Respondents Brief — W. Clark Aposhian, Petitioner v. Merrick B. Garland, Attorney General, et al.
Supreme Court briefNov 3, 2021
Ask Donna
What actually matters in this document.
Text
No. 21-159
In the Supreme Court of the United States
W. CLARK APOSHIAN, PETITIONER
v.
MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Acting 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 court of appeals correctly determined
that the district court did not abuse its discretion in
denying petitioner’s 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 ...................................................................................... 1
Argument..................................................................................... 14
A. Petitioner has failed to show a likelihood of success ... 15
B. Petitioner does not identify any division of
authority warranting review at this time...................... 21
C. Petitioner’s Chevron questions do not warrant this
Court’s review, especially in this case ........................... 23
Conclusion ................................................................................... 31
TABLE OF AUTHORITIES
Cases:
Abramski v. United States, 573 U.S. 169 (2014) ................ 27
Akins v. United States, 312 Fed. Appx. 197
(11th Cir.), cert. denied, 557 U.S. 942 (2009) ........... 5, 7, 17
Amaya v. Rosen, 986 F.3d 424 (4th Cir. 2021) ................... 24
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) ......................................................... 20
Babb v. Secretary, Dep’t of Veterans Affairs,
992 F.3d 1193 (11th Cir. 2021) ........................................... 24
Babbitt v. Sweet Home Chapter of Communities for
a Great Oregon, 515 U.S. 687 (1995) ..................... 11, 26, 27
CFTC v. Erskine, 512 F.3d 309 (6th Cir. 2008) .................. 25
Cargill v. Barr, 502 F. Supp. 3d 1163
(W.D. Tex. 2020), appeal pending,
No. 20-51016 (5th Cir. argued Oct. 6, 2021) ............... 22, 23
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984) ................................... 11, 12, 14, 26
Chrysler Corp. v Brown, 441 U.S. 281 (1979) ..................... 20
City of Arlington v. FCC, 569 U.S. 290 (2013) .............. 25, 26
(III)
IV
Cases—Continued:
Page
Crandon v. United States, 494 U.S. 152 (1990) .................. 27
Edelman v. Lynchburg Coll., 535 U.S. 106 (2002) ............. 30
Esquivel-Quintana v. Lynch,
137 S. Ct. 1562 (2016) ......................................................... 27
Guedes v. Bureau of Alcohol, Tobacco, Firearms &
Explosives:
920 F.3d 1 (D.C. Cir. 2019), cert. denied,
140 S. Ct. 789 (2020) ............................................ 21, 23
140 S. Ct. 789 (2020) .................................................. 15, 30
Gun Owners of Am., Inc. v. Garland:
992 F.3d 446 (6th Cir. 2021) ........................................ 22
2 F.4th 576 (6th Cir. 2021) .............................................. 22
HollyFrontier Cheyenne Ref., LLC v. Renewable
Fuels Ass’n, 141 S. Ct. 2172 (2021) ................................... 25
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ................................ 20
Loving v. United States, 517 U.S. 748 (1996) ..................... 28
McCutchen v. United States, 14 F.4th 1355
(Fed. Cir. 2021) ................................................................... 22
New York v. United States Dep’t of Justice,
951 F.3d 84 (2d Cir. 2020), cert. dismissed,
141 S. Ct. 1291 (2021) ......................................................... 24
Perez v. Mortgage Bankers Ass’n,
575 U.S. 92 (2015) ........................................................... 9, 20
Shalala v. Guernsey Mem. Hosp.,
514 U.S. 87 (1995) ............................................................... 20
Sierra Club v. EPA, 252 F.3d 943 (8th Cir. 2001) .............. 25
Staples v. United States, 511 U.S. 600 (1994) ..................... 17
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) .......................... 27
United States v. Grimaud, 220 U.S. 506 (1911) ................. 28
V
Cases—Continued:
Page
United States v. Mead Corp., 533 U.S. 218 (2001) ........... 20
United States v. O’Hagan, 521 U.S. 642 (1997) .................. 26
United States v. Olofson, 563 F.3d 652 (7th Cir.),
cert. denied, 558 U.S. 948 (2009) ....................................... 19
Virginia Military Inst. v. United States,
508 U.S. 946 (1993).............................................................. 30
Wisniewski v. United States, 353 U.S. 901 (1957) ............. 24
Statutes, regulations, and rule:
Act of June 26, 1934, ch. 757, 48 Stat. 1236 ........................... 2
Administrative Procedure Act, 5 U.S.C. 701 et seq. .......... 9
Clean Air Act, 42 U.S.C. 7401 et seq.:
42 U.S.C. 7413(c)(1) (1982) ............................................. 26
42 U.S.C. 7502(a)(1) (1982) ............................................. 26
42 U.S.C. 7502(b)(6) (1982) ............................................. 26
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
Immigration and Nationality Act, 8 U.S.C. 1101
et seq.:
8 U.S.C. 1101(a)(43)(A) ................................................... 27
National Firearms Act, 26 U.S.C. 5801 et seq.................... 1
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
VI
Statutes, regulations, and rule—Continued:
Page
§ 110105, 108 Stat. 2000 .................................................... 3
10 U.S.C. 867 .......................................................................... 23
10 U.S.C. 867(a)(2) ................................................................. 23
15 U.S.C. 78ff(a) ..................................................................... 26
15 U.S.C. 78n(e) ..................................................................... 26
16 U.S.C. 1540(b)(1) ............................................................... 27
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
Section 479.11 ................................................................ 7, 8
28 C.F.R.:
Section 0.130(a)(1) ............................................................. 7
Section 0.130(a)(2) ............................................................. 7
CAAF R. 19(a)(1) ................................................................... 23
Miscellaneous:
Bureau of Alcohol, Tobacco, Firearms &
Explosives, U.S. Dep’t of Justice:
ATF Ruling 2006-2 (Dec. 13, 2006),
https://go.usa.gov/xpbEX ........................................... 5
National Firearms Act Handbook (Apr. 2009) ....... 3, 16
82 Fed. Reg. 60,929 (Dec. 26, 2017) .................................... 6
83 Fed. Reg. 7949 (Feb. 23, 2018) ....................................... 6
83 Fed. Reg. 13,442 (Mar. 29, 2018) ....................................... 7
83 Fed. Reg. 66,514 (Dec. 26, 2018) ............................ passim
H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986) .................... 2
VII
Miscellaneous—Continued:
Page
H.R. Rep. No. 1780, 73d Cong., 2d Sess. (1934) ................. 17
National Firearms Act: Hearings Before the House
Comm. on Ways & Means on H.R. 9066,
73d Cong., 2d Sess. (1934) ............................................ 17, 18
S. Rep. No. 1444, 73d Cong., 2d Sess. (1934) ...................... 17
In the Supreme Court of the United States
No. 21-159
W. CLARK APOSHIAN, PETITIONER
v.
MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-58a)
is reported at 958 F.3d 969. An order of the court granting rehearing en banc (Pet. App. 74a-77a) is reported at
973 F.3d 1151. A subsequent order of the court vacating
the grant of rehearing, reinstating the panel opinion, and
reissuing the judgment (Pet. App. 78a-115a) is reported
at 989 F.3d 890. The opinion of the district court (Pet.
App. 59a-73a) is reported at 374 F. Supp. 3d 1145.
JURISDICTION
The judgment of the court of appeals was entered on
March 5, 2021. The petition for a writ of certiorari was
filed on August 2, 2021. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The National Firearms Act, 26 U.S.C. 5801 et seq.,
defines a “machinegun” as “any weapon which shoots, is
(1)
2
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, that definition has also encompassed 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
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 con-
3
stitute 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 with “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
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
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
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,”
26 U.S.C. 5845(b), turns on whether they allow a shooter
to fire “automatically more than one shot * * * by a
single function of the trigger,” ibid.
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
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.
5
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).2 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,
a bump stock channels the recoil from the first shot into
a defined path, allowing the weapon contained within
2
https://go.usa.gov/xpbEX.
6
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 armed with semiautomatic
weapons and bump stock devices of the type at issue here
murdered 58 people and wounded 500 more in Las Vegas. 83 Fed. Reg. at 66,516. 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 resources 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
7
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 13,44513,446 (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 66,514.3 The final rule—which is at issue
in this case—amended ATF’s regulations to address the
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
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).
3
8
“ ‘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
its view, those definitions “represent the best interpretation of the statute.” Id. at 66,521; see id. at 66,55366,554 (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 can be 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
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 classifying certain bump stocks
as not machineguns. See 83 Fed. Reg. at 66,514, 66,523,
66,530-66,531, 66,549. The agency also provided in-
9
structions 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 ninety 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. Petitioner purchased a bump stock before ATF
published its final rule. Pet. App. 8a. In January 2019,
petitioner brought this action under the judicial review
provisions of the Administrative Procedure Act (APA),
5 U.S.C. 701 et seq., seeking to set aside the final rule and
to enjoin it from taking effect. Pet. App. 8a, 63a.
On March 15, 2019, the district court denied petitioner’s motion for a preliminary injunction. Pet. App.
59a-73a. Petitioner had contended that ATF lacks rulemaking authority to issue any binding interpretations
of the statutory definition of “machinegun” and that the
interpretation adopted by the agency in the final rule
“conflict[s] with the statutory language.” Id. at 65a.
The court found that petitioner was unlikely to succeed
on either ground. Id. at 64a-65a. As to the first, the
court explained that the final rule “is merely interpretive in nature.” Id. at 66a n.7; see Perez v. Mortgage
Bankers Ass’n, 575 U.S. 92, 97 (2015) (explaining that
“[i]nterpretive rules ‘do not have the force and effect of
law’ ”) (citation omitted). And the court observed that
petitioner himself did “not dispute that the ATF, under
the direction of the Attorney General, is empowered to
interpret” the relevant statutes. Pet. App. 66a.
The district court also determined that ATF’s final
rule “represents the best interpretation of the statute.”
10
Pet. App. 71a; see id. at 67a-71a. In particular, the court
determined that the phrase “single function of the trigger” in the definition of “machinegun,” 26 U.S.C.
5845(b), is best understood to include a “single pull of
the trigger,” Pet. App. 68a—and not, as petitioner had
contended, to refer exclusively to a single “mechanical
movement of the trigger,” ibid. The court also agreed
with the final rule’s interpretation of the term “automatically” to mean “as the result of a self-acting or selfregulating mechanism.” Id. at 69a. That definition, the
court explained, was “borrowed, nearly word-for-word,
from dictionary definitions contemporaneous to the
[National Firearms Act]’s enactment” and “accords
with past judicial interpretation.” Id. at 69a-70a. The
court thus rejected petitioner’s argument that
“[b]ecause bump-stock-type devices require constant
forward pressure by the shooter’s non-trigger hand,”
the weapon “does not fire ‘automatically.’ ” Id. at 70a.
The court observed that “even weapons uncontroversially classified as machine guns require at least some
ongoing effort by an operator,” and that petitioner did
“not argue that the constant rearward pressure applied
by a shooter’s trigger finger in order to continue firing
a machine gun means that it does not fire ‘automatically.’ ” Ibid. The court declined petitioner’s invitation
to draw an “atextual line” between such devices and
bump stocks, all of which require “some * * * ongoing
physical actuation” to fire continuously. Id. at 70a-71a.
4. The court of appeals affirmed, with Judge Carson
dissenting. Pet. App. 1a-58a. The court later granted a
petition for rehearing en banc and vacated the panel
opinion. Id. at 74a-77a. After further briefing and argument, the court vacated the grant of rehearing and
11
reinstated the panel opinion, with Judge Carson and
four other judges dissenting. Id. at 78a-115a.
a. The panel majority, unlike the district court and
contrary to ATF’s position in the litigation, concluded
that the final rule is a “legislative rule,” by which ATF
purportedly “intended to change the legal rights and
obligations of bump-stock owners.” Pet. App. 13a-14a.
The majority emphasized that certain statements in the
preamble to the final rule contemplated that possession
of a bump stock would become unlawful only after the
rule took effect; that the preamble discussed Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984); and that the final rule was published in the Code of Federal Regulations. See Pet.
App. 14a-15a.
The panel majority then determined that this
Court’s decision in Chevron and its progeny provided
the appropriate “framework” for evaluating petitioner’s
challenge to the final rule. Pet. App. 12a. Petitioner
had contended that, although the rule (in his view) is a
legislative rule, Chevron does not apply because the
government had “waived” that doctrine or, alternatively, because “Chevron deference is inapplicable
where the government interprets a statute that imposes
criminal liability.” Id. at 16a, 19a. The majority rejected both contentions. It stated that an “agency’s say
so” does not control whether the court of appeals itself
may independently determine that Chevron is applicable, id. at 16a, and that this Court’s precedent is inconsistent with petitioner’s proposed “general rule against
applying Chevron to agency interpretations of statutes
with criminal law implications,” id. at 19a (discussing
Babbitt v. Sweet Home Chapter of Communities for a
Great Oregon, 515 U.S. 687 (1995)).
12
Applying Chevron, the panel majority held that the
statute is ambiguous on the “precise question at issue,”
Pet. App. 24a (quoting Chevron, 467 U.S. at 842), and
that ATF had reasonably interpreted the terms “automatically” and “single function of the trigger” to cover
bump stocks. See id. at 25a-33a. The majority observed
that ATF’s interpretation of the phrase “ ‘single function of the trigger’ * * * accords with how some courts
have read the statute,” as well as with how those words
were understood at the time of the enactment of the National Firearms Act. Id. at 31a. The majority further
observed that the rule’s interpretation of “automatically” accords with the “everyday understanding of the
word ‘automatic.’ ” Id. at 32a (citation omitted). The
majority also viewed ATF’s interpretation as properly
“focus[ing] the inquiry about what needs to be automated precisely where the statute does: the ability of
the trigger function to produce ‘more than one shot,
without manual reloading.’ ” Id. at 33a (citation omitted).
Finally, the panel majority held that petitioner had
not only failed to demonstrate a likelihood of success on
the merits but also had “not met the other prerequisites
for preliminary relief.” Pet. App. 34a. In particular, the
majority rejected petitioner’s theory that he could
demonstrate irreparable harm by relying on his allegation that the final rule “was issued in violation of * * *
the separation of powers.” Ibid. The majority noted
that petitioner’s opening brief on appeal had advanced
only statutory arguments and that, in any event, the
“generalized” harm of a purported violation of the constitutional separation of powers would be insufficient
for petitioner to meet his burden of showing that he personally would suffer irreparable injury absent an in-
13
junction. Id. at 34a-35a.4 The majority also concluded
that the remaining preliminary-injunction factors favored the government, noting that the final rule “supports the safety of the public in general and the safety
of law enforcement officers and first responders.” Id.
at 37a (citation omitted).
b. Judge Carson dissented. Pet. App. 38a-58a. He
would have held that the statutory definition of “machinegun” unambiguously excludes a semiautomatic rifle equipped with a nonmechanical bump stock, on the
theory that “the trigger on such a firearm must still
‘function’ every time a shot is fired,” even though the
shooter need only pull the trigger a single time to fire
continuously. Id. at 39a. In his view, such a weapon also
does not fire more than one shot “automatically”
through a single function of the trigger “[b]ecause the
user of the firearm must also apply constant forward
pressure with his or her nontrigger hand.” Id. at 40a
(emphasis omitted). Having concluded that the statute
is unambiguous, Judge Carson also stated that he would
have declined to apply Chevron because the government had “disavowed any reliance on Chevron” in the
litigation, id. at 52a, and because the “definition of ‘machinegun’ in the [National Firearms Act] ‘carries the
possibility of criminal sanctions,’ ” id. at 53a (citation
omitted).
c. On September 4, 2020, the court of appeals
granted petitioner’s motion for rehearing en banc, vacated the panel opinion, and ordered supplemental
In the district court, the government had stated that the loss of
petitioner’s bump stock would be irreparable, and the district court
had treated the irreparable-harm factor as undisputed. Pet. App.
36a, 64a. As the court of appeals explained, however, petitioner did
not advance any “loss-of-property argument” on appeal. Id. at 36a.
4
14
briefing addressing several questions about the final
rule and Chevron. Pet. App. 74a-77a. After further
briefing and argument, however, the court determined
that rehearing had been improvidently granted; the
court therefore vacated its rehearing order, reinstated
the panel opinion, and reissued the judgment. Id. at
78a-80a. Five judges dissented. Id. at 80a-115a. The
dissenting judges would have reversed, principally on
the theory that the statutory definition unambiguously
excludes bump stocks. See id. at 82a, 86a-90a (Tymkovich, J., dissenting); id. at 107a (Eid, J., dissenting);
id. at 111a (Carson, J., dissenting).
ARGUMENT
Petitioner contends (Pet. 3-4) that the court of appeals erred in applying Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), to
uphold ATF’s final rule, in which the agency interpreted
the definition of “machinegun” in the National Firearms
Act, 26 U.S.C. 5845(b), to encompass bump stocks—
devices designed to permit semiautomatic rifles to fire
continuously with a single pull of the trigger. Petitioner
does not ask this Court to address directly whether
bump stocks are machineguns under the statute. Instead, petitioner urges (Pet. 22) the Court to grant review of several abstract questions concerning Chevron,
including whether an agency may “waive” Chevron deference and whether Chevron applies to agency interpretations of statutes with criminal penalties. See Pet.
15-32.
This case, however, does not turn on the application
of Chevron. As the district court correctly held, ATF’s
interpretation reflects the best understanding of the
statutory language. Whether the agency’s interpretation is eligible for Chevron deference is therefore aca-
15
demic. Moreover, the decision below does not conflict
with any decision of this Court or another court of appeals. The purported “circuit split” (Pet. 4) invoked by
petitioner rests on a vacated decision by a divided panel
of the Sixth Circuit, which has granted rehearing en banc
to consider a challenge to ATF’s final rule. In light of
those and other still-pending proceedings, petitioner
identifies no compelling basis to grant review now.
This case would also be an unsuitable vehicle in which
to address issues concerning Chevron. Neither petitioner nor the government accepts the premise that the
final rule was an exercise of delegated authority to resolve a statutory ambiguity. To the contrary, ATF promulgated the rule to advise the public of ATF’s own corrected interpretation of the “machinegun” definition, not
to impose any new legal obligations that the statutory
scheme itself did not already create. Petitioner’s Chevron questions would also make no practical difference to
the result in this case because the court of appeals separately held that petitioner failed to carry his burden of
establishing any irreparable harm. The Court recently
denied a petition for a writ of certiorari raising similar
questions in a similar interlocutory posture. Guedes v.
ATF, 140 S. Ct. 789 (2020) (No. 19-296). The same course
is warranted here.
A. Petitioner Has Failed To Show A Likelihood Of Success
The court of appeals correctly concluded that the district court did not abuse its discretion in denying petitioner’s motion for a preliminary injunction because petitioner has failed to demonstrate a likelihood of success
on the merits. Petitioner principally contended below
that the final rule is inconsistent with the statute. Pet.
App. 10a. As ATF recognized, however, the terms “automatically” and “single function of the trigger” in the
16
definition of “machinegun,” 26 U.S.C. 5845(b), are best
understood to encompass bump stock devices, which are
designed to permit a semiautomatic weapon to be fired
continuously with a single pull of the trigger.
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” in
order to assist manufacturers with “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. NFA Handbook 41. ATF
has made explicit, however, that “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 evaluating how to classify those devices,
the agency considers whether they shoot (1) “automatically more than one shot” (2) “by a single function of the
trigger.” 26 U.S.C. 5845(b).
In 2002, when ATF first evaluated the Akins Accelerator, the agency initially 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
17
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
on a curved metal trigger. See Staples v. United States,
511 U.S. 600, 602 n.1 (1994) (noting that the National
Firearms Act treats a weapon that “fires repeatedly
with a single pull of the trigger” as a machinegun, in
contrast to “a weapon that fires only one shot with each
pull of the trigger”). 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 & Means on H.R. 9066, 73d Cong., 2d
18
Sess. 40 (1934) (statement of Karl T. Frederick, President, National Rifle Association of America). 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.
The question under the statute is thus whether the
shooter initiates the automatic firing with a single function, not—as petitioner contended below—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.
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
19
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 was 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 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
self-regulating 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).
2. As demonstrated above, 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 non-machineguns was erroneous. The
district court was therefore correct to conclude that the
final rule reflects the “best interpretation” of the terms
“automatically” and “single function of the trigger” and
that petitioner is not likely to succeed in challenging the
rule as inconsistent with the statute. Pet. App. 67a-68a;
20
see id. at 71a. The court of appeals reached the same
result under Chevron, concluding that the disputed statutory language is ambiguous and that the final rule is a
reasonable resolution of that ambiguity. See id. at 24a33a. Although the court should not have applied Chevron, any analytical error made no difference to the result
below and does not warrant further review.
The court of appeals’ mistaken reliance on Chevron
was premised on viewing the final rule as a “legislative”
rule. Pet. App. 13a-16a. As this Court has explained,
legislative rules “have the ‘force and effect of law,’ ” while
interpretive rules do not. Perez v. Mortgage Bankers
Ass’n, 575 U.S. 92, 96 (2015) (quoting Chrysler Corp. v
Brown, 441 U.S. 281, 303 (1979)). 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.” Id. at 97 (quoting Shalala v.
Guernsey Mem. Hosp., 514 U.S. 87, 99 (1995)); see Azar
v. Allina Health Servs., 139 S. Ct. 1804, 1811 (2019); Kisor v. Wilkie, 139 S. Ct. 2400, 2420 (2019) (opinion of
Kagan, J.). Legislative rules are generally adopted
through notice-and-comment procedures and are generally eligible to receive Chevron deference. See, e.g.,
United States v. Mead Corp., 533 U.S. 218, 232 (2001).
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
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
21
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.
In concluding otherwise, the court of appeals emphasized that the preamble to the final rule refers to Chevron; that the rule includes an effective date; and that
ATF published the rule in the Code of Federal Regulations. Pet. App. 14a-15a. None of those considerations,
alone or together, supports disregarding ATF’s own position that the rule is merely interpretive. The preamble’s discussion of Chevron establishes at most that the
agency believed its interpretation would be upheld in
litigation even if the statutory language were deemed to
be 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 publication of
a rule in the Code of Federal Regulations does not
thereby make the rule legislative. See Gov’t C.A. Br.
37-42. In any event, petitioner does not ask this Court
to address whether the rule is legislative or interpretive, and that question—which is highly specific to the
particulars of this ATF rulemaking—would not warrant
the Court’s review even if petitioner had sought it.
B. Petitioner Does Not Identify Any Division Of Authority
Warranting Review At This Time
Petitioner does not identify any conflict of authority
within the courts of appeals that would warrant this
Court’s review at the present time. ATF’s final rule has
been challenged in three other circuits. In Guedes v.
ATF, 920 F.3d 1 (2019), cert. denied, 140 S. Ct. 789
22
(2020), the D.C. Circuit upheld the final rule in an interlocutory appeal from the denial of a preliminary injunction. The Fifth Circuit is presently reviewing a decision
in which a district court likewise upheld the final rule
and denied any injunctive relief. See Cargill v. Barr,
502 F. Supp. 3d 1163, 1170-1171, 1198 (W.D. Tex. 2020),
appeal pending, No. 20-51016 (5th Cir. argued Oct. 6,
2021). As petitioner notes (Pet. 3-4), a divided panel of
the Sixth Circuit declined to afford the final rule Chevron deference and held it to be inconsistent with the
“best interpretation of § 5845(b)” in Gun Owners of
America, Inc. v. Garland, 992 F.3d 446, 450 (2021). But
the Sixth Circuit later granted the government’s petition
for rehearing en banc in that appeal and vacated the
panel decision. Gun Owners of Am., Inc. v. Garland,
2 F.4th 576, 577 (2021) (No. 19-1298). The en banc Sixth
Circuit heard oral argument on October 20, 2021.5
In United States v. Alkazahg, No. 202000087, 2021
WL 4058360 (Sept. 7, 2021), 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. The U.S. Navy-Marine
Corps Court of Criminal Appeals is not the highest
court in the military justice system, however, because
The Federal Circuit also recently rejected takings claims asserted by former bump-stock owners. See McCutchen v. United
States, 14 F.4th 1355, 1357-1358 (2021).
5
23
its decisions are subject to review by the U.S. Court of
Appeals for the Armed Forces. See 10 U.S.C. 867.6
Any suggestion that a “circuit split” (Pet. 4) exists on
the validity of the final rule is therefore incorrect. The
decision below is consistent with the only other circuit
court decision on the books, Guedes v. ATF, supra, as
well as with multiple district court decisions. To be
sure, the Tenth and D.C. Circuits upheld the final rule
under the Chevron framework, see Guedes, 920 F.3d at
17-32; Pet. App. 14a-15a, while several district courts
have upheld the rule as the best interpretation of the
statute, see Pet. App. 67a; Cargill, 502 F. Supp. 3d at
1190, 1194. But the fact that multiple courts have rejected challenges to the final rule both with and without
reliance on Chevron only underscores that the validity
of the rule does not turn on the application of Chevron.
C. Petitioner’s Chevron Questions Do Not Warrant This
Court’s Review, Especially In This Case
As previously noted, petitioner does not actually ask
this Court to resolve the core statutory question
addressed by ATF in the final rule—i.e., whether bump
stocks are “machinegun[s]” under the National Firearms Act, 26 U.S.C. 5845(b). Petitioner instead frames
the case as presenting three methodological questions
about Chevron: whether courts should defer to an
agency’s interpretation of a statute under Chevron if the
agency “affirmatively disavows Chevron deference,”
whether Chevron “applies to statutes with criminal-law
applications,” and whether the rule of lenity takes precAs of the filing of this brief, the deadline for the Judge Advocate
General to decide whether to seek further review of that decision by
the U.S. Court of Appeals for the Armed Forces has not yet passed.
10 U.S.C. 867(a)(2); see CAAF R. 19(a)(1) (60-day deadline).
6
24
edence over Chevron if such a statute is ambiguous.
Pet. i. Those questions do not warrant further review,
and this case would be an unsuitable vehicle in which to
address them.
1. a. Petitioner contends (Pet. 19) that the court of
appeals erred in applying Chevron in the face of the
agency’s express disavowal of any reliance on that doctrine and, further, that the courts of appeals are in “disarray on the question whether Chevron deference can
be waived.” See Pet. 15-22. Petitioner’s chief support
for that claim appears to be the dissenting opinions below, which are not law and which do not establish any
“conflict[] * * * in the circuits about the validity of the
ATF regulation,” Pet. 19. Nor would review be warranted to address any purported disagreement within
the Tenth or D.C. Circuits. See Pet. 19-20; cf. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam) (“It is primarily the task of a Court of Appeals to
reconcile its internal difficulties.”).
Petitioner’s other examples (Pet. 21 & n.5) only underscore why review is not warranted. In several, the
reviewing court concluded that the correct result did
not depend on whether Chevron applied—as is also true
here. See Babb v. Secretary, Dep’t of Veterans Affairs,
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). One
25
of petitioner’s 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 announced by the agency only in litigation, not in a rulemaking or an adjudication, id. at 314.
More broadly, petitioner’s waiver 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). The second is whether a reviewing court is
required to forgo any consideration of Chevron if the
government does not invoke that doctrine in litigation.
Whatever the correct answer to the first question—the
government contended below that Chevron, which rests
on a presumption of congressional intent, is not generally susceptible to litigation waiver or forfeiture, see
Gov’t C.A. Supp. En Banc Br. 5—petitioner has failed
to explain why the government’s litigation choices
would altogether disable a reviewing court from making
its own independent judgment about how best to apply
this Court’s Chevron precedents. See Pet. App. 16a
(stating that the applicability of Chevron does not turn
on an “agency’s say so”); 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
26
force of law is for the judge to answer independently.”);
id. at 317 (Roberts, C.J., dissenting) (same).
b. Petitioner next contends (Pet. 23) that the court
of appeals erred in applying Chevron to ATF’s final rule
because “the statute at issue has criminal-law applications.” But petitioner again fails to identify any substantial conflict of authority on that issue, or any other
compelling basis for review.
This Court has applied Chevron deference to agency
interpretations of statutes with potential “criminal-law
applications.” Pet. 23. 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-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 conse-
27
quences, see id. at 703, 704 n.18; see also 16 U.S.C.
1540(b)(1).
Petitioner contrasts (Pet. 26) 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. In
Apel, for example, 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; cf. Abramski, 573 U.S. at 191 (no deference to interpretation in decades-old, non-binding
guidance documents that the agency no longer followed). Those decisions underscore that a “vast body of
administrative interpretation” exists 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.
Petitioner errs in suggesting (Pet. 28) that the Court
previously granted review of this issue in EsquivelQuintana v. Lynch, 137 S. Ct. 1562 (2016). The question
presented there was whether a conviction for a particular form of sexual abuse under state law constituted
“sexual abuse of a minor” for purposes of the definition
of an “aggravated felony” in the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(A). See EsquivelQuintana, 137 S. Ct. at 1567. That question—unlike pe-
28
titioner’s challenge to ATF’s final rule—had intractably
divided the courts of appeals, which had reached conflicting results in evaluating similar state laws. See Pet.
at 13-17, Esquivel-Quintana, supra (No. 16-54) (collecting cases). And the petition for a writ of certiorari
asked the Court to address the merits of the dispute—
unlike the present petition, which seeks review of hypothetical Chevron questions and does not ask the Court
to resolve whether bump stocks are machineguns.
Petitioner’s reliance (Pet. 29) on the separation of
powers is equally unavailing. Congress may prescribe
criminal penalties for the violation of a regulation, the
precise content of which is left to an agency, without violating the constitutional separation of powers:
There is no absolute rule * * * against Congress’
delegation of authority to define criminal punishments. We have upheld delegations whereby the Executive or an independent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regulations a criminal
offense and fixes the punishment, and the regulations “confine themselves within the field covered by
the statute.”
Loving v. United States, 517 U.S. 748, 768 (1996)
(brackets omitted) (quoting United States v. Grimaud,
220 U.S. 506, 518 (1911)); cf. Pet. 30 (acknowledging that
this Court has upheld Congress’s constitutional authority to delegate “to the executive branch some responsibility for defining crimes”).
c. Finally, petitioner asks (Pet. 32) this Court to consider “the proper interplay between Chevron and the
rule of lenity.” But even petitioner acknowledges (ibid.)
that this issue is “subsidiary” to his other arguments
concerning Chevron, and petitioner does not suggest
29
that the lenity question would merit the Court’s review
on its own. And for good reason: petitioner points to no
conflict among the circuits, instead criticizing the
panel’s specific treatment of the issue here. Pet. 32-34.
2. In any event, this case would be an unsuitable vehicle in which to address petitioner’s Chevron questions
for multiple reasons.
First, entertaining petitioner’s Chevron questions in
this case would be anomalous because both parties
agree that Chevron does not apply, albeit for different
reasons. In the proceedings below, petitioner principally argued that the statutory language unambiguously forecloses ATF’s interpretation, while the government argued that the final rule is an interpretive rule to
which Chevron does not apply. See Pet. App. 10a, 12a;
see also pp. 20-21, supra. Now, petitioner would apparently have this Court assume both that the statute is
ambiguous, contrary to his own position below, and that
the final rule is legislative rather than interpretive, contrary to the government’s position—because those
premises are necessary for any Chevron question to
arise under the circumstances of this case. The Court
should decline petitioner’s invitation to address potentially difficult Chevron questions under artificial premises that neither party fully endorses.
Second, resolving petitioner’s Chevron questions in
his favor would make no practical difference to the outcome in this appeal. In affirming the district court’s denial of a preliminary injunction, the court of appeals
concluded that petitioner had not only failed to demonstrate a likelihood of success on the merits, but also had
failed to carry his burden of showing irreparable harm
in the absence of an injunction. See Pet. App. 34a (observing that the court “could affirm * * * solely on”
30
likelihood-of-success grounds, but determining that petitioner also “has not met the other prerequisites for
preliminary relief ”). In particular, the court of appeals
rejected petitioner’s argument that he had satisfied the
irreparable-harm requirement by alleging that the final
rule violates the separation of powers; the court also
held that petitioner had waived reliance on any other
theory. Id. at 24a-36a. Petitioner does not seek review
of that holding here, and it furnishes a separate barrier
to granting any injunctive relief.
Third, 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 denial of certiorari). A departure from
that principle would be particularly unwarranted here.
As noted above, a panel of the Fifth Circuit and the en
banc Sixth Circuit are presently considering similar
challenges to the same final rule. See pp. 22-23, supra.
Those proceedings may bear on whether this or any
other challenge to the final rule warrants further review. For example, if those courts were to determine
that the rule reflects the best interpretation of the statute (as the government urges), then petitioner’s Chevron questions would be all the more academic. See
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); cf.
Guedes, 140 S. Ct. at 791 (statement of Gorsuch, J.)
(explaining that the “interlocutory petition” in Guedes
did not merit review, both because any errors “might
yet be corrected before final judgment” and because
this Court would benefit from “hearing the[] considered
31
judgments” of other courts of appeals). At a minimum,
the interlocutory posture of this case and the ongoing
proceedings in other courts of appeals vitiate any suggestion that the final rule must be reviewed now or not
at all.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Acting Assistant Attorney
General
MARK B. STERN
MICHAEL S. RAAB
ABBY C. WRIGHT
BRAD HINSHELWOOD
KYLE T. EDWARDS
Attorneys
NOVEMBER 2021
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.