THE MODERN SPORTSMAN, LLC v. US , No. 20-1107 (Fed. Cir. 2021)

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Case: 20-1107 Document: 67 Page: 1 Filed: 10/01/2021 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ MODERN SPORTSMAN, LLC, RW ARMS, LTD., MARK MAXWELL, MICHAEL STEWART, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee ______________________ 2020-1107 ______________________ Appeal from the United States Court of Federal Claims in No. 1:19-cv-00449-LAS, Senior Judge Loren A. Smith. ______________________ Decided: October 1, 2021 ______________________ JENNIFER GELMAN, Flint Law Firm LLC, Edwardsville, IL, argued for plaintiffs-appellants. Also represented by ADAM MICHAEL RILEY. KENNETH DINTZER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM, NATHANAEL YALE. Case: 20-1107 2 Document: 67 Page: 2 THE MODERN SPORTSMAN, LLC Filed: 10/01/2021 v. UNITED STATES MARK W. PENNAK, Law Offices of Mark W. Pennak, Chevy Chase, MD, for amicus curiae Maryland Shall Issue, Inc. PRAATIKA PRASAD, Gibson, Dunn & Crutcher LLP, New York, NY, for amici curiae Paul Baumbach, Vic Bencomo, Jim Berzowski, Matthew DeFalco, Scarlett Flores, David Fitz, Peter Gurfein, Megan Harper, George Higgins, Bob Mokos, Mike Meyers, Jim Pederson, Matt Pierce, Conner Siegel, Whitney Toutenhoofd. Also represented by SCOTT EDELMAN, Los Angeles, CA; VIVEK R. GOPALAN, San Francisco, CA; HANNAH SHEARER, Giffords Law Center to Prevent Gun Violence, San Francisco, CA. ______________________ Before TARANTO, WALLACH, * and CHEN, Circuit Judges. Opinion for the court filed by Circuit Judge TARANTO. Opinion concurring in the result filed by Circuit Judge WALLACH. TARANTO, Circuit Judge. 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). The government moved to dismiss Modern Sportsman’s amended complaint for failure to state a claim on which relief can be granted. The Claims Court granted the Circuit Judge Evan J. Wallach assumed senior status on May 31, 2021. * Case: 20-1107 Document: 67 THE MODERN SPORTSMAN, LLC Page: 3 Filed: 10/01/2021 v. UNITED STATES 3 government’s motion and dismissed Modern Sportsman’s amended complaint. Modern Sportsman, LLC v. United States, 145 Fed. Cl. 575 (2019); J.A. 10 (Judgment). Modern Sportsman timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3). We heard oral argument in this and a related case, McCutchen v. United States, No. 2020-1188, as the cases present materially identical issues. See Fed. R. App. P. 3(b). 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. The parties shall bear their own costs. AFFIRMED Case: 20-1107 Document: 67 Page: 4 Filed: 10/01/2021 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ MODERN SPORTSMAN, LLC, RW ARMS, LTD., MARK MAXWELL, MICHAEL STEWART, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee ______________________ 2020-1107 ______________________ Appeal from the United States Court of Federal Claims in No. 1:19-cv-00449-LAS, Senior Judge Loren A. Smith. ______________________ 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).

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