Administrative Law

Divided Sixth Circuit Panel Rejects Chevron Deference for Interpretation of Criminal Statute

A long awaited decision in a challenge to the Trump Administration's "bump stock" ban tees up some interesting questions for the High Court's review.

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Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued its long-awaited opinion in Gun Owners of America v. Garland, a challenge to the Trump Administration's "bump stock" ban. How long as this decision been awaited? Oral argument was in December 2019. Judge Batchelder wrote the opinion for the court, joined by Judge Murphy. Judge White dissented.

Judge Batchelder's opinion invalidates the ban on the grounds that the Bureau of Alcohol, Tobacco, and Firearm's interpretation was not eligible for Chevron deference because the law being interpreted was a criminal statute. Here is how she summarizes the ruling in her introduction:

The question before us is whether a bump stock may be properly classified as a machine gun as defined by 26 U.S.C. § 5845(b). But this case rests as much on who determines the statute's meaning as it does on what the statute means.

On December 26, 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF" or "Agency") promulgated a rule that classified bump stocks as machine guns, reversing its previous position. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, 479) ("Final Rule"). Plaintiffs-Appellants—three gunrights organizations, two individuals who own bump stocks, and one individual who would purchase a bump stock if not for the Final Rule—filed a motion for a preliminary injunction to prevent the Final Rule from taking effect. After finding that the ATF's interpretation was entitled to Chevron deference, the district court held that the Final Rule's classification of bump stocks as machine guns was "a permissible interpretation" of § 5845(b). Accordingly, the court concluded that Plaintiffs-Appellants were unlikely to succeed on the merits and denied the preliminary injunction.

Because an agency's interpretation of a criminal statute is not entitled to Chevron deference and because the ATF's Final Rule is not the best interpretation of § 5845(b), we REVERSE the district court's judgment and REMAND for proceedings consistent with this opinion.

And from the conclusion:

Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns, we hold that an administering agency's interpretation of a criminal statute is not entitled to Chevron deference. Consequently, the district court erred by finding that the ATF's Final Rule, which interpreted the meaning of a machine gun as defined in 26 U.S.C. § 5845(b), was entitled to Chevron deference. And because we find that "single function of the trigger" refers to the mechanical process of the trigger, we further hold that a bump stock cannot be classified as a machine gun because a bump stock does not enable a semiautomatic firearm to fire more than one shot each time the trigger is pulled. Accordingly, we find that Plaintiffs-Appellants are likely to prevail on the merits and that that their motion for an injunction should have been granted.

One other tidbit: While concluding the district court should have granted the plaintiffs-appellants' request for an injunction, the court's majority expressly rules out the possibility of a nationwide injunction, and declares that the scope of any injunction entered "may not exceed the bounds of the four states within the Sixth Circuit's jurisdiction."

As noted, this was a divided opinion. Judge White's dissent begins:

I respectfully disagree with the majority's conclusion that Chevron never applies to laws with criminal applications. The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O'Hagan—and has never purported to overrule those cases. Although comments in subsequent decisions may create tension with these cases, they remain binding. Thus, I would apply Chevron. And because the statutory phrase here is ambiguous and the ATF's interpretation of that phrase is reasonable, it is entitled to deference under Chevron.

Time permitting, I will have more to say about the Chevron issues later. I expect one or more of my co-bloggers may have something to say about the opinion as well.