Gun Owners of Am., Inc. v. Garland, 19-1298

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
PartiesGun Owners of America, Inc.; Gun Owners Foundation; Virginia Citizens Defense League; Matt Watkins; Tim Harmsen; Rachel Malone, Plaintiffs-Appellants, v. Merrick B. Garland, in his official capacity as Attorney General of the United States; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms and Explosives; Regina Lombardo, in her official capacity as Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants-Appellees. Gun Owners of California, Inc., Movant,
Decision Date03 December 2021
Docket Number19-1298

Gun Owners of America, Inc.; Gun Owners Foundation; Virginia Citizens Defense League; Matt Watkins; Tim Harmsen; Rachel Malone, Plaintiffs-Appellants,

Gun Owners of California, Inc., Movant,
v.

Merrick B. Garland, in his official capacity as Attorney General of the United States; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms and Explosives; Regina Lombardo, in her official capacity as Acting Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants-Appellees.

No. 19-1298

United States Court of Appeals, Sixth Circuit

December 3, 2021


Argued: October 20, 2021

On Petition for Rehearing En Banc. United States District Court for the Western District of Michigan at Grand Rapids; No. 1:18-cv-01429-Paul Lewis Maloney, District Judge.

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ARGUED:

Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Appellants.

Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

ON BRIEF:

Robert J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Kerry L. Morgan, PENTIUK, COUVREUR &KOBILJAK, P.C., Wyandotte, Michigan, for Appellants.

Mark B. Stern, Abby C. Wright, Brad Hinshelwood, Kyle T. Edwards, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Alan Alexander Beck, San Diego, California, Stephen D. Stamboulieh, STAMBOULIEH LAW, PLLC, Olive Branch, Mississippi, Michael T. Jean, Hadan W. Hatch, NATIONAL RIFLE ASSOCIATION OF AMERICA, Fairfax, Virginia, John I. Harris III, SCHULMAN, LEROY &BENNETT PC, Nashville, Tennessee, Sebastian D. Torres, BISGAARD &SMITH LLP, Cincinnati, Ohio, Ilya Shapiro, CATO INSTITUTE, Washington, D.C., Richard A. Samp, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., David M. S. Dewhirst, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, Joseph G. S. Greenlee, FIREARMS POLICY COALITION, Sacramento, California, Ian Simmons, O'MELVENY &MYERS LLP, Washington, D.C., John Cutonilli, Garrett Park, Maryland, pro se, for Amici Curiae.

SUTTON, Chief Judge; BATCHELDER, MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN and MURPHY, Circuit Judges. [*]

The En Banc Court of the Sixth Circuit Court of Appeals delivered an order. WHITE, J. (pp. 3-20), in which MOORE, COLE, CLAY, and STRANCH, JJ., joined, and GIBBONS, J. (pg. 21), in which MOORE, COLE, WHITE, and STRANCH, JJ., joined, delivered separate opinions in support of affirming the district court's judgment. MURPHY, J. (pp. 22-47), delivered a separate dissenting opinion, in which SUTTON, C.J., BATCHELDER, KETHLEDGE, THAPAR, BUSH, LARSEN, and NALBANDIAN, JJ., joined.

ORDER

Pursuant to Rule 35 of the Federal Rules of Appellate Procedure and Sixth Circuit Rule 35, a majority of the active judges of this court voted to grant en banc review of this case. By published order of the court, entered on June 25, 2021, rehearing en banc was granted and the previous opinion was vacated. Following argument heard by the court en banc on October 20, 2021 and a conference among the judges, the court divided evenly, with eight judges voting to affirm the judgment of the district court and eight judges voting to reverse. Consequently, the judgment of the district court is AFFIRMED. See School Dist., Pontiac v. Secretary, U.S. Dep't. Educ., 584 F.3d 253 (6th Cir. 2009), Goodwin v. Ghee, 330 F.3d 446 (6th Cir. 2003), and Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir. 1996). Separate opinions in favor of affirmance and in favor of reversal follow.

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OPINION IN SUPPORT OF AFFIRMING THE DISTRICT COURT'S JUDGMENT

WHITE, Circuit Judge, writing in support of affirming the district court judgment. Congress defined the term, "machinegun," to mean "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. § 5845(b). "Machinegun" also includes "the frame or receiver of any such weapon" as well as "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." Id.

And Congress tasked the Attorney General with administering and enforcing Chapter 53 of Title 26 of the National Firearms Act, in which the definition of "machinegun" appears, and delegated rulemaking authority to the Attorney General to further this end. 26 U.S.C. §§ 7801(a)(2)(A), 7805(a). Congress also authorized the Attorney General to prescribe "rules and regulations as are necessary to carry out the provisions" of Chapter 44 of Title 18 of the Gun Control Act. 18 U.S.C. § 926(a). The Gun Control Act makes it unlawful to transfer or possess a "machinegun" as defined in § 5845(b). 18 U.S.C. §§ 921(a)(23), 922(o).

The Attorney General has directed the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to administer, enforce, and exercise the functions and powers of the Attorney General with respect to Chapter 44 of Title 18 and Chapter 53 of Title 26. 28 C.F.R. § 0.130(a). On December 26, 2018, ATF published a rule clarifying that bump-stock-type devices fall within the definition of "machinegun" as defined in the National Firearms Act and the Gun Control Act.[1] Bump-Stock-Type Devices (Final Rule), 83 Fed.Reg. 66, 514, 66, 543.[2]

3

Plaintiffs-Appellants (Gun Owners) filed this action challenging the Final Rule and sought a preliminary injunction to prevent it from going into effect. Gun Owners of Am. v. Barr, 363 F.Supp.3d 823, 825-26 (W.D. Mich. 2019), rev'd and remanded sub nom. Gun Owners of Am., Inc. v. Garland, 992 F.3d 446 (6th Cir. 2021), reh'g en banc granted, opinion vacated, 2 F.4th 576 (6th Cir. 2021). The district court concluded that Chevron's two-step test provides the appropriate standard of review to determine whether injunctive relief is warranted. Id. at 830-31 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842-43 (1984)). First, the district court found that Congress has not directly addressed whether bump stocks are included within the statutory term "machinegun" and that the definitional terms, "automatically" and "single function of the trigger," are ambiguous. Id. at 831. Second, the district court determined that the Final Rule's interpretations of "automatically" and "single function of the trigger" are permissible and its classification of bump stocks as machineguns is reasonable. Id. at 831-32. Concluding that Gun Owners failed to demonstrate a likelihood of success on the merits, the district court denied the motion for a preliminary injunction.[3] Id. at 832-33.

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The district court's judgment should be affirmed. Chevron provides the standard of review, even though the law under consideration has criminal applications. Applying Chevron, Congress has not spoken to the precise question at issue and, after exhausting the traditional tools of statutory construction, § 5845(b) remains ambiguous. Because ATF's interpretation of § 5845(b) is a permissible construction of the statute and is reasonable, it is entitled to Chevron deference. Additionally, even without applying deference, the Final Rule provides the best interpretation of § 5845(b). Accordingly, relief to enjoin the Final Rule from going into effect is not warranted.

I. Chevron Applies

We apply Chevron when "Congress delegated authority to the agency generally to make rules carrying the force of law" and "the agency interpretation" in question "was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) ("Delegation of such authority may be shown . . . by an agency's power to engage in . . . notice-and-comment rulemaking, or by some other indication of comparable congressional intent."). Here, Congress expressly delegated rulemaking authority to the Attorney General, who delegated this authority to the director of ATF. 18 U.S.C. § 926(a); 26 U.S.C. §§ 7801(a)(2)(A), 7805(a); 28 C.F.R. § 0.130(a). ATF then promulgated the Final Rule through notice-and-comment rulemaking, expressly invoking § 926(a) (authority to promulgate rules and regulations as are necessary to carry out provisions of the Gun Control Act), § 7801(a)(2)(A) (authority to administer and enforce provisions of the National Firearms Act), and § 7805(a) (authority to promulgate all needful rules and regulations to enforce provisions of the National Firearms Act).[4] Final Rule, 83 Fed.Reg. at 66, 515-16; see also Bump-Stock-Type Devices, 83 Fed.Reg. 13, 442, 13, 443-44 (notice of proposed rulemaking). Thus, Chevron supplies the standard of rulemaking process, "that is hardly a reason to conclude that the Rule is arbitrary. Presidential administrations are elected to make policy." Guedes v. Bureau of Alcohol, Tobacco, Firearms &Explosives, 920 F.3d 1, 34 (D.C. Cir. 2019).

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review for assessing the validity of the Final Rule's classification of bump-stock-type devices as machineguns.[5]

Gun Owners and my colleagues who argue for reversal assert that ATF's delegated authority is too general for Chevron deference to apply. Drawing a distinction between explicit and implied delegations to an agency, and relying on pre-Chevron cases, they discount precedent applying Chevron to regulations that have criminal applications. However, Chevron itself does not suggest the distinction between implicit and express delegations of rulemaking authority that underlies the opinion to reverse. 467 U.S. at 843-44 ("The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.... Sometimes the legislative delegation to an agency on a particular...

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