Roe v. Dettelbach

• Decision Date: 27 January 2023
• Docket Number: 22-1165
• Parties: John Roe, Plaintiff-Appellant, v. Steven M. Dettelbach, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and Merrick B. Garland, Attorney General of the United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

John Roe, Plaintiff-Appellant, v. Steven M. Dettelbach, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and Merrick B. Garland, Attorney General of the United States, Defendants-Appellees.

No. 22-1165

United States Court of Appeals, Seventh Circuit

January 27, 2023

ARGUED SEPTEMBER 22, 2022

Appeal from the United States District Court for the Southern District of Illinois No. 3:21-cv-00125 - J. Phil Gilbert Judge.

Before WOOD, HAMILTON, and ST. EVE, Circuit Judges.

WOOD Circuit Judge.

This suit is about a person's right to have a gun part called a "drop-in auto sear." John Roe, litigating under a pseudonym to avoid potential criminal liability, filed suit for a judgment declaring that he was entitled to have and keep a drop-in auto sear that he currently possesses. The district court dismissed the case without prejudice for lack of standing, concluding that federal courts could not redress Roe's injury. The court's action was correct, but not because Roe lacked standing. Instead, he failed to state a claim on which relief may be granted. See FED. R. CIV. P 12(b)(6). We have modified the judgment to be one with prejudice, and as so adjusted, we affirm.

I

A

Drop-in auto sears can be installed into semi-automatic guns; once in place, they make the weapon fully automatic, meaning the user must pull the trigger only once to fire repeated shots. The National Firearms Act (the Firearms Act) defines a machine gun as any gun that can shoot more than one shot "by a single function of the trigger." 26 U.S.C. § 5845(b). Because an auto sear can transform certain firearms into machine guns as so defined, the Bureau of Alcohol Tobacco, Firearms and Explosives (ATF) decided in 1981 to define auto sears as machine guns; this definition does not require the auto sear to be installed or even owned in conjunction with a compatible rifle. ATF Ruling 81-4, 27 C.F.R. § 479.11 (hereinafter Ruling 81-4). (This portion of the ATF's regulations was previously codified at 27 C.F.R. § 179.11 and some materials referenced in this opinion continue to refer to part 179.11.) Ruling 81-4 brought auto sears under the Firearms Act's regulatory scheme, which demands that all machine guns be registered. Before 1981, there were no registration requirements for auto sears; since the 1981 ruling, it is unlawful to possess an unregistered auto sear.

In 1986, Congress amended the Gun Control Act to impose a ban on machine guns. See Firearms Owners Protection Act, Pub. L. No. 99-308, § 102, 100 Stat. 449, 453 (1986). The amendments make it unlawful for "any person to transfer or possess a machine gun," though they do not apply to machine guns lawfully possessed before the effective date. 18 U.S.C. § 922(o). The current Gun Control Act "effectively freezes the number of legal machine guns in private hands at its 1986 level." United States v. Kenney, 91 F.3d 884, 885 (7th Cir. 1996). As applied to auto sears, the Act prevents private purchasers from buying new auto sears or registering previously owned auto sears after 1986.

Roe purchased his auto sear in 1979, a time when these devices were not subject to any registration requirements. He contends that the commonly held interpretation of Ruling 814 was that it had a grandfathering effect; that is, auto sears that were already manufactured or possessed were thought to be exempted permanently from the taxation and registration requirements of the Firearms Act. On that understanding, Roe never registered his auto sear. He contends, in addition, that there were no meaningful opportunities to register pre-1981 auto sears because everyone believed them to be exempt from the registration requirements.

To understand the basis for Roe's position, it is helpful to look at the text of Ruling 81-4 itself. The ruling reads:

With respect to the machine gun classification of the auto sear under the National Firearms Act, pursuant to 26 U.S.C. 7805(b), this ruling will not be applied to auto sears manufactured before November 1, 1981. Accordingly, auto sears manufactured on or after November 1, 1981, will be subject to all of the provisions of the National Firearms Act and 27 C.F.R. Part 179.

Ruling 81-4. The question is thus what the ATF means when it says that the ruling "will not be applied to auto sears manufactured before November 1, 1981." See id.

The ATF asserts that this phrase is not ambiguous. The language "pursuant to 26 U.S.C. 7805(b)," it argues, is a reference to the applicable internal revenue laws. If that is correct, then the Ruling states only that there is a retroactive exemption for taxes related to pre-1981 auto sears. That reading is supported by a later statement from the ATF found in an Editor's Note to the Federal Firearms Regulations Reference Guide, published in September 2014:

Regardless of the date of manufacture of a drop in auto sear (i.e., before or after November 1, 1981) the possession or transfer of an unregistered drop in auto sear (a machinegun as defined) is prohibited by the National Firearms Act (NFA), 26 U.S.C. § 5861, and the Gun Control Act, 18 U.S.C. § 922(o). The last paragraph of ATF Ruling 81-4 only exempts the making, transfer, and special (occupational) taxes imposed by the NFA with respect to the making, manufacture, or transfer of drop in auto sears prior to November 1, 1981.

Id. The ATF insists that this has been the operative interpretation of Ruling 81-4 since it went into effect. It was not, the agency says, an across-the-board exemption for pre-1981 auto sears from the Firearms Act's registration requirements. The result is that any presently unregistered auto sear is contraband, and that the 1986 machine gun ban imposed by the Gun Control Act means that there is no way to register an auto sear.

B

Apparently, Roe forgot for some time that he owned the auto sear, but he remembered it in early 2020 and decided that he wanted to sell it. In its unregistered state, however, the auto sear can neither be lawfully transferred nor lawfully possessed. Hoping to create a path to legal ownership, Roe filed the present action in February 2021, seeking declaratory and injunctive relief that would force the ATF either to exempt his auto sear from the Firearms Act's registration requirements or to permit him to register it. Roe also challenged the ATF's 2014 Editor's Note as an arbitrary and capricious agency decision under the Administrative Procedure Act (APA) and questioned the constitutionality of the Firearms Act as beyond the scope of Congress's Commerce Clause power.

The district court determined that it had subject-matter jurisdiction under 28 U.S.C. § 1331, the Declaratory Judgment Act (28 U.S.C. § 2201), and 26 U.S.C. § 5872, because the threat of civil forfeiture proceedings concretely supported Roe's action. Nonetheless, the court dismissed Roe's complaint on several grounds. First, it held that Roe lacked standing. Because it lacked the authority to issue the requested injunction, it could not redress Roe's claims. Second, the district court found that the constitutionality of the Firearms Act and the Gun Control Act had already been upheld. See Kenny, 91 F.3d at 891. Finally, the court concluded that Roe's claim was filed after the APA's six-year statute of limitations ran, see 28 U.S.C. § 2401, and even if it were timely, the Editor's Note was not a final agency action for APA purposes and was therefore not subject to judicial review. This appeal followed.

II

Before we turn to Roe's arguments, we first must pose a question of our own: should we permit Roe to litigate this case under a pseudonym? Our courts are open to the public. One consequence of that fact is that "[t]he use of fictitious names is disfavored." Doe v. Blue Cross &Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997). The Federal Rules of Civil Procedure dictate that "the complaint must name all the parties." FED. R CIV. P. 10(a). "Judicial proceedings are supposed to be open .. in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity." Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). That said, in narrow circumstances it is possible to overcome the "presumption that parties' identities are public information, and the possible prejudice to the opposing party from concealment." Id. A party seeking to proceed by pseudonym must "show[] that the harm to the [party] . exceeds the likely harm from concealment." Id.

Roe alleges that if he uses his real name, he will face possible criminal prosecution, if it turns out that his possession of the auto sear is unlawful. There are shades of a Fifth Amendment self-incrimination assertion in this argument. We have limited anonymity to cases in which there is a danger of retaliation, see id., and "when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses." Blue Cross &Blue Shield United, 112 F.3d at 872. On the other side, we have refused to allow plaintiffs to proceed anonymously merely to avoid embarrassment. See Doe v Village of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016). We have never had to consider whether the threat of criminal exposure should be a factor for district courts to weigh when deciding whether to permit a plaintiff to litigate under a pseudonym. One might argue that the danger of retaliation encompasses the threat of criminal prosecution, but this would be breaking new ground. Cf. City of Chicago, 360 F.3d at 669 (indicating that we would protect a plaintiff's identity to prevent their sexual orientation from becoming public); Doe ex rel. Doe v. Elmbrook School...