UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID CODREA, et al.,

Plaintiffs,

v. No. 18-cv-03086 (DLF) BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is plaintiffs David Codrea’s and Owen Monroe’s Motion for Attorneys’

Fees and Costs, Dkt. 63. For the reasons that follow, the Court will deny the motion.

I. BACKGROUND

After a mass shooting in Las Vegas, the Bureau of Alcohol, Tobacco, Firearms and

Explosives (ATF) reexamined its past classifications of bump stocks under federal law. In

December 2018, ATF issued the Final Rule, which set forth the agency’s interpretation of the terms

“automatically” and “single function of the trigger” in federal firearms law, classified bump stocks

as machineguns, and overruled ATF’s prior classification decisions treating bump stocks as

unregulated firearms parts. See Bump-Stock-Type Devices,

, 66,516, 66,531

(Dec. 26, 2018).

Shortly thereafter, the plaintiffs filed this action for declaratory and injunctive relief,

arguing that ATF issued the Final Rule in excess of its statutory authority. Compl., Dkt. 1. On

February 25, 2019, this Court denied the plaintiffs’ motion for a preliminary injunction. Guedes

v. ATF (Guedes I),

(D.D.C. 2019). Applying the then-familiar Chevron framework, the Court held, among other things, that ATF had reasonably interpreted “single

function of the trigger” and “automatically” in light of their ordinary meaning.

. The

Court further held that the agency had reasonably applied those definitions in concluding that

bump stocks permit a shooter to discharge multiple rounds automatically with a single function of

the trigger.

On appeal, the D.C. Circuit affirmed. See Guedes v. ATF (Guedes II),

(D.C.

Cir. 2019). Both parties moved for summary judgment, and the Court granted the defendants’

motion. Order, Dkt. 50. The plaintiffs then appealed their takings claim to the Federal Circuit.

Notice of Appeal, Dkt. 52. Before briefing began in the Federal Circuit, the plaintiffs’ appeal was

stayed pending further proceedings in Cargill v. Garland,

(5th Cir. 2023) (en banc).

See Codrea v. Garland, No. 21-1707,

, at *1 (Fed. Cir. July 22, 2024).

The Supreme Court decided Cargill v. Garland on June 14, 2024. See

(2024).

The Court held that ATF had exceeded its statutory authority by issuing the Rule classifying bump

stocks as machineguns under

(b). See

. It held that a semiautomatic

rifle equipped with a bump stock is not a “machinegun” under § 5845(b) because: (1) it cannot fire

more than one shot “by a single function of the trigger”; and (2) even if it could, it would not do

so “automatically.” Id.

Thereafter, the Federal Circuit vacated this Court’s order and opinion on summary

judgment and remanded the matter for further proceedings. See Fed. Cir. Mandate, Dkt. 54. After

the parties were unable to reach a resolution in negotiations, the Court entered final judgment for

the plaintiffs on December 30, 2024, declaring that the Rule “was issued in excess of ATF’s

statutory authority and is therefore unlawful.” Order at 1, Dkt. 62 (citing Cargill,

).

2 The Court further dismissed the plaintiffs’ Fifth Amendment takings claim and Due Process claim

without prejudice.

On January 25, 2025, the plaintiffs filed the instant motion for attorneys’ fees and costs

under Rule 54(d) of the Federal Rules of Civil Procedure and the Equal Access to Justice Act

(EAJA),

. Fees Mot., Dkt. 63. The plaintiffs seek an award of $77,102.76 in

attorneys’ fees and $4,138.18 in costs and expenses, for a total of $81,240.94.

at 9–10.

II. LEGAL STANDARDS

Under Rule 54, “[a] claim for attorney’s fees and related nontaxable expenses must be

made by motion unless substantive law requires [otherwise].” Fed. R. Civ. P. 54(d)(2)(A). A

party that wins a judgment against the United States may recover attorney’s fees pursuant to the

EAJA. 1 Select Milk Producers, Inc. v. Johanns,

(D.C. Cir. 2005). “[E]ligibility

for a fee award in any civil action requires: (1) that the claimant be a ‘prevailing party’; (2) that

the [agency’s] position was not ‘substantially justified’; (3) that no ‘special circumstances make

an award unjust’; and (4) . . . that any fee application be submitted to the court within 30 days of

final judgment in the action . . . .” Comm’r, INS v. Jean,

(1990) (quoting

(d)(1)(A)–(B)).

The party bearing the burden of proof under the EAJA depends on which part of the

analysis is at issue. The party seeking fees has an initial burden to demonstrate its “status as a

prevailing party” and its compliance with the statutory deadline. Taucher v. Brown-Hruska,

(D.C. Cir. 2005). After the fee-seeking party does so, the burden shifts to the

1 The Act defines a “party” to include “any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed,” with an exemption from the net-worth provision for registered 501(c)(3) organizations.

(d)(2)(B).

3 agency, which must show that “its legal position was substantially justified or that special

circumstances exist making an award unjust.”

(citation modified). Finally, the fee-seeking

party bears the burden of establishing the reasonableness of its fee request. Role Models Am., Inc.

v. Brownlee,

(D.C. Cir. 2004).

“If the court finds that all four factors are met, it remains for the district court to determine

what fee is reasonable.” MomoCon, LLC v. Small Bus. Admin., No. 21-cv-2386 (RC),

, at *3 (D.D.C. Nov. 22, 2024) (quoting Jean,

) (citation modified). The

court must disallow claims for “‘excessive, redundant, or otherwise unnecessary’ charges.” Wash.

All. of Tech. Workers v. DHS,

(D.C. Cir. 2017) (quoting Hensley v. Eckerhart,

, 433–34 (1983). “[T]he determination of how much to trim from a claim for fees is

committed to the district court’s discretion.”

at 910–11 (citing Okla. Aerotronics, Inc. v. United

States,

(D.C. Cir. 1991) (citation modified)).

III. ANALYSIS

A. Prevailing Party

To be a prevailing party, 2 “(1) there must be a court-ordered change in the legal relationship

of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial

pronouncement must be accompanied by judicial relief.” Initiative & Referendum Inst. v. U.S.

Postal Serv.,

, 23–24 (D.C. Cir. 2015) (quoting Turner v. Nat’l Transp. Safety Bd.,

(D.C. Cir. 2010)). “For a court order to sufficiently alter the legal relationship of

2 Here, there is no dispute that the plaintiffs meet the income and resource eligibility requirements under EAJA. At the time this case was filed, the plaintiffs’ income did not exceed $2,000,000, and they do not own a business or organization that has a net worth over $7,000,000 or more than 500 employees. Fees Mot. Exs. 1–2, Dkts. 63-3, 63-4; see

(d)(2).

4 parties, the order must require a concrete action, or cessation of an action, on the part of the non-

prevailing party.” Am. Great Lakes Ports Ass’n v. Zukunft, No. 16-cv-1019 (RC),

, at *3 (D.D.C. Mar. 9, 2021) (citation modified). The claimant bears the burden of

establishing that he is the prevailing party. Turner v. D.C. Bd. of Elections & Ethics,

(D.C. Cir. 2004).

Here, the Court entered final judgment for plaintiffs and granted them relief by declaring

that the Rule “was issued in excess of ATF’s statutory authority and is therefore unlawful.” Order

at 1, Dkt. 62 (citing Cargill,

). The agency had already returned the plaintiffs’

previously surrendered bump stocks to them. Fees Mot. at 6. Thus, the plaintiffs squarely qualify

as prevailing parties. See Zukunft,

, at *3.

B. Substantial Justification

Even though the plaintiffs are prevailing parties, they are not entitled to fees if ATF’s

position was substantially justified. Jean,

. An agency’s position is “substantially

justified” if it is “justified in substance or in the main—that is, justified to a degree that could

satisfy a reasonable person.” LePage’s 2000, Inc. v. Postal Regul. Comm’n,

(D.C. Cir. 2012) (quoting Pierce v. Underwood,

(1988)). While an agency must

do more than show that its position was “merely undeserving of sanctions for frivolousness,”

Pierce,

, it need not “establish that it was correct,” Air Transp. Ass’n of Can. v.

FAA,

(D.C. Cir. 1998). Rather, the agency must show that its position was

“one that ‘a reasonable person could think . . . correct, that is, [that the position] has a reasonable

basis in law and fact.’”

(quoting Pierce, 487 at 566 n.2 (1988)). “[D]efects common to

positions that are not substantially justified” include those “flatly at odds with the controlling case

5 law,” Hill v. Gould,

(D.C. Cir. 2009) (citation modified), or “in the face of

an unbroken line of authority,”

(citation modified).

When an agency’s position has been rejected by the D.C. Circuit or Supreme Court, the

“inquiry into the reasonableness of the Government’s position under the EAJA may not be

collapsed into [the] antecedent evaluation of the merits, for the EAJA sets forth a distinct legal

standard.” F.J. Vollmer Co. v. Magaw,

(D.C. Cir. 1996) (citation modified).

Accordingly, “the district court must analyze the merits [of the deciding court’s] reasoning to

determine whether the [agency’s] position, though rejected, was substantially justified.”

Halverson v. Slater,

(D.C. Cir. 2000). The Court must “analyze why the

[agency’s] position failed in court: if, for example, the [agency] lost because it vainly pressed a

position ‘flatly at odds with the controlling case law,’ that is one thing; quite another if the [agency]

lost because an unsettled question was resolved unfavorably.” Taucher,

(citation

modified).

Applying those standards, the Court concludes that ATF’s position was substantially

justified. When the agency adopted the Rule in 2018, the proper interpretation of

was unsettled, and the agency had a reasonable basis in law and fact to conclude bump stocks fell

within the statute’s purview. “[N]either the National Firearms Act nor the Gun Control Act defines

‘automatically’ or ‘single function of the trigger.’” Gun Owners of Am. v. Garland,

,

905 (6th Cir. 2021). While there was some relevant judicial precedent interpreting those phrases,

none was directly on point. See, e.g., Staples v. United States,

, 602 n.1 (1984); Akins

v. United States,

(11th Cir. 2009). Thus, this was not a situation where

ATF was acting “flatly at odds with controlling case law” or “in the face of an unbroken line of

authority.” Hill,

(citation modified). Rather, it was an “unsettled question” of

6 law as to whether bump stocks fell within the boundaries of the statutory phrases. Taucher,

.

Acting under its general rulemaking authority in

(a), ATF promulgated the

Rule to update its interpretation of those two Congressionally undefined terms in the wake of the

Las Vegas mass shooting in 2017. See Bump-Stock-Type Devices, 83 Fed. Reg. at 66553. Finding

that its prior interpretations of those terms lacked “extensive legal analysis of the statutory terms

‘automatically’ or ‘single function of the trigger,’” id. at 66516, the agency consulted dictionary

definitions, judicial precedent, and legislative history to develop interpretations it thought would

better “accord with the plain meaning of those terms,” id. at 66527. The agency drew on Staples,

which explained the words “automatic” and “fully automatic” refer to “a weapon that fires

repeatedly with a single pull of the trigger,”

n.1. Similarly, it relied on Akins,

which had concluded that the agency’s prior interpretation “that the phrase ‘single function of the

trigger,’ meant ‘single pull of the trigger’ was consonant with the statute and its legislative

history,”

. ATF therefore interpreted the phrase “single function of the trigger”

to mean a “single pull of the trigger and analogous motions.” Bump-Stock-Type Devices, 83 Fed.

Reg. at 66,553. And it interpreted “automatically” to mean “functioning as the result of a self-

acting or self-regulating mechanism that allows the firing of multiple rounds through a single

function of the trigger.” Id. The agency concluded that bump stocks satisfy those definitions

because, in the agency’s view, they enable “a semi-automatic firearm to shoot more than one shot

with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to

which it is affixed so that the trigger resets and continues firing without additional physical

manipulation of the trigger by the shooter.” Id. at 66,553–54. Drawing on relevant, but not directly

7 on-point case law, the agency offered a reasonable interpretation on an unsettled question of law.

Taucher,

.

That the agency changed its view on how bump stocks interacted with the statutory text

does not mean its position was not substantially justified. Contra Fees Mot. at 6–8. “Agencies

are free to change their existing policies as long as they provide a reasoned explanation for the

change.” Encino Motorcars, LLC v. Navarro,

, 221 (2016). “In such cases it is not

that further justification is demanded by the mere fact of policy change; but that a reasoned

explanation is needed for disregarding facts and circumstances that underlay or were engendered

by the prior policy.” FCC v. Fox Television Stations, Inc.,

, 515–16 (2009). As this

Court found, the agency’s change in position was not arbitrary and capricious because it provided

the necessary reasoned explanation for the change. See Guedes I, 356 F. Supp. 3d at 133–37. The

D.C. Circuit agreed. Guedes II,

. And while the Supreme Court disagreed with the

agency as a matter of statutory interpretation, it did not hold that its change in position was arbitrary

and capricious. See Cargill,

(holding ATF “exceeded its statutory authority” by

issuing the Rule).

Similarly, that the Supreme Court rejected ATF’s statutory interpretation does not, on its

own, render the government’s position not substantially justified. The “inquiry into the

reasonableness of the Government's position under the EAJA may not be collapsed into [the]

antecedent evaluation of the merits, for the EAJA sets forth a distinct legal standard.” Magaw,

. Instead, a court “must analyze the merits [of the Court’s] reasoning to determine

whether the [agency’s] position, though rejected, was substantially justified.” Halverson,

.

8 In rejecting ATF’s interpretation of the statute, the Supreme Court found unpersuasive the

agency’s understanding of a “single function of the trigger” to mean “‘a single pull of the trigger’

but also ‘any analogous motions.’” Cargill,

(citation modified). The Court

determined that interpretation rested on a “mistaken premise”—namely, “that there is a difference

between [a] shooter flexing his finger to pull the trigger and pushing the firearm forward to bump

the trigger against his stationary finger” when using a bump stock.

The Court similarly rejected

ATF’s focus on the function of the trigger that “initiates . . . a firing sequence” rather than one that

“continues” a sequence.

. The Court further rejected ATF’s interpretation of

“automatically,” holding that a shooter using a mechanical bump stock must maintain forward on

the front grip—i.e., additional manual input beyond engaging the trigger—to fire more than one

shot, thus rendering mechanical bump stocks inconsistent with the statutory definition of

machineguns.

at 424–27. The Court was unpersuaded by the agency’s presumption-against-

ineffectiveness argument, concluding the statute was not rendered ineffective simply because it

did not cover a circumstance that the agency thought it did.

at 427–28. In dissent, several

justices concluded that the plain meaning of the statute, as well as the presumption-against-

ineffectiveness canon and prior precedent involving similar devices, supported the government’s

interpretation.

at 430–446 (Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting).

The relevant question is “not what the law now is, but what the [agency] was substantially

justified in believing it to have been.” Pierce,

. And if there were any doubt

remaining whether ATF’s position was substantially justified at the time, the numerous closely

split panel and en banc decisions from courts of appeals across the country—including several

decisions adopting the government’s position—put any such doubt to rest. See, e.g., Guedes II,

920 F.3d at 28–32 (divided panel affirming denial of preliminary injunction), cert. denied, 140 S.

9 Ct. 789 (2020); Aposhian v. Barr,

, 974 (10th Cir. 2020) (divided panel affirming

denial of preliminary injunction), vacated on reh’g,

, 1151 (10th Cir. 2020),

reinstated,

, 891 (10th Cir. 2021) (divided en banc vote reinstating order denying

preliminary injunction with three written dissents); Cargill v. Garland,

, 450 (5th Cir.

2023) (en banc) (holding bump stock does not fit under statutory definition of “machinegun” based

on rule of lenity) (only plurality agreeing statute unambiguously excluded bump stocks), aff’d on

other grounds,

; Gun Owners of America, Inc. v. Garland, 992 F.3d at 446 , 450

(6th Cir. 2021) (divided panel holding Rule unlawful), aff’d on reh’g by an equally divided en

banc court, 19 F.4th at 895–96. As the Supreme Court explained, its intervention was necessary

to resolve “a split among the Courts of Appeals regarding whether bump stocks meet [26 U.S.C.]

§ 5845(b)’s definition.” Cargill,

. The Supreme Court ultimately “h[e]ld that it

does not,”

, and “ATF therefore exceeded its statutory authority by issuing a Rule that

classifies bump stocks as machineguns,”

. But even that conclusion was not unanimous.

See

(Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting).

Such widespread, thoughtful disagreement among jurists across the Courts of Appeals and

at the Supreme Court is “particularly persuasive evidence of substantial justification.” In re Long-

Distance Tel. Serv. Fed. Excise Tax Refund Litig.,

(D.C. Cir. 2014) (upholding

district court finding of substantial justification where “several circuit judges agreed with the

government and dissented from” decisions ruling against the government). That is not to say that

“an earlier dissent . . . conclusively show[s] the government’s position was substantially justified.”

But “prior dissents” and other opinions taking the government’s position “are still properly

considered when conducting the substantial justification inquiry.”

(citation modified). That “a

significant number of reasonable jurists . . . reached diametrically opposed conclusions as to

10 whether the definition of a machinegun includes a bump stock,” Hardin v. ATF,

, 898

(6th Cir. 2023), confirms that ATF’s position, though ultimately erroneous, was substantially

justified, see, e.g., Medina Tovar v. Zuchowski,

, 1090 (9th Cir. 2022) (noting

“disagreement among the district, three-judge panel, and en banc panel judges” supported

conclusion that government position was substantially justified); Perez v. Jaddou,

,

272 (4th Cir. 2022) (noting “it is certainly more likely . . . where no fewer than seven federal

judges agreed with the government [] that the position of the [agency] was substantially justified”).

The agency has thus met its burden of demonstrating its position was substantially justified,

through ultimately incorrect on the merits. As a result, the plaintiffs are not entitled to fees under

the EAJA. See Gun Owners of Am. v. Garland, 18-cv-1429 (PLM),

, at *8 (W.D.

Mich. Jan. 23, 2025).

Accordingly, it is

ORDERED that the plaintiffs’ Motion for Attorneys’ Fees and Costs, Dkt. 63, is DENIED.

So Ordered. ________________________ DABNEY L. FRIEDRICH United States District Judge July 29, 2025

11