Firеarms Regulatory Accountability Coalition, Inc.; State of West Virginia; State of North Dakota; State of Alabama; State of Alaska; State of Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Iowa; State of Kansas; State of Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of New Hampshire; State of Oklahoma; State of South Carolina; State of South Dakota; State of Tennessee; State of Utah; State of Virginia; State of Wyoming; NST Global, LLC, doing business as SB Tactical; B&T USA, LLC; Richard Cicero v. Merrick B. Garland, in his Official Capacity, as Attorney General of the United States; The Bureau of Alcohol, Tobacco, Firearms and Explosives; Steven Dettelbach, in his Official Capacity, as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives
No. 23-3230
United States Court of Appeals For the Eighth Circuit
August 9, 2024
Submitted: March 14, 2024
Plaintiffs - Appellants
v.
Defendants - Appellees
Members of Congress
Amicus on Behalf of Appellants
GRASZ, Circuit Judge.
The Bureau of Alcоhol, Tobacco, Firearms, and Explosives (ATF) promulgated a final agency rule1 interpreting the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The Final Rule reclassifies pistols equipped with stabilizing braces (braced weapons) as NFA-regulated “short-barreled rifles,” which subjects those braced weapons to NFA/GCA regulation. The plaintiffs—a stabilizing-brace manufacturer, a firearm manufacturer, a gun association, an individual owner of braced weapons, and twenty-five states (collectively, the Coalition)—sued to enjoin the Final Rule, arguing it exceeds the ATF‘s statutory authority under the NFA and GCA and is arbitrary and capricious. The district court denied the Coalition‘s motion for a preliminary injunction. The Coalition appeals that denial. We conclude the Coalition is likely to succeed on the merits of its arbitrary-and-capricious challenge, so we reverse and remand to the district court.
I. Background
A. The National Firearms Act and the Gun Control Act
Congress passed the National Firearms Act of 1934,
The NFA‘s regulations apply only to “firearms.” See
- any person possessing a short-barreled rifle must register his or her possession in the National Firearms Registration and Transfer Record,
26 U.S.C. § 5841 ; - any person who wants to transfer or make a short-barreled rifle must first obtain the U.S. Attorney General‘s approval, see
26 U.S.C. §§ 5812 ,5822 , and pay a $200 tax, see26 U.S.C. §§ 5811 ,5821 ; and - “any person engaged in the business of importing, manufacturing, or dealing NFA firearms must register with the Attorney General and pay a special (occupational) tax,” Final Rule at 6,479 (citing
26 U.S.C. §§ 5801–02 ).
Failing to comply with the requirements of the NFA and GCA begets serious consequences, including fines,3 forfeiture of the firearm,4 and felony conviction and imprisonment5 followed by a lifetime ban on firearm ownership.6 See Mock, 75 F.4th at 570–71. In other words, “those statutory restrictions have teeth,” and those teeth will bite anyone who, either intentionally or negligently, fails to comply with these regulations. See id. at 570 (emphasis added). “Consequently, there are immense incentives not to own [a short-barreled rifle] but instead to have a non-NFA-regulated pistol.” Id. at 571.
B. Weapons with Attached Stabilizing Braces
In 2012, plaintiff SB Tactical developed its pistol stabilizing brace “to assist people with disabilities so that they could fire . . . heavy pistols safely and comfortably” with one hand. See Final Rule at 6,479. SB
SB Tactical asked the ATF whether its stabilizing brace—when attached tо the rear of a pistol—would change a pistol‘s classification under the NFA or GCA. See Final Rule at 6,479. The ATF initially answered no, determining the stabilizing brace “was not designed or intended to fire a weapon from the shoulder” but rather to allow a weapon to be “held and operated with one hand.” Id. (internal quotation marks omitted). Thus, the ATF initially concluded the braced pistol was not subject to the NFA‘s controls. Id. Plaintiff Richard Cicero was one of the stabilizing brace‘s earliest users. A combat veteran who lost both his right arm and leg while serving his country in Afghanistan, Cicero discovered the stabilizing brace helped him and other physically-challenged shooters to use heavy pistols, which they would otherwise not be able to shoot properly. Cicero uses his weapon‘s stabilizing brace as SB Tactical claims it intends the brace to be used; with the strap wrapped around the forearm and the cuff providing stabilizing support for the forearm:
Thus, as the ATF concluded at the time, a pistol with an attached stabilizing brace was not intended to be fired from the shoulder, which means the weapon was neither a “rifle” nor a “short-barreled rifle” for purposes of the NFA and GCA.
Though SB Tactical‘s stabilizing brace may have been the first of its kind, it was not the last. Since the ATF made its initial determination, “the variety of available ‘stabilizing braces’ or similar ‘brace’ devices . . . has grown significantly.” Id. In 2014, the ATF began to see stabilizing braces being used to shoulder weapons, while new stabilizing braces “included characteristics common to shoulder stocks.” Id. This “diversity” of stabilizing braces “yielded a plethora of braced weapons whose “objective design features” suggested to the ATF the attached brace was intended to make the pistol a shoulder-fired weapon, and thus a “firearm.” Id. The photo below shows two different weapon platforms, each with a different type of rearward attachment. The top-pictured weapons are heavy pistols attaсhed with stabilizing braces. The bottom-pictured weapons are the same heavy pistols but fitted with traditional shoulder stocks, which indisputably makes them “short-barrel rifles.”
By late 2020, due to the increase in braced weapons, the ATF concluded (1) it needed to clarify how it would evaluate weapons equipped with stabilizing braces; (2) some manufacturers were labeling their stabilizing braces as “ATF compliant,” even though the ATF had not evaluated those stabilizing braces for compliance; and (3) stabilizing braces were being used with weapons “to create short-barreled rifles without following NFA requirements.” Final Rule at 6,494. To resolve these issues, the ATF set out to change how it interpreted the NFA‘s and GCA‘s definition of “rifle.”
C. The Proposed Rule and the Final Rule
On June 10, 2021, the Department of Justice published in the Federal Register its notice of proposed rulemaking, introducing its proposed rule. See Factoring Criteria for Firearms with Attached “Stabilizing Braces” (the Proposed Rule), 86 Fed. Reg. 30,826 (June 10, 2021). In it, the ATF introduced a new worksheet for public
The Proposed Rule proved controversial, and comments were overwhelmingly negative. See id. at 574 (noting the Proposed Rule proved to be “complex and confusing“); Final Rule at 6,497 (noting negative reception). So, eighteen months later, the ATF published the Final Rule; abandoning Worksheet 4999 and its point system altogether, while adopting a two-step, multifactor framework for evaluating whether a braced weapon is objectively designed and intended for shouldering. See Final Rule at 6,480. At the first step, the ATF examines whether a weapon “equipped with [a stabilizing brace] provides surface area that allows the weapon to be fired from the shoulder . . . .” Id. If so, then the ATF examines six other “objective design features and factors” that indicate whether “the weapon is designed, made, and intended to be fired from the shoulder.” Id. Those six other factors are:
- Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
- Whether the weapon has a length of pull . . . that is consistent with similarly designed rifles;
- Whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;
- Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
Id.
- The manufacturer‘s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and
- Information demonstrating the likely use of the weapon in the general community.
“The ATF theorized that under this new definition of ‘rifle,’ approximately 99% of pistols with stabilizing braces would be classified as rifles[.]” Mock, 75 F.4th at 574 & n.23. The Final Rule did not adjudicate “stabilizing braces systematically, such as by stating that a particular manufacturer‘s specific brace” always transforms a weapon into a rifle when attached to that weapon. See id. at 586 n.56 (emphasis added). The ATF deemed it not “administratively feasible” to follow commenters’ suggestions to provide an exhaustive list of stabilizing braces. Final Rule at 6,513. Instead, the ATF would make its determinations on a weapon-by-weapon basis. See id. at 6,513–14.
Alongside the Final Rule, the ATF published two electronic slideshows (the Slideshows)
The ATF claims the Slideshows are for “placing the public on notice that listed firearm-brace combinations are likely to be classified as short-barreled rifles under the [Final] Rule‘s considerations,” but it did not explain how it determined that the pictured weapons are short-barreled rifles. Nor do the Slideshows contain a photo of a single braced weapon the ATF would not consider to be a short-barreled rifle.
Though the Final Rule does not ban stabilizing braces or braced weapons that are “short-barreled rifles,” the consequences of possessing a braced weapon deemed to be a “short-barreled rifle” are dire: that firearm and the person who possesses it are subject to the NFA‘s and GCA‘s stringent regulations and serious criminal penalties for non-compliance. Considering the ATF estimated that by 2020 there were, at the low end, three million stabilizing braces in circulation (with seven million at the high end) plus an untold number of stabilizing braces sold between 2020 and the Final Rule‘s publication in January 2023, then the Final Rule does the job of reclassifying these millions of braced weapons—and those who possess them—as violating the NFA and GCA.
After the Final Rule‘s publication, the ATF gave possessors of braced weapons until May 31, 2023 (120 days) to choose one of five options: (1) remove the firearm‘s short barrel and attach a barrel 16-inches or longer, changing the firearm‘s NFA classification; (2) register the weapon with the ATF as an NFA firearm, paying the applicable tax; (3) permanently remove the weapon‘s stabilizing brace;10 (4) surrender the weapon to the ATF; or (5) destroy the weapon. Id. at 6,570. Anyone possessing a braced weapon who did not exercise one of these five options would be “in violation of the NFA,” against whom the ATF “may take enforcement action.” Id. at 6,498.
D. The Lawsuit
Since the Final Rule‘s publication, several lawsuits have been filed seeking to enjoin its enforcement,11 including this one.
II. Analysis
We have jurisdiction over an appeal from a district court‘s order denying a preliminary injunction. See
In our circuit, “[a] plaintiff seeking a preliminary injunction must establish four fаctors showing such relief is warranted: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest.” Morehouse Enters., LLC v. ATF, 78 F.4th 1011, 1016 (8th Cir. 2023) (quoting MPAY Inc. v. Erie Custom Comput. Applications, Inc., 970 F.3d 1010, 1015 (8th Cir. 2020)). “When deciding whether to grant a preliminary injunction, courts ask ‘whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.“” Id. (quoting Nebraska v. Biden, 52 F.4th 1044, 1046 (8th Cir. 2022)). “The movant bears the burden of demonstrating the preliminary injunction is warranted because a preliminary injunction is an ‘extraordinary remedy never awarded as of right.“” Id. (quoting Progressive Techs., Inc. v. Chaffin Holdings, Inc., 33 F.4th 481, 485 (8th Cir. 2022)).
Here, we only review the district court‘s holding that the Coalition was not likely to succeed on the merits, as the district court did not examine the other three injunctive factors. Of the four injunctive factors, “likelihood of success on the merits is most significant,” S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992), because “an injunction cannot issue if there is no chance of success on the merits,” Mid-Am. Real Est. Co. v. Iowa Realty Co., 406 F.3d 969, 972 (8th Cir. 2005). When a party seeks to enjoin a government regulation that is “based on presumptively reasoned democratic processes,” as we assume the Coalition does here, we apply a “more rigorous threshold showing” than just a “fair chance” of success on the merits. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 730, 732 (8th Cir. 2008) (en banc). Instead, the Coalition must show it “is likely to prevail on the merits.” Id. at 732.
A. Final Agency Action
As a preliminary matter, the ATF argues the Coalition is unlikely to succeed on
The Supreme Court‘s two-prong test from Bennett v. Spear, 520 U.S. 154 (1997), “remains finality‘s touchstone.” Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 627, 635 (D.C. Cir. 2019). For an agency action to be “final” under the APA, the action must (1) “mark the consummation of the agency‘s decisionmaking process,” and (2) “be one by which rights or obligations have been determined, or from which legal consequencеs will flow.” U.S. Army Corps of Eng‘rs v. Hawkes Co., 578 U.S. 590, 597 (2016) (quoting Bennett, 520 U.S. at 177–78). The ATF concedes the Final Rule was the consummation of its decisionmaking process, so we must examine Bennett‘s second prong.
Under that prong, the Final Rule “must inflict some legal injury upon the party seeking judicial review,” in that it “either compel[s] affirmative action or prohibit[s] otherwise lawful action.” Sisseton-Wahpeton Oyate of Lake Traverse Rsrv. v. U.S. Corps of Eng‘rs, 888 F.3d 906, 915 (8th Cir. 2018). In Hawkes Co. v. U.S. Army Corps of Engineers, 782 F.3d 994, 1000 (8th Cir. 2015), aff‘d, 578 U.S. 590 (discussing Bennett, 520 U.S. at 158, 178). For example, when an agency requires parties “incur substantial compliance costs . . . , forego what they assert is lawful use of their property, or risk substantial enforcement penalties.” Id.
Here, we determine the Final Rule satisfies Bennett‘s second prong. The Final Rule represents a sea change in how the ATF evaluates stabilizing braces. It rescinded all previous braced-weapon classifications, declaring them “no longer valid.” Final Rule at 6,480. That means the ATF now believes many braced weapons are short-barreled rifles, so anyone possessing one “may have been violating the NFA by possessing an unregistered rifle,” including those parties who reliеd on the ATF‘s prior classification letters in believing they were complying with the NFA. See id. The consequence of the ATF‘s about-face is that many individuals, relying on the ATF‘s previous classifications, were apparently committing felonies for years by possessing braced weapons. Accordingly, they must take one of the five compliance steps—including paying a tax, or otherwise surrendering or destroying their weapon (their property)—or risk prosecution.
This analysis is supported by the Supreme Court‘s recent decision in Garland v. Cargill, 602 U.S. 406 (2024), which was decided while this case was pending appeal. In Cargill, a plaintiff sued under the APA to challenge an ATF rule that reinterpreted the term “machinegun,” as defined by the NFA in
B. Likelihood of Success on the Merits
We turn to the Coalition‘s arguments as to why it is likely to succeed on the merits.12 Though the Coalition argued the Final Rule violated multiple aspects of
the APA, it suffices to address only its arguments that (1) aspects of the Final Rule‘s two-step test, including its multifactor component, are arbitrary and capricious and (2) the Slideshows represent arbitrary and capricious adjudications without explanation.13 We “review de novo a district court‘s decision on whether an agency action violates the APA,” including an arbitrary-and-capricious challenge. Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011).
Under the APA, a reviewing court sets aside an agency action if that action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise
McClung v. Paul, 788 F.3d 822, 828 (8th Cir. 2015) (quoting Motor Vehicle Mfrs. Ass‘n v. State Farm Ins. Co., 463 U.S. 29, 43 (1983)).
i. The Rear Surface Area Step
The Final Rule‘s first step requires examining a “weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a ‘stabilizing brace‘)” to see if it “provides surface area that allows the weapon to be fired from the shoulder . . . .” Final Rule at 6,575 (emphasis added). Accord
In promulgating the Final Rule, the ATF decided it was not “appropriate or necessary to specify a quantifiable metric for what constitutes surface area that allows for shouldering of the weapon.” Final Rule at 6,529. Nor did it plan on providing any “minimum surface area,” which would comply with the Final Rule. Id. Instead, the ATF explained it will “consider whether there is any surface area on the firearm that can be used to shoulder fire the weapon,” id. at 6,529, and if so, proceed to step two‘s six-factor test. This, despite commenters asking the ATF to clarify “what amount of material is ‘minimal’ or ‘added‘” so that “the rear surface area is useful for shouldering.” Id. at 6,521–22. The ATF informs us it “reasonably chose to avoid brightline rules subject to easy circumvеntion” in favor of an undefined standard. The problem is the Final Rule does not explain how providing any amount of mathematical guidance, never mind bright-line mathematical rules, was likely to lead to circumvention of the law. Such guesswork fails to create an identifiable metric that members of the public can use to assess whether their weapon falls within the Final Rule‘s definition of a “rifle.”
In an analogous case, the D.C. Circuit held an ATF determination that a hobby-rocket fuel “deflagrates” was arbitrary and capricious because the ATF “never provided a clear and coherent explanation for its classification of [the fuel]” nor did it “articulate[] the standards that guided its analysis.” Tripoli Rocketry Ass‘n, Inc. v. ATF, 437 F.3d 75, 81 (D.C. Cir. 2006). In Tripoli Rocketry, the ATF classified a material as an “explosive” if it “functions by detonation or deflagration.” Id. at 77. The ATF determined whether a material “deflagrates” by looking at the speed at which the material burns. Id. (“[U]nder [the ATF‘s] characterization, a substance that deflagrates burns more rapidly than somеthing that simply burns (like paper or a candle wick), but less rapidly than something that detonates (like dynamite).“). The ATF determined that because a certain hobby-rocket fuel deflagrates, it was thus subject to regulation. See id. at 80. The ATF could have mathematically defined the rate of “deflagration” by defining the speed at which a thing burns—just as the ATF could mathematically define the rear surface area that allows for shouldering a weapon—but the ATF “never reveal[ed] how it determines that a material deflagrates,” nor did it even try to define “a range of velocities within which materials will be considered to deflagrate.” Id. at 81.
Expounding on the tension between providing agency flexibility on the one hand and regulable precision on the other, the D.C. Circuit explained:
We understand that it may be necessary for [the ATF] to define a range flexibly, accounting for gray areas where expert discretion is necessary to characterize a particular substance. But, as a rеviewing
court, we require some metric for classifying materials not specifically enumerated in the statute, especially when, as here, the agency has not claimed that it is impossible to be more precise in revealing the basis upon which it has made a scientific determination. Yet, in this case, [the ATF] has provided virtually nothing to allow the court to determine whether its judgment reflects reasoned decisionmaking.
Id. Ultimately, the Tripoli Rocketry court held the determination to be arbitrary and capricious. See id. at 84. A similar problem arises in this case, when the ATF claims the right to make an “unbounded comparative analysis,” while “insist[ing] it ha[s] no burden to make more particularized findings.” Id. at 82. The ATF does not deny it could provide some range of flexibility in explaining the total surface area that allows for shouldering a weapon, but it does not want to, citing the need to prevent circumvention of the law.
This lack-of-metrics issue is compounded by ATF acknowledging that “a majority” of braced weapons would have a surfacе area that allows a user to shoulder the weapon. Final Rule at 6,529. By the ATF‘s own estimation, 99% of braced weapons are “rifles” under the NFA and GCA, not just a simple “majority.” Likewise, the ATF did not identify a single braced weapon with a surface area that would not allow the weapon to be shoulder fired. Rather than specify what kind of brace could pass muster, the ATF posits that a stabilizing brace could hypothetically “include a feature intended specifically to prevent shooting the firearm from the shoulder” or otherwise “prevents shouldering.” Id. at 6,530. “A potential example of such a feature” could include a “permanently attached protrusion that would dig into a shooter‘s shoulder should the firearm be fired from the shoulder.” Id. But providing this “potential” example is little guarantee to braced-weapon manufacturers and possessors who risk felony convictions if the ATF deems the potential protrusion provides just enough surface area to shoulder fire a weapon.
Thus, the Coalition is likely to succeed on the merits of its argument that this step is arbitrary and capricious; the ATF “has articulated no standard whatsoever for determining” when a stabilizing brace‘s rear surface area would allow the shouldering of a weapon. See Tripoli Rocketry, 537 F.3d at 84. That the regulated parties wish to see more specific metrics does not mean they wish to skirt or circumvent the law, as ATF insinuates. They may simply wish to comply with the law, by producing or equipping stabilizing braces that do not have a rear surface area that allows for shoulder firing a weapon.
ii. The Marketing and Community-Use Factors
If the ATF determines a weapon “provides surface area that allows the weapon to be fired from the shoulder,” it proceeds to the second inquiry: analyzing the weapon under six other factors to determine if it is objectively “designed, made, and intended to be fired from the shoulder.” Final Rule at 6,575. The Coalition alleges the fifth and sixth factors are arbitrary and capricious. Factor 5 is “[t]he manufacturer‘s direct and indirect marketing and promotional materials indicating the intended use of the weapon” (the marketing factor) and factor 6 is “[i]nformation demonstrating the likely use of the weapon in the general community” (the community-use factor). Id. The Coalition argued these factors “do[] not explain how ATF will assess this information, permitting the agency to reach arbitrary and capricious results.” The district court did not discuss its view on these factors, instead believing
Before we analyze any alleged deficiencies in the multifactor test, it is important to understand the problem the Final Rule is trying to solve. The ATF believes that some devices marketed as “stabilizing braces” are being used as shoulder stocks, thus circumventing the law. Whereas a heavy pistol attached with a shoulder stock was a “short-barreled rifle,” a heavy pistol attached with a stabilizing brace (which could functionally be used as a shoulder stock) was exempted from regulation. The ATF resolved to examine other objective factors to determine whether a braced weapon was intended to be shoulder fired. See Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 519–21 (1994) (noting “actual use of the item in the community” and a “product‘s likely use” factor into what purpose an item is “primarily intended” to serve). As it explained:
Where ATF‘s evaluation of a submitted [braced weapon] demonstrates that the objective design features of the firearm, as configured, do not support the manufacturer‘s purported intent and . . . suggest a different intent, then ATF may conclude that the firearm ought not be classified on the basis of the manufacturer‘s purported intent, thus ensuring effective enforcement of Federal law.
Final Rule at 6,495.
Hence, the need for the ATF to look at other objective factors to determine whether a braced weapon‘s overall design reveals an intent to allow for shouldering the weapon. Two of those factors include the marketing and community-use factors. As to the marketing factor, the ATF considers “the marketing of the attachment (e.g., indirect marketing through persons that manufacture or sell ‘stabilizing braces’ but not firearms) and the direct marketing from the firearm manufacturer regarding the firearm to which the attachment or ‘brace’ is assembled . . . .” Id. at 6,544. The ATF will examine the manufacturer‘s direct and indirect marketing materials to see if they “directly contradict[] the purpose they stated to ATF when submitting the firearm and indicate[] that the firearm, in reality, is intended to be fired from the shoulder.” See id. “Indirect marketing materials can include statements from accessories manufacturers for the accessories that a firearms manufacturer attaches or incorporates into its firearm, such as a ‘brace’ manufacturer that advertises that a ‘stabilizing brace’ is a method to circumvent the NFA.” Id.
As an example of probative, indirect marketing materials, the Final Rule included a screenshot of SB Tactical‘s website‘s homepage:
SB Tactical‘s Homepage from June 2017 to May 2019 (background picture since changed but the phrase “Stiff-Arm the Establishment” was visible during that entire timeframe)
Id. at
The community-use factor is even more amorphous. The ATF will consider “information demonstrating the likely use of the weapon by the general community, including both the manufacturer‘s stated intent when submitting its item for classification and use by members of the firearms industry, firearms writers, and in the general community.” Id. at 6,544. Not only are these terms vague (who comprises this “general community” and how will the ATF evaluate them?), but the community-use factor relies on circular reasoning: “the likely use of the weapon by the general community” is determined by its “use . . . in the general community.” Id. That tells the reader nothing about how the ATF will evaluate community use under the Final Rule, allowing the ATF to reach any decision it wishes by only looking to specific evidence of community misuse, while ignoring any other examples of the community‘s compliant use.
Furthermore, the community-use factor provides no metrics by which the ATF deems different community displays to be “representative” of community use. Take, as an example, the Final Rule‘s use of online videos to determine how the “community” uses a weapon. The ATF analyzed “[n]umerous videos demonstrat[ing] individuals using the . . . ‘stabilizing brace’ from the shoulder.” Id. at 6,506. And in “one video,” an individual said he believed the stabilizing brace was for shouldering weapons. Id. Basеd on these examples, the ATF concluded these braced weapons had objective design features indicating they should be classified as short-barreled rifles.
Finally, because the marketing and community-use factors require analyzing third parties’ intent and attributing their intent to any individual who affixes a stabilizing brace to a weapon, the Final Rule “would hold citizens criminally liable for the actions of others, who are likely unknown, unaffiliated, and uncontrollable by the person being regulated.” Mock, 75 F.4th at 586; see also id. at 586 n.56 (The ATF “considered and explicitly rejected” an approach allowing it to systematically adjudicate stabilizing braces, instead preferring to adjudicate braces “on an entirely ad hoc basis.“). On the one hand, the ATF claims a “single individual” in “isolated circumstances” is irrelevant in determining whether a braced weapon is intended to be shoulder fired. See Final Rule at 6,519. On the other hand, the ATF will consider “isolated circumstances” to be probative of intent should those isolated circumstances reveal an intent to use the braced weapon as a rifle. Which is it?
We conclude the Coalition is likely to succeed on its arguments that the marketing and community-use factors are arbitrary and capricious because they are internally inconsistent, “fail[] to provide an intelligible explanation,” and “amount[] to a failure to engage in reasoned decisionmaking . . . .” Constellation Mystic Power, LLC v. FERC, 45 F.4th 1028, 1057 (D.C. Cir. 2022) (quoting FPL Energy Marcus Hook, L.P. v. FERC, 430 F.3d 441, 448 (D.C. Cir. 2005)); see also Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 59 (D.C. Cir. 2015) (сollecting cases and noting the court “ha[s] often declined to affirm an agency decision if there are unexplained inconsistencies in the final rule“). An agency may promulgate a “holistic, multi-factor, weight-of-the-evidence test,” but only if that test “define[s] and explain[s] the criteria the agency is applying.” Miss. Comm‘n on Env‘t Quality v. E.P.A., 790 F.3d 138, 150 (D.C. Cir. 2015) (internal quotation marks and citation omitted). The Final Rule misses that mark. Rather, the Final Rule makes it “nigh impossible for a regular citizen to determine what constitutes a braced pistol, and . . . whether a specified braced pistol requires NFA registration.” Mock, 75 F.4th at 584-85. For those reasons, the Final Rule is arbitrary and capricious.
iii. The Accompanying Slideshows
The Coalition also makes two arguments as to the contemporaneously released Slideshows. First, the Coalition argues these Slideshows represent final agency actions because they actually judge weapons to be “short-barreled rifles.” Because the Slideshow adjudications do not provide a reasoned explanation for the weapon classifications, the Coalition argues they fail the APA‘s procedural requirement that the ATF “provide a reasoned explanation for its action.” See DHS v. Regents of the U. of Cal., 591 U.S. 1, 35 (2020). Second, the Coalition argues the Slideshows evince that the Final Rule is arbitrary and capricious because it “allow[s] ATF to reach whatever result it wants.” We agree with both contentions.
Even though the Slideshows are adjudicatory, they are devoid of any explanation as to how the ATF applied the Final Rule to the pictured weapons. The ATF insinuates the Coalition bears the burden to prove the pictured weapons should not be classified as short-barreled rifles—an impossible task for anyone, including this court, considering the ATF refuses to give any sort of guidance as to how it evaluates each factor. The ATF‘s burden-inverting argument makes as much sense as shouldering a rifle by the barrel: “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions” so the reviewing court and public may scrutinize those decisions—not the other way around. Dep‘t of Com. v. New York, 588 U.S. 752, 785 (2019) (emphasis added). “Accepting contrived reasons would defeat the purpose of the enterprise.” Id.; see also LeMoyne-Owen Coll. v. N.L.R.B., 357 F.3d 55, 61 (D.C. Cir. 2004) (holding agencies must explain how they weigh factors). Because they lack any such explanation, the Slideshows “cannot carry the force of law.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016) (citing
The irony in this conclusion is that because the Slideshows cannot act as judgments, then they exist to provide the public notice of how the ATF might classify the pictured weapons, which is what the ATF claimed the Slideshows were meant to do in any event. So, the Slideshows represent no more than the firing of a warning shot. But the above discussion also reveals that the Final Rule, as a whole, is arbitrary and capricious because it allows the ATF to arrive at whatever conclusion it wishes without “adеquately explain[ing] the standard on which its decision is based . . . .” See Kearney Reg‘l Med. Ctr., LLC v. U.S. Dep‘t of Health & Hum. Servs., 934 F.3d 812, 816 (8th Cir. 2019). “An agency must defend its actions based on the reasons it gave when it acted.” Regents, 591 U.S. at 24 (emphasis added). Such explanations are necessary to give guidance on how the ATF is likely to apply the Final Rule in future instances. See LeMoyne-Owen, 357 F.3d at 61 (quoting Fastener Co. v. Stanley Works, 59 F.3d 384, 400 (2d Cir. 1995)) (noting “‘thorough, careful, and consistent application’ of a multi-factor test is important” for drawing factual distinctions “because ‘appellate courts depend on [agency explanations] for the performance of their assigned task of review‘“). That the Slideshows judged the weapons without explanation reveals the Final Rule‘s arbitrary and capricious nature. Thus, we conclude the Coalition is likely to succeed on the merits of its challenge to the Slideshows, and the Slideshows also evince the Final Rule is arbitrary and capricious.
C. Injunctive Relief
The district court declined to address the remaining injunctive factors, and we typically do not аddress other factors “for the first time on appeal, for ‘[t]he district court is in the best position to evaluate all of the evidence and weigh the factors to determine whether the injunction should issue.‘” Powell v. Noble, 798 F.3d 690, 703 (8th Cir. 2015) (alteration in original) (quoting Lankford v. Sherman, 451 F.3d 496, 513 (8th Cir. 2006)). Because we hold the Coalition is likely to succeed on the merits, it was abuse of discretion to deny an injunction based solely on that factor.
We note that while this appeal was pending, a district court in the Northern District of Texas—per the Fifth Circuit‘s remand from Mock, 75 F.4th at 588—held the Final Rule violated the APA and ordered it be vacated. Mock v. Garland, No. 4:23-CV-00095-O, 2024 WL 2982056, at *6 (N.D. Tex. June 13, 2024). The Fifth Circuit consolidated that order with other appeals and scheduled oral argument for September 2024. See Watterson v. ATF, No. 23-40556 (5th Cir. 2023). Though the district court‘s vacatur and appeal thereof bear on the necessity of injunctive relief, see Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165-66 (2010) (suggesting an injunction may be warranted if vacatur does not sufficiently redress the plaintiff‘s injury), the district court is best suited to determine to what extent injunctivе relief remains necessary, see Roberts v. Van Buren Pub. Schs., 731 F.2d 523, 526 (8th Cir. 1984).
III. Conclusion
We reverse the order denying a preliminary injunction and remand with instructions to reconsider the motion consistent with this opinion.
SHEPHERD, Circuit Judge, dissenting.
During the pendency of this appeal, the Northern District of Texas vacated the Final Rule. Ante at 26 (citing Mock v. Garland, No. 23-CV-00095, 2024 WL 2982056, at *6 (N.D. Tex. June 13, 2024)). “Vacatur . . . is a universal remedy” that “caus[es] the rule to lose binding force.” John Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J. on Regul. Bull. 119, 119 (2023). Accordingly, there is now “no [Final R]ule . . . in place to enforce against anyone.” Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1122 (2020).
I therefore see no need to preliminarily enjoin the enforcement of the now-vacated Final Rule and would affirm the district court‘s order on that basis alone. See Ronald M. Levin, Vacatur, Nationwide
The majority concludes otherwise, relying on Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010). But that decision does not support the majority‘s charted course. In Monsanto, plaintiff farmers and environmental groups challenged the Animal and Plant Health Inspection Service‘s (APHIS) decision to “unconditionally” deregulate a genetically engineered crop—Roundup Ready Alfalfa (RRA)—without first completing an environmental impact statement (EIS), in violation of the
(1) vacated APHIS‘s deregulation decision; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto‘s deregulation petition; (3) enjoined the planting of any RRA in the United States after March 30, 2007, pending APHIS‘s completion of the required EIS; and (4) imposed certain conditions (suggested by APHIS) on the handling and identification of already-planted RRA.
Id. at 148. The petitioners appealed, challenging the scope of that relief but not disputing that a NEPA violation had occurred. Id.
Addressing the relief‘s propriety, the Supreme Court “assume[d] without deciding that the District Court acted lawfully in vacating the deregulation decision,” id. at 156, but concluded that the district court erred in enjoining limited deregulation of RRA “during the pendency of the EIS process,” id. at 164, because “applicable regulations аllow [APHIS] to take at least some action in furtherance of th[e] propos[ed deregulation] while the EIS is being prepared,” id. at 145. From this conclusion, it followed that the district court‘s “broad injunction against planting” was also “inappropriate.” Id. at 165. As the Court explained, “[i]f APHIS may partially deregulate RRA before preparing a full-blown EIS . . . farmers should be able to grow and sell RRA in accordance with that agency determination.” Id. (emphasis added).
It is against these highly specific facts that the Supreme Court “suggest[ed]“, ante at 26, that the “extraordinary relief of an injunction” may be necessary to “redress [plaintiffs‘] injury,” in “addition[]” to the “vacatur of APHIS‘s deregulation decision“—vacatur which ought to have left open the possibility of partial deregulation and further planting of RRA. Monsanto, 561 U.S. at 165-66. But here, no party suggests that the Government will enforce the Final Rule against the Coalition despite its vacatur. No party
Appendix A.
AR-type Firearm with SBA4 Attached – Short-barreled Rifle
Glock-type Firearm with FLUX Attached – Short-barreled Rifle
AK-type Firearm with AKTF Attached – Short-barreled Rifle
Appendix B.
Q, model Honey Badger with HBPDW Attached – Short-barreled Rifle
Palmetto State Armory, model AKV with AKTF Attached – Short-barreled Rifle
H&K, model SP5 with Gear Head Mod1 Tailhook Attached – Short-barreled Rifle