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Petitions of the week

The federal ban on “bump stocks” and the requirements of appellate service

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the federal government’s rule that rifles with “bump stocks” are illegal machineguns comports with the statutory definition of “machinegun” and deserves Chevron deference, and whether a pro se litigant who filed a notice of appeal with the district court, which served the parties, can still bring her appeal.

“Bump stocks,” “machineguns,” and Chevron deference

In Gun Owners of America, Inc. v. Garland, the justices face the meaning of a “machinegun” and the role of deference under Chevron v. Natural Resources Defense Council in defining that term. The Firearm Owners Protection Act generally bans private ownership of machineguns, which federal law at 26 U.S.C. § 5845(b) defines as “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.” In December 2018, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule that this definition of “machinegun” included “bump stock” accessories used on semi-automatic rifles.

Gun Owners of America, Inc. challenged the rule in district court on the ground that the rule conflicts with the plain meaning of the statute. In “bump fire” shooting (a technique, the organization maintains, that does not necessarily require a bump stock), the firearm moves rearward with each recoil as the shooter continues to press the firearm forward — all while keeping one’s trigger finger in place. The result is that with each back and forth movement of the firearm, the trigger moves off the trigger finger and resets before re-coming into contact with the trigger finger and firing. Hence, the organization argues, bump stocks are not machineguns because each shot still requires a separate function of the trigger (even though the shooter does not separately pull the trigger for each shot). Moreover, the organization argues that Chevron deference is inappropriate in interpreting a criminal statute and that regardless, the federal government has waived any reliance of Chevron.

The district court rejected the organization’s argument on the ground that it could not avoid Chevron because Congress has intended that “ATF speak with the force of law when addressing ambiguity or filling a space in the relevant statutes.” After a panel of the U.S. Court of Appeals for the 6th Circuit reversed (accepting that Chevron did not apply), the en banc 6th Circuit vacated that decision. The full 6th Circuit then divided evenly, with the consequence of affirming the district court’s judgment. In its petition, the organization argues that lower courts are split on applying Chevron in such circumstances.

Federal Rule of Appellate Procedure 3’s requirements for a notice of appeal

In George v. House of Hope Recovery, the justices are asked whether an appellant’s personal service of a notice of appeal on appellees is necessary for the appellate court’s jurisdiction. After the district court ruled against Constance George on her claims of racial and religious discrimination, she timely filed a paper pro se notice of appeal with the district court. The district court then docketed it and served the notice on the parties electronically. According to George, these actions comply with Federal Rule of Appellate Procedure 3, which states that the “district clerk must serve notice of the filing of a notice of appeal.” At the onset of their appeal in the U.S. Court of Appeals for the 9th Circuit, however, two appellees argued that the 9th Circuit lacked jurisdiction over them because George had not served her notice of appeal on them. Relying on circuit precedent, the 9th Circuit agreed with the two appellees and dismissed George’s appeal. In her petition, George maintains that the 9th Circuit’s rule conflicts with the plain language of Rule 3 and the approach that every other circuit to address the issue has taken. George also suggests that the 9th Circuit’s rule has an “especially pernicious effect … on pro se litigants.”

These and other petitions of the week are below:

Scott County, Tennesse v. Brawner
Issue: Whether the Supreme Court should apply the subjective test for deliberate indifference set forth in Farmer v. Brennan to claims by pretrial detainees of inadequate medical care when the application of the solely objective standard in Kingsley v. Hendrickson to these claims fails to consider the difference between action and inaction, results in the constitutionalization of medical malpractice, and creates the only situation in which a person can be held personally liable for violating the constitutional rights of another without committing any intentional act.

George v. House of Hope Recovery
Issue: Whether Federal Rule of Appellate Procedure 3 permits a court of appeals to dismiss an appeal because the appellant did not serve the notice of appeal.

Gun Owners of America, Inc. v. Garland
Issues: (1) Whether the definition of “machinegun” found in 26 U.S.C. § 5845(b) is clear and unambiguous, and whether bump stocks meet that definition; (2) whether deference under Chevron v. Natural Resources Defense Council should be given to agency interpretations of ambiguous criminal statutes, displacing the rule of lenity; and (3) whether courts should give deference to agencies when the government expressly waives Chevron.

Columbia House of Brokers Realty, Inc. v. Designworks Homes, Inc.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the petitioner in this case.
Issue: Whether floor plans constitute “pictures, paintings, photographs, or other pictorial representations” of an architectural work within the meaning of 17 U.S.C. § 120(a).

Ayres v. Indirect Purchaser Plaintiffs
Issues: (1) Whether a final judgment moots a pending appeal from an order denying intervention-of-right; and (2) whether a district court possesses subject matter jurisdiction to allow class members to intervene-of-right directly into a case coordinated in a multi-district litigation proceeding.

Ameranth, Inc. v. Olo, Inc.
Issues: (1) What the appropriate standard is for determining whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the two-step framework from Alice Corp. v. CLS Bank International for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court, based on the scope of the claims alone or a question of fact, based on the state of art at the time of the invention.

Lloyds Banking Group PLC v. Schwab Short-Term Bond Market Fund
Issue: Whether a court may exercise personal jurisdiction over a defendant merely because the defendant’s alleged co-conspirator took foreseeable actions in the forum in furtherance of an alleged conspiracy, even though the defendant did not direct, control, or supervise the alleged co-conspirator.

Recommended Citation: Andrew Hamm, The federal ban on “bump stocks” and the requirements of appellate service, SCOTUSblog (Mar. 25, 2022, 8:35 PM),