                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


INNOVATOR ENTERPRISES, INC.

        Plaintiff,

                v.                                       Civil Action No. 13-581 (JDB)
B. TODD JONES, Director, United States
Bureau of Alcohol, Tobacco, Firearms &
Explosives,

        Defendant.



                                 MEMORANDUM OPINION

       Plaintiff Innovator Enterprises, Inc. ("Innovator") brings this action against B. Todd

Jones, in his official capacity as the director of the United States Bureau of Alcohol, Tobacco,

Firearms and Explosives ("ATF" or "the agency"). Innovator brings two claims, seeking (1) to

set aside agency action as "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law" under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"),

and (2) a declaratory judgment that Innovator's product, the "Stabilizer Brake," is not a "firearm

silencer," as defined by the National Firearms Act and the Gun Control Act of 1968, 18 U.S.C.

§ 921(a)(24). Before the Court is [9] ATF's motion to dismiss and [9] [12] the parties' cross-

motions for summary judgment. For the reasons set forth below, the Court will deny ATF's

motion to dismiss, grant in part and deny in part the parties' cross-motions for summary

judgment, vacate the agency decision, and remand to ATF for further proceedings.
                                         BACKGROUND

       A. Statutory Background

       The National Firearms Act "imposes a registration requirement and a tax upon the

manufacture and transfer of firearms," and the Gun Control Act of 1968 "criminalizes the illegal

manufacture, transfer, and possession of firearms." Def.'s Mot. to Dismiss or for Summ. J.

("Def.'s Mot.") [ECF No. 9] at 7. The definition of a "firearm" under federal law includes "any

firearm muffler or firearm silencer." 18 U.S.C. § 921(a)(3)(C). Another provision of the Gun

Control Act of 1968 offers additional clarity:

       The terms "firearm muffler" and "firearm silencer" mean any device for silencing,
       muffling, or diminishing the report of a portable firearm, including any
       combination of parts, designed or redesigned, and intended for use in assembling
       or fabricating a firearm silencer or firearm muffler, and any part intended only for
       use in such assembly or fabrication.

18 U.S.C. § 921(a)(24). 1     The National Firearms Act incorporates the Gun Control Act's

definition by reference, defining the term "firearm" to include "any silencer (as defined in section

921 of Title 18, United States Code)." 26 U.S.C. § 5845(a)(7). Any device that qualifies as a

"firearm silencer"—that is, "any device for silencing, muffling, or diminishing the report of a

portable firearm"—is subject to extensive federal registration and taxation. A device that does

not so qualify can be produced, marketed, and sold free from federal restraints, subject only to

state regulations of varying severity.

       B. Innovator's Stabilizer Brake

       Innovator "designed and built a device it named a 'Stabilizer Brake,' which attaches to the

muzzle of a rifle," and "substantially reduces recoil, reduces muzzle rise, and redirects noise

away from the shooter toward the target." Compl. [ECF No. 1] ¶ 8. Typically, such devices,

       1
         In this context, the word "report" refers to the sound of a gunshot. See Webster's Third
New Int'l Dictionary 1925 (1993) (defining "report" as "an explosive noise").
                                                 2
sometimes called "muzzle brakes," are used "to reduce recoil by redirecting combustion gases

created from discharging a firearm." Aug. 2, 2012 Letter from Innovator to ATF ("Whitney

Letter"), Administrative Record [ECF No. 8-1] ("AR") at 1.             But such devices can have

disadvantages. Specifically, they "often increase flash, reduce bullet velocity, and substantially

increase the noise experienced by the shooter." Id. Innovator claims to have perfected a design

that eliminates those disadvantages, and that its Stabilizer Brake "will not only reduce recoil, but

it will also reduce flash, muzzle rise, and will not cause an increase in the noise level

experienced by the shooter at the rear of the firearm." Id. Innovator alleges that its "'Stabilizer

Brake' does not reduce total sound, but increases sound at the front of the rifle and decreases

sound at the shooter's position." Compl. ¶ 8.

       C. The Administrative Proceedings

       On August 2, 2012, Innovator requested a "Classification Letter" from ATF for its

Stabilizer Brake. 2 See Whitney Letter, AR at 1. Although Innovator's letter made no reference

to silencers, Innovator alleges that the purpose of the request was "to determine whether [ATF]

believed the 'Stabilizer Brake' to be a firearm muffler or firearm silencer within the meaning of

18 U.S.C. § 921(a)(24)." Compl. ¶ 9. Innovator's submission included a sample of the device

and diagrams showing how the Stabilizer Brake functions. See AR 2-7.

       About six weeks later, ATF issued its response in the form of a letter from John R.

Spencer, the Chief of ATF's Firearms Technology Branch ("FTB"). Sept. 14, 2012 Letter from

ATF to Innovator ("Classification Letter"), AR at 14-15. The Classification Letter concluded



       2
           The record does not make clear whether the practice of requesting a Classification
Letter is required before selling a device like Innovator's, or whether it is simply a helpful service
offered by the agency to assist regulated parties in complying with the law. At oral argument,
government counsel represented that such a request is optional. See Hr'g Tr. at 22-24 ("[T]here
is no statute or regulation that required plaintiff to submit its device.").
                                                  3
that Innovator's Stabilizer Brake "meets the definition of 'firearm silencer' specified in 18 U.S.C.

§ 921(a)(24)." Id. at 15. After an introductory paragraph and statutory references, the letter

states as follows:

       When evaluating a particular item as a potential silencer, FTB looks specifically
       for physical characteristics that are consistent with those of known firearm
       silencers. These characteristics include (but are not limited to):

           •   Ported inner tube(s).
           •   Expansion chambers.
           •   Baffles or washers which create separate expansion chambers.
           •   Sound-dampening material such as foam, steel wool, and other materials.
           •   End caps.
           •   Encapsulators.

       Although FTB utilizes state-of-the-art sound metering equipment to demonstrate
       that various items are capable of reducing the report of a portable firearm, these
       tests do not affect the classification of any item. Our silencer classifications are
       based solely upon the physical characteristics of the device under examination.

       With respect to your submitted device, the FTB examination found that it
       incorporates an expansion chamber, a ported inner tube, and an end cap, which
       are characteristics of known firearm silencers. Therefore, FTB finds that this item
       meets the definition of "firearm silencer" specified in 18 U.S.C. § 921(a)(24).

       Also, as you may be aware, the Bulgarian four-piece flash hider has been
       previously classified by FTB as a flash hider. If the design and dimensions of
       your submitted device were modified to replicate those of the Bulgarian four-
       piece flash hider (photo also enclosed), we would conduct a further evaluation of
       the modified item.

Classification Letter, AR 14-15 (emphasis in original). Innovator filed its federal complaint

about six months later, seeking (1) an order to set aside FTB's determination that the Stabilizer

Brake is a "firearm silencer" as "arbitrary and capricious, and not in accordance with law" under

the APA, Compl. ¶ 23, and (2) a declaratory judgment that the Stabilizer Brake is not a "firearm

silencer," Compl. ¶ 13.




                                                 4
                                      LEGAL STANDARDS

       A. Motion To Dismiss For Failure To State A Claim

       To survive a motion to dismiss under Rule 12(b)(6), a complaint need only contain "'a

short and plain statement of the claim showing that the pleader is entitled to relief,'" such that the

defendant has "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6)

motion to dismiss, a plaintiff must supply "more than labels and conclusions" or "a formulaic

recitation of the elements of a cause of action" to provide the "grounds" of "entitle[ment] to

relief." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986).

Instead, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to

relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting

Twombly, 550 U.S. at 570); Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672,

681 (D.C. Cir. 2009). A complaint is considered plausible on its face "when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 556 U.S. at 678. This amounts to a "two-pronged approach,"

under which a court first identifies the factual allegations that are entitled to an assumption of

truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at

679.

       B. Summary Judgment

       Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the

pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In a case



                                                  5
involving review of final agency action under the APA, however, the standard set forth in Rule

56(a) does not apply because of the limited role of a court in reviewing the administrative record.

See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (citing Sierra

Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006), aff'd, 408 Fed. App'x 383 (D.C. Cir.

2010)); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)

(“[W]hen a party seeks review of agency action under the APA, the district judge sits as an

appellate tribunal. The entire case on review is a question of law.") (footnote and internal

quotation marks omitted). Under the APA, it is the role of the agency to resolve factual issues to

arrive at a decision that is supported by the administrative record, whereas "the function of the

district court is to determine whether or not as a matter of law the evidence in the administrative

record permitted the agency to make the decision it did." See Occidental Eng'g Co. v. INS, 753

F.2d 766, 769-70 (9th Cir. 1985).       Summary judgment thus serves as the mechanism for

deciding, as a matter of law, whether the agency action is supported by the administrative record

and otherwise consistent with the APA standard of review. See Richards v. INS, 554 F.2d 1173,

1177 & n. 28 (D.C. Cir. 1977).

       C. The Administrative Procedure Act

       The APA requires that the Court "hold unlawful and set aside agency action, findings,

and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law." 5 U.S.C. § 706(2)(A). The "scope of review under the 'arbitrary and

capricious' standard is narrow and a court is not to substitute its judgment for that of the agency."

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). The Court must be satisfied that the agency has "'examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action including a rational connection between the



                                                 6
facts found and the choice made.'" Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006)

(quoting State Farm, 463 U.S. at 43). The agency's decisions are entitled to a "presumption of

regularity," Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), and

although "inquiry into the facts is to be searching and careful, the ultimate standard of review is a

narrow one," id. at 416. Federal courts are particularly deferential towards the "'scientific

determinations'" of the agency, which are "presumed to be the product of agency expertise."

Franks v. Salazar, 816 F. Supp. 2d 49, 55 (D.D.C. 2011) (quoting Balt. Gas & Elec. Co. v.

Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)) (alteration omitted). The Court's

review is confined to the administrative record, subject to limited exceptions not at issue here.

See Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[T]he focal point for judicial review should be the

administrative record already in existence, not some new record made initially in the reviewing

court.").

                                           ANALYSIS

        In any agency review case, a reviewing court is generally obligated to uphold a

reasonable agency decision that is the product of a rational agency process. This is not a high

bar. But in this case, ATF fails to clear it. Because ATF "failed to articulate a satisfactory

explanation" and "failed to examine the relevant data" in classifying the Stabilizer Brake as a

"firearm silencer," the Court will vacate the agency decision and remand for further proceedings.

        I. The Classification Letter Is Not Entitled To Chevron Deference

        ATF argues that "when courts review legal challenges to an agency's interpretation of a

statute it administers, they must use the two-part test adopted by the Supreme Court in Chevron,

USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)." Def.'s




                                                 7
Mot. at 11. Although the general principle is accurate, it does not apply here. The Classification

Letter does not qualify for Chevron deference.

               A. The Barnhart standard determines whether Chevron deference is owed to
               informal agency action.

       Since the landmark Chevron decision, the Supreme Court has limited the doctrine's

applicability on several occasions. Most importantly, in United States v. Mead Corp., 533 U.S.

218 (2001), the Supreme Court introduced a threshold inquiry to determine whether the two-

step 3 Chevron analysis is applicable to the agency action in question. See Mead, 533 U.S. at

226-27 ("We hold that administrative implementation of a particular statutory provision qualifies

for Chevron deference when it appears that Congress delegated authority to the agency generally

to make rules carrying the force of law, and that the agency interpretation claiming deference

was promulgated in the exercise of that authority."). For agency actions that fail this threshold

analysis, the agency still may receive Skidmore deference, under which the agency interpretation

is entitled to "respect," but only to the extent that it has the "power to persuade." Id. at 235

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

       The most recent Supreme Court decision applying Mead is Barnhart v. Walton, 535 U.S.

212 (2002). In Barnhart, the Supreme Court held that an interpretation of the Social Security Act

by the Commissioner of the Social Security Administration was entitled to Chevron deference.

But most importantly, it recast the Mead analysis—which had seemingly looked only to the

formality of agency procedures—as a multi-factor balancing test:

       In this case, the interstitial nature of the legal question, the related expertise of the
       Agency, the importance of the question to administration of the statute, the

       3
          See Chevron, 467 U.S. at 842-43 ("First, always, is the question whether Congress has
spoken directly to the precise question at issue. . . . [I]f the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the agency's answer is based on
a permissible construction of the statute.").
                                                  8
         complexity of that administration, and the careful consideration the Agency has
         given the question over a long period of time all indicate that Chevron provides
         the appropriate legal lens through which to view the legality of the Agency
         interpretation here at issue.

Barnhart, 535 U.S. at 222. The D.C. Circuit has recently confirmed that Barnhart now supplies

the determinative analysis at Chevron step zero. See Fox v. Clinton, 684 F.3d 67, 77 (D.C. Cir.

2012).

                B. The Classification Letter fails the Barnhart test, so Chevron does not
                apply.

         The Classification Letter is a brief and informal document.       It contains hardly any

reasoning, and makes no reference to prior agency regulations or interpretations that support its

conclusion. The letter appears to be a non-binding statement of the agency's position on whether

the Stabilizer Brake is a silencer, which will not bear the force of law as applied in future

classifications of different devices. And the relevant legal question presents a fairly conventional

statutory interpretation issue, of the sort that courts have equal—if not greater—institutional

competence in resolving. Hence, the Classification Letter fails the Barnhart test, and should only

receive Skidmore deference.

                       1. The Interstitial Nature of the Legal Question

         The relevant "legal question" under Barnhart is whether Innovator's "Stabilizer Brake" is

a "firearm silencer" under federal law; in other words, whether the Stabilizer Brake is a device

for "diminishing the report" of a firearm.      This is a straightforward question of statutory

interpretation; there is nothing "interstitial" about it.     The Court need not consider its

applicability or overlap to other statutory or regulatory provisions.         This is the sort of

conventional statutory interpretation question for which courts are equally—if not more—




                                                 9
capable of coming to a sensible conclusion.           This consideration weighs against Chevron

deference.

                       2. The Related Expertise of the Agency

       The Firearms Technology Branch of ATF has expertise in classifying firearms and

firearm silencers—much more so than the Court.            When considered at this high level of

generality, FTB's expertise weighs in favor of deference. But here, the Court has real concerns

that FTB has not applied its expertise to the question at hand: specifically, by refusing to use

what it describes as "state-of-the-art sound metering equipment" to actually test the Stabilizer

Brake and, instead, making its decision "based solely upon the physical characteristics of the

device." Classification Letter, AR at 15. As will be discussed in greater detail below, see infra

Section II.B, this failure to take advantage of agency expertise weighs against deference. That

said, FTB still has expertise in examining "the physical characteristics" of a putative silencer, so,

on the whole, this factor weighs slightly in favor of Chevron deference.

                       3. The Importance of the Question to Administration of the Statute

       Classifying one particular device as a "firearm silencer" is a relatively unimportant

question in the grand scheme of federal firearm regulations. Indeed, it is difficult to determine

what exactly Congress was concerned about in deciding to regulate silencers at the federal level.

See, e.g., P. Clark, Criminal Use of Firearm Silencers, 8 W. CRIM. REVIEW 44, 48 (2007) ("The

1934 congressional debates [over what became the National Firearms Act] provide no

explanation about why silencers were licensed."). In other words, the stakes here are low. This

weighs against Chevron deference.




                                                 10
                       4. The Complexity of that Administration

       Although the regulatory scheme surrounding known silencers is somewhat complex,

classifying putative silencers is a simple task. The agency need only examine a sample of the

device and determine whether it is a device "for diminishing the report of a portable firearm."

This too weighs against Chevron deference.

                       5. The Careful Consideration the Agency has Given the Question Over a
                       Long Period of Time

       The agency appears to have given extremely light consideration to this question. The

Classification Letter (issued six weeks after Innovator's initial request) is just over a page long,

and contains only a few short paragraphs of actual reasoning. Even those paragraphs, as will be

discussed further below, see infra Section II, contain little more than conclusory assertions and

head-scratching revelations about the process that FTB uses to classify silencers. The agency

has no formal guidance or written procedure for classifying silencers. This factor, then, weighs

strongly against Chevron deference.

                                          *      *       *

       For these reasons, the Court need not defer under Chevron to the agency decision

embodied by the Classification Letter. This conclusion is supported by Supreme Court and D.C.

Circuit precedents, which have consistently refused to extend Chevron deference to the fruits of

informal adjudications that appear in the form of brief, informal, and non-precedential

classification letters or ruling letters. See, e.g., Mead, 533 U.S. at 224, 234 ("Most [U.S.

Customs Tariff Classification] ruling letters contain little or no reasoning, but simply describe

goods and state the appropriate category and tariff. A few letters, like the Headquarters ruling at

issue here, set out a rationale in some detail. . . . In sum, classification rulings are best treated

like interpretations contained in policy statements, agency manuals, and enforcement guidelines.

                                                 11
They are beyond the Chevron pale.") (internal citation omitted); Christensen v. Harris Cnty., 529

U.S. 576, 587 (2000) ("[W]e confront an interpretation contained in an opinion letter, not one

arrived at after, for example, a formal adjudication or notice-and-comment rulemaking.

Interpretations such as those in opinion letters—like interpretations contained in policy

statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do

not warrant Chevron-style deference."); Fox, 684 F.3d at 78 ("[T]here is nothing in [a State

Department Ruling Letter] to give deference to. . . . [T]he department offered little more than

uncited, conclusory assertions of law in a short, informal document that does not purport to set

policy for future [nationality] determinations.").

       To be sure, there are some circumstances in which Chevron deference is owed to the

fruits of an agency's informal adjudication. See Mylan Labs., Inc. v. Thompson, 389 F.3d 1272,

1280 (D.C. Cir. 2004) (deferring to an FDA letter interpreting the Federal Food, Drug, and

Cosmetic Act, noting "the complexity of the statutory regime," "the FDA's expertise," "the

careful craft of the scheme [FDA] devised to reconcile the various statutory provisions," and that

"the FDA's decision made no great legal leap but relied in large part on its previous

determination of the same or similar issues and on its own regulations"). But here, when faced

with a "short, informal document" that contains "little more than uncited, conclusory assertions

of law," Fox, 684 F.3d at 78, and no relevant agency regulations, the Court will apply only

Skidmore deference. See Mead, 533 U.S. at 235 (holding that "Chevron did nothing to eliminate

Skidmore's holding that an agency's interpretation may merit some deference whatever its form,"

to the extent that interpretation has the "power to persuade"). And under Skidmore, the Court

need only defer to "persuasive" agency interpretations.




                                                 12
       II. The Agency Action Is Arbitrary And Capricious

       ATF's decision to classify the Stabilizer Brake as a "firearm silencer" is "arbitrary and

capricious" for at least two reasons: (1) the agency failed to "articulate a satisfactory

explanation" for its decision, and (2) the agency failed to "examine the relevant data" before

coming to a final conclusion.       For these reasons, the agency action was "arbitrary and

capricious," and must be set aside under the APA. 4

               A. The agency failed to "articulate a satisfactory explanation" for its
                  decision.

       The agency decision in this case is embodied by the Classification Letter, which contains

very little reasoning or analysis. The entire substance of the agency's justification for classifying

Innovator's Stabilizer Brake as a "firearm silencer" is contained in the following three

paragraphs:

       When evaluating a particular item as a potential silencer, FTB looks specifically
       for physical characteristics that are consistent with those of known firearm
       silencers. These characteristics include (but are not limited to):

           •   Ported inner tube(s).
           •   Expansion chambers.
           •   Baffles or washers which create separate expansion chambers.
           •   Sound-dampening material such as foam, steel wool, and other materials.
           •   End caps.
           •   Encapsulators.

       Although FTB utilizes state-of-the-art sound metering equipment to demonstrate
       that various items are capable of reducing the report of a portable firearm, these
       tests do not affect the classification of any item. Our silencer classifications are
       based solely upon the physical characteristics of the device under examination.

       With respect to your submitted device, the FTB examination found that it
       incorporates an expansion chamber, a ported inner tube, and an end cap, which

       4
         As discussed above, only Skidmore deference is owed here. Because the agency
decision does not have the "power to persuade," the Court will not defer to the agency's
conclusion. But even if Chevron's more deferential standard applied, the flaws in the agency's
decision-making process would have led to the same result.
                                                 13
       are characteristics of known firearm silencers. Therefore, FTB finds that this item
       meets the definition of "firearm silencer" specified in 18 U.S.C. § 921(a)(24).

Classification Letter, AR at 14-15. This is not a "satisfactory explanation" for the agency

decision, because the agency's methodology for deciding whether a particular device is "for

diminishing the report of a portable firearm," 18 U.S.C. § 921(a)(24), is deeply flawed.

       As a general matter, relying "solely on the physical characteristics of the device,"

Classification Letter, AR at 15 (emphasis added), is a flawed method for classifying putative

silencers. To be sure, physical characteristics may be one important factor. But basing a

decision "solely" on such characteristics has the potential to be significantly overinclusive or

underinclusive. For example, imagine a device designed for the sole purpose of muffling all

sound emitted by a gunshot, and that was 100% effective at doing so—in other words, the

world's greatest silencer. If this device relied on a novel or innovative design that did not contain

many "physical characteristics" that are "characteristics of known firearm silencers,"

Classification Letter, AR at 15, the agency would apparently not classify it as a silencer—despite

the fact that it eliminates all noise produced by a gunshot. By the same token, Innovator claims

to have invented a "Stabilizer Brake" for the purpose of reducing recoil, which happens to have

three physical characteristics in common with those of "known silencers." But that does not

mean that the Stabilizer Brake is actually capable of (or designed for) "diminishing the report of

a portable firearm," 18 U.S.C. § 921(a)(24), which is the analysis the agency is supposed to be

performing under the statute.

       Even if this general approach of relying "solely" on physical characteristics were sound,

the agency did not perform a scientific or rigorous comparison of physical characteristics.

Instead, it consulted a list of six characteristics that are allegedly common to "known silencers,"

and then, if the submitted device has some (unstated) number of those characteristics (here, three

                                                 14
out of six was enough), it is a "firearm silencer." But where did that list of six characteristics

come from? The agency never explains whether those six characteristics are present in all (or

most?) silencers. The agency never explains whether there are other common characteristics that

do not appear on its list. And the agency never explains how many characteristics in common

are necessary to be classified as a "firearm silencer." What if a device has an "encapsulator" and

an "end cap"—is it a silencer? What about a device that is attached to the muzzle of a rifle, and

is full of "sound dampening material," but has none of the other five physical characteristics—is

it a silencer? The agency's approach leaves Innovator (as well as other regulated parties, and

reviewing courts) guessing.

       Hypotheticals further illustrate the weakness of this methodology. A mouse is not an

"elephant" solely because it has three characteristics that are common to known elephants: a tail,

gray skin, and four legs. A child's bike is not a "motorcycle" solely because it has three

characteristics common to known motorcycles: two rubber tires, handlebars, and a leather seat.

And a Bud Light is not "Single-Malt Scotch," just because it is frequently served in a glass

container, contains alcohol, and is available for purchase at a tavern. To close with a firearm-

related example: a hockey puck is not a "rubber bullet," just because it has rounded sides, is

made of vulcanized rubber, and is capable of causing injury when launched at high speeds.

Learning that one object has three characteristics in common with some category may not be

very helpful in determining whether the object in question belongs in that category.

       To make matters worse, other agency guidance uses a different list of characteristics—the

six characteristics in the Classification Letter appear not to be an exhaustive, definitive list.

Compare Classification Letter, AR at 14 (ported inner tube(s); expansion chambers; baffles or

washers which create separate expansion chambers; sound-dampening material such as foam,



                                               15
steel wool, and other materials; end caps; encapsulators), with Standard Operating Procedures:

Evidence Examination of Silencers, Ex. 2 to Def.'s Mot. at 7-8 (baffles; ported tube; wipes; bleed

holes; expansion chambers; baffling material). This would still be a questionable approach if the

agency used a list of six definitive and well-supported characteristics. But the fact that the

agency does not even have a clear position on what characteristics are common to known

silencers further undercuts the legitimacy of this method.

       For these reasons, the agency has failed to "articulate a satisfactory explanation," State

Farm, 463 U.S. at 43, for its decision to classify Innovator's Stabilizer Brake as a "firearm

silencer." Therefore, the decision must be set aside as "arbitrary and capricious" under the APA.

                B. The agency failed to "examine the relevant data."

       The agency also failed to "examine the relevant data," which is an independent basis for

setting aside agency action. State Farm, 463 U.S. at 43. Specifically, the agency made no effort

to determine whether Innovator's Stabilizer Brake is actually capable of "diminishing the report"

of a gunshot.

       The most curious paragraph in the Classification Letter is as follows, in which the agency

candidly admits it could have actually tested Innovator's Stabilizer Brake to determine how it

affects the "report" of a gunshot, but did not do so:

       Although FTB utilizes state-of-the-art sound metering equipment to demonstrate
       that various items are capable of reducing the report of a portable firearm, these
       tests do not affect the classification of any item. Our silencer classifications are
       based solely upon the physical characteristics of the device under examination.

Classification Letter, AR at 15 (emphasis in original). This passage is an admission by the

agency that it is capable of coming to a definitive, scientific determination—using what it

describes as "state-of-the-art sound metering equipment"—of whether a device is capable of




                                                 16
"diminishing the report" of a firearm. What is missing is a helpful explanation as to why it did

not do so.

       The Classification Letter makes an odd reference to using this sound-metering equipment

"to demonstrate that various items are capable of reducing the report of a portable firearm," id.

(emphasis omitted)—as if that is a task wholly unrelated to classification of a firearm silencer.

Government counsel explains this passage as being a reference to the FTB policy of using sound-

metering equipment only for the purpose of analyzing evidentiary submissions of silencers,

rather than requests for classification of putative silencers. See Def.'s Mot. at 2 ("FTB also has

sound-monitoring equipment that it can use to demonstrate the effectiveness of a silencer;

however, sound tests are not used to classify a silencer as such."). Taking ATF's counsel at his

word—even though this explanation appears nowhere in the Classification Letter itself, see State

Farm, 463 U.S. at 50 ("[A]n agency's action must be upheld, if at all, on the basis articulated by

the agency itself.")—this does not seem like a very sensible policy. If FTB has "state-of-the-art

sound metering equipment" that can scientifically determine whether "various items are capable

of reducing the report of a portable firearm," Classification Letter, AR at 15, then it should use

that equipment when classifying silencers—or, at the very least, explain why doing so is not

necessary. After all, the only question the agency is faced with when asked to classify a putative

silencer is whether that device is "for diminishing the report of a portable firearm." 18 U.S.C.

§ 921(a)(24).

       Assuming some rational reason exists to leave this "state-of-the-art" equipment on the

shelf for classifications of silencers—even though the agency apparently uses it regularly for

evidentiary submissions—the agency has not articulated one. For that reason alone, the agency




                                               17
action must be set aside as "arbitrary and capricious," due to the agency's "failure to consider the

relevant data." State Farm, 463 U.S. at 43.

       ATF's only response is to suggest that testing Innovator's Stabilizer Brake would provide

no useful information, because it is not "legally relevant," Hr'g Tr. at 25, whether sound is

actually diminished by a putative silencer. In other words, ATF argues that the "effectiveness"

of a device as a silencer is irrelevant to its classification, and the "purpose" of the device is

dispositive. See Def.'s Opp'n & Reply [ECF Nos. 13 & 14] at 6 ("Congress used 'for . . .

diminishing' as the operative language in the statute, so the effectiveness is not a relevant data

point to consider."). Put another way, ATF argues that knowing whether the device actually

diminishes the report of a portable firearm is irrelevant to determining whether the device is "for

diminishing the report of a portable firearm." 18 U.S.C. § 921(a)(24). It marshals an example in

support of this "purpose" interpretation: a pillow might have some mild success at "diminishing

the report" of a firearm, and "[b]ecause it could be an effective silencer, then Plaintiff's

interpretation would lead to the absurd conclusion that pillows were silencers . . . thus requiring a

special NFA license to manufacture or possess them and requiring the payment of a tax." Def.'s

Opp'n & Reply at 6-7.

       ATF's "purpose" argument fails for several reasons. Most obviously, it is contradicted by

the Classification Letter itself, which declares that "silencer classifications are based solely upon

the physical characteristics of the device under examination." Classification Letter, AR at 15

(emphasis added). And the letter contains no hint that the agency considered "purpose" at all.

Agency action may not be upheld on a basis that is inconsistent with the reasoning "articulated in




                                                 18
the order by the agency itself." Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169

(1962). 5

       Even if the purpose of a device is relevant to determining whether it is "for diminishing

the report" of a gunshot—and it very well may be—that does not lead to the conclusion that the

government seeks: that the device's actual effectiveness as a silencer is totally irrelevant. To use

an example, a regulation might define a "space heater" as a device "for increasing the amount of

heat" in a room. In determining whether a certain device was a "space heater," one fact that a

rational agency would surely consider was whether the device actually gave off any heat. On the

contrary, if the agency knew that a certain device was incapable of emitting heat, that should

certainly affect the agency's conclusion as to whether that device was a space heater. ATF may

be right that a device's purpose is relevant to classifying it—especially when the statute uses the

word "for"—but that does not mean that the device's effectiveness or capabilities are irrelevant.

       As an effective rebuttal to ATF's "pillow" example, Innovator responds with the "pink

silk ribbon" hypothetical. If, as ATF asserts, the only relevant question to classifying a silencer

       5
          For the same reason, the Court owes no deference to this "purpose" interpretation—it is
not an authoritative agency interpretation, as it has never appeared in any regulation, interpretive
rule, or other agency guidance. There is no reason to think "it reflects the agency's fair and
considered judgment on the matter." Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1129 (D.C.
Cir. 1997) (internal quotation marks omitted). In other words, it is nothing more than the
litigating position of the Department of Justice—a post-hoc rationalization by counsel, appearing
for the first time in the briefs in this case. No deference is owed to such an interpretation. See,
e.g., Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156-57 (1991)
("Our decisions indicate that agency 'litigating positions' are not entitled to deference when they
are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first
time in the reviewing court. Because statutory and regulatory interpretations furnished in this
setting occur after agency proceedings have terminated, they do not constitute an exercise of the
agency's delegated lawmaking powers.") (internal citations omitted); Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 212 (1988) ("[W]e have declined to give deference to an agency
counsel's interpretation of a statute where the agency itself has articulated no position on the
question, on the ground that Congress has delegated to the administrative official and not to
appellate counsel the responsibility for elaborating and enforcing statutory commands.") (internal
quotation marks omitted).
                                                19
is its purpose, than a pink silk ribbon tied in a bow around the barrel of a rifle could be a "firearm

silencer"—as long as the ribbon's (delusional) inventor designed the ribbon with the hopes that it

could be used "for diminishing the report" of a gunshot. This illustrates the dangers of a

regulatory definition that turns on the subjective purpose of the inventor. 6 In most cases,

including this one, a much more useful data point is the device's actual capabilities.

       Finally, even if ATF's "purpose" interpretation were viable, remand would still be

required, because the "purpose" of Innovator's Stabilizer Brake is not "for diminishing the

report" of a portable firearm. The agency asserts that "Plaintiff created this device 'for' the

purpose of 'diminishing' the report of the firearm from the shooter's perspective." Def.'s Mot. at

9 (citing Compl. ¶ 8 (the Stabilizer Brake "redirects noise away from the shooter")). But the

qualifier "from the shooter's perspective" is critical. The agency's "purpose" interpretation asks

whether the device was designed for the purpose of "diminishing the report of a portable

firearm"—not whether it redirects sound away from the shooter. And the statute says nothing

about the direction of sound. A bullhorn might redirect noise away from a speaker's mouth, but

nobody would say it was for "diminishing" the sound produced by the speaker—just the




       6
          In its briefs, ATF suggested that the "purpose" of the Stabilizer Brake could be
determined based on Innovator's complaint and its submissions to the agency. See, e.g., Def.'s
Mot. at 9. For the first time at oral argument, counsel offered a modified version of the
"purpose" interpretation, suggesting that the agency determines the "purpose" of the device by
examining its physical characteristics. See Hr'g Tr. at 10-11. The Court will not consider this
argument, because it was raised for the first time at oral argument. United States v. Southerland,
486 F.3d 1355, 1360 (D.C. Cir. 2007) ("Because this argument was raised for the first time at
oral argument, it is forfeited."); accord Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 56 n.2
(D.D.C. 2001). But even if it had been raised in ATF's motion, no support for this approach can
be found in the Classification Letter, making this yet another post-hoc rationalization of counsel
that cannot sustain the agency decision. See State Farm, 463 U.S. at 50 ("It is well-established
that an agency's action must be upheld, if at all, on the basis articulated by the agency itself.").
                                                 20
opposite. 7 The ATF's briefs treat redirection of sound as if it were equivalent to "diminishing"

total sound, despite the counterintuitive nature of such an interpretation, and the fact that it is not

supported by any statement from the agency itself.            See also Webster's Third New Int'l

Dictionary 634 (1993) (defining "diminish" as "to make less or cause to appear less" or to

"reduce in size, number or degree"). 8

       Instead, to the extent the "purpose" of Innovator's Stabilizer Brake is relevant, the Court

should look to the administrative record and the complaint. Both suggest that the purpose of the

Stabilizer Brake is not "for diminishing the report" of a gunshot. Innovator's letter requesting

classification explains that Innovator's "design eliminates the disadvantages associated with

traditional stabilizer brakes," because Innovator's device "will not only reduce recoil, but it will

also reduce flash, muzzle rise, and will not cause an increase in the noise level experienced by

the shooter at the rear of the firearm." Whitney Letter, AR at 1. This letter suggests the true

purpose of the Stabilizer Brake is to reduce recoil, muzzle flash, and muzzle rise, all while not

causing an "increase" in noise level and thereby "eliminat[ing] the disadvantages associated with

traditional stabilizer brakes." Id. But not increasing the noise level is not the same thing as

decreasing (or "diminishing") the noise level. And the allegations of the complaint confirm that

the "purpose" of the Stabilizer Brake is not "diminishing the report" of a gunshot. Compl. ¶ 13

("Contrary to FTB's position, the 'Stabilizer Brake' is not a firearm muffler or firearm silencer . . .

       7
          "Nobody" might be too strong a word. See Hr'g Tr. at 47-48 (counsel defending the
position that a bullhorn "diminishes" sound because it redirects noise away from the speaker).
        8
          Discerning a clear Congressional purpose for federal silencer regulation is challenging.
But presumably, for whatever reason, Congress was concerned that a silencer could enable a
shooter to evade detection by muffling the sound of a gunshot—after all, that is the only thing
accomplished by an effective silencer. The "redirection" theory is at cross-purposes with this
goal. The Stabilizer Brake allegedly increases noise in the direction of the target, and reduces
noise only from the shooter's perspective. Compl. ¶ 8. So the Stabilizer Brake would
presumably increase the likelihood that the target (or others) would hear a gunshot, and that the
shooter would be detected.
                                                  21
because it is not a device for silencing, muffling, or diminishing the report of a portable firearm;

it merely increases sound at the front of the rifle and decreases sound at the shooter's position.")

(emphasis omitted). 9

        So even if the "purpose" of a device is determinative in deciding whether it is "for

diminishing the report of a portable firearm," Innovator's Stabilizer Brake fails that test. Hence,

under any interpretation, the agency action should be set aside: either because effectiveness is at

least a relevant data point that the agency must consider (or articulate some explanation for its

failure to do so), or because the purpose of the Stabilizer Brake is not "for diminishing the report

of a portable firearm." 18 U.S.C. § 921(a)(24). 10

        III. The Proper Remedy Is To Remand To The Agency

        By granting summary judgment in favor of Innovator on its APA claim, the Court holds

only that the agency action must be set aside as "arbitrary and capricious" under the APA, due to

ATF's failure to "articulate a satisfactory explanation" and "examine the relevant data" in

classifying Innovator's Stabilizer Brake as a "firearm silencer." That is not the same thing as

actually holding that the Stabilizer Brake is not a silencer. The Court does not have enough

information to determine whether the Stabilizer Brake is or is not a silencer; nor is it the Court's



        9
          Although the complaint and the administrative record are a more reliable source of such
factual information, Innovator's cross-motion for summary judgment also supports this
understanding of the "purpose" of the Stabilizer Brake. See Pl.'s Opp'n & Cross Mot. for
Summ. J. [ECF No. 12] at 6-7 ("[N]ot all devices that attach to the end of a firearm barrel are
silencers. Indeed, most are not. There are many types of devices that either may be attached to
the end of a firearm barrel . . . that are perfectly legal, that are not silencers, that are not regulated
at the federal level, and that do not require registration or payment of a tax under the NFA. One
common example is a muzzle brake, which is what the Stabilizer Brake is."); see also Vais Arms,
Inc. v. Vais, 383 F.3d 287, 288 n.1 (5th Cir. 2004) ("A muzzle brake is a device attached to the
muzzle (exit end) of a gun barrel to reduce perceived recoil and barrel 'bounce' that occurs when
the gun is fired.").
        10
           In light of these conclusions, the Court need not consider Innovator's alternative
argument that the agency failed to follow its own procedures in classifying the Stabilizer Brake.
                                                   22
responsibility to do so. The duty of making that determination—using a rational process—lies

with the agency in the first instance. See, e.g., Fox, 684 F.3d at 80 ("[T]here may be sensitive

issues lurking that are beyond the ken of the court. The [agency], not the court, has the authority,

discretion, and presumed expertise to act in the first instance to address matters within its domain

of authority . . . , subject of course to appropriate judicial review.").        At oral argument,

Innovator's counsel conceded as much, and essentially withdrew Innovator's request for a

declaratory judgment. See Hr'g Tr. at 47 ("[P]robably the appropriate remedy is a remand to the

agency."). The Court "will therefore pursue a course of prudence, following the path taken by

the [D.C. Circuit] in" a long series of agency review decisions, "remand the case to the [agency]

for reconsideration," Fox, 684 F.3d at 80, and deny Innovator's declaratory judgment claim.

                                         CONCLUSION

       For the foregoing reasons, the Court will deny ATF's motion to dismiss, grant in part and

deny in part the parties' cross-motions for summary judgment, and remand to the agency for

further proceedings. A separate Order will issue on this date.

                                                                           /s/
                                                                 JOHN D. BATES
                                                             United States District Judge
Dated: March 19, 2014




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