VanDerStok v Garland - ATF definition of unfinished firearms

[JTHunter]

Euler, I'm confused.

Between your post and Flynn's before yours, are the defendants (ATF?) appealing to the same 5th Circuit that just shut them down?

If so, 1- how does that work, and 2- Why??

[Euler]

On July 27, 2023 at 09:49 PM, JTHunter said:→

Euler, I'm confused.
Between your post and Flynn's before yours, are the defendants (ATF?) appealing to the same 5th Circuit that just shut them down?
If so, 1- how does that work, and 2- Why??

The defendants are Garland, ATF, et al.

Three things happened after the district court rendered its decision vacating the "final rule."

1. Defendants asked the district court to stay its vacatur (the final decision) pending appeal. ("Pending appeal" means "until the appeal is decided.") The district court stayed the decision for a week and told them to ask the circuit court.
2. Defendants asked the circuit court to stay the district court's vacatur pending appeal. The circuit court denied the request. (That's Flynn's post.)
3. Defendant's appealed the district court's vacatur (i.e., to overturn it completely, not just to stay it) to the circuit court. (That's my post.)

Yeah, that's the same circuit court that denied the motion to stay, but it's the only path up to the Supreme Court, which is where the government is going to take all these cases, no matter how many times they lose. As I've posted in other threads, I don't believe the Supreme Court has ever denied the federal government any petition for certiorari. If the federal government wants the Supreme Court to hear a case, it's going to get heard.

OTOH if the government wins at the circuit level and VanDerStok (i.e., FPC & SAF) petitions the Supreme Court, the Supreme Court denies lots of petitions from parties who are not the federal government. That's probably the government's strategy, but IMO it's a losing strategy. The downside (for us) is that the case will extend into the next administration The next administration could yank the appeal and just reverse the final rule, which means we have to go start over again the next time the ATF tries to ban 80% lowers, etc.

[steveTA84]

Government asking Alito for a stay 😂

 

 

 

in before “muh corrupt Supreme Court” from the Democrat voters here….

[Flynn]

On 7/27/2023 at 10:48 PM, Euler said:

The downside (for us) is that the case will extend into the next administration The next administration could yank the appeal and just reverse the final rule, which means we have to go start over again the next time the ATF tries to ban 80% lowers, etc.

 

The likely case law between now and then that is bound to be a lot, it likely to make it even harder for the government, especially when you consider that yanking the appeal would leave the lower court's precedent on the books instantly...

Edited July 28, 2023 at 07:25 PM by Flynn

[Euler]

The appeal to the 5th Circuit has a few moving parts. Orals for all of them have been scheduled for Sep 7 in New Orleans.

[Flynn]

On 7/27/2023 at 10:48 PM, Euler said:

As I've posted in other threads, I don't believe the Supreme Court has ever denied the federal government any petition for certiorari. If the federal government wants the Supreme Court to hear a case, it's going to get heard.

 

On that topic, the ATF/Garland has technically already petitioned for certiorari, emphasis mine, it's going to be interesting to see how the SCOTUS ultimately responds to this pseudo petition for certiorari even if they do or don't grant the stay...

 

Quote

But given the gravity and urgency of the public safety issues at stake, if the Court is not prepared to grant a stay it may wish to construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for argument this fall. 

 

Quote

If, however, the Court denies that relief or grants it only in part, the Court may wish to construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set the case for expedited briefing and argument on the question whether the Rule’s challenged provisions are consistent with the statutory definition of “firearm.” The government would be prepared to brief this case on a schedule that would allow it to be argued during the November  2023 sitting. 

 

https://www.supremecourt.gov/DocketPDF/23/23A82/273123/20230727162524236_VanDerStok Stay Application vf.pdf

 

 

Edited July 29, 2023 at 02:21 AM by Flynn

[Euler]

Shadow docket

On July 28, 2023, Justice Alito said:

Upon consideration of the application of counsel for the applicants, it is ordered that the June 30, 2023 order and July 5, 2023 final judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed until 5 p.m. (EDT) on Friday, August 4, 2023. It is further ordered that any response to the application be filed on or before Wednesday, August 2, 2023, by 5 p.m. (EDT).

That's another 1-week stay, since August 4 is next Friday.

[JTHunter]

Thanks for the clarification Euler.  Man, talk about a convoluted can of worms !  This is supposed to be out "legal system"??

[lilguy]

https://www.reuters.com/legal/us-supreme-courts-alito-temporarily-blocks-ghost-gun-ruling-2023-07-28/

 

 

I thought Alito was supportive of our position. Is he just showing deference to the government?

 

[Flynn]

On 7/29/2023 at 4:42 PM, lilguy said:

I thought Alito was supportive of our position. Is he just showing deference to the government?

 

My guess is that it was a small courtesy to the government, if he permanently stays the lower court order then I will start to worry and wonder what is up as this case IMO is pretty much a slam dunk as ATF overreach...

[Flynn]

Wow,  so basically the ATF is literally crying that they might have to follow the law and that citizens might actually be able to exercise their 2nd rights unburdened...

 

They also want to basically be able to claim anything, is a frame or receiver simply because they say so, and that no definition is applicable except the one they make up...

 

Quote

Neither dictionary definitions nor ordinary usage requires that a frame or receiver be “complete,” “operable,” or “functional” in order to be described as such.

 

Followed by mental gymnastics that just makes my head hurt...

 

Quote

But Congress did not define “frame or receiver,” which means that those terms should be interpreted consistent with their ordinary meaning -- not artificially limited to “complete” or “functional” frames or receivers. 

 

And this one is a doozy, it's almost as if they love to hate the Heller/Bruen "history and tradition" test 🤣

 

Quote

Respondents’ other decisions (VanDerStok Opp. 22-23) are from the 1980s, 1990s, and 2000s. Decisions postdating the APA by many decades are not probative of the statute’s original meaning.

 

There is so much wrong with the ATF's argument it's honestly hard to take anything they say seriously at this point...

 

https://www.supremecourt.gov/DocketPDF/23/23A82/274604/20230803162831282_VanDerStok Stay Reply vf 23A82.pdf

 

And the other filings

 

https://www.supremecourt.gov/DocketPDF/23/23A82/274511/20230802162019194_2023-08-02 VanDerStok - Resp in Oppn to Stay vf.pdf

https://www.supremecourt.gov/DocketPDF/23/23A82/274516/20230802163833473_No. 23A82 - SAF DD JSD Response to Stay Application.pdf

https://www.supremecourt.gov/DocketPDF/23/23A82/274495/20230802163918548_August 2 2023_Respondent BlackHawk Manufacturing Response to Application_23A82.pdf

 

 

[davel501]

It seems like the only argument they didn't try was this would make them miss their dead dog quota. 

[yurimodin]

On 8/4/2023 at 12:32 AM, davel501 said:

It seems like the only argument they didn't try was this would make them miss their dead dog quota. 

[Euler]

On August 4, Alito extended the stay until August 8.

[davel501]

Quote

Application (23A82) for stay presented to Justice Alito and by him referred to the Court is granted. The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay.

 

[Sweeper13]

 

[yurimodin]

Its pretty bad when even SCOTUS is not following Bruen.....

[davel501]

On 8/9/2023 at 9:20 AM, yurimodin said:

Its pretty bad when even SCOTUS is not following Bruen.....

 

I believe it is an APA challenge not a Bruen one.

[steveTA84]

Yes, it was challenged on 2A grounds, unfortunately. FPC still gonna win in the end though 

Edited August 9, 2023 at 10:49 PM by steveTA84

[lilguy]

On 8/4/2023 at 5:59 PM, Euler said:

On August 4, Alito extended the stay until August 8.

What happened on the 8th?

[steveTA84]

On 8/11/2023 at 7:23 AM, lilguy said:

What happened on the 8th?

Barrett and Roberts sides with the communists and allowed a stay on the injunction. It’s procedural, as this was not challenged on 2A grounds, but on administrative procedure. So now the case has to play out and the rule is in effect. FPC still gonna win in the long run though 

[lilguy]

🤞We hope so. 

[Euler]

On August 9, Defense Distributed asked again for a preliminary injunction (pending appeal) in district court.

Previously, the district court had issued a vacatur and almost immediately stayed it for 7 days. At that time, Defense Distributed asked for a preliminary injunction, which the district court ruled moot, given the vacatur and the fact that the circuit court did not extend the stay. However, the Supreme Court has since extended the stay pending appeal and, if necessary, pending certiorari. Thus Defense Distributed's motion for a preliminary injunction is no longer moot.

On August 10, the district court set the following schedule.

August 17: Defendants' response due
August 21: Plaintiffs' reply due

[Euler]

On August 14, the judge clarified that the preliminary injunction also covers the un-stayed aspects of Blackhawk Manaufacturing's complaint. The due dates (August 17 and August 21) are unchanged.

[Euler]

On August 14, defendants (ATF & Garland) moved to dismiss the appeal at CA5 for the preliminary injunction that had previously been issued (in part) for Defense Distributed, since the Supreme Court stayed the vacatur. The court dismissed the appeal without objection.

This injunction is a different from the one Defense Distributed is currently seeking. Basically, it's just eliminating a lose end that became meaningless since the Supreme Court stay.

The ATF's CA5 appeal for the injunction granted Tactical Machining is still live and scheduled for oral argument September 7.

[Euler]

On September 6, the defendants withdrew their appeals on the injunctions previously issued by the district court. Those appeals were scheduled for oral arguments along with the appeal of the vacatur on September 7.

On September 7, the 5th Circuit Court of Appeals heard oral arguments on the appeal of the vacatur previously issued by the district court. (mp3 audio) Panel judges were Willett, Engelhardt, and Oldham.

[Upholder]

On September 14, 2023, the District Court Judge issued an injunction against enforcement as applied to the plaintiffs:

 

The Court GRANTS the Emergency 249 Motions for Injunction Pending Appeal. Accordingly, the Court ORDERS that the Government Defendants the Attorney General of the United States; the United States Department of Justice; the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco, Firearms and Explosives and each of their respective officers, agents, servants, and employees are ENJOINED from implementing and enforcing against Intervenor - Plaintiffs Defense Distributed and BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms the provisions in 27 C.F.R. §§ 478.11 and 478.12 that the Court has preliminarily and on the merits determined are unlawful. (Ordered by Judge Reed C. O'Connor on 9/14/2023)

[Euler]

On September 14, 2023 at 01:27 PM, Upholder said:→

On September 14, 2023, the District Court Judge issued an injunction against enforcement as applied to the plaintiffs:
...

The above preliminary injunction pending appeal applies to enforcement of the rule against Defense Distributed and BlackHawk Manufacturing.

On September 15, plaintiff Tactical Machining filed a motion for a similar preliminary injunction pending appeal for itself.

[Euler]

On September 20, Not An LLC (dba JSD Supply) filed a motion to join Defense Distributed in its motion for a preliminary injunction.

[Euler]

On October 2, although it's a bit old news by now, the 5th Circuit issued a decision on the government's appeal of the vacatur and injunctions issued by the district court.

CA5 order said:

...
At the end of the day, we think four things are paramount. First, inferior federal courts must exhibit unflinching obedience to the Supreme Court's orders. Second, the Court has directed us to be skeptical (if not altogether unwilling) to order universal relief that extends to non-parties. Third, insofar as possible, we should have orderly judicial review in which the status quo is maintained, and the legal rules sorted, without asking courts to make monumental decisions in short-fuse emergency dockets. Fourth and finally, courts should be able to review ATF's 98-page rule, and the decades of precedent it attempts to change, without the Government putting people in jail or shutting down businesses. For these reasons, the Government's motion is GRANTED IN PART, the district court's preliminary injunction is VACATED as to non-parties, and the Government's motion is otherwise DENIED.

In other words, the vacatur of the "final rule" is reduced to a preliminary injunction pending appeal covering just enforcement against the plaintiffs Defense Distributed, BlackHawk manufacturing, and FPC & SAF. This order is "unpublished," which means it does not set precedent.

Meanwhile, on October 5, the government filed its response to the application for an injunction regarding plaintiff Not An LLC (dba JSD Supply) in district court.