Aposhian v. Barr

Appellate Case: 19-4036 Document: 010110419521 Date Filed: 10/07/2020 Page: 1
No. 19-4036
IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
W. CLARK APOSHIAN,
Plaintiff-Appellant,
v.
WILLIAM P. BARR, Attorney General of the United States, et al.,

Defendants-Appellees.
On Appeal from the United States District Court

for the District of Utah
The Honorable Jill N. Parrish, United States District Judge
No. 2:19-cv-37
BRIEF OF AMICUS CURIAE CATO INSTITUTE

IN SUPPORT OF PLAINTIFF-APPELLANT
ON PETITION FOR REHEARING EN BANC
Ilya Shapiro
Counsel of Record
CATO INSTITUTE
1000 Mass. Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
[email protected]
October 7, 2020
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for amicus
certifies that (1) amicus does not have any parent corporations, and (2) no publicly
held companies hold 10% or more of the stock or ownership interest in amicus.
i
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICUS CURIAE............................................................................1
ARGUMENT: COURTS SHOULDN’T DEFER TO THE AGENCY HERE

BECAUSE THE AGENCY “HAS NO PARTICULAR EXPERTISE IN
DEFINING A TERM UNDER FEDERAL LAW” ...................................................4
CONCLUSION ..........................................................................................................7
CERTIFICATE OF COMPLIANCE .........................................................................8

CERTIFICATE OF DIGITAL SUBMISSION .........................................................9
CERTIFICATE OF SERVICE ................................................................................10
ii
TABLE OF AUTHORITIES
Cases
Abramski v. United States, 573 U.S. 169 (2014) .......................................................7
Barnhart v. Walton, 535 U.S. 212 (2002)..................................................................2
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)............................................................3

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .........................................................3
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .....................................................................2

Marbury v. Madison, 5 U.S. 137 (1803) ....................................................................2
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) ...........................................2

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) .......................................7
Wong Park v. Attorney General 472 F.3d 66 (3d Cir. 2006).....................................5

Statutes and Regulations
18 U.S.C. § 922 ..........................................................................................................6

18 U.S.C. § 923 ..........................................................................................................6
18 U.S.C. § 926(a) .....................................................................................................4

26 U.S.C. § 7801(a) ...................................................................................................4
26 U.S.C. § 7805(a) ...................................................................................................4
42 U.S.C. § 7411 ........................................................................................................4

28 CFR § 0.130(a)......................................................................................................5
83 Fed. Reg. 66,514 (2018) .......................................................................................6

Other Authorities
Kent Barnett, Improving Agencies’ Preemption Expertise with Chevmore

Codification, 83 Fordham L. Rev. 587 (2014) .......................................................5
iii
INTEREST OF AMICUS CURIAE 1
The Cato Institute was established in 1977 as a nonpartisan public policy
research foundation dedicated to advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A. Levy Center for Constitutional
Studies was established in 1989 to promote the principles of limited constitutional
government that are the foundation of liberty. Toward those ends, Cato publishes
books and studies, conducts conferences, issues the annual Cato Supreme Court
Review, and files amicus briefs with the courts.
This case is of central concern to Cato because it concerns the proper
delineation of the separation of powers. If the judicial branch is to “say what the law
is” and the executive branch is to enforce law rather than make it, then this Court
must clarify whether and how much deference judges should give to administrative
agencies—particularly when that determination is not dependent on an agency’s
congressionally vested expertise. The implications of this case extend far beyond
bump stocks.
1
Pursuant to Fed. R. App. P. 29, counsel for amicus states that all parties have
consented to the filing of this brief. Further, no party’s counsel authored any part of
this brief and no person other than amicus made a monetary contribution to fund its
preparation or submission.
1
SUMMARY OF ARGUMENT
Chevron deference “reflects a sensitivity to the proper roles of the political
and judicial branches.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991).
Because “the resolution of ambiguity in a statutory text is often more a question of
policy than of law,” courts assume that Congress intends for agencies, and not
judges, to make certain sorts of regulatory decisions. Id.
Still, not all statutory ambiguities are suitable for the Chevron framework. As
recently observed by the Supreme Court, some interpretive issues may fall more
naturally into a judge’s bailiwick.” Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019).
For these sorts of questions, which exist outside an agency’s competence, it is
incumbent on courts “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177
(1803). In discerning which branch—agencies or courts—gets interpretive primacy,
courts perform a context-driven inquiry that depends on “the interstitial nature of the
legal question” immediately at hand. Barnhart v. Walton, 535 U.S. 212, 222 (2002).
With this case-by-case approach, courts look foremost to whether the interpretive
question “in some way implicate[s]” the agency’s “substantive expertise.” Kisor,
139 S. Ct. at 2417.
Under Chevron deference, therefore, the role of agency expertise is to assist
courts in deciding the proper roles of the political and judicial branches. When a
congressional delegation involves agency expertise, then Chevron deference is
2
appropriate because it signals that Congress intended for the agency to assume
interpretive primacy. When, however, a court is comparatively expert on the
statutory question, then it is the judge’s duty to find the best meaning of the statute.
Compare INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987) (denying deference
because judges are more expert in resolving “pure questions of law”) with INS v.
Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (granting deference because the agency
is more expert on “questions of foreign relations”).
Here, there is no evidence that the bump stock rule was “peculiarly dependent
upon facts within the congressionally vested expertise,” as the en banc court frames
the matter in its fifth question. Because the Justice Department merely engaged in
legal analysis, the administrative record is no more expert than any of the
Department’s legal briefs. The statute, moreover, involves criminal sanctions, and
so it falls squarely within a judge’s bailiwick. Thus, the role of expertise makes it
clear that Chevron deference is unwarranted in this case.
3
ARGUMENT:
COURTS SHOULDN’T DEFER TO THE AGENCY HERE BECAUSE THE
AGENCY “HAS NO PARTICULAR EXPERTISE IN DEFINING A TERM
UNDER FEDERAL LAW”
Before resorting to deference, courts first must determine whether the
Chevron framework is suited for the statutory question at controversy. This initial
inquiry is contextual, and it focuses on whether the agency or the court is
comparatively expert to resolve the textual ambiguity.
Sometimes, a statute directly implicates agency expertise by including
scientific or economic factors for the agency to consider. See, e.g., 42 U.S.C. § 7411
(delegating to the Environmental Protection Agency a duty to promulgate emissions
standards for new stationary sources of criteria pollutants). By contrast, the bump
stock rule rests on a catch-all delegation to “prescribe all needful rules and
regulations.” 18 U.S.C. § 926(a). The statute neither requires nor otherwise suggests
the involvement of agency expertise in the formulation of the bump stock rule.
In its fifth question, the en banc court asks whether “the Bureau of Alcohol,
Tobacco and Firearms [was] peculiarly dependent upon facts within the
congressionally vested expertise of that agency?” (emphasis added). Yet the attorney
general, not the BATF, is the delegee of lawmaker authority. See id.; 26 U.S.C. §
7801(a)(2)(A), § 7805(a) (assigning responsibility to the attorney general for
regulations and enforcement under the National Firearms Act and Gun Control Act).
Although the Department of Justice has delegated the responsibility for
4
administering and enforcing these statutes to the BATF, the latter remains “subject
to the direction of the Attorney General and the Deputy Attorney General.” See 28
CFR § 0.130(a)(1)–(2). The attorney general still calls the shots.
It’s important for the court to keep in mind that the Justice Department, and
not the BATF, promulgated the bump stock rule. The distinction is crucial because
“the Attorney General has no particular expertise in defining a term under federal
law, yet it is what federal courts do all the time.” Wong Park v. Attorney General
472 F.3d 66, 71 (3d Cir. 2006) (citations and quotations omitted).
Turning to the administrative record, there is no indication that the agency
employed its expertise during the rulemaking. Rather than technical know-how, the
attorney general justified the bump stock rule based on an ad hoc “extensive legal
analysis.” As a practical matter, the government’s avowed expertise is no different
than the analysis that informs every brief submitted by the Justice Department, to
which courts obviously do not confer Chevron deference. Indeed, if “legal analysis”
is the operative criterion for determining who should interpret the phrase
“machineguns,” then this Court is the more expert institution.
To be sure, agencies may acquire what scholars call “legislative expertise,” or
insight into legislative history and congressional intent through years of enforcing a
statute. See Kent Barnett, Improving Agencies’ Preemption Expertise with
Chevmore Codification, 83 Fordham L. Rev. 587, 591-92 (2014). But nothing of this
5
sort coincided the development of the bump stock rule, which instead reflected an
abrupt change in what had been the government’s consistent and long-held
construction of the statute.
In ten rulings from 2008 and 2017, the BATF interpreted the phrase
“machineguns” to exclude devices like those at issue in this case. 83 Fed. Reg.
66,514, 66,517-18 (2018) (describing the letter rulings). With the bump stock rule,
however, the agency reversed course and outlawed these devices. What changed?
According to the Justice Department, the problem with its prior ten rulings was that
they “did not include extensive legal analysis of the statutory terms”—even though
these terms were the sine qua non of the rulings. Id. at 66,516. In effect, the
government claims that its prior steady interpretation was wrong because the agency
had never studied the law it was enforcing. Far from demonstrating expertise, the
administrative record raises questions about the agency’s proficiency.
In addition to an imprecise delegation and a dubious rulemaking, the bump
stock rule imposes criminal penalties, which is another indication that the Justice
Department should not be granted interpretive primacy over the statutory definition
of “machineguns.” See 18 U.S.C. § 922 (delegating authority for criminal
prohibitions), 18 U.S.C. § 923 (delegating authority for a licensing scheme).
Regardless how such duel civil-criminal regimes affect Chevron deference, the
criminal component of the bump stock rule further demonstrates the courts’
6
comparative expertise in this controversy. As the Supreme Court stated in Abramski
v. United States, “criminal laws are for courts, not for the Government, to construe.”
573 U.S. 169, 191 (2014). Within this realm, the rule of lenity is a product of judicial
expertise. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (describing
rule of rule of lenity as being “perhaps not much less old than construction itself”).
CONCLUSION
Ultimately, this Court may or may not agree with the Justice Department
that its interpretation is the best reading of “machineguns”—it’s not—but the final
decision must come from the judiciary. Deference has no role to play.
Dated: October 7, 2020 Respectfully submitted,
Ilya Shapiro
Counsel of Record
CATO INSTITUTE
(202) 842-0200
[email protected]
Counsel for Amicus Curiae
7
CERTIFICATE OF COMPLIANCE
(1) This brief complies with the type-volume limitation of Fed. R. App. P.
29(a)(5) because this brief contains 1,428 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f).
(2) This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in a proportionally spaced typeface using
Microsoft Office Word 2003 in 14-point Times New Roman font.
Dated: October 7, 2020
By:
Ilya Shapiro
Counsel of Record
CATO INSTITUTE
(202) 842-0200
[email protected]
8
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:
(1) All required privacy redactions have been made in accordance with 10th Cir.
R. 25.5;
(2) The hard copies to be submitted to the court are exact copies of the version
submitted electronically; and
(3) The electronic submission was scanned for viruses with the most recent
version of a commercial virus scanning program, ESET Endpoint Antivirus
for Mac, and is free of viruses.
By:
Ilya Shapiro
Counsel of Record
CATO INSTITUTE
(202) 842-0200
[email protected]
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Tenth Circuit by using
the appellate CM/ECF system on October 7, 2020, which will automatically send
notification to the counsel of record for the parties.
By:
Ilya Shapiro
Counsel of Record
CATO INSTITUTE
(202) 842-0200
[email protected]
10

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Appellate Case: 19-4036 Document: 010110419521 Date Filed: 10/07/2020 Page: 1

IN THE UNITED STATES COURT OF APPEALS

WILLIAM P. BARR, Attorney General of the United States, et al.,

On Appeal from the United States District Court

BRIEF OF AMICUS CURIAE CATO INSTITUTE

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for amicus

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

INTEREST OF AMICUS CURIAE............................................................................1

ARGUMENT: COURTS SHOULDN’T DEFER TO THE AGENCY HERE

CERTIFICATE OF COMPLIANCE .........................................................................8

CERTIFICATE OF SERVICE ................................................................................10

Barnhart v. Walton, 535 U.S. 212 (2002)..................................................................2

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)............................................................3

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .....................................................................2

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) ...........................................2

Wong Park v. Attorney General 472 F.3d 66 (3d Cir. 2006).....................................5

18 U.S.C. § 922 ..........................................................................................................6

18 U.S.C. § 926(a) .....................................................................................................4

42 U.S.C. § 7411 ........................................................................................................4

83 Fed. Reg. 66,514 (2018) .......................................................................................6

Kent Barnett, Improving Agencies’ Preemption Expertise with Chevmore

INTEREST OF AMICUS CURIAE 1

The Cato Institute was established in 1977 as a nonpartisan public policy

research foundation dedicated to advancing the principles of individual liberty, free

Studies was established in 1989 to promote the principles of limited constitutional

Review, and files amicus briefs with the courts.

This case is of central concern to Cato because it concerns the proper

agencies—particularly when that determination is not dependent on an agency’s

Chevron deference “reflects a sensitivity to the proper roles of the political

Because “the resolution of ambiguity in a statutory text is often more a question of

judges, to make certain sorts of regulatory decisions. Id.

For these sorts of questions, which exist outside an agency’s competence, it is

(1803). In discerning which branch—agencies or courts—gets interpretive primacy,

139 S. Ct. at 2417.

Under Chevron deference, therefore, the role of agency expertise is to assist

congressional delegation involves agency expertise, then Chevron deference is

interpretive primacy. When, however, a court is comparatively expert on the

is more expert on “questions of foreign relations”).

clear that Chevron deference is unwarranted in this case.

Before resorting to deference, courts first must determine whether the

inquiry is contextual, and it focuses on whether the agency or the court is

comparatively expert to resolve the textual ambiguity.

Sometimes, a statute directly implicates agency expertise by including

(delegating to the Environmental Protection Agency a duty to promulgate emissions

7801(a)(2)(A), § 7805(a) (assigning responsibility to the attorney general for

Although the Department of Justice has delegated the responsibility for

CFR § 0.130(a)(1)–(2). The attorney general still calls the shots.

Turning to the administrative record, there is no indication that the agency

analysis.” As a practical matter, the government’s avowed expertise is no different

“machineguns,” then this Court is the more expert institution.

To be sure, agencies may acquire what scholars call “legislative expertise,” or

statute. See Kent Barnett, Improving Agencies’ Preemption Expertise with

construction of the statute.

administrative record raises questions about the agency’s proficiency.

In addition to an imprecise delegation and a dubious rulemaking, the bump

of “machineguns.” See 18 U.S.C. § 922 (delegating authority for criminal

prohibitions), 18 U.S.C. § 923 (delegating authority for a licensing scheme).

comparative expertise in this controversy. As the Supreme Court stated in Abramski