Opinions

This morning the Federal Circuit issued a precedential opinion in a case appealed in the Court of Federal Claims, addressing arguments that the destruction of firearms under new federal statutes constituted a government taking. The Federal Circuit also issued a nonprecedential opinion addressing the same issue. Notably, Judge Wallach concurred only in the result in both cases. Finally, the court issued a nonprecedential order in a patent case granting a petition for a writ of mandamus to order the Western District of Texas to vacate an order transferring the case from its Austin Division to its Waco Division. Here are the introductions to the opinions and order.

McCutchen v. United States (Precedential)

On December 26, 2018, the U.S. Department of Justice, exercising congressionally granted authority to implement various federal firearms statutes, promulgated a rule that is the basis for the takings claim in this case. Bump-StockType Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (Final Rule).

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We affirm, but we do so on a threshold ground different from, though related to, the Claims Court’s grounds. The interest that plaintiffs allege was taken was the interest in continued possession or transferability of their devices. The takings claim depends on plaintiffs having an established property right in continued possession or transferability even against a valid agency implementation of the preexisting statutory bar on possession or transfer. But plaintiffs’ title, which we assume is otherwise valid under state law, was always inherently limited by 18 U.S.C. § 922(o), a very specific statutory prohibition on possession and transfer of certain devices defined in terms of physical operation, together with a congressional authorization of a (here undisputedly) valid agency interpretation of that prohibition. That title-inhering limit means that plaintiffs lacked an established property right in continued possession or transferability. The takings claim therefore fails.

WALLACH, Circuit Judge, concurring in the result.

I agree we should affirm the Court of Federal Claims’ decision. I do not, however, agree with the majority’s reasoning and concur as to the result only. I believe the “inhere in title” exception, set forth in Lucas, is not the proper vehicle to ascertain whether Mr. McCutchen and Paducah failed to state a compensable takings claim. That exception may inadvertently grant protections reserved to real property, and limited instances of personal property under extraordinary circumstances, to dangerous and unusual weapons. I write separately to explain why the Court of Federal Claims correctly concluded that the Bump Stock Rule was not a compensable taking under the police powers doctrine.

The Modern Sportsman, LLC v. United States (Nonprecedential)

The Modern Sportsman, LLC, RW Arms, Ltd., Mark Maxwell, and Michael Stewart (collectively, Modern Sportsman) sued the United States in the Court of Federal Claims (Claims Court), alleging that the Bureau of Alcohol, Tobacco, Firearms, and Explosives had, through promulgation of Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (Final Rule), taken its bump stocks in violation of the Fifth Amendment. J.A. 37–44 (Amended Complaint).

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For the same reasons we today affirm the Claims Court’s judgment in the McCutchen case, we affirm the Claims Court’s judgment in the present case.

WALLACH, Circuit Judge, concurring in the result.

This appeal is related to McCutchen v. United States, No. 2020-1188 (Fed. Cir. 2021), decided concurrently. For all reasons stated in my concurrence in McCutchen, I concur in affirming the Court of Federal Claims’ decision in Modern Sportsman, LLC v. United States, 145 Fed. Cl. 575 (2019). See McCutchen, No. 2020-1188 (Wallach, E., concurring).

In re Apple Inc. (Nonprecedential Order)

Apple Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to vacate its order transferring this case from the Austin Division of the Western District of Texas to the Waco Division and to stay that order pending disposition of the petition. Because the district court cites no statutory authority for its re-transfer and because Austin remains the more convenient forum, we grant the petition and direct the district court to vacate its order.