10th Circuit Walks Back En Banc Grant for Bump Stocks Case

After granting rehearing, 10th Circuit upholds panel decision

The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.

In a move described by litigants as “unusual,” the 10th Circuit Court of Appeals revoked its decision to hear oral arguments en banc — after already hearing the arguments. Not only is the appellant’s counsel concerned by the decision, five out of 11 judges expressed concern as well, including Chief Judge Timothy Tymkovich.

“I believe the panel majority went looking for ambiguity where there was none,” Tymkovich wrote in his dissent. “Then, having found ambiguity, it unnecessarily placed a thumb on the scale for the government by invoking Chevron deference.”

The case in question is Aposhian v. Wellington, previously Aposhian v. Barr, involving bump stocks, a firearm attachment that allows semiautomatic firearms to shoot more than one shot with a single pull of the trigger, according to the Bureau of Alcohol, Tobacco and Firearms.

Bump stocks gained national interest following the 2017 mass shooting in Las Vegas where a gunman used a rifle fitted with such an attachment to kill 58 and injure more than 400 people. The oral arguments held in January, now nullified, hinged on whether Congress’ ban on machineguns included guns fitted with bump stocks, and whether Chevron deference — which deals with the rulemaking power of federal agencies — could be invoked in the case even after the ATF waived the argument.

W. Clark Aposhian, who purchased his bump stock prior to the change of the Final Rule in 2018, challenged an ATF rule banning bump stocks in federal court. He argued that it conflicted with earlier established rule that said certain bump stocks weren’t machineguns.

The en banc oral arguments in January discussed everything from the definition of “machinegun” to the use of Chevron deference. Chevron came from the case Chevron U.S.A. v. Natural Resources Defense Council and has become one of the most important principles of administrative law, according to the Legal Information Institute of Cornell Law School. In that case, the U.S. Supreme Court set a legal test as to when a court should defer to agency answers or interpretation of administrative actions — so long as Congress hasn’t spoken directly to the issue or when judicial deference is appropriate where the agency’s answer isn’t unreasonable.

“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 Sept. 4, 2020 order as improvidently granted,” according to the order. As such, the order was vacated, and the May 2020 opinion was reinstated as the court’s judgment.

Caleb Kruckenberg of the New Civil Liberties Alliance, representing Aposhian, said it was “unusual” for the court to grant en banc review and then dismiss the arguments as improvidently granted. In the cases in other courts, he said, it has generally been a unanimous decision of the court.

Tymkovich and judges Harris Hartz, Jerome Holmes, Allison Eid and Joel Carson, notably all dissents were made by the appellate court’s Republican appointees, wanted to proceed with the en banc rehearing, according to the order. Tymkovich, Hartz, Eid and Carson wrote separate dissents from the order.

“It is extremely remarkable that five of the 11 judges, not only thought it was provident to grant review, but they would have reversed the panel opinion,” Kruckenberg said. He added he couldn’t speculate about why the court decided to dismiss, but that it was not a cut and dry issue in the court’s view.

In his own dissent, Tymkovich wrote that the issues initially leading the court to grant en banc rehearing “remain(s) unresolved and it is important that they be addressed to give guidance to future panels and litigants.”

He stated in the dissent that he wrote separately to identify why the panel majority wrongly decided the case in the first place and why the opinion of the court will have “deleterious effects” moving forward. Tymkovich pointed to the lower court’s decision that Aposhian would not succeed on the merits, however, he noted that 10th Circuit panel had departed from the district court’s reasoning. The panel also found the statute surrounding the machinegun definition as ambiguous.

“Having identified an ‘ambiguity,’ the panel applied Chevron deference to the ATF’s interpretation … . Given this deference, Mr. Aposhian had no realistic path to success,” he wrote. However, Tymkovich said he wondered how the panel found this ambiguity.

The chief judge continued to write that the manner the panel addressed the issues wasn’t only “wrong” but created an “unfortunate amount of uncertainty for future litigants.”

He wrote the ruling further confused the 10th Circuit’s guidance about whether Chevron can be waived and whether the rule of lenity can be used to resolve ambiguities when Chevron could apply to statutes with criminal penalties.

Tymkovich wrote that he believed Aposhian showed a likelihood of success on the merits, and that the section of ATF regulations on machineguns “unambiguously excludes bump stocks.” He also wrote in his dissent that he found Chevron inapplicable for many reasons, one being that the government revoked its use, and “that is a decision we should respect.”

Tymkovich also wrote that while bump stocks increase the rate of “lethal fire” from a gun, Congress didn’t define machineguns based on the rate of fire. Instead, it defined machinegun based on mechanical operation. “The language of that statute and that statute alone is what we must apply.”

“The en banc majority has done the circuit no favors today,” he wrote. “By dismissing the en banc order, the majority perpetuates confusion on difficult issues in the circuit.” He concluded his dissent by hoping that the issues he rose would be clarified “sooner rather than later.”

The other judges similarly wrote that Chevron was improperly applied. Eid opened her dissent by stating simply, “Chevron has no place in this case.” Carson said in his dissent that there was an apparent intracircuit conflict over whether the application of Chevron deference must be requested by the government first and that the U.S. Supreme Court and the 10th Circuit have often declined to apply Chevron when the government fails to invoke or rely on the doctrine.

Kruckenberg said he plans to file for certiorari with the U.S. Supreme Court.

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