United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10718

____________

Jennifer VanDerStok; Michael G. Andren; Tactical 

Machining, L.L.C., a limited liability company; Firearms Policy 

Coalition, Incorporated, a nonprofit corporation, 

Plaintiffs—Appellees,

Blackhawk Manufacturing Group, Incorporated, doing 

business as 80 Percent Arms; Defense Distributed; Second 

Amendment Foundation, Incorporated; Not An L.L.C., 

doing business as JSD Supply; Polymer80, Incorporated, 

Intervenor Plaintiffs—Appellees,

versus

Merrick Garland, U.S. Attorney General; United States 

Department of Justice; Steven Dettelbach, in his official 

capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; 

Bureau of Alcohol, Tobacco, Firearms, and Explosives, 

Defendants—Appellants.

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:22-CV-691

______________________________

Case: 23-10718 Document: 00516916064 Page: 1 Date Filed: 10/02/2023

Case 4:22-cv-00691-O Document 264 Filed 10/03/23 Page 1 of 6 PageID 5262
No. 23-10718

2 

Before Willett, Engelhardt, and Oldham, Circuit Judges.

UNPUBLISHED ORDER

Per Curiam: 

The Government’s motion to vacate the district court’s injunction is 

GRANTED IN PART. 

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

promulgated a Final Rule that, among other things, changed the longstanding 

federal definition of a firearm “frame or receiver.” A group of plaintiffs 

brought a lawsuit challenging two provisions in the Final Rule. The district 

court held that those provisions exceeded ATF’s statutory authority and

vacated the entire Final Rule. The Supreme Court stayed the district court’s

rulings “insofar as they vacate the final rule.” Two of the plaintiffs—

manufacturers of “frames or receivers” regulated by the Final Rule—then 

asked the district court for injunctive relief pending appeal. The district court 

enjoined the Government from enforcing the challenged portions of the Final 

Rule against the two plaintiffs and their customers. The Government has now 

asked us to vacate the district court’s injunction.

*

_____________________

* Such a request formally differs from an application for a stay, which would require 

consideration of the four factors from Nken v. Holder, 556 U.S. 418 (2009). Vacatur would 

eliminate the district court’s injunction entirely, whereas a stay would “operate[] upon the 

judicial proceeding itself” and place a hold on the injunction. Id. at 428. Nevertheless, we 

still look to Nken, not because a motion to vacate and an application to stay are “one and 

the same, but because similar concerns arise whenever a court order may allow or disallow 

anticipated action before the legality of that action has been conclusively determined.” Id.

at 434. We note that the federal courts rarely consider emergency motions to vacate an 

injunction issued by a lower court. And in those rare occasions, the opinions do not provide 

guidance on their rule of decision. See United States v. New York, Delaware, 328 U.S. 824

(1946); Lucy v. Adams, 350 U.S. 1, 2 (1955) (per curiam); see also FG Hemisphere Assocs. 

LLC v. Republique Du Congo, 212 F. App’x 358, 359 (5th Cir. 2007) (per curiam).

Case: 23-10718 Document: 00516916064 Page: 2 Date Filed: 10/02/2023

Case 4:22-cv-00691-O Document 264 Filed 10/03/23 Page 2 of 6 PageID 5263
No. 23-10718

3

We agree with the Government that the district court’s injunction 

sweeps too broadly. Injunctions that afford relief to non-parties are 

potentially problematic. See, e.g., United States v. Texas, 143 S. Ct. 1964, 1980 

(2023) (Gorsuch, J., concurring in the judgment); cf. Aditya Bamzai, The Path 

of Administrative Law Remedies, 98 Notre Dame L. Rev. 2037, 2060–61

(2023). And it appears the district court’s injunction sweeps too broadly 

insofar as it affords relief to non-party customers. That is particularly true 

because the Government has been adamant—in both writing and at oral 

argument on this motion—that it will not enforce the Final Rule against 

customers who purchase regulated “frames or receivers” and who are 

otherwise lawfully entitled to purchase firearms. Of course, if circumstances 

change, the district court is free to narrowly tailor injunctive relief to meet 

the changed circumstances. But as things stand today, the Government is 

correct that the injunction cannot extend to non-party customers. 

But we disagree with the Government that the district court’s 

injunction as to two plaintiff-party manufacturers “directly conflicts with the 

Supreme Court’s determination that the [G]overnment should be permitted 

to enforce the Rule as to everyone while this appeal proceeds.” Gov’t 

Vacatur Mot. 8. We have three reasons. First, the Supreme Court limited its 

stay to the global relief afforded by the district court’s vacatur order. Here is 

what the Court said in its August 8 stay order:

Application for stay presented to Justice Alito and by him 

referred to the Court granted. The June 30, 2023 order and July 

5, 2023 judgment of the United States District Court for the 

Northern District of Texas, case No. 4:22-cv-691, insofar as

they vacate the final rule of the Bureau of Alcohol, Tobacco, 

Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), 

is stayed pending the disposition of the appeal in the United 

States Court of Appeals for the Fifth Circuit and disposition of 

a petition for a writ of certiorari, if such a writ is timely sought. 

Case: 23-10718 Document: 00516916064 Page: 3 Date Filed: 10/02/2023

Case 4:22-cv-00691-O Document 264 Filed 10/03/23 Page 3 of 6 PageID 5264
No. 23-10718

4

Should certiorari be denied, this stay shall terminate 

automatically. In the event certiorari is granted, the stay shall 

terminate upon the sending down of the judgment of this 

Court.

--- S. Ct. ---, No. 23A82, 2023 WL 5023383 (U.S. 2023) (Mem.) (emphasis 

added). The Supreme Court could have simply stayed the district court’s 

vacatur order and judgment without qualification. Instead, the Court stayed 

them “insofar as they vacate the [F]inal [R]ule.” 

Second, we cannot say that the district court abused its discretion in 

granting traditional, limited injunctive relief to two parties. See Winter v. Nat. 

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a 

preliminary injunction must establish that he is likely to succeed on the 

merits, that he is likely to suffer irreparable harm in the absence of 

preliminary relief, that the balance of equities tips in his favor, and that an 

injunction is in the public interest.”). The party-plaintiff manufacturers 

would be irreparably harmed by being forced to shut down their companies 

or by being arrested pending judicial review of the Final Rule. VanDerStok v. 

BlackHawk Mfg. Grp. Inc., No. 4:22-CV-00691-O, 2023 WL 5978332, at *18

(N.D. Tex. Sept. 14, 2023). The party-plaintiff manufacturers are likely to 

succeed on the merits because the Final Rule is contrary to law. And both the 

balance of equities and the public interest weigh in favor of allowing orderly 

judicial review of the Final Rule before anyone shuts down their businesses 

or sends them to jail. See Nken v. Holder, 556 U.S. 418, 427 (2009) (“The 

authority to hold an order in abeyance pending review allows an appellate 

court to act responsibly.”). 

We are sensitive to the fact that the Government isirreparably harmed 

whenever its rules are enjoined. See Maryland v. King, 567 U.S. 1301, 1303 

(2012) (Roberts, C.J., in chambers); cf. Nken, 556 U.S. at 435–36 (noting 

Government’s irreparable injury can sometimes merge with public interest). 

Case: 23-10718 Document: 00516916064 Page: 4 Date Filed: 10/02/2023

Case 4:22-cv-00691-O Document 264 Filed 10/03/23 Page 4 of 6 PageID 5265
No. 23-10718

5

Still, the federal definitions of “frame or receiver” have endured for decades 

before ATF changed them in the Final Rule. ATF’s desire to change the 

status quo ante does not outweigh the few additional weeks or months needed 

to complete judicial review of ATF’s work. Thus, under Winter or Nken or 

any other standard, see supra n.*, we cannot say the Government has shown 

that it is entitled to emergency vacatur of the district court’s injunction as to 

the two party-plaintiff manufacturers. 

Third, we are unpersuaded by the Government’s insistence that the 

district court flouted the Supreme Court’s August 8 order. There is a 

meaningful distinction between vacatur (which is a universal remedy) and an 

injunction that applies only to two named plaintiffs (which is a traditional 

equitable remedy). See, e.g., John C. Harrison, Section 706 of the 

Administrative Procedure Act Does Not Call for Universal Injunctions or Other 

Universal Remedies, 37 Yale J. Reg. Bull. 37 (2020). The August 8 order 

considered only the first—a universal vacatur. The Government points out 

that its briefing to the Supreme Court also raised, in the alternative, that the 

district court’s universal vacatur should be limited to the parties to this case; 

and that the Court did not follow that alternative path. It is unclear that there 

is such a thing as an “as-applied vacatur” remedy under the APA. See, e.g., 

John C. Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 

Yale J. Reg. Bull. 119, 120 (2023) (“An injunction can be limited to the 

defendant’s actions concerning the plaintiff, and its preclusive effect can be 

limited to the relations between the parties. Vacatur, by contrast, eliminates 

a rule’s binding force altogether.”). So it is unclear that we should read much 

into the Government’s purported alternative. And in any event, we think it 

best to read the order the Supreme Court issued rather than one it did not.

Case: 23-10718 Document: 00516916064 Page: 5 Date Filed: 10/02/2023

Case 4:22-cv-00691-O Document 264 Filed 10/03/23 Page 5 of 6 PageID 5266
No. 23-10718

6

* * *

At the end of the day, we think four things are paramount. First, 

inferior federal courts must exhibit unflinching obedience to the Supreme 

Court’s orders. Second, the Court has directed us to be skeptical (if not 

altogether unwilling) to order universal relief that extends to non-parties. 

Third, insofar as possible, we should have orderly judicial review in which 

the status quo is maintained, and the legal rules sorted, without asking courts 

to make monumental decisions in short-fuse emergency dockets. Fourth and 

finally, courts should be able to review ATF’s 98-page rule, and the decades 

of precedent it attempts to change, without the Government putting people 

in jail or shutting down businesses. For these reasons, the Government’s 

motion is GRANTED IN PART, the district court’s preliminary 

injunction is VACATED as to non-parties, and the Government’s motion 

is otherwise DENIED. 

Case: 23-10718 Document: 00516916064 Page: 6 Date Filed: 10/02/2023

Case 4:22-cv-00691-O Document 264 Filed 10/03/23 Page 6 of 6 PageID 5267