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.

NEXT: The Hidden Rule of Ownership

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  1. “[D]issentals”?

    Whoever made that up should be taken out and thrashed with dictionaries.

    1. It was Alex Kozinski, whose comeuppance has taken a somewhat different form.

    2. I get the sense that you’re a Polonius kind of guy.

  2. 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.

    Incorrect. See, e.g., Key Enterprises of Delaware v. Venice Hosp., 9 F.3d 893 (11th Cir. 1993) and United States v. Blaylock, 275 F.3d 1030 (11th Cir. 2001).

    Perhaps South Texas College of Law offer a legal research and writing course?

    1. My! Aren’t you credentialed today!

  3. It seems to me you’re missing the point rather spectacularly here, Prof. Blackman.

    The dismissal of en banc rehearing as improvidently granted, in this context, is a nonprecedential way to emphasize how relatively unimportant this case is.

    It strikes me as exceptionally unlikely that cert will be granted in this case, to which a majority of the Tenth Circuit has already, in effect, affixed a label that says, “This case is no big deal, and we were mistaken to ever think otherwise.”

    If the SCOTUS is looking for a case with significant Second Amendment ramifications, it has had, and will surely continue to have, many better opportunities than this one. The only thing remarkable about it is the degree to which it has documented the BATF’s historical internal inconsistency and general cluelessness. But that’s the default condition of governmental agencies, not any kind of exception which justifies the grant of certiorari and the investment of time by the SCOTUS.

    1. More a matter of wanting to uphold the lower court ruling, without having to give any reasoning for having done so, I think. The only thing improvident about this is that they found the 6-5 majority wanted to uphold the lower court ruling, but really didn’t feel comfortable having to explain why.

      There are two reasons this case was, and is, a big deal indeed.

      1) The BATF adopting an ‘interpretation’ of a statute which is glaringly contrary to what it actually says, after long interpreting it consistent with the text. Basically they made law contrary to the statute the legislature had given them.

      2) The uncompensated demand that people relinquish lawfully acquired property or face serious criminal liability, on the basis of such a dubious regulatory change of opinion.

      It would have been bad enough if owners had been compensated, but demanding you destroy lawfully acquired property without compensation is always a big hairy deal.

      1. I’d add that the failure to give any reason to claim it was improvidently granted, in the face of that dissent, is very revealing. Essentially the en banc court was making a ruling on the merits without putting their names on the line, and using the DIG as a pretext to accomplish that.

        1. The whole thing demonstrates the major failing of the Trump Administration — they tried to work with the left under the presumption that the left were honorable people who could be trusted to do likewise.

          To gun owners, it was something that was unconstitutional, but not *that* unconstitutional and if we gave them this, they’d leave us alone one the more serious stuff — kinda like abortion advocates accepting “born alive” legislation, except they haven’t.

          The left doesn’t compromise, and I think that the second impeachment of Donald Trump has shown us that we can’t either.

          1. Actually, I blame the NRA here. The membership after that shooting figured that we’d just have to hold the line for a few weeks, as usual, to prevent panic legislation, and we’d be good once people were thinking again. It didn’t even occur to us that the NRA ‘leadership’ would see this as a great opportunity to throw bump stock owners under the bus.

            Trump would never have pursued the ban if the NRA hadn’t signed off on it.

            Even so, everybody expected that, after reviewing the proposal, the BATF would come back as it had many times before, and state that bump stocks simply were NOT ‘machine guns’ under the plain language of the statute. It was a bit of a second shock when they went ahead and did it, where even the Obama BATF hadn’t had the nerve. Again, must have been the NRA signing off on it that gave them the nerve.

            1. Well, there is a REASON why I am no longer a member of the NRA and I only hope that we can replace those corrupt schmucks with folk who actually believe what they purport to in times to save our rights….

              1. There are *many* reasons I’m no longer an NRA member. The millions going towards Wayne’s suits and limos being just some of them. I’d much rather support the State and local rifle and pistol associations, who so far seem to be more committed, more effective, and much less corrupt.

      2. Note, however, that this plaintiff is not raising the compensation argument.

        1. That’s as may be, but it remains that the the lack of compensation is still a big deal.

        2. I occurs to me, though, that if you’re trying to get an injunction on the basis of irreparable harm, raising the possibility of financial compensation might not be too clever.

      3. More a matter of wanting to uphold the lower court ruling, without having to give any reasoning for having done so, I think.

        If you have to impute dishonesty to a majority of the judges on the Tenth Circuit to justify your theory, it’s probably a stupid theory.

        The first time bump stocks were considered by a federal court of appeals was in Akins v. United States, in which a panel of the Eleventh Circuit upheld the ban in a per curiam unpublished opinion.

        The Tenth Circuit has left in effect a published panel opinion. There’s no hiding the ball going on here. It’s just not a very important ball.

        Take the Tenth Circuit en banc majority at face value, instead of imputing disingenuity to them. This case isn’t worth en banc consideration, much less SCOTUS review.

    2. I don’t really have a problem with banning bump stocks, but just deciding to make them illegal contrary to statute, then make previously legal possession illegal, and then have the courts just go along is a big deal.

      Saying this is no big deal is just saying the rule of law is no big deal.

      1. I don’t think many people care much about bump stocks, as such. They’re a foolish toy, that lets you burn through expensive ammo quickly while losing accuracy. (Hellfire triggers are vastly superior, I don’t know why anybody bothers with bump stocks.)

        It’s the principle of the thing. The BATF just up and issued a regulation flatly contrary to the utterly unambiguous text of the statute they claim to be interpreting, and rendered lawfully acquired property illegal to own, and ordered all the owners to dispose of it without compensation or become felons. It would have been equally objectionable for ANY article of property!

        And then the courts rolled over and played dead for them, because GUNS!

        I understand the rationale: The law in question predates the invention of bump stocks, and if the BATF were right about its meaning, they’d have ALWAYS been illegal, and you’re not due compensation for disposing of illegal property.

        But it’s a bogus rationale based on a bogus premise.

        1. Huh. I’d never heard of Hellfire triggers. Looks pretty interesting, but as much fun as that would be for a few seconds, the ammo bill won’t be.

          1. I have bump fired with just my finger, it only takes a few magazines to get the hang of it. It’s wildly inaccurate. But even if it were accurate, like this Hellfire trigger appears to be, the giggles would wear off long before the ammo bill.

          2. That’s why I’ve only used mine twice. Fun, but who can afford that much fun?

            A Hellfire trigger at dusk, on my Calico carbine with the 100 round magazine, loaded with Vector ‘illuminated’ ammo. Closest thing to firing a laser rifle! Also, broke me of the habit of using chunks of oak as plinking targets: Until I’d used it, I’d never known that a bullet could make a 90 degree turn inside a hunk of wood, if it hit a knot!

      2. Saying this is no big deal is just saying the rule of law is no big deal.

        No. It’s not. The Rule of Law doesn’t stand or fall based on this one case.

        Your argument could literally be used in every case, including the most trivial. Only someone entirely lacking in judgment, who can’t tell the difference between what is and isn’t consequential precedent, could make this argument.

        1. Oh, come on: To the extent the rule of law has exceptions, it isn’t the “rule” of law anymore. That there are topics where exceptions are routinely made is an even bigger deal.

          The courts let the BATF promulgate a regulation contrary to the text of the not at all ambiguous statute, and they did it because it was a regulation impinging on a right the courts typically don’t like.

  4. “This case may have a chance upstairs.”

    Probably not. The courts are not much inclined to uphold gun related rights at the best of times. Expecting them to do it in the case of a violation the NRA signed off on is questionable.

    It rather looks to me like McDonald will have been something of a high water mark for judicial respect for firearms related rights, much as I hate that. The Court has been giving better cases than this the cold shoulder.

    1. Yes, but those better cases were turned down because RBG made it possible for Roberts to play Kennedy. With ACB on board and Roberts no longer necessary, it has a better chance.

      1. They’ve refused cert to good test cases with her on the Court, you know.

  5. Excuse me, lawyers. Article I Section 1 gives all lawmaking powers to Congress. That makes executive regulations void. Nor may Congress delegate this function under the non-delegation doctrine.

    We can have the 10000 pages of the Federal Register read out loud in Congress, and approved. Then the members can be held accountable for its content at the next election.

  6. It looks like there are vehicle problems with taking this case to say anything about Chevron (as opposed to this specific regulation).

    At the district court, plaintiff argued Chevron deference was unconstitutional, and the regulation failed lower levels of deference. The government said, “We don’t even want you to apply Chevron. We still win.” The district court didn’t apply Chevron and still found the government won.

    Then at the appellate court, the parties took the same positions. Only this time, the panel decided to apply Chevron deference even though no one had argued it applied.

    Why would the Supreme Court grant cert on the Chevron issue here? At no point in the record has either party argued it applies. And even if the Biden administration were to argue otherwise, it still has the fallback argument that the district court opinion was correct, so there’s no need to say anything about Chevron at all.

  7. Circuit courts do not always use the phrase “improvidenty granted” when changing their minds about en bancs. For example, in Federal Education Association v. DOD, the Federal Circuit issued the following order: “A majority of the active judges of this court have voted to DISSOLVE the en banc court. The case is hereby referred to the original panel for further proceedings.” 889 F.3d 1385, 1386 (Fed. Cir. 2018) (mem.). There was an excellent reason for this order – the full court discovered a jurisdictional problem in the case.

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