Sixth Circuit En Banc Panel Ties on the ATF Bump Stock Regulation, Thus Affirming Only the Judgment of the District Court Sustaining the Regulation (12/6/21)

In Gun Owners of America, Inc. v. Garland, ___ F.4th ___, 2021 U.S. App. LEXIS 35812 (6^th Cir. 12/3/21), here, the Court en banc by terse order affirmed the district court judgment sustaining the bump stock regulation based on an 8 to 8 split among the judges.  Judges on either side of the split wrote separate opinions in support of and against affirming the district court judgment, although none of the opinions received support of a majority of the en banc panel.  The district court opinion sustained the validity of the bump stock regulation and the panel Circuit opinion reversed the district court judgment.  Therefore the affirmance of only the judgment (and not on the basis of the district court opinion or the panel opinions) seems to mean that the result only has been affirmed with no precedential value in the district court opinion, the Circuit Court panel opinions, or the en banc separate opinions. (If I am incorrect in how I read the en banc outcome, I hope someone with post a comment or email me at jack@tjtaxlaw.com to correct me.)

In all events, it appears that now there is no conflict among the Circuits on the validity of the ATF’s bump stock regulation and, hopefully, no reason for the Supreme Court to take the case on the basis of conflict among the Circuits.  (My speculation is that a conflict is likely to occur when a case gets before the more ideologically oriented Fifth Circuit.)

Since the en banc separate opinions are not precedential and seem to only rehash arguments that have previously been addressed in the panel opinions, I am reluctant to address the en banc separate opinions here.  I have already addressed the arguments made in the en banc separate opinions via comments on the panel opinions in Gun Owners of America, Inc. v. Garland, 992 F. 3d 446 (6^th Cir. 2021)  and comments on the preceding opinions in Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019) and Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020).  The relevant prior blogs on the prior opinions are (in reverse chronological order):

• Circuit Conflict in Important Cases that Allow the Supreme Court to Take Cert and Pronounce on the Difference between Legislative and Interpretive Regulations (Federal Tax Procedure Blog 3/30/21; 12/6/21), here.
• More Thoughts on APA and Legislative and Interpretive Regulations Inspired by Recent Cases (Federal Tax Procedure Blog 4/8/21; 4/11/21), here.
• Tenth Circuit Wobbles on Legislative / Interpretive Distinction (Federal Tax Procedure Blog 5/13/20), here.
• Guedes Cert Denial on Bump Stock as Machinegun, Justice Gorsuch's Cryptic Statement and My Digression (Federal Tax Procedure Blog 3/2/20; 3/5/20), here.
• Legislative Rules And Chevron Deference An Oxymoron? (Federal Tax Procedure Blog 1/31/20; 2/10/20), here.

JAT Notes:

Added 12/6/21 at 3:00pm:

1. For a discussion of the en banc disposition and the opinions, see Jonathan Adler, En Banc Sixth Circuit Splits 8-8 Over Bump Stock Ban (Volokh Conspiracy 12/4/21), here.

2. In Judge White’s opinion joined by four judges, Judge White says first applies Chevron deference, finding the ATF interpretation a reasonable / permissible interpretation of the statute’s ambiguity.  Then, Judge White concludes that an additional ground for sustaining the ATF interpretation is that the ATF interpretation is the “the best interpretation” (pp. 5 & 18-20, applying Skidmore deference in determining the best interpretation).

As I have previously noted, if indeed a court is able to determine that the agency interpretation is the better / best interpretation among interpretations within the scope of the statutory ambiguity, there is no deference because the court is not deferring to the agency interpretation.  See the excerpt from my current draft article, here.  Here is the relevant discussion under what I call Category 3 (p. 71 of the linked draft, footnotes omitted):

3.  If the agency has interpreted the statute, and the court believes the agency interpretation is the best interpretation, then that best interpretation applies.  Since the court reached that same interpretation, the court did not defer to the agency interpretation. No deference there. This category includes what is commonly called Skidmore deference (which may not be deference at all because  he court must be persuaded that the agency interpretation is the best.

If this is a correct analysis (I think it is), then since there is no deference when the court affirms an agency interpretation as the best interpretation, Judge White’s discussion of deference may be considered a form of dicta because Chevron deference is outcome determinative only when a court has a best interpretation and rather than applying the best interpretation applies the less-best agency interpretation.

The problem highlighted here is that some courts assume and often state that they quit their interpretive analysis under Chevron when they determine that an agency interpretation is a reasonable interpretation.   (This may be a reflection of the phenomenon Justice Kennedy lamented as reflexive Chevron deference in Pereira v. Sessions, 585 U.S. ___, 138 S.Ct. 2105, 2020-2021 (2018).  If that is all the court does, then that determination is ambiguous as to whether the judge is deferring to a less-best agency interpretation.  Deference is outcome determinative only when a court defers to an interpretation that is not as persuasive as the best interpretation.  Even without Chevron a court can always apply the best interpretation of the statute; stated otherwise, the court would reach the same result even if Chevron deference (or its predecessors) did not exist.

Finally, in the linked excerpt to my article, my point was to illustrate that, with rigorous analysis, courts can avoid giving the appearance of outcome determinative deference in many cases.  Indeed, I argue that, in most cases, a court would not apply Chevron deference to trump a better interpretation of the statutory text and that, for that reason, all of the commotion about Chevron ceding power to the administrative state is overblown reflecting political ideology rather than rigorous analysis.