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Sunday, October 13, 2019

DOJ seeks to stay discovery in bump stock class action

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By Heather Isringhausen Gvillo | Sep 5, 2019


Several government officials request a stay in discovery in a class action seeking immunity for those who legally purchased bump-stock devices prior to the passing of the “Final Rule.”

Senior trial counsel Eric J. Soskin, an attorney with the Department of Justice, filed the motion to stay discovery on behalf of defendants President Donald J. Trump, Attorney General William P. Barr and Regina Lombardo, who is deputy director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Barr and Lombardo were substituted as defendants for Matthew Whitaker and Thomas E. Brandon.

Soskin argues that discovery is premature in some instances and should be stayed while Doe’s challenge to the Final Rule is resolved.

Soskin argues that plaintiff John Doe's challenge to the Final Rule should be “resolved in accordance with the Administrative Procedure Act's (APA) core principle that review of agency action is to be conducted based on the record compiled by the agency and furnished to the court.”

“During the July 22, 2019 scheduling conference, plaintiff postulated that the limitations on discovery contained in the APA do not apply because plaintiff’s claims are infused with constitutional significance.

“In enacting the APA, however, Congress explicitly addressed constitutional claims and provided that the limited scope of APA review includes cases that involve constitutional scrutiny,” the motion states.

Soskin further argues that the plaintiff’s claims in count VI, which seeks compensation for private property that had allegedly been taken, is premature due to class certification.

“Class certification discovery in this case is likely to be unusually complicated because of plaintiff’s decision to proceed under the pseudonym John Doe rather than his real name, in derogation of the usual principle that an action ‘be prosecuted in the name of the real party in interest,’” the motion states.

The defendants add that discovery into whether or not Doe will be able to protect the interests of the class will be difficult as well as discovery into individual class members.

The defendants also intend to seek summary judgment. If their request is granted, discovery would not be necessary, they argue.

Doe filed an objection to the motion to stay discovery on July 29 through attorney Thomas Maag of the Maag Law Firm LLC in Wood River, arguing that the bump-stock ban "is without precedent in this country."

"Defendants, in the face of 85 years of precedent (since the original 1934 National Firearms Act was originally passed), and overruling repeated express rulings of the Bureau of Alcohol, Tobacco, Firearms and Explosives (and its predecessor entities), under several prior presidential administrations, based on nothing more than an flat out edict from the President, reclassified over half a million legal and unregulated devices, into one of the most highly regulated items in this country, machineguns, and then demanded they all be surrendered or destroyed, without compensation," the opposition states.

Doe argues in his opposition that the administrative record cannot resolve the facts and claims in the case without ignoring several counts in the complaint.

The plaintiff adds that the case involves issues of constitutional law, which is typically beyond the jurisdiction of administrative agencies.

“As constitutional challenges are beyond the jurisdiction of an agency, it would make no sense to limit this case to the agency record, as doing so would all but completely obviate the ability to prove the constitutional claims,” the response states.

Doe further argues that it would be “expensive and wasteful” to “slice discovery up into a series of mini discovery periods” when discovery could be done all at once.

“This case raises more that basis (sic) administrative rule making, it raises constitutional claims, which require discovery,” the response states. “This court should allow same.”

The defendants filed a reply in support of their motion to stay on Aug. 2, arguing that Doe cannot establish that the Final Rule was established in bad faith or that the record is incomplete, meaning discovery should be stayed.

“Plaintiff does not specifically argue that either the bad faith or the incompleteness exceptions to record-review apply, instead casting vague aspersions on the administrative process,” the reply states. “This does not satisfy the ‘strong showing’ standard.”

The class action was filed in response to a rule adopted by the ATF in December 2018, retroactively redefining bump-fire stocks as machineguns under the National Firearms Act of 1934 and Gun Control Act of 1968. Until the new rule was published, the ATF had classified bump-stocks as firearm “parts.”

Bump-stocks attach to semiautomatic firearms in replace of the standard stock and speed up their firing rate, similar to that of an automatic weapon. They are notoriously associated with the mass shooting at a Las Vegas country music festival in October 2017. A gunman fired more than 1,000 rounds form his room on the 32nd floor of the Mandalay Bay Resort and Casino, killing 58 and injuring approximately 500 while using the device.

Maag wrote the DOJ officially announced that anyone who possesses the devices must either destroy them or surrender them to the ATF without compensation within a 90-day period, which is considered ATF’s Final Rule. Court records indicate that the 90-day period began to run on March 26 when the Final Rule went into effect.

Maag alleges the class would be irreparably harmed if the proposed regulations went into effect, “and thus, this court should enjoin same, pending a resolution on the merits, and/or remand to the administrative agency.”

According to the class action, Doe has been in possession of one or more bump-stock or bump firing devices since before Dec. 18, 2018. He alleges the devices were purchased or acquired in accordance with all applicable laws, rules, regulations and rulings in effect at the time they were purchased.

The suit states that Doe seeks to lawfully register the devices in the National Firearms Registration and Transfer Record. If registration is legally impossible, then Doe seeks “just compensation under the Fifth Amendment, for a total regulatory and/or actual taking.”

The suit states that the Department of Justice reports that there are approximately 500,000 bump fire devices sold legally and currently in private civilian possession. They are worth approximately $200 to $500 each.

“In truth and fact, there are likely as many as double that many, as the DOJ numbers do not [take] into consideration pre-2010 produced devices, which have been sold since at least the 1980s, or smaller custom manufacturers who copied the devices, all of which with either express ATF approval, or non-action by the ATF when made aware of same,” the suit states.

Maag wrote that the defendants do not have the authority to institute an amnesty registration period under the Gun Control Act of 1968. He asks the court to find that an amnesty registration period would provide an immunity for registered firearms. He also asks the court to find that “defendants have abused their discretion and acted arbitrarily and capriciously.”

Maag further seeks an injunction to enjoin enforcement of the rule for those who possessed a bump-stock “on or before December 18, 2019, and continue to retain possession of same.”

The defendants previously filed an opposition to Doe’s motion for preliminary injunction on April 17, arguing that the Final Rule “corrected a confusing and erroneous agency interpretation” of the statute prohibiting the manufacture, sale, and possession of new machine guns to the public, “to the expected benefit of public safety.”

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Organizations in this Story

Bureau of Alcohol, Tobacco, Firearms and Explosives Maag Law Firm, LLC

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