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Cargill V. Garland Case No Case: 20-51016 Document: 00515781025 Page: 1 Date Filed: 03/15/2021 No. 20-51016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ MICHAEL CARGILL, Plaintiff-Appellant, v. MERRICK GARLAND, U.S. Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; REGINA LOMBARDO, in her official capacity as Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendants-Appellees. __________________ On Appeal From the United States District Court For the Western District of Texas, No. 1:19-cv-349 Honorable David A. Ezra __________________ BRIEF FOR AMICUS CURIAE DUE PROCESS INSTITUTE IN SUPPORT OF APPELLANT AND URGING REVERSAL __________________ John D. Cline LAW OFFICE OF JOHN D. CLINE 50 California St., Suite 1500 San Francisco, CA 94111 Telephone: (415) 662-2260 Attorney for Amicus Curiae DUE PROCESS INSTITUTE Case: 20-51016 Document: 00515781025 Page: 2 Date Filed: 03/15/2021 CERTIFICATE OF INTERESTED PERSONS Cargill v. Garland Case No. 20-51016 The undersigned counsel of record certifies that the following listed persons and entities described in the fourth sentence of 5th Cir. R. 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal: Bates, Christopher A. Bureau of Alcohol, Tobacco, Firearms and Explosives Cargill, Michael Cato Institute Chenoweth, Mark Cline, John D. Due Process Institute Ezra, Honorable David A. Garland, Merrick, U.S. Attorney General Glover, Matthew J. Hinshelwood, Bradley Kruckenberg, Caleb Lombardo, Regina, in her official capacity as Acting Director of BATFE Mitchell, Jonathan F. C-1 Case: 20-51016 Document: 00515781025 Page: 3 Date Filed: 03/15/2021 Samp, Richard Shapiro, Ilya Simpson, Steven M. Soskin, Eric J. United States Department of Justice Wright, Abby Christine DATED: March 15, 2021 Respectfully submitted, /s/ John D. Cline Attorney of Record for Amicus Curiae Due Process Institute C-2 of 2 Case: 20-51016 Document: 00515781025 Page: 4 Date Filed: 03/15/2021 TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAE ......................................................................... 1 ARGUMENT ........................................................................................................... 2 I. THE RULE OF LENITY AND CHEVRON DEFERENCE ................ 2 II. WHEN BOTH THE RULE OF LENITY AND CHEVRON DEFERENCE CAN APPLY, A COURT SHOULD APPLY THE RULE OF LENITY ..................................................................... 8 CONCLUSION ...................................................................................................... 12 i Case: 20-51016 Document: 00515781025 Page: 5 Date Filed: 03/15/2021 TABLE OF AUTHORITIES Page CASES Abramski v. United States, 573 U.S. 169 (2014) ............................................................................................. 4 Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020), reinstated, 2021 U.S. App. LEXIS 6706 (10th Cir. 2021) (en banc) .......................................................... 1, 2, 3, 6, 7, 9, 11 Babbitt v. Sweet Home Chapter, 515 U.S. 687 (1995) ......................................................................................... 5, 6 Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. 2013) .............................................................. 1, 6, 7, 9, 11 Chamber of Commerce v. United States Department of Labor, 885 F.3d 360 (5th Cir. 2018) ................................................................................ 7 Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .................................................................................... passim Clark v. Martinez, 543 U.S. 371 (2005) ............................................................................................. 4 Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016), rev'd, 137 S. Ct. 1562 (2017) ......................... 6, 7 Guedes v. BATFE, 920 F.3d 1 (D.C. Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 789 (2020) ....................................................................................................... 1, 2, 6, 7 Guedes v. BATFE, 140 S. Ct. 789 (2020) ....................................................................................... 7, 8 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) .................................................................. 3, 7, 10 Lanzetta v. New Jersey, 306 U.S. 451 (1939) ............................................................................................. 8 ii Case: 20-51016 Document: 00515781025 Page: 6 Date Filed: 03/15/2021 Leocal v. Ashcroft, 543 U.S. 1 (2004) ............................................................................................. 4, 6 McBoyle v. United States, 283 U.S. 25 (1931) ............................................................................................... 8 McNally v. United States, 483 U.S. 350 (1987) ............................................................................................. 2 Scheidler v. NOW, 537 U.S. 393 (2010) ............................................................................................. 3 Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............................................................................................. 3 Skilling v. United States, 561 U.S. 358 (2010) ............................................................................................. 3 United States v. Aguilar, 515 U.S. 593 (1995) ............................................................................................. 8 United States v. Apel, 571 U.S. 359 (2014) ............................................................................................. 4 United States v. Flores, 404 F.3d 320 (5th Cir. 2005) ................................................................................ 7 United States v. Garcia, 707 Fed. Appx. 231 (5th Cir. 2017) ..................................................................... 4 United States v. Orellana, 405 F.3d 360 (5th Cir. 2005) ................................................................................ 7 United States v. Royer, 549 F.3d 886 (2d Cir. 2008) ................................................................................. 7 United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992) ..................................................................................... 4, 5, 6 United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) ............................................................................... 2 iii Case: 20-51016 Document: 00515781025 Page: 7 Date Filed: 03/15/2021 Whitman v. United States, 574 U.S. 1003 (2014) ....................................................................................... 7, 9 CONSTITUTION, STATUTES, AND RULES 18 U.S.C. § 16 ........................................................................................................... 6 26 U.S.C. § 5821 ....................................................................................................... 4 26 U.S.C. § 5845 ............................................................................................. 7, 8, 11 OTHER AUTHORITIES Sanford N. Greenberg, Who Says It's a Crime? Chevron Deference to Agency Interpretations of Regulatory Statutes That Create Criminal Liability, 58 U. Pitt. L. Rev. 1 (1996) .................................................................. 7 Paul J. Larkin, Jr., Chevron and Federal Criminal Law, 32 J.L. & Politics 211 (2017) .................................................................................................. 3, 7, 11 iv Case: 20-51016 Document: 00515781025 Page: 8 Date Filed: 03/15/2021 INTEREST OF AMICUS CURIAE The Due Process Institute is a nonprofit, bipartisan, public interest organization that works to honor, preserve, and restore procedural fairness in the criminal justice system. Formed in 2018, the Due Process Institute has participated as amicus curiae in a number of cases before the Supreme Court and the courts of appeals presenting important criminal justice issues. We believe that the rule of lenity--"the most venerable and venerated of interpretive principles," Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731 (6th Cir. 2013) (Sutton, J., concurring)--should take precedence over conflicting canons of construction for statutes with criminal application, given the risk to life and liberty. In defense of this principle, the Due Process Institute participated as amicus in two previous bump stock cases raising the question whether the rule of lenity prevails over Chevron deference: Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020), reinstated, 2021 U.S. App. LEXIS 6706 (10th Cir. Mar. 5, 2021) (en banc), and Guedes v. BATFE, 140 S. Ct. 789 (2020) (on petition for writ of certiorari).1 All parties have consented to the filing of this amicus brief. 1 Counsel for amicus states that no counsel for a party authored this brief in whole or in part; no party or party's counsel contributed money that was intended to fund preparing or submitting the brief; and no person other than amicus, its members, or its counsel made a monetary contribution to the preparation or submission of this brief. Case: 20-51016 Document: 00515781025 Page: 9 Date Filed: 03/15/2021 ARGUMENT When Chevron deference and the rule of lenity conflict in the interpretation of an ambiguous statute with both criminal and civil applications, which should prevail?
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