VanDerStok and the Shadow Docket

On April 22, the Supreme Court granted certiorari in Garland v. VanDerStok, an administrative-law challenge to the Biden administration’s regulation of “ghost guns”—firearms assembled by private individuals from weapons kits consisting of component parts.  The overarching goal of the regulation is to require that component parts included in such kits bear serial numbers, which enables tracing and requires those in the business of manufacturing and selling kits to obtain relevant federal licenses and conduct background checks.  Generally speaking, the issue in the case is how expansively ATF can define the term “firearm,” which per the Gun Control Act includes “the frame or receiver of any such weapon.”

The case is similar in many ways to Cargill—where the Court is set to decide by the end of June whether ATF can interpret the term “machinegun” in the National Firearms Act to include bump stock devices—and it also does not directly implicate the Second Amendment.  For more background on Cargill, where the Court heard oral argument in February, see this guest post by Dru Stevenson.  In VanDerStok, the Supreme Court became involved at any early stage last year, staying a district court order vacating the ATF rule and allowing the rule to remain in effect pending definitive resolution on the merits (after the Fifth Circuit had declined to issue such a stay).  The Court issued an identical stay decision in a companion case implicating the same legal challenge several months later.  Yet these orders may not be what they initially seem.  When viewed in light of ongoing squabbles among the justices about the Court’s emergency, or “shadow,” docket, it’s possible that the prior ghost-gun orders aren’t all that likely to signal the justices' views on the merits of the case.

The original complaint in VanDerStok was filed in August 2022, shortly prior to the August 24, 2022 effective date of the final ATF rule regulating weapons-part kits.  The initial plaintiffs in the case included private citizens who own firearms self-assembled from weapons kits or wish to purchase such kits, a manufacturer of gun-assembly kits, and a gun-rights advocacy group.  The plaintiffs alleged that the rule “greatly departs from the Proposed Rule, [] misconstrues the Gun Control Act[,] ignores the congressional intent conveyed by the text of the GCA[,] and defies long-standing agency interpretation.”  The complaint included claims for violating the Administrative Procedure Act (essentially, arguing that the rule exceeded statutory authorization and that the rule-making process was deficient), and constitutional claims for violating separation of powers, delegation, the “take care” clause, and vagueness.  The plaintiffs requested emergency relief enjoining enforcement of the final rule.  While the complaint argues that self-manufactured firearms were never regulated historically, it does not raise a Second Amendment claim.

On August 17, the plaintiffs moved for a preliminary injunction—making many of the same arguments and specifically targeting (1) the final rule’s inclusion of items “designed to or [which] may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” within the definition of a “frame or receiver,” and (2) the inclusion of “weapon parts kit[s] . . . designed to or [which] may be readily completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” within the definition of “firearm.”  ATF responded, arguing that the final rule comports with the statutory language, that the “major questions doctrine” is not implicated, and that “there is no need to reach th[e] question [of whether to apply Chevron deference] because the Rule reflects the best statutory interpretation.”

On September 2, 2022, District Judge Reed O’Connor sided with the plaintiffs in part and granted an injunction barring ATF from enforcing the rule against Tactical Machining, the weapons-kit manufacturer plaintiff.  He determined that the final rule went well beyond congressional intent in enacting the GCA and thus contravened the APA.  He also found that “Tactical Machining will likely suffer irreparable harm, either by shutting down its operations forever or paying the unrecoverable costs of compliance.”  But he rejected the other plaintiffs’ theories of irreparable harm (holding, for example, that the individual plaintiffs “d[id] not explain why purchasing parts from licensed dealers constitutes an injury, particularly when [they] have done so in the past”).  Judge O’Connor generally maintained this approach as other parties attempted to intervene in the case—he found that the claims were likely to succeed on the merits, but that only weapon-kit manufacturers (not prospective purchasers or gun-rights groups) could show the irreparable harm necessary to secure a preliminary injunction. 

ATF filed interlocutory appeals to the Fifth Circuit of the orders granting preliminary injunctions and, in the meantime, Judge O’Connor granted summary judgment to the plaintiffs and vacated the final rule in full in a decision issued on June 30, 2023.  The substantive analysis on the APA claims was similar to that contained in the earlier preliminary injunction decisions, with the judge emphasizing that “that which may become or may be converted to a functional receiver is not itself a receiver.”  The judge issued a judgment vacating the final rule, which ATF asked the Fifth Circuit to stay pending appeal.  On July 13, the Fifth Circuit denied the request to stay the vacatur as to the two challenged definitional provisions, finding that “ATF ha[d] not demonstrated a strong likelihood of success on the merits.”  But the appellate court also determined that the district judge’s remedy was overbroad and stayed the vacatur “as to the non-challenged provisions.”  This prompted ATF to seek emergency relief from the Supreme Court staying the entire judgment pending appeal, which the Court (after two short administrative stays while it was considering the request) ultimately granted in a one-page order with no analysis on August 8.  The order noted that “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay,” meaning that the request was granted by a 5-4 vote.[1]

The Fifth Circuit subsequently heard oral argument on an expedited basis and issued a decision on November 9, largely affirming the district court’s summary judgment ruling on the basis that “the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will.”[2]  Noting ATF’s argument that “the district court’s universal vacatur of the entire Final Rule (i.e., not just the two challenged portions) was overbroad,” the circuit vacated that order and remanded for further proceedings as to the proper remedy.  The parties then wrangled in the district court over whether Judge O’Connor could proceed to determine a remedy and re-enter judgment or should wait until the government’s deadline to seek cert as to the Fifth Circuit’s decision passed.  ATF ultimately sought certiorari in early February.

Some media coverage of the recent cert grant has focused heavily on the procedural history in VanDerStok and what it portends for the Court’s ultimate ruling.  Here, I’d like to further explore what the Supreme Court’s decision last August to grant a stay of Judge O’Connor’s summary judgment order pending appeal (after the Fifth Circuit declined to do so in full) might signal for the future of the case as the Court moves on to the merits—especially in light of ongoing debates about the Court’s emergency docket generally.  As Professor Steve Vladeck describes in his recent book The Shadow Docket, over the past several years the Supreme Court has increasingly used unreasoned emergency docket orders to make major, rights-impacting decisions including determining when lower court injunctions should or should not remain in effect pending a potentially-lengthy appeal.  Some justices have been defensive to criticism of the court’s emergency docket practices.  Justice Alito, for example, said in a 2021 speech that “the catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”  He defended the court’s practices as necessary to quickly resolve controversial issues.  Others, including Justice Kagan, have been far more critical.  In a 2022 dissent from an emergency docket order granting a stay in Louisiana v. American Rivers, Justice Kagan—joined by Chief Justice Roberts—decried the Court’s decision to “signal[] its view of the merits, even [without an] irreparable harm showing . . . [,] render[ing] the Court’s emergency docket not for emergencies at all.” 

The voting lineup in the Court’s August 2023 emergency stay order in VanDerStok is thus, potentially, a good indication of where at least some justices fall on the merits.  The four justices who would have left Judge O’Connor’s order blocking the ATF rule in place (with the Fifth Circuit’s slight narrowing) seem to be clearly of the view that the APA claims in the case are meritorious.  The other five justices appear to potentially take the opposite view of the merits and/or were convinced that discretionary factors unique to the emergency context warranted a stay in this particular instance.  On one hand, it’s certainly possible to interpret the vote division as a clear signal that all five of those justices—including Chief Justice Roberts and Justice Barrett—believe that ATF’s rule is a permissible exercise of agency authority under the GCA.  Why, otherwise, would they vote to allow the rule to be enforced against citizens and weapons-kit manufacturers for a period that could easily last for almost two full years (the Court isn’t likely to decide the case until spring 2025 at the earliest)?  And, of course, it’s unlikely the Court would take the case if a majority of justices thought the Fifth Circuit’s final decision was correct in all respects.

On the other hand, Chief Justice Roberts and Justice Barrett have increasingly become skeptics of the shadow docket generally—in stark contrast to Justice Alito.  While they largely continue to vote with their Republican-appointed colleagues in major merits decisions with a partisan valence[3] (as they both did in Bruen), each has voiced serious skepticism about the Court’s use of emergency applications to decide important legal issues without full briefing, argument, or even—in some cases—a written opinion at all.  As mentioned above, Chief Justice Roberts joined Justice Kagan’s 2022 American Rivers dissent sharply criticizing the shadow docket.  And that wasn’t a particularly new or novel development.  Professor Vladeck notes that the Chief Justice joined the three Democrat-appointed justices in a large number of emergency docket dissents beginning in late 2020—and “[h]is problem, each time, was not with the bottom line the other conservative justices reached, but rather that they had reached that result through the shadow docket rather than the merits docket.”  Though she hasn’t consistently dissented in shadow docket cases in the same manner as the Chief Justice, Justice Barrett’s position seems to have evolved somewhat.  In late 2021, she concurred in the denial of emergency relief in John Does 1-3 v. Mills joined by Justice Kavanaugh, with Justices Thomas, Alito, and Gorsuch dissenting.  Justice Barrett emphasized the discretionary nature of emergency relief and wrote that, “[w]ere the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument.”

Chief Justice Roberts and Justice Barrett are probably the two justices most likely to vote differently on a shadow docket application than they ultimately do on the merits in the same case—perhaps specifically with the point in mind that full briefing and oral argument should matter.  Thus, the Roberts and Barrett votes in favor of the August emergency stay motion in VanDerStok may be a signal of alarm about the use of the shadow docket generally, rather than a probative indication of their views on the merits.  And it might further bolster their anti-shadow docket bona fides for Roberts and Barrett to come down differently on emergency applications than on the merits in the same case.