The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

In Bump Stock Case, Tenth Circuit Dismisses Grant of Rehearing En Banc As Improvidently Granted

The En Banc Court Split 6-5 to vacate the prior grant of rehearing en banc. This case may present a cert-worthy Chevron vehicle.


In May 2020, a divided three-judge panel on the 10th Circuit upheld President Trump's executive action that prohibited possession of bump stocks. In September 2020, the 10th Circuit granted rehearing en banc in Aposhian v. Barr. The case was fully briefed, and was argued. Yesterday, the 10th Circuit changed course. By a vote of 6-5, the en banc court voted to vacate its prior order granting en banc review, and reinstate the original three-judge panel:

On September 4, 2020, this court entered an order granting Appellant's Petition for Rehearing En Banc. Having now considered the parties' supplemental briefs and heard oral argument in this matter, a majority of the en banc panel has voted to vacate the September 4, 2020 order as improvidently granted. As a result, the court's September 4, 2020 order granting en banc rehearing is VACATED, the court's May 7, 2020 opinion is REINSTATED, and the Clerk shall reissue this court's judgment as of the date of this order.

Five judges dissented from the decision to vacate the grant of rehearing en banc. And there were forty-pages of dissentals from four of those five judges:

Chief Judge Tymkovich, as well as Judges Hartz, Holmes, Eid and Carson would proceed with en banc rehearing. Chief Judge Tymkovich, Judge Hartz, Judge Eid, and Judge Carson have written separate dissents from this order, and each has joined in the others' dissents. Judge Holmes has also joined all dissents.

At present there are 11 active judges on the 11th Circuit. Judge McHugh recused from this case. The order states:

The Honorable Carlos F. Lucero participated in the en banc court's consideration of this matter while still in active status. He took senior status effective February 1, 2021, but has participated fully in this order.

I suppose the decision to vacate the order occurred before February 1, but the dissentals took some time to write. I am not sure if there is some rule (internal or external) by which senior status judges can have their votes count in this sort of situation.

By process of elimination we know that the six Judges who voted to vacate the prior order were the appointees from Presidents Clinton and Obama: Judges Briscoe, Judges Lucero, Matheson, Bacharach, Phillips, and Moritz. And the five appointees from Presidents Bush and Trump dissented: Chief Judge Tymkovich and Judges Hartz, Holmes, Eid, and Carson.

I don't recall ever seeing an appellate court DIG an en banc order. I did a search of federal appellate decisions for "en banc" /s "as improvidently granted." That search yielded only 32 hits. Most of those cases were discussing situations where the Supreme Court DIG'd a case after a circuit court granted en banc. I saw several dissents in which judges urged the en banc court to dismiss a grant of rehearing en banc as improvidently granted. But over the past three decades, only one court has vacated a grant of rehearing en banc: the Tenth Circuit. I found three such cases.

First, in Forest Guardians v. U.S. Forest Service (10th Cir. 2011), the en banc court unanimously vacated its prior order of en banc review. And the panel unanimously granted panel review and issued a revised opinion.

Second, in Gonzales v. McKune (10th Cir. 2002), the en banc court also unanimously vacated its prior order of en banc rehearing, because the issue was not properly raised in state court.

Third, in Northern Arapaho Tribe v. Wyoming (10th Cir. 2005), a divided en banc court vacated its prior order of en banc rehearing. Three judges dissented, and would have certified a question to the Wyoming Supreme Court.

In each of these three cases, there was some indication of why the en banc grant was DIG'd. And in each case, there was a broad consensus to DIG the grant. But in Aposhian, the Court did not explain it DIG, and divided 6-5, with lengthy dissentals.

The lead dissent, by Chief Judge Tymkovich, began:

I dissent from the majority's decision to vacate the en banc order as improvidently granted. The issues that initially led this court to grant en banc rehearing remain unresolved and it is important that they be addressed to give guidance to future panels and litigants.

The rest of his dissent, and others, explained why the three-judge panel erred.

This case may be a good vehicle for certiorari. Bump stocks are, of course, unpopular, But this case considers whether Chevron deference is warranted in the criminal context. Moreover, the Trump Administration expressly disavowed any reliance on Chevron deference. I suspect the Biden Administration will take a different position. Judge Eid's dissent summarizes these cert-worthy questions:

Chevron has no place in this case. At least four reasons support this conclusion. First, the statutory language is not ambiguous. Ante, at 9–12 (Tymkovich, C.J., dissenting); post, at 1–2 (Carson, J., dissenting). Second, even if the language were ambiguous, the agency offers up no particular expertise or policy insight to help resolve the ambiguity. Ante, at 1–3 (Hartz, J., dissenting). Third, any argument for deference is waived because the agency disavows reliance on Chevron altogether. Ante, at 12–17 (Tymkovich, C.J., dissenting); post, at 2–3 (Carson, J., dissenting). Finally, the criminal penalties at issue in this proceeding counsel against Chevron's application. Ante, at 17– 25 (Tymkovich, C.J., dissenting). I join my dissenting colleagues, and write briefly to elaborate on this latter point.

This case may have a chance upstairs.

Disclosure: I authored an amicus brief before the three-judge panel on behalf of the Cato Institute.