The Law Offices of Carson J. Tucker has asked the United States Supreme Court to reconsider giving overbearing government agencies broad discretion to interpret otherwise unambiguous law.
I previously posted our United States Supreme Court petition in DCV Imports, LLC v. Bureau of Alcohol Tobacco Firearms and Explosives (BATFE).
We swing for the fence and go directly after Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), to ask the Court to restore the core power of the judicial branch to interpret and say what the law is.
If an unambiguous provision in a statute can be interpreted and applied by the court then that should be the end of the matter. Federal agencies have little more than executive prerogative to act unchecked by the representative branch of government and beyond the careful and considered oversight of the judiciary. This is a recipe for overburdening regulatory abuses. As it stands today, federal agencies exercise all three powers explicitly, and purposefully, separated by the Constitution. Agencies exercise legislative power in passing rules and regulations providing their interpretations of the law; executive powers in determining how the law should be administered; and judicial powers in holding “administrative” hearings and rendering “final” decisions that are given great deference by federal courts. Indeed, in this posture, and especially as applied in this case, the federal agency is jury, judge and executioner.
We do not feel the ATF fairly interpreted “wilfully violated” in our case because it used our client’s prior knowledge and his prior history with another company (S&N Fireworks, his parents’ company), and the fact of his bare knowledge of the existence of the regulations to determine that a first time violation at his facility of the inventory / recordkeeping requirements was sufficient to charge him with wilfully violating 18 USC 843 (the pendant of 18 USC 923 in the Gun Control Act, similarly interpreted and administered by ATF).
There were no prior violations, and no long history of assisting with coming into compliance. Importantly, the ultimate factual findings of the agency dispelled the claims that DCV and the prior company, S&N were one and the same, and also ultimately found only the one instance of inventory mistakes on the daily summary of magazine transactions. DCV had no knowledge that the records were being improperly maintained until they were inspected for the first time.
Yet, DCV did not get a second chance, and the regulations allow the director to refuse a second chance if there is a determination of “willfulness”. Obviously, if ATF can conclude that a first time violation is “willful” then it means little to have a regulation that allows a second chance. This is where the ATF’s broad (indeed unbridled) discretion is most abusive.
It will be interesting to see what we can accomplish with this petition. For any regulated business that understands the frustrations and demands of dealing with federal agencies day in and day out, the outcome of this case could be significant.