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Codrea v. Bureau of Alcohol

United States District Court, District of Columbia

February 25, 2019

DAMIEN GUEDES, et al., Plaintiffs,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, et al., Defendants. DAVID CODREA, et al., Plaintiffs,
v.
WILLIAM P. BARR,

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE

         On October 1, 2017, a lone gunman fired several hundred rounds of ammunition at a crowd gathered for an outdoor concert in Las Vegas, killing 58 people and wounding hundreds more. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the gunman used multiple “bump stocks” in the attack, which increased his rate of fire. In response to this tragedy, the President, Members of Congress, and others urged ATF to reconsider its prior position that a bump stock is not a “machinegun” within the meaning of the National Firearms Act of 1934 (NFA). On December 26, 2018, ATF issued a final rule amending the regulatory definition of “machinegun” to include “bump-stock-type devices.” As a result, if the rule becomes effective on March 26, 2019, as scheduled, bump stocks will be banned under the Firearms Owners' Protection Act of 1986 (FOPA).

         To prevent the rule from taking effect, the plaintiffs-Damien Guedes, the Firearms Policy Coalition, David Codrea, and their co-plaintiffs-filed three motions for a preliminary injunction in which they raised overlapping statutory and constitutional challenges. All of the plaintiffs contend that ATF violated the Administrative Procedure Act (APA) when it promulgated the rule. Guedes also argues that ATF violated certain procedural requirements in 18 U.S.C. § 926(b), which grants the agency rulemaking authority. Codrea further argues that the rule violates the Takings Clause of the Fifth Amendment. And all of the plaintiffs contend that then-Acting Attorney General Matthew Whitaker lacked authority to promulgate the rule under either the Appointments Clause of the Constitution or 28 U.S.C. § 508 (the AG Act), a succession statute specific to the Office of the Attorney General. Because none of the plaintiffs' arguments support preliminary injunctive relief, the Court will deny all three motions.

         Most of the plaintiffs' administrative law challenges are foreclosed by the Chevron doctrine, which permits an agency to reasonably define undefined statutory terms. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Here, Congress defined “machinegun” in the NFA to include devices that permit a firearm to shoot “automatically more than one shot, without manual reloading, by a single function of the trigger, ” 26 U.S.C. § 5845(b), but it did not further define the terms “single function of the trigger” or “automatically.” Because both terms are ambiguous, ATF was permitted to reasonably interpret them, and in light of their ordinary meaning, it was reasonable for ATF to interpret “single function of the trigger” to mean “single pull of the trigger and analogous motions” and “automatically” to mean “as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger.” ATF also reasonably applied these definitions when it concluded that bump stocks permit a shooter to discharge multiple rounds automatically with a single function of the trigger. That this decision marked a reversal of ATF's previous interpretation is not a basis for invalidating the rule because ATF's current interpretation is lawful and ATF adequately explained the change in interpretation.

         The Court also rejects the plaintiffs' procedural challenges. ATF adequately responded to the objections raised by the plaintiffs during the comment period, and ATF was not required to disclose evidence on which it did not rely when it promulgated the rule. Nor did ATF violate § 926(b) by refusing to hold an oral hearing. Finally, any error ATF may have committed by failing to extend the comment period by five days because of technical glitches was harmless.

         As for the Takings Clause challenge, the plaintiffs have not shown that preliminary injunctive relief rather than future compensation is appropriate.

         The plaintiffs' statutory and constitutional challenges to Whitaker's authority fare no better. As a statutory matter, the plaintiffs argue that the AG Act requires the Deputy Attorney General to serve as Acting Attorney General when there is a vacancy and that nothing in the Federal Vacancies Reform Act (FVRA) empowers the President to change that result. The plain text and structure of both statutes, however, demonstrate that they were intended to coexist: the AG Act provides a line of succession, and the FVRA gives the President discretion to depart from that line, subject to certain limitations met here.

         As a constitutional matter, the plaintiffs argue that the Appointments Clause generally requires an acting principal officer to be either the principal officer's first assistant or appointed by the President with the advice and consent of the Senate. But that theory is foreclosed by Supreme Court precedent and historical practice, both of which have long approved temporary service by non-Senate confirmed officials, irrespective of their status as first assistants.

         Separately, the plaintiffs argue that the Appointments Clause at a minimum requires the role of an acting principal officer to be filled by an inferior officer and not a mere employee. Whitaker, the plaintiffs contend, was not an officer because the FVRA did not authorize the President to “appoint” him and because his role as an acting official was temporary. The Court disagrees. Whitaker's designation under the FVRA was a Presidential appointment. And if the temporary nature of Whitaker's service prevented him from becoming an officer, then the President was not constitutionally obligated to appoint him at all.

         I. BACKGROUND

         A. Procedural History

         On December 18, 2018, Guedes, Firearms Policy Coalition (the Coalition), Firearms Policy Foundation, and Madison Society Foundation filed a complaint and a motion for a preliminary injunction. Guedes's Compl., Dkt. 1, No. 18-cv-2988; Guedes's Mot., Dkt. 2, No. 18-cv-2988. Although their complaint contained eight claims, they moved for a preliminary injunction only on the grounds that (1) ATF's rule violated the APA and 18 U.S.C. § 926(b), and (2) Whitaker lacked authority to promulgate the bump stock rule. Compare Guedes's Compl., with Guedes's Br., Dkt. 2-1, No. 18-cv-2988. At the parties' request, the Court extended the time for briefing and held a hearing on the motion for a preliminary injunction on January 11, 2019. Minute Order, Dec. 21, 2018, No. 18-cv-2988.

         Less than a week after filing the motion, Guedes and the Coalition elected to pursue separate lawsuits. On December 26, 2018, the Coalition voluntarily dismissed its claims, Notice of Voluntary Dismissal at 2, Dkt. 8, No. 18-cv-2988, and Guedes filed an amended complaint that alleged the original eight causes of action minus the challenge to Whitaker's authority, Guedes's Am. Compl., Dkt. 9, No. 18-cv-2988. The Coalition simultaneously filed a new complaint in this District that elaborated on the original challenge to Whitaker's authority and raised several additional claims based on Whitaker's allegedly infirm designation as Acting Attorney General. See Firearms Pol'y Coal.'s Compl., Dkt. 1, No. 18-cv-3083. The Coalition also filed a motion for a preliminary injunction. Firearms Pol'y Coal.'s Mot., Dkt. 2, No. 18-cv-3083.

         In response to the recent government shutdown, the government filed unopposed motions to stay in each case in late December. See Gov't's Mot. for a Stay in Guedes, Dkt. 7, No. 18-cv-2988; Gov't's Mot. for a Stay in Firearms Pol'y Coal., Dkt. 8, No. 18-cv-3083. Both motions were granted. Minute Order in Guedes, Dec. 27, 2018, No. 18-cv-2988; Minute Order in Firearms Pol'y Coal., Dec. 27, 2018, No. 18-cv-3083.

         On January 3, 2019, Firearms Policy Coalition was transferred to the undersigned as a related case and, with the consent of the parties, consolidated with Guedes. See Reassignment of Civil Case in Firearms Pol'y Coal., Dkt. 12, No. 18-cv-3083; Minute Order in Guedes, Jan. 8, 2019, No. 18-cv-2988. A few days later, the Court granted the plaintiffs' motion to lift the stay and set a revised briefing schedule. Minute Order in Guedes, Jan. 11, 2019, No. 18-cv-2988.

         Meanwhile, on December 27, 2018, Codrea filed yet another action challenging the bump stock rule, and he moved for a preliminary injunction several weeks later on January 18, 2019. See Codrea's Compl., Dkt. 1, No. 18-cv-3086; Codrea's Mot., Dkt. 5, No. 18-cv-3086. Like the other plaintiffs, Codrea seeks to enjoin the rule on the grounds that ATF violated the APA and Whitaker lacked authority to promulgate the rule. Codrea's Br. at 13-14, Dkt. 5-1, No. 18-cv-3086. Codrea also argues that a preliminary injunction is appropriate because ATF violated the Takings Clause of the Fifth Amendment. Id. at 13. Codrea was transferred to the undersigned as a related case, see Reassignment of Civil Case in Codrea, Dkt. 14, No. 18-cv-3086, but at the request of the parties, the Court did not consolidate Codrea with Guedes.

         On February 6, 2019, the Court held a hearing in Guedes. On February 19, 2019, after briefing was complete, the Court held a second hearing in Codrea. This opinion resolves all three of the pending motions for a preliminary injunction.

         B. The Statutory Framework and Regulatory History of Bump Stock Prohibitions

         The National Firearms Act of 1934 (NFA) and the Firearm Owners Protection Act of 1986 (FOPA) provide the statutory basis for the bump stock rule. The NFA provides the following definition for the term “machinegun”:[2]

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b). Congress later passed the FOPA, which generally makes it “unlawful for any person to transfer or possess” a newly manufactured “machinegun, ” 18 U.S.C. § 922(o), and incorporates the NFA's definition of that term, 18 U.S.C. § 921(a)(23) (“The term ‘machinegun' has the meaning given such term in . . . the National Firearms Act.”). The FOPA also amended a previous grant of rulemaking authority to provide that “[t]he Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter.” 18 U.S.C. § 926(a); see also Nat'l Rifle Ass'n v. Brady, 914 F.2d 475, 478 (4th Cir. 1990) (discussing the statutory change). The key question here is whether the NFA's definition of “machinegun” encompasses devices that are colloquially referred to as “bump stocks.” The parties do not dispute the basic mechanics of standard bump stock devices. A bump stock replaces a semiautomatic rifle's standard stock-the part of the rifle that rests against the shooter's shoulder-and enables the shooter to achieve a faster firing rate. To use a bump stock as intended, the shooter must maintain forward pressure on the barrel and, at the same time, pull the trigger and maintain rearward pressure on the trigger. Once the shooter pulls the trigger, a bump stock helps harness and direct the firearm's recoil energy, thereby forcing the firearm to shift back and forth, each time “bumping” the shooter's stationary trigger finger. In this way, the shooter is able to reengage the trigger without additional physical manipulation, though the process may cause small involuntary movements of the trigger finger.

         ATF first began to regulate bump stocks in 2006 when it determined that the term “machinegun” encompassed the “Akins Accelerator, ” a specific bump stock model with an internal spring that pushed the firearm forward after the shooter pulled the trigger. See Akins v. United States, 312 Fed.Appx. 197, 198 (11th Cir. 2009) (per curiam). ATF initially determined in 2002 and again in 2004 that the Akins Accelerator did not qualify as a “machinegun” because it did not permit a shooter to discharge multiple rounds with a “single function of the trigger.” Id. at 199. But the agency reversed course in 2006, when it reinterpreted a “single function of the trigger” to mean a “single pull of the trigger.” Id. at 200. Under that new interpretation, ATF determined that the Akins Accelerator qualified as a “machinegun” because the device enabled the shooter to discharge multiple rounds with only one “pull, ” even though the trigger mechanically reset between rounds. Id. The Eleventh Circuit later upheld ATF's decision, reasoning that ATF's interpretation of “single function of the trigger” was “consonant with the [NFA] and its legislative history.” Id.

         For years, ATF declined to classify as “machineguns” other standard bump stock models that did not include an internal spring. 83 Fed. Reg. at 66517. ATF reasoned that, although standard bump stock devices permit a shooter to discharge multiple rounds with a single function of the trigger, they do not operate “automatically.” Id. But ATF's interpretation of the term “automatically” remained unclear. At times, ATF focused on whether a given bump stock device “initiate[d] an automatic firing cycle that continue[d] until either the finger [wa]s released or the ammunition supply [wa]s exhausted.” Id. at 66518 (internal quotation marks omitted). Other times, it focused on whether the device had “automatically functioning mechanical parts or springs” or “performed . . . mechanical functions when installed.” Id. (alterations adopted and internal quotation marks omitted).

         C. The Final Bump Stock Rule

         The call for action in the wake of the 2017 mass shooting in Las Vegas, Nevada was immediate and widespread. Members of Congress and others requested that ATF reconsider its position with respect to standard bump stock devices. Id. at 66516. And after ATF issued an Advance Notice of Proposed Rulemaking, President Trump released a memorandum urging the Attorney General, “as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” Id. at 66517 (quoting Application of Machinegun to ‘Bump Fire' Stocks and Other Similar Devices, 83 Fed. Reg. 7949 (Feb. 20, 2018)).

         On March 29, 2018, ATF proposed the bump stock rule and formally provided the public with 90 days, as required by 18 U.S.C. § 926(b), to submit written comments online, by mail, or by facsimile. Bump-Stock-Type Devices, 83 Fed. Reg. at 13442 (proposed Mar. 29, 2018). The first few days of the comment period did not go smoothly. According to Guedes, several commenters faced technological difficulties that prevented them from submitting online comments. Guedes's Br. at 22-25. Some online users, for example, received a “Comment Period Closed” notification on the proposed rule's FederalRegister.gov page-though the page also included a contradictory notice stating that the proposed rule had a comment period that would end several days in the future. Guedes's Am. Compl. Ex. A, at 14, Dkt. 9-1, No. 18-cv-2988. Meanwhile, a search for “bump stock” on another rulemaking website, Regulations.gov, directed commenters to the correct page, and ATF did in fact receive comments submitted during the first few days of the comment period. 83 Fed. Reg. at 66542. In addition to submitting written comments, a few of the plaintiffs sought an opportunity to participate in a public, oral hearing, Guedes's Br. at 6, but ATF refused those requests, 83 Fed. Reg. at 66542. ATF explained that “a public hearing would [not] meaningfully add data or information” that would assist the agency in drafting the final rule. Id.

         In the final rule published on December 26, 2018, ATF reversed its earlier position and concluded that a standard bump stock device is a “machinegun” as defined in the NFA. Id. at 66543, 66553. Consistent with its 2006 Akins Accelerator determination, ATF interpreted the term “single function of the trigger” to mean a “single pull of the trigger.” Id. at 66553. ATF also interpreted “automatically” to mean “as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single pull of the trigger.” Id. Based on these definitions, ATF added a sentence to the regulatory definition of “machinegun” to make clear that the term “machinegun” in the NFA includes “bump-stock-type device[s], ” which “allow[] a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Id. at 66553-54. Under the rule, “current possessors” of bump stocks must either destroy them or abandon them at an ATF office. Id. at 66530. The rule is set to become effective on March 26, 2019.

         D. The Constitutional and Statutory Framework for the Designation of Acting Attorneys General

          The Constitution's Appointments Clause provides that the President “shall appoint . . . Officers of the United States” “by and with the Advice and Consent of the Senate, ” but “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2. The Constitution does not provide clear guidance about whether and when an individual may temporarily serve as an acting principal officer without Senate confirmation. Instead, a series of statutes provide the primary framework for the designation of acting officers. See NLRB v. SW Gen., 137 S.Ct. 929, 934 (2017).

         In 1868, Congress enacted the first Vacancies Act, a predecessor to the Federal Vacancies Reform Act (FVRA). Act of July 23, 1868, ch. 227, 15 Stat. 168 (1868). The Vacancies Act, which established the basic statutory framework that continues to operate today, created a default rule that in the case of a vacancy “of the head of any executive department of the government, the first or sole assistant thereof shall . . . perform the duties of such head until a successor be appointed, or such absence or sickness shall cease.” Id. § 1, 15 Stat. at 168. But the Vacancies Act also permitted the President to override that first-assistant default rule and designate another Senate-confirmed official to serve temporarily on an acting basis. Id. § 3; see also SW Gen., 137 S.Ct. at 935. Until recently, with the enactment of the modern FVRA, the President could not invoke the override authority established in the Vacancies Act to designate an Acting Attorney General; the first-assistant default rule always applied. 5 U.S.C. § 3347 (1994) (providing that the President's authority to designate acting officials under the FVRA “d[id] not apply to a vacancy in the office of the Attorney General”).

         In addition to the Vacancies Act, Congress has enacted a series of agency-specific statutes, including the AG Act, 28 U.S.C. § 508. The AG Act provides that “[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose [of the first-assistant default rule] the Deputy Attorney General is the first assistant to the Attorney General.” Id. § 508(a). The AG Act then provides a further order of succession: “When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General, ” and “[t]he Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.” Id. § 508(b).

         In 1998, Congress enacted the FVRA. Like the earlier Vacancies Act, the FVRA includes a first-assistant default rule, but it permits the President to override that rule in one of two ways. 5 U.S.C. § 3345(a)(1). First, “the President . . . may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily.” Id. § 3345(a)(2). Second, “the President . . . may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily” if that individual has served in the agency for at least 90 days in the 365-day period preceding the vacancy in a position that receives pay “equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.” Id. § 3345(a)(3). In a break from the earlier Vacancies Act, the FVRA also eliminated the exception for the Office of the Attorney General, so the President can override the first-assistant default rule even for that Office. Compare 5 U.S.C. § 3347 (1994), with 5 U.S.C. § 3347 (2018). And the FVRA increased the amount of time during which an acting official may serve to 210 days, subject to certain statutory exceptions. See Id. § 3346; see also SW Gen., 137 S.Ct. at 935-36.

         The FVRA includes an exclusivity provision that explains how the FVRA interacts with agency-specific statutes like the AG Act. Under § 3347(a), the FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless . . . a statutory provision expressly” either “authorizes the President, a court, or the head of an Executive department, to designate an officer or employee” to serve in an acting capacity or “designates an officer or employee” to serve in an acting capacity. 5 U.S.C. § 3347(a).

         E. The Designation of Matthew Whitaker to Serve as Acting Attorney General

         On November 7, 2018, the Attorney General, Jefferson B. Sessions, III, resigned. Guedes's Compl. ¶ 50-51. The next day, the President invoked his authority under the FVRA and “directed” Whitaker, then the Attorney General's Chief of Staff, to “perform the functions and duties of the office of Attorney General, until the position is filled by appointment or subsequent designation.” Firearms Pol'y Coal.'s Mot. App. A, Dkt. 2-2, No. 18-cv-3083. Whitaker served as Acting Attorney General until Barr was confirmed as Attorney General on February 15, 2019. See 165 Cong. Rec. S1397 (daily ed. Feb. 14, 2019). While serving as Acting Attorney General, Whitaker issued the bump stock rule at issue here. See 83 Fed. Reg. at 66554.

         II. LEGAL STANDARDS

         A. Preliminary Injunctions

         A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008)). To prevail, a party seeking preliminary relief must make a “clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.” League of Women Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (internal quotation marks omitted). If the plaintiff fails to establish a likelihood of success on the merits, the court “need not proceed to review the other three preliminary injunction factors.” Ark. Dairy Coop. Ass'n v. U.S. Dep't of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009). The plaintiff cannot prevail without a “substantial indication of likely success on the merits.” Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F.Supp.3d 88, 99 (D.D.C. 2017) (“[A]bsent a substantial indication of likely success on the merits, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review.” (internal quotation marks omitted)), aff'd, 897 F.3d 314 (D.C. Cir. 2018).

         B. Judicial Review of Agency Action

          The APA provides that a court must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Under the familiar Chevron framework, “[i]f Congress has directly spoken to [an] issue, that is the end of the matter.” Confederated Tribes of Grand Ronde Cmty. v. Jewell, 830 F.3d 552, 558 (D.C. Cir. 2016) (discussing Chevron, 467 U.S. 837). “[T]he court, as well [as] the agency, must give effect to the unambiguously expressed intent of Congress.” Lubow v. U.S. Dep't of State, 783 F.3d 877, 884 (D.C. Cir. 2015) (quoting Chevron, 467 U.S. at 842-43). But if the text is silent or ambiguous, courts must “determine if the agency's interpretation is permissible, and if so, defer to it.” Confederated Tribes of Grand Ronde Cmty., 830 F.3d at 558. “This inquiry, often called Chevron Step Two, does not require the best interpretation, only a reasonable one.” Van Hollen, Jr. v. FEC, 811 F.3d 486, 492 (D.C. Cir. 2016) (internal quotation marks omitted); see also Id. (“We are bound to uphold agency interpretations regardless [of] whether there may be other reasonable, or even more reasonable, views.” (alteration adopted and internal quotation marks omitted)).

         Further, even when an interpretation is reasonable under Chevron, “agency action is always subject to arbitrary and capricious review under the APA.” Confederated Tribes of Grand Ronde Cmty., 830 F.3d at 559. An interpretation is arbitrary and capricious if the agency “relied on factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation” that “runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Agape Church v. FCC, 738 F.3d 397, 410 (D.C. Cir. 2013) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)). Put simply, “[t]he agency must ‘articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'” Nat'l Lifeline Ass'n v. FCC, No. 18-1026, 2019 WL 405020, at *5 (D.C. Cir. Feb. 1, 2019) (quoting State Farm, 463 U.S. at 43).

         Often the inquiry under Chevron Step Two overlaps with arbitrary and capricious review because “under Chevron step two, the court asks whether an agency interpretation is arbitrary and capricious in substance.” Agape Church, 738 F.3d at 410 (alteration adopted) (quoting Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)). At bottom, a reviewing court must decide whether an agency action is “within the scope of [the agency's] lawful authority” and supported by “reasoned decisionmaking.” Tripoli Rocketry Ass'n v. ATF, 437 F.3d 75, 77 (D.C. Cir. 2006) (internal quotation marks omitted); see also Id. (“Not only must an agency's decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” (internal quotation marks omitted)).

         When an agency changes its position, it must “display awareness” of the change, but it is not required to meet a “heightened standard for reasonableness.” Mary V. Harris Found. v. FCC, 776 F.3d 21, 24 (D.C. Cir. 2015) (internal quotation marks omitted). “A reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Nat'l Lifeline Ass'n, 2019 WL 405020, at *6 (alteration adopted and internal quotation marks omitted). But “[s]o long as any change is reasonably explained, it is not arbitrary and capricious for an agency to change its mind in light of experience, or in the face of new or additional evidence, or further analysis or other factors indicating that [an] earlier decision should be altered or abandoned.” New England Power Generators Ass'n v. FERC, 879 F.3d 1192, 1201 (D.C. Cir. 2018). Put differently, the agency need only “show that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better” than the previous policy. Mary V. Harris Found., 776 F.3d at 24-25 (emphasis and internal quotation marks omitted).

         III. ANALYSIS

         None of the plaintiffs' challenges merit preliminary injunctive relief: the plaintiffs are unlikely to succeed on the merits of their administrate law challenges; preliminary injunctive relief is not available for Codrea's Takings Clause challenge; and the plaintiffs are unlikely to succeed on the merits of their statutory and constitutional challenges to the authority of then- Acting Attorney General Whitaker.

         A. Likely Success on the Merits of the Plaintiffs' Administrative Law Challenges

          The Court considers and rejects each of the plaintiffs' administrative law challenges in turn. First, it determines that ATF reasonably interpreted and applied the NFA's definition of “machinegun.” Second, it explains that the agency did not violate the APA either by reversing its previous position that bump stocks were not machine guns or by failing to provide its previous interpretations in the rulemaking docket. Third, it explains that ATF did not deny commenters a meaningful opportunity to comment or adequate responses to their comments. Finally, it concludes that ATF did not violate 18 U.S.C. § 926(b) by refusing to hold an oral hearing and that any error it may have made by refusing to extend the comment period by five days was harmless.

         1. ATF's Interpretation of the NFA's Definition of “Machinegun” As noted, the NFA defines “machinegun” as follows:

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b) (emphases added). Congress did not shed further light on the definition of “machinegun” in 1934, when it enacted the NFA, or in 1986, when it incorporated the NFA's definition into the FOPA, see 18 U.S.C. § 921(a)(23) (“The term ‘machinegun' has the meaning given such term in . . . the National Firearms Act.”).

         Invoking its general rulemaking authority under § 926(a), ATF promulgated the bump stock rule based on its interpretation of “single function of the trigger” and “automatically, ” two terms that Congress left undefined. ATF defined the phrase “single function of the trigger” to mean a “single pull of the trigger and analogous motions.” 83 Fed. Reg. at 66553. And it defined “automatically” to mean “functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger.” Id. Applying these definitions, it added a sentence to the regulatory definition of “machinegun” that explicitly states that the term “includes a bump-stock-type device, ” which “allows a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Id. at 66553-54.

         The plaintiffs suggest that ATF lacked the authority to state explicitly that the NFA's definition of “machinegun” includes bump stocks, and they take particular issue with the possibility that policy considerations may have influenced ATF's legal interpretation. Guedes's Br. at 17; Guedes's Reply at 3-5, Dkt. 5-1, No. 18-cv-2988; Codrea's Br. at 4; Codrea's Reply at 6-7, Dkt. 18, No. 18-3086. But these arguments are premised on a misunderstanding of the Chevron doctrine. Under Chevron, courts “presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 315 (2014). Agencies are therefore entitled to deference when they reasonably define ambiguous terms-including ambiguous terms in a statutory definition-and apply those terms to new circumstances. See Loving v. IRS, 742 F.3d 1013, 1016 (D.C. Cir. 2014) (“Under Chevron, we must accept an agency's authoritative interpretation of an ambiguous statutory provision if the agency's interpretation is reasonable.”); see also, e.g., Whitaker v. Thompson, 353 F.3d 947, 950-52 (D.C. Cir. 2004) (deferring to the Food and Drug Administration's interpretation of statutory definitions in the Federal Food, Drug, and Cosmetic Act). Courts must defer even when agencies “make policy choices in interpreting [a] statute, ” “as long as [they] stay[] within [Congress'] delegation [of authority].” Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995); see also Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55-56 (2011) (“Chevron recognized that the power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” (alterations adopted and internal quotation marks omitted)).

         That is why courts have regularly recognized ATF's authority to interpret and apply the statutes that it administers, including the NFA's definition of “machinegun.” See, e.g., Akins, 312 Fed.Appx. at 200 (deferring to ATF's decision to classify the Akins Accelerator as a machine gun); see also York v. Sec'y of Treasury, 774 F.2d 417, 419-20 (10th Cir. 1985) (upholding ATF's decision to classify a particular firearm as a machine gun); cf. Brady, ...


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