The Fifth Circuit on ATF Frame & Receiver Rule
BY Herschel Smith
1 year, 3 months ago
At summary judgment, the district court found that the two challenged provisions in the Rule exceeded the statutory jurisdiction and authority of the ATF and vacated the entire Rule per the Administrative Procedure Act, 5 U.S.C. § 706(2)(C). The district court rejected a stay pending appeal but granted a seven-day administrative stay to allow the ATF to bring an emergency appeal.
Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule. “[V]acatur . . . reestablish[es] the status quo ante,” Defense Distributed v. Platkin, 55 F.4th 486, 491 (5th Cir. 2022), which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.
The ATF is likely correct, however, that the vacatur was overbroad. The district court analyzed the legality of only two of the numerous provisions of the Rule, which contains an explicit severability clause. See 87 Fed. Reg. at 24730. Where a court holds specific portions of a rule unlawful, severance is preferred when doing so “will not impair the function of the [rule] as a whole, and there is no indication that the regulation would not have been passed but for its inclusion.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988); see also Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1033 (5th Cir. 2019) (vacating only challenged portions of a rule). Because the agency has shown a strong likelihood of success on its assertion that the vacatur of the several non-challenged parts of the Rule was overbroad, we STAY the vacatur, pending appeal, as to the non-challenged provisions.
We sua sponte EXPEDITE the appeal to the next available oral argument calendar. To allow time for additional proceedings as appropriate, this order is administratively STAYED for 10 days.
I’m not sure what all of this means, but according to the decision, throwing out the entirety of the new frame and receiver rule would have vacated several non-challenged provisions.
It’s good to see, however, that the Fifth Circuit doesn’t believe the ATF can win on the challenged provisions of the new rule.
On July 25, 2023 at 1:09 pm, Grunt said:
stay to allow the ATF to bring an emergency appeal.
Emergency?? What emergency? I wonder if Joe Citizen would get an emergency appeal.