define those
terms by regulation, ibid.; and makes willful violations
of the agency’s rules a felony, 15 U.S.C. 78ff(a). This
Court afforded “controlling weight” to the Commission’s regulation. O’Hagan, 521 U.S. at 673 (quoting
Chevron, 467 U.S. at 844). And in Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon, 515
U.S. 687 (1995), the Court applied Chevron to uphold an
agency’s interpretation of ambiguous statutory language, even though a violation carried criminal consequences, see id. at 703, 704 n.18; see also 16 U.S.C.
1540(b)(1).
Petitioners contrast (Pet. 19-20) those decisions with
the Court’s later observation that “criminal laws are for
courts, not for the Government, to construe,” Abramski
v. United States, 573 U.S. 169, 191 (2014), as well as the
Court’s statement that it has “never held that the Government’s reading of a criminal statute is entitled to any
deference,” United States v. Apel, 571 U.S. 359, 369
(2014). But Abramski and Apel did not involve agency
regulations with any claim to Chevron deference.
Abramski declined to defer to decades-old, non-binding
guidance documents that the agency no longer followed.
573 U.S. at 191. And in Apel, the defendant sought to
rely on certain statements in the United States Attorneys’ Manual, a collection of “ ‘internal * * * guidance’ ”
for federal prosecutors that is “not intended to be binding.” 571 U.S. at 368-369 (citation omitted). Those de-
27
cisions underscore that there is a “vast body of administrative interpretation” to which Chevron simply does
not apply. Crandon v. United States, 494 U.S. 152, 177
(1990) (Scalia, J., concurring in the judgment) (emphasis omitted). But they do not call into question the applicability of Chevron to rules like the ones at issue in
Chevron, O’Hagan, and Sweet Home.
b. Petitioners contend (Pet. 22-24) that the courts of
appeals are divided on the question whether Chevron
may apply when an agency interprets a statute carrying
criminal penalties, but the decisions petitioners identify
do not demonstrate any such conflict.
In United States v. Garcia, 707 Fed. Appx. 231
(2017) (per curiam), the Fifth Circuit stated that
Abramski “resolved” that “no deference is owed to
agency interpretations of criminal statutes,” id. at 234.
But the court also characterized the regulation at issue
there as “interpretive.” Ibid. (citation omitted); see
p. 23, supra (discussing the distinction between legislative and interpretive rules). And to the extent the court
construed Abramski to hold that Chevron is categorically inapplicable to regulations with potential criminal
applications, that understanding is unsound for the reasons given above; the panel adopted it without the benefit of any briefing on the question, see, e.g., Gov’t C.A.
Br. at 20-44, Garcia, supra (No. 16-40475); and the decision was unpublished and non-precedential.
In United States v. Balde, 943 F.3d 73 (2019), the
Second Circuit likewise observed that, in light of
Abramski, the court was “not required to defer to” the
same regulation that was at issue in Garcia. See id. at
83 (citing Garcia, supra). But that observation was
merely dicta, offered “[i]n any event,” ibid., after the
court had already rejected the defendant’s arguments
28
for multiple other reasons. Likewise, in Mendez v.
Barr, 960 F.3d 80 (2020), the Second Circuit merely declined to defer to the Board of Immigration Appeals’ interpretation of a criminal statute that the Board is not
charged with administering, see id. at 88 (discussing 18
U.S.C. 4), without addressing any broader question
about Chevron and criminal statutes. And in other
cases, which the Balde and Mendez panels did not discuss or purport to overrule, the Second Circuit has applied Chevron in a “criminal context” (Pet. 22). See, e.g.,
Sash v. Zenk, 428 F.3d 132, 135 (2d Cir. 2005) (Sotomayor, J.) (deferring to Bureau of Prisons regulation
interpreting sentence-administration statute), cert.
denied, 549 U.S. 920 (2006).
In United States v. Kuzma, 967 F.3d 959, cert. denied, 141 S. Ct. 939 (2020), the Ninth Circuit construed
a portion of Section 5845(b) not at issue here in rejecting a defendant’s challenge to his conviction for unlawfully possessing a machinegun. See id. at 968-970 (interpreting the phrase “designed to shoot”). In rejecting
the defendant’s argument that alleged inconsistencies
in ATF’s interpretation showed that the relevant language was unconstitutionally vague, the court repeated
Abramski’s statement that “criminal laws are for
courts, not for the Government, to construe.” Id. at 971
(quoting Abramski, 573 U.S. at 191). But the court emphasized that the operative language at issue there was
found in the statute, see ibid., and the court did not decide any question about deference—much less suggest
that Chevron is categorically inapplicable to agency interpretations of statutes carrying criminal penalties.
Finally, petitioners’ contention that that the Sixth
Circuit itself is “[h]opelessly [c]onflicted” on the issue is
unfounded. Pet. 19 (emphasis omitted). Petitioners
29
point to the proceedings in this case, ibid., which did not
produce a precedential opinion; a prior panel decision
that this Court vacated on other grounds, Pet. 21 n.14;
and dissenting and concurring opinions by individual
judges, ibid. None of those examples represents an authoritative statement of the Sixth Circuit’s views. And
in any event, any internal disagreement within the circuit would not be a sound basis for further review by
this Court. See Wisniewski v. United States, 353 U.S.
901, 902 (1957) (per curiam).
c. To the extent petitioners seek this Court’s review
of any separate question concerning the interaction of
Chevron and the rule of lenity (Pet. 26-29), that question
also does not warrant further review in this case. Any
such question would arise only if, contrary to both parties’ view, Chevron applies to the ATF’s final rule. The
Court should decline petitioners’ invitation to address a
potentially significant question about Chevron in such
an artificial posture.
In addition, the rule of lenity does not apply here on
its own terms. This Court has explained that “[t]he simple existence of some statutory ambiguity * * * is not
sufficient to warrant application of th[e] rule, for most
statutes are ambiguous to some degree.” Muscarello v.
United States, 524 U.S. 125, 138 (1998). Instead, what
is required is a “grievous ambiguity,” such that, at the
end of the interpretive process, the Court can still make
“no more than a guess” as to what Congress intended.
Id. at 138-139 (quoting Staples, 511 U.S. at 619 n.17, and
United States v. Wells, 519 U.S. 482, 499 (1997)). No
30
court has found Section 5845(b) to be grievously ambiguous with respect to bump stocks.5
3. Petitioners separately seek review of the question
whether “courts should give deference to agencies when
the government expressly waives Chevron.” Pet. i; see
Pet. 29-37. But petitioners’ attempts (Pet. 32-36 & n.22)
to identify a division of authority on that question only
underscore why further review is unwarranted. In several of the decisions invoked by petitioners, the reviewing court concluded that the correct result did not depend on whether Chevron applied—as is also true here.6
One of petitioners’ examples involved the altogether different question whether an agency must invoke Chevron in a rulemaking in order to rely on it later in litigation. See Sierra Club v. EPA, 252 F.3d 943, 947 n.8 (8th
Cir. 2001). And another, CFTC v. Erskine, 512 F.3d 309
(6th Cir. 2008), involved an interpretation that had been
This Court already denied review of the same lenity question in
Guedes v. ATF, supra. The petition in that case sought review of
the question “[w]hether Chevron deference, rather than the rule of
lenity, takes precedence in the interpretation of statutory language
defining an element of various crimes where such language also has
administrative applications.” Pet. at i, Guedes, supra (No. 19-296).
6
See Babb v. Secretary, 992 F.3d 1193, 1208 n.10 (11th Cir. 2021)
(stating that questions about Chevron and waiver could be left “for
another day”); Amaya v. Rosen, 986 F.3d 424, 431 n.4 (4th Cir. 2021)
(stating that the court would “reach the same conclusion * * * even
after affording Chevron deference,” because the agency’s interpretation was “unreasonable”); New York v. United States Dep’t of Justice, 951 F.3d 84, 101 n.17, 124 (2d Cir. 2020) (upholding agency’s
action even while declining to consider Chevron), cert. dismissed,
141 S. Ct. 1291 (2021); Mushtaq v. Holder, 583 F.3d 875, 877 (5th
Cir. 2009) (stating that the court “need not resolve” whether Chevron or Skidmore deference applied because petitioner’s “claim fails
under either standard”).
5
31
announced by the agency only in litigation, not in a rulemaking or an adjudication, id. at 314. Petitioners also
perceive (Pet. 33) “intra-circuit splits” on Chevron and
waiver in the D.C., Tenth, and Sixth Circuits, but this
Court’s review is not warranted to address such intracircuit disagreements, which the petition in any event
overstates. See Wisniewski, 353 U.S. at 902.
More broadly, petitioners’ arguments conflate two
distinct questions. The first is whether a reviewing
court may decline to consider the application of Chevron if the court concludes that the government has
waived or forfeited arguments in favor of Chevron deference in litigation. See, e.g., HollyFrontier Cheyenne
Ref., LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172,
2180 (2021) (discussed at Pet. 35-37). The second is
whether a reviewing court must forgo any consideration
of Chevron if the government does not invoke that doctrine in litigation. Whatever the correct answer to the
first question, petitioners have failed to explain why the
government’s litigation choices should categorically
preclude a reviewing court from making its own independent judgment about how best to apply this Court’s
Chevron precedents. Cf. City of Arlington v. FCC, 569
U.S. 290, 310 (2013) (Breyer, J., concurring in part and
concurring in the judgment) (“The question whether
Congress has delegated to an agency the authority to
provide an interpretation that carries the force of law is
for the judge to answer independently.”); id. at 317
(Roberts, C.J., dissenting) (same); Estate of Sanford v.
Commissioner, 308 U.S. 39, 51 (1939) (“We are not
bound to accept, as controlling, stipulations as to questions of law.”).
32
C. Further Review Would Be Especially Unwarranted In
This Interlocutory Posture
Further review is also unwarranted for two reasons
specific to the current posture of this case. First, the
court of appeals affirmed the judgment below by an
equally divided vote. Pet. App. 3a-4a. As a result, the
court’s affirmance is not precedential. See, e.g., Exxon
Shipping Co. v. Baker, 554 U.S. 471, 484 (2008) (explaining that, when this Court is equally divided, the resulting affirmance “is not precedential”). Second, the case
is in an interlocutory posture: an appeal from the denial
of a preliminary injunction. This Court does not ordinarily grant review of interlocutory decisions. See, e.g.,
Virginia Military Inst. v. United States, 508 U.S. 946,
946 (1993) (Scalia, J., respecting the denial of the petition for a writ of certiorari). If the district court rejects
petitioners’ challenge in a final judgment, and if the
court of appeals affirms that judgment, petitioners will
have the opportunity to seek further review in this
Court. Those proceedings should be allowed to play out
and may well bear on whether this or any other challenge to the final rule warrants further review. For example, in light of the Fifth Circuit’s recent decision in
Cargill, supra, upholding the final rule as the best interpretation of the statute, the lower courts may well
conclude in further proceedings that Chevron is irrelevant or inapplicable, which would render petitioners’
Chevron-related questions all the more academic.
33
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
MARK B. STERN
MICHAEL S. RAAB
ABBY C. WRIGHT
BRAD HINSHELWOOD
KYLE T. EDWARDS
Attorneys
MAY 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.