DAMIEN GUEDES, et al., Plaintiffs, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, et al., Defendants. DAVID CODREA, et al., Plaintiffs, v. MONTY WILKINSON, Acting Attorney General, et al., Defendants.
No. 18-cv-2988 (DLF), No. 18-cv-3086 (DLF)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 19, 2021
DABNEY L. FRIEDRICH, United States District Judge
Matthew G. Whitaker was the Acting Attorney General when this suit was filed; Monty Wilkinson, the current Acting Attorney General, was automatically substituted in the case caption. See Fed. R. Civ. P. 25(d).
On October 1, 2017, a lone gunman opened fire on a concert in Las Vegas, killing 58 people and injuring hundreds more. He used weapons equipped with bump stocks, which allow a semiautomatic gun to fire at a faster rate. Following this tragedy, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) promulgated a rule that classifies weapons equipped with bump stocks as machineguns under the National Firearms Act,
The Court previously recounted in detail the facts and regulatory history underlying this lawsuit. See Guedes I, 356 F. Supp. 3d at 119–26. To summarize, the central legal question in this dispute is whether the National Firearm Act’s definition of “machinegun” can encompass bump stock devices. A bump stock replaces a semiautomatic rifle’s standard stock—the part of the rifle that rests against the shooter’s shoulder—and enables the shooter to achieve a faster firing rate. To use a bump stock, the shooter must maintain forward pressure on the barrel and, at the same time, pull the trigger and maintain rearward pressure on the trigger. Once the shooter pulls the trigger, a bump stock harnesses and directs the firearm’s recoil energy, thereby forcing
The relevant statutes at issue are the National Firearms Act of 1934 (NFA) and the Firearm Owners Protection Act of 1986 (FOPA). The NFA provides the following definition for the term “machinegun”:
The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include 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.
On March 29, 2018, ATF proposed the rule banning bump stocks and formally provided the public with 90 days, as required by
The Guedes plaintiffs filed their complaint and moved for a preliminary injunction on December 18, 2018. See No. 18-cv-2988, Dkt. 1, 2. The Codrea plaintiffs filed their complaint on December 27, 2018, see No. 18-cv-3086, Dkt. 1, and likewise moved for a preliminary injunction on January 18, 2019. See Dkt. 5 (Codrea). Following hearings on February 6, 2019 (Guedes) and February 19, 2019 (Codrea), the Court denied the motions for a preliminary injunction because the plaintiffs lacked a reasonable likelihood of success on the merits of their legal theories. See Guedes I, 356 F. Supp. 3d 109 (D.D.C. 2019). The D.C. Circuit affirmed. See Guedes II, 920 F.3d 1. In relevant part, the D.C. Circuit held that the bump stock rule was a legislative rule, that Chevron deference was proper, and that ATF reasonably interpreted the ambiguous statute. See generally id. The plaintiffs then petitioned the Supreme Court of the United States for a writ of certiorari, which the Court denied. See Guedes v. ATF, No. 19-296, 140 S. Ct. 789 (Mar. 2, 2020).3 The cross-motions for summary judgment in the two cases are now ripe for review.
A court grants summary judgment if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In an Administrative Procedure Act case, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). The Court will “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”
In an arbitrary and capricious challenge, the core question is whether the agency’s decision was “the product of reasoned decisionmaking.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983); see also Nat’l Telephone Coop. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009) (“The APA’s arbitrary-and-capricious standard
To the extent that an agency action is based on the agency’s interpretation of a statute it administers, the court’s review is governed by the two-step Chevron doctrine. At Step One, a court must determine “whether Congress has directly spoken to the precise question at issue” or instead has delegated to an agency the legislative authority to “elucidate a specific provision of the statute by regulation.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 843–44. If the latter, a court must reach Step Two, which asks whether the agency action “is based on a permissible construction of the statute” or instead is “manifestly contrary to the statute.” Id. at 843, 844.
The plaintiffs bring several claims under the Administrative Procedure Act (APA),
A. The APA Claims
1. ATF’s Statutory Interpretation
Invoking its general rulemaking authority under
a. Whether the Chevron Doctrine Applies
Because ATF interpreted a statute in promulgating the bump stock rule, the threshold question is whether the Chevron doctrine applies. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The plaintiffs argue that Chevron deference does not apply because 1) ATF waived Chevron, 2) the rule of lenity should prevent the application of Chevron, and 3) Chevron is unconstitutional. The first two arguments have already been addressed in detail by the D.C. Circuit in Guedes II, which held that the application of Chevron deference in this case was proper, 920 F.3d at 17–22, and the third argument is foreclosed by binding precedent. The Court will address each in turn.
First, as to waiver,5 the D.C. Circuit held that “an agency’s lawyers . . . cannot waive Chevron if the underlying agency action ‘manifests its engagement in the kind of interpretive
exercise to which review under Chevron generally applies.’” Id. at 23 (citing SoundExchange, Inc. v. Copyright Royalty Bd., 904 F.3d 41, 54 (D.C. Cir. 2018)). It further held that “[i]n this case, the Bump-Stock Rule plainly indicates the agency’s view that it was engaging in a rulemaking entitled to Chevron deference.” Id. For example, the agency specifically referenced the Chevron doctrine in its rulemaking. See id. (“[A]nother telltale sign of the agency’s belief that it was promulgating a rule entitled to Chevron deference is the Rule’s invocation of Chevron by name.”); 83 Fed. Reg. at 66,527 (invoking Chevron). Accordingly, any supposed waiver at the summary judgment stage cannot overcome this conclusion.6 Second, the argument that the rule of lenity should precede Chevron deference, or more broadly, that Chevron should not apply
To be sure, the Supreme Court has stated that “criminal laws are for courts, not for the Government, to construe.” Abramski v. United States, 573 U.S. 169, 191 (2014). Yet despite this principle, the Supreme Court has never held—in the face of the many examples to the contrary—that Chevron does not apply in cases with criminal implications, or that the rule of lenity subsumes Chevron. Guedes II, 920 F.3d at 27. In fact, as to lenity, “the [Supreme] Court squarely rejected the argument that ‘the rule of lenity should foreclose any deference to’ the agency’s interpretation of a statute simply ‘because the statute includes criminal penalties.’” See id. at 27 (citing Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704 n.18, (1995)). And the D.C. Circuit, relying on Babbitt, has done the same. Competitive Enter. Inst. v. United States Dep’t of Transportation, 863 F.3d 911, 915 n.4 (D.C. Cir. 2017) (“We apply the Chevron framework to this facial challenge even though violating
b. Whether ATF Is Entitled to Chevron Deference
Under the familiar Chevron framework, “[i]f Congress has directly spoken to [an] issue, that is the end of the matter.” Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552, 558 (D.C. Cir. 2016) (citing Chevron, 467 U.S. 837). “[T]he court, as well [as] the agency, must give effect to the unambiguously expressed intent of Congress.” Lubow v. U.S. Dep’t of State, 783 F.3d 877, 884 (D.C. Cir. 2015) (quoting Chevron, 467 U.S. at 842–43). But if the text is silent or ambiguous, courts must “determine if the agency’s interpretation is permissible, and if so, defer to it.” Confederated Tribes of Grand Ronde Cmty., 830 F.3d at 558. To determine “whether a statute is ambiguous” and “ultimately . . . whether [an] agency’s interpretation is permissible or instead is foreclosed by the statute,” courts “employ all the tools of statutory interpretation.” Loving v. IRS, 742 F.3d 1013, 1016 (D.C. Cir. 2014). Most importantly, courts “interpret the words [of a statute] consistent with their ordinary meaning at the time Congress enacted the statute.” Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (internal quotation marks and alteration omitted); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012) (“Words must be given the meaning they had when the text was adopted.”).
The first question, then, is whether the statutory language at issue here is ambiguous. Both this Court at the preliminary injunction stage and the D.C. Circuit on appeal determined that the statutory language was ambiguous. See Guedes II, 920 F.3d at 28–30; Guedes I, 356 F. Supp. 3d at 130–32. In particular, this Court recognized that although “Congress defined ‘machinegun’ in the NFA to include devices that permit a firearm to shoot ‘automatically more than one shot, without manual reloading, by a single function of the trigger,’” Guedes I, 356 F. Supp. 3d at 120 (quoting
Thus, the next step is to determine whether or not ATF’s interpretation of the statutory language is reasonable. “This inquiry, often called Chevron Step Two, does not require the best interpretation, only a reasonable one.” Van Hollen, Jr. v. FEC, 811 F.3d 486, 492 (D.C. Cir. 2016) (internal quotation marks omitted); see also id. (“We are bound to uphold agency
The interpretation of the phrase “single function of the trigger” is reasonable. See Guedes II, 920 F.3d at 31. Courts have often used the word “pull” when discussing the statutory definition of “machinegun.” The Supreme Court, for example, explained that the statutory definition encompasses a weapon that “fires repeatedly with a single pull of the trigger,” meaning “once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted.” Staples v. United States, 511 U.S. 600, 602 n.1 (1994) (emphasis added). The Court then contrasted automatic machineguns with semiautomatic weapons that “fire[] only one shot with each pull of the trigger” and “require[] no manual manipulation by the operator to place another round in the chamber after each round is fired.” Id. And the Eleventh Circuit adopted a similar interpretation when it upheld ATF’s decision to treat Akins Accelerators as machineguns because “a single application of the trigger by a gunman”—a single pull—caused the gun with the affixed bump stock to “fire continuously . . . until the gunman release[d] the trigger or the ammunition [wa]s exhausted.” Akins v. United States, 312 F. App’x 197, 200 (11th Cir. 2009). The Tenth Circuit has held that a uniquely designed firearm was “a machine gun within the statutory definition” because “the shooter could, by fully pulling the trigger, and it only, at the point of maximum leverage, obtain automation with a single trigger function.” United States v. Oakes, 564 F.2d 384, 388 (10th Cir. 1977) (emphasis added). In sum, ATF acted reasonably in defining the phrase “single function of the trigger” to mean a “single pull of the trigger and analogous motions.” 83 Fed. Reg. at 66553.
The interpretation of the word “automatically” in this context is also reasonable. See Guedes II, 920 F.3d at 31. ATF reasoned that a bump stock permits a firearm to function
2. ATF’s Authority to Promulgate the Bump Stock Rule
For many of the same reasons, the plaintiffs’ argument that ATF lacked the authority to state that the NFA’s definition of “machinegun” includes bump stocks is unavailing. See Am.
It follows that courts have regularly recognized ATF’s authority to interpret and apply the statutes that it administers, including the NFA’s definition of “machinegun.” See, e.g., Akins, 312 F. App’x at 200 (deferring to ATF’s decision to classify the Akins Accelerator as a machinegun); see also York v. Sec’y of Treasury, 774 F.2d 417, 419–20 (10th Cir. 1985) (upholding ATF’s decision to classify a particular firearm as a machinegun); cf. Brady, 914 F.2d at 480 (holding that ATF has discretion to define the term “business premises” in another firearms statute). The same is true here—the plaintiffs have not established that ATF lacked authority to promulgate the bump stock rule.
3. ATF’s Procedures and Evaluation of the Evidence
Even when an interpretation is reasonable under Chevron, “agency action is always subject to arbitrary and capricious review under the APA.” Confederated Tribes of Grand Ronde Cmty., 830 F.3d at 559. An interpretation is arbitrary and capricious if the agency “relied on
Often the inquiry under Chevron Step Two overlaps with arbitrary and capricious review because “under Chevron step two, the court asks whether an agency interpretation is arbitrary and capricious in substance.” Agape Church, 738 F.3d at 410 (alteration omitted) (quoting Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)). At bottom, a reviewing court must decide whether an agency action is “within the scope of [the agency’s] lawful authority” and supported by “reasoned decisionmaking.” Tripoli Rocketry Ass’n v. ATF, 437 F.3d 75, 77 (D.C. Cir. 2006) (internal quotation marks omitted); see also id. (“Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” (internal quotation marks omitted)).
First, the plaintiffs take issue with how ATF distinguished between bump stocks and other devices or techniques. The plaintiffs note, for example, that “[o]ther simple physical aids, like a belt-loop, a rubber band, any fixed stock itself, or a padded shooting jacket, likewise facilitate bump firing by constraining movement of the firearm, maintaining linearity during recoil, controlling the distance of recoil, and myriad other things a shooter otherwise would have do through greater manual effort.” Am. Memo. in Supp. of Pls.’ Cross Mot. for Summ. J. at 23.
Second, the plaintiffs argue that ATF impermissibly relied on political pressure, namely from the President, to promulgate the bump stock rule. Am. Memo. in Supp. of Pls.’ Cross Mot. for Summ. J. at 37. There is no doubt that one impetus for the rule was the political outcry following the Las Vegas mass shooting. See Guedes II, 920 F.3d at 34. “But that is hardly a reason to conclude that the Rule is arbitrary.” Id. “Presidential administrations are elected to make policy. And as long as the agency remains within the bounds established by Congress, it is
Finally, for the reasons discussed in the Court’s previous Memorandum Opinion, ATF was not required to hold a formal public hearing (in addition to its notice-and-comment procedures). See Guedes I, 356 F. Supp. 3d at 136–137. And ATF’s decision not to extend the comment period an extra five days after some users reported initial difficulties in submitting comments (but were eventually successful) was harmless error, at most. See id. (citing United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 239 (1973)); see also PDK Labs. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“If [an] agency’s mistake did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.”).
4. ATF’s Change in Position
The agency’s change in position on the question of whether a bump stock is a machinegun does not render its position arbitrary and capricious. See Guedes I, at 133–34. When an agency changes its position, it must “display awareness” of the change, but it is not required to meet a “heightened standard for reasonableness.” Mary V. Harris Found. v. FCC, 776 F.3d 21, 24 (D.C. Cir. 2015) (internal quotation marks omitted). “A reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Nat’l Lifeline Ass’n, 921 F.3d at 1111 (internal quotation marks and alteration omitted). But “[s]o long as any change is reasonably explained, it is not arbitrary and capricious for an agency to change its mind in light of experience, or in the face of new or additional evidence, or further analysis or other factors indicating that [an] earlier decision should be altered or
It is well established that an agency may change its prior policy if “the new policy [is] permissible under the statute, and the agency . . . acknowledge[s] it is changing its policy and show[s] that there are good reasons for the new policy and that the agency believes it to be better, which the conscious change of course adequately indicates.” Nat’l Lifeline Ass’n, 921 F.3d at 1111 (emphasis and internal quotation marks omitted); see also Mary V. Harris Found., 776 F.3d at 24 (“What the [agency] did in the past is of no moment . . . if its current approach reflects a permissible interpretation of the statute.”).
Here, ATF acknowledged that it was “reconsider[ing] and rectify[ing]” its previous classification decisions based on its legal analysis of the statutory terms “automatically” and “single function of the trigger.” 83 Fed. Reg. at 66516 (quoting Akins, 312 F. App’x at 200). It discussed the history of its regulation of Akins Accelerators and the Eleventh Circuit’s decision in Akins. Id. at 66517. It also explained that it had previously determined that “semiautomatic firearms modified with [standard] bump-stock-type devices did not fire ‘automatically,’ and thus were not ‘machineguns.’” Id. at 66516. The mass shooting in Las Vegas then prompted ATF to reconsider its prior interpretations, id. at 66528–29, none of which provided “extensive legal analysis of the statutory terms ‘automatically’ or ‘single function of the trigger,’” id. at 66516. ATF reviewed dictionary definitions of “automatically,” relevant judicial decisions—including Staples, Olofson, and Akins—and the NFA’s legislative history to determine whether standard
B. The Takings Claim
The plaintiffs assert that the bump stock rule violates the Takings Clause because it fails to provide compensation to bump stock owners who must destroy or abandon their weapons. They seek injunctive relief or, in the alternative, compensatory damages. Am. Memo. in Supp. of Pls.’ Cross Mot. for Summ. J. at 41–42.
The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.”
The plaintiffs also are not entitled to compensatory damages. In particular, they have not shown that bump stocks “were taken for a public use” rather than “seized or retained pursuant to a valid exercise of the government’s police power.” Modern Sportsman, LLC v. United States, 145 Fed. Cl. 575, 581 (2019). It is well settled that a “prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit.” Mugler v. Kansas, 123 U.S. 623, 668–69 (1887). After all, “[t]he exercise of the police power by the destruction of property which is itself a public nuisance . . . is very different from taking property for public use, or from depriving a person of his property without due process of law.” Id. at 669.
It is for this reason that “[t]he government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.” Bennis v. Michigan, 516 U.S. 442, 452 (1996) (emphasis added). And as discussed above, the bump stock rule was promulgated according to ATF’s valid authority under the relevant statutes and in light of the ambiguous statutory text. See supra at 13. So too, the bump stock rule exercises the federal government’s limited police power as it relates to public safety. See Acadia Tech., Inc. v. United States, 65 Fed. Cl. 425, 429 (2005) (“[I]f [property] is taken to prevent public harm, the government action may be an exercise of police power.”), aff’d, 458 F.3d 1327, 1332 (Fed. Cir. 2006); Modern Sportsman, 145 Fed. Cl. at 582 (noting that “where the purpose of a regulation which causes interference with
Based on these well-settled precedents, every Court to have considered a takings challenge in response to bump stock rules has rejected the claim. See, e.g., Maryland Shall Issue, Inc. v. Hogan, 963 F.3d 356 (4th Cir. 2020); Modern Sportsman, 145 Fed. Cl. 575 (2019); McCutchen, 145 Fed. Cl. 42 (2019); see also Akins v. United States, 82 Fed. Cl. 619, 622 (2008) (holding that ATF’s revision of its interpretation to include bump stocks did not give rise to a compensable taking because “[p]roperty seized and retained pursuant to the police power is not taken for a public use in the context of the Takings Clause” (internal quotation marks omitted)). This Court will do the same.
Finally, the plaintiffs raise two additional claims: first, that the bump stock rule violates the Ex Post Facto Clause; and second, that the underlying statutes are void for vagueness.8
1. The Ex Post Facto Clause
The plaintiffs assert that the bump stock rule is unlawfully retroactive. See
2. Void for Vagueness
“The Due Process Clause ‘requires the invalidation of laws [or regulations] that are impermissibly vague.’” United States Telecom Ass’n v. FCC, 825 F.3d 674, 734 (D.C. Cir. 2016) (quoting FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012)). The plaintiffs do not brief this argument in detail, but instead conclude that “[i]f the statute is vague enough for Chevron, then it is vague enough to require lenity or simply to be void.” Am. Memo. in Supp. of Pls.’ Cross Mot. for Summ. J. at 41. The D.C. Circuit addressed this argument, holding that “Codrea’s challenge is misconceived,” as the notice-and-comment procedures provided fair notice of what conduct was prohibited. Guedes II, 920 F.3d at 28.
And with good reason. There is much daylight between the statutory ambiguity required to trigger Chevron deference and the vagueness required to invalidate a statute or regulation under the Due Process Clause. See United States v. National Dairy Products Corp., 372 U.S. 29, 32 (1963) (“The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.”). Were this not the case, every regulation entitled to Chevron deference would be summarily voided for vagueness. Rather, the void for vagueness doctrine applies where a “conviction or punishment fails to comply with due process [because] the statute or regulation under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Fox Television Stations, 567 U.S. at 253 (emphasis added) (internal quotation marks omitted). Here,
CONCLUSION
For the reasons stated above, and explained further in the Court’s earlier Memorandum Opinion in this case, the defendants’ Motion for Summary Judgment is granted. An order consistent with this decision accompanies this memorandum opinion.
DABNEY L. FRIEDRICH
United States District Judge
February 19, 2021