McCutchen v. United States

14 F.4th 1355

Roy Lynn MCCUTCHEN, Paducah Shooter's Supply, Inc., individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants

v.UNITED STATES, Defendant-Appellee

2020-1188

United States Court of Appeals, Federal Circuit.

Decided: October 1, 2021

Jennifer Gelman, Flint Law Firm LLC, Edwardsville, IL, argued for plaintiffs-appellants. Also represented by Adam Michael Riley.

Kenneth Dintzer, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Jeffrey B. Clark, Robert Edward Kirschman, Jr., Loren Misha Preheim, Nathanael Yale.

Before Taranto, Wallach,^* and Chen, Circuit Judges.

Opinion concurring in the result filed by Circuit Judge Wallach.

Taranto, Circuit Judge.

On December 26, 2018, the U.S. Department of Justice, exercising congressionally granted authority to implement various federal firearms statutes, promulgated a rule that is the basis for the takings claim in this case. Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (Final Rule). The impetus for the proceeding was the massacre in Las Vegas on October 1, 2017, when a lone shooter, using "rifles with attached bump-stock-type devices," fired "several hundred rounds of ammunition in a short period of time, killing 58 people and wounding approximately 500." Id. at 66,516. Since 1986, 18 U.S.C. § 922(o) has declared it to be unlawful to possess or transfer a "machinegun" (with exceptions not applicable here, for governments and for lawful possession before the 1986 law took effect), with "machinegun" defined with specificity by statute, 26 U.S.C. § 5845(b) (incorporated by 18 U.S.C. § 921(a)(23) ). In the Final Rule, the Department, which houses the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), adopted regulations that interpret the statutory definition and specifically provide that the definition includes "a bump-stock-type device, i.e. , a device that allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter." 83 Fed. Reg. at 66,553 –54. The Final Rule states that "[t]he bump-stock-type devices covered by this final rule were not in existence prior to" 18 U.S.C. § 922(o). Id. at 66,514. As of March 26, 2019, the Rule's effective date, possessors of such devices had to destroy them or abandon them to ATF, or else face criminal penalties under 18 U.S.C. § 924(a)(2) for a "knowing" violation of 18 U.S.C. § 922(o). See id. at 66,514, 66,520, 66,523.

Plaintiffs Roy McCutchen and Paducah Shooter's Supply, Inc. brought this action against the United States in the Court of Federal Claims (Claims Court) under the Tucker Act, 28 U.S.C. § 1491. Asserting that the Final Rule effected a taking for public use of their bump-stock-type devices by requiring the devices’ destruction or surrender to ATF, plaintiffs seek just compensation under the Fifth Amendment's Takings Clause. Because it is the Final Rule that plaintiffs challenge and "[t]he bump-stock-type devices covered by this final rule were not in existence prior to the effective date of" 18 U.S.C. § 922(o), 83 Fed. Reg. at 66,514, plaintiffs’ bump-stock-type devices necessarily were not in existence before § 922(o) took effect. Although the Rule's validity has been disputed in other cases, plaintiffs accept, in their pursuit of their compensation claim, that the Final Rule is an authorized and lawful (i.e. , valid) implementation of the statutory bar on possession or transfer of a "machinegun."

The government moved to dismiss the claim under Court of Federal Claims Rule 12(b)(6). By the time the motion was fully briefed, the Rule's effective date had arrived, and plaintiffs had complied with the Rule and destroyed their bump-stock-type devices. The Claims Court granted the motion and dismissed the takings claim. It principally relied on the "police power" doctrine, concluding that, because the Final Rule sought to protect health and safety, it did not effect a taking for public use. See McCutchen v. United States , 145 Fed. Cl. 42, 51–53 (2019).

We affirm, but we do so on a threshold ground different from, though related to, the Claims Court's grounds. The interest that plaintiffs allege was taken was the interest in continued possession or transferability of their devices. The takings claim depends on plaintiffs having an established property right in continued possession or transferability even against a valid agency implementation of the preexisting statutory bar on possession or transfer. But plaintiffs’ title, which we assume is otherwise valid under state law, was always inherently limited by 18 U.S.C. § 922(o), a very specific statutory prohibition on possession and transfer of certain devices defined in terms of physical operation, together with a congressional authorization of a (here undisputedly) valid agency interpretation of that prohibition. That title-inhering limit means that plaintiffs lacked an established property right in continued possession or transferability. The takings claim therefore fails.

I

A

In 1934, Congress enacted the National Firearms Act, Pub. L. No. 73–474, 48 Stat. 1236 (NFA or 1934 Act). The Act regulated the importation, manufacture, transfer, sale, and possession of certain firearms, including "machineguns."¹ See 26 U.S.C. § 5801 et seq. Congress specifically defined "machinegun." Id. § 5845(b) (current version, quoted infra ). Congress included penalty and forfeiture provisions and also subjected violators to the general enforcement measures available under the internal-revenue laws. Id. §§ 5871–72.

About thirty years later, Congress enacted the Gun Control Act of 1968, Pub. L. No. 90–618, 82 Stat. 1213 (GCA or 1968 Act). See 18 U.S.C. § 921 et seq. In that Act, Congress established a regulatory licensing scheme and imposed criminal prohibitions on certain firearm transactions. 18 U.S.C. § 923. The GCA incorporates the National Firearms Act's "machinegun" definition. Id. § 921(a)(23) ("The term ‘machinegun’ has the meaning given such term in section 5845(b) of the National Firearms Act ( 26 U.S.C. 5845(b) ).").

In 1986, Congress adopted the Firearms Owners’ Protection Act, Pub. L. No. 99–308, 100 Stat. 449 (FOPA or 1986 Act), which amended the Gun Control Act and National Firearm Act. The 1986 Act added 18 U.S.C. § 922(o), which provided when enacted and still provides:

(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [May 19, 1986].

§ 102, 100 Stat. at 453; 18 U.S.C. § 922(o). That language makes it unlawful to possess or transfer a "machinegun," with exceptions for governments and pre-FOPA lawful possession. See Final Rule, 83 Fed. Reg. at 66,515 (noting that the amendment "effectively froze the number of legally transferrable machineguns to those that were registered before the effective date of the statute"). A "knowing" violation subjects the violator to criminal penalties, 18 U.S.C. § 924(a)(2) ; a "willful" violation subjects the violator to "seizure and forfeiture" remedies, id. § 924(d)(1).

The crucial term, "machinegun," is declared, in 18 U.S.C. § 921(a)(23), to have the meaning specified in 26 U.S.C. § 5845(b). Since 1986, that definition has provided:

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.

26 U.S.C. § 5845(b) (emphases added).²

In 18 U.S.C. § 926(a), Congress has granted the Attorney General the authority to promulgate rules and regulations "necessary to carry out" chapter 44 of Title 18, U.S. Code, which includes 18 U.S.C. § 922. In 26 U.S.C. § 7801(a), Congress has made the Attorney General responsible for the "administration and enforcement" of chapter 53 of Title 26, U.S. Code, which includes 26 U.S.C. § 5845. The grants of implementation authority have been in place since 1986: The current "necessary to carry out" language of 18 U.S.C. § 926(a) was adopted in the 1986 Act, replacing the preexisting "reasonably necessary" authority, § 106, 100 Stat. at 459; and even before the 1986 Act, 26 U.S.C. § 7801(a) granted the Executive the "administration and enforcement" authority relevant here, 26 U.S.C. § 7801(a) (1982). Before 2002, both authorities resided with the Secretary of the Treasury, see 18 U.S.C. §§ 921(a)(18), 926(a) (2000) ; 26 U.S.C. § 7801(a) (2000), but in 2002, they were transferred to the Attorney General as part of the relocation of ATF to the Department of Justice, see Homeland Security Act of 2002, Pub. L. No. 107–296, § 1111, 116 Stat. 2135, 2274–75; 28 U.S.C. § 599A(c)(1). The Attorney General has delegated relevant authority to ATF. 28 C.F.R. § 0.130(a)(1)–(2).

B

A rifle is semiautomatic if, after it has been fired, rechambering of ammunition is automatic but refiring is not. Specifically, "[t]he term ‘semiautomatic rifle’ means any repeating rifle which utilizes a portion of the energy of a firing cartridge...