VanDerStok v. Garland

86 F.4th 179

Jennifer VANDERSTOK; Michael G. Andren; Tactical Machining, L.L.C., a limited liability company; Firearms Policy Coalition, Incorporated, a non-profit corporation, Plaintiffs—Appellees Blackhawk Manufacturing Group, Incorporated, doing business as 80 Percent Arms; Defense Distributed; Second Amendment Foundation, Incorporated; Not an L.L.C., doing business as JSD Supply; Polymer80, Incorporated, Intervenor Plaintiffs—Appellees, v. Merrick GARLAND, U.S. Attorney General; United States Department of Justice; Steven Dettelbach, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants—Appellants.

No. 23-10718

United States Court of Appeals, Fifth Circuit

FILED November 9, 2023

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:22-CV-691, Reed Charles O'Connor, U.S. District Judge

David H. Thompson, William V. Bergstrom, Peter A. Patterson (argued), Cooper & Kirk, P.L.L.C., Washington, DC, Brian A. Abbas, Attorney, Mountain States Legal Foundation, Lakewood, CO, Richard Brent Cooper, Cooper & Scully, P.C., Dallas, TX, Cody J. Wisniewski, Attorney, Firearms Policy Coalition, Las Vegas, NV, for Plaintiffs—Appellees.

Michael J. Sullivan, Ashcroft Law Firm, L.L.C., Boston, MA, Brian Daniel Poe, Fort Worth, TX, for Intervenor Plaintiff—Appellee Blackhawk Manufacturing Group, Incorporated.

Chad Flores, Esq., Flores Law, P.L.L.C., Houston, TX, for Intervenor Plaintiffs—Appellees Defense Distributed, Second Amendment Foundation, Incorporated.

J. Mark Brewer, Brewer & Pritchard, P.C., Houston, TX, Chad Flores, Esq., Flores Law, P.L.L.C., Houston, TX, Matthew Joseph Smid, Evans, Daniel, Moore, Evans, Biggs, & Smid, Fort Worth, TX, for Intervenor Plaintiff—Appellee Not An L.L.C., doing business as JSD Supply.

James Wallace Porter, III, Bradley Arant Boult Cummings, L.L.P., Birmingham, AL, Connor McCarthy Blair, Bradley Arant Boult Cummings, L.L.P., Nashville, TN, Dennis Daniels, Bradley Arant Boult Cummings, L.L.P., Dallas, TX, Marc A. Nardone, John Parker Sweeney, Esq., Bradley Arant Boult Cummings, L.L.P., Washington, DC, for Intervenor Plaintiff—Appellee Polymer80, Incorporated.

Sean Janda (argued), Courtney Dixon, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Daniel M. Riess, U.S. Department of Justice, Civil Division Federal Programs Branch, Washington, DC, Abby Christine Wright, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants—Appellants.

Stephen Obermeier, Wiley Rein, L.L.P., Washington, DC, for Amicus Curiae Firearms

Regulatory Accountability Coalition, Incorporated.

Jennifer L. Swize, Jones Day, Washington, DC, for Amicus Curiae Gun Owners for Safety.

Kathleen R. Hartnett, Cooley, L.L.P., San Francisco, CA, Adam M. Katz, Cooley, L.L.P., Boston, MA, for Amici Curiae Everytown for Gun Safety Support Fund, Brady Center to Prevent Gun Violence, March For Our Lives.

Anthony Roman Napolitano, Bergin, Frakes, Smalley & Oberholtzer, P.L.L.C., Phoenix, AZ, for Amici Curiae Gun Owners of America, Incorporated, Tennessee Firearms Association.

Erin Murphy, Paul D. Clement, Matthew Rowen, Alexandria, VA, for Amicus Curiae National Shooting Sports Foundation, Incorporated.

Before Willett, Engelhardt, and Oldham, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

It has long been said—correctly—that the law is the expression of legislative will.¹ As such, the best evidence of the legislature's intent is the carefully chosen words placed purposefully into the text of a statute by our duly-elected representatives. Critically, then, law-making power—the ability to transform policy into real-world obligations—lies solely with the legislative branch.² Where an executive agency engages in what is, for all intents and purposes, "law-making," the legislature is deprived of its primary function under our Constitution, and our citizens are robbed of their right to fair representation in government. This is especially true when the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties.

The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature's will. Accordingly, for the reasons set forth below, we AFFIRM IN PART and VACATE AND REMAND IN PART the judgment of the district court.

I. Statutory and Regulatory Background

In April of 2022, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") issued a Final Rule in which the terms "firearm" and "frame or receiver," among others, were given "an updated, more comprehensive definition." Definition of "Frame or Receiver" and Identification of Firearms, 87 Fed. Reg. 24652 (Apr. 26, 2022) (the "Final Rule"). The Final Rule was almost immediately the subject of litigation claiming that ATF had exceeded its statutory authority. It is that Final Rule that is before this Court now.

First, a brief history of the regulatory agency under fire here. ATF was created in 1972 as an independent bureau of the U.S. Department of the Treasury.³ The Homeland Security Act of 2002 later transferred ATF to the U.S. Department of Justice, where it remains active today. See 6 U.S.C. § 531. Upon its creation, ATF obtained jurisdiction to act under earlier legislation, including the Gun Control Act of 1968 ("GCA"),⁴ which permits the regulation and taxation of certain "firearms." Under the GCA, Congress granted to the Attorney General the power to prescribe rules and regulations necessary to carry out the GCA's provisions. See 18 U.S.C. § 926. The Attorney General thereafter delegated this authority to ATF, to "[i]nvestigate, administer, and enforce the laws related to alcohol, tobacco, firearms, explosives, and arson, and perform other duties as assigned by the Attorney General." 28 C.F.R. § 0.130. Pursuant to this authority, ATF proposed the Final Rule as an extension of the GCA's regulation of firearms.

The GCA requires all manufacturers and dealers of firearms to have a federal firearms license; manufacturers and dealers are thus known as "Federal Firearms Licensees" or "FFLs." When those FFLs sell or transfer "firearms," they must conduct background checks in most cases, record the firearm transfer, and serialize the firearm. See 18 U.S.C. §§ 922(t), 923(a), 923(g)(1)(A), 923(i).

The primary method by which the GCA ensures that the manufacture and sale of firearms are regulated as intended is through the imposition of criminal penalties.⁵ As one example, the GCA generally prohibits "any person" who is not "a licensed importer, licensed manufacturer, or licensed dealer" (i.e., an FFL) from "importing, manufacturing, or dealing in firearms" and from "ship[ping] or transport[ing] in interstate or foreign commerce any firearm to any person." Id. at § 922(a). As another example, the GCA prohibits a large class of persons from not only shipping or transporting firearms, but from possessing them at all. Id. at § 922(g). Should a person commit these or any of the other unlawful acts found in the twenty-six subsections of section 922, section 924 authorizes various penalties, including fines, imprisonment, or both. Id. at § 924.

The bedrock of the GCA and its plethora of requirements and restrictions is the word "firearm." The GCA defines a "firearm" as: "(A) any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device." Id. at § 921(a)(3)(C). As no definition for "frame or receiver" is given in the GCA, ATF previously defined a "frame or receiver" in 1978 as: "That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." Title and Definition Changes, 43 Fed. Reg. 13531, 13537 (Mar. 31, 1978). This definition remained unchanged for over forty years, until ATF issued the Final Rule in 2022.

ATF's 1978 regulatory definition sufficiently captured most firearms of the era. Modern firearms, however, have developed such that many firearms no longer fall within the definition. In the Final Rule, ATF states that "the majority of firearms in the United States" no longer have a clear "frame" or "receiver" that includes all three elements of the prior definition (that is, a hammer, bolt or breechblock, and firing mechanism). 87 Fed. Reg. at 24655. ATF uses the example of an AR-15,⁶ which does not have a single housing for the bolt (which is part of the "upper assembly") and the hammer and trigger (which is part of the "lower assembly"). Id. Thus, as several district courts have recently recognized, the lower assembly of the AR-15, taken alone, is likely not covered by federal regulations. See, e.g., United States v. Rowold, 429 F. Supp. 3d 469, 475-76 (N.D. Ohio 2019) ("The language of the regulatory definition in § 478.11 lends itself to only one interpretation: namely, that under the GCA, the receiver of a firearm must be a single unit that holds three, not two, components: 1) the hammer, 2) the bolt or breechblock, and 3) the firing mechanism."). Likewise, weapons such as Glock semiautomatic pistols, which use a "striker" rather than a "hammer" as a firing mechanism, and the Sig Sauer P320 pistol, which has no one unit containing those three parts, seemingly may not be regulated under the prior GCA-related definitions. 87 Fed. Reg. at 24655.

The Final Rule was also concerned with the rise of...