IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK; 

MICHAEL G. ANDREN; 

TACTICAL MACHINING, LLC, a limited liability 

company; and 

FIREARMS POLICY COALITION, INC., a nonprofit 

corporation,

 Plaintiffs,

and

Not An LLC d/b/a JSD SUPPLY,

Applicant in Intervention,

 v.

MERRICK GARLAND, in his official capacity as 

Attorney General of the United States; 

UNITED STATES DEPARTMENT OF JUSTICE; 

STEVEN DETTELBACH, in his official capacity as 

Director of the Bureau of Alcohol, Tobacco, Firearms 

and Explosives; and 

BUREAU OF ALCOHOL, TOBACCO, FIREARMS 

AND EXPLOSIVES,

 Defendants.

 Civil Action No. 4:22-cv-691-O

NOT AN LLC d/b/a JSD SUPPLY’S

BRIEF IN SUPPORT OF [PROPOSED] MOTION FOR PRELIMINARY INJUNCTION

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Table of Contents

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 3

I. BACKGROUND......................................................................................................3

A. Statutory and Regulatory Background ...............................................................3

B. The Biden Administration Announces That It “Will Not Wait 

for Congress to Act to Take Its Own Steps” on Gun Control ............................5

C. The Final Rule Purports to Regulate Partial Frames and Receivers 

and Creates a New Definition of “Firearm” .......................................................9

II. THIS COURT HAS ALREADY DETERMINED THAT THE FINAL 

RULE EXCEEDS ATF’S STATUTORY AUTHORITY UNDER THE 

PLAIN LANGAUGE OF THE GUN CONTROL ACT........................................... 10

A. September 2 Order: “Parts that may become receivers are not receivers”................... 10

B. September 2 Order: “A weapons parts kit is not a firearm”......................................... 11

C. November 3 Order: Proper scope of relief is that which mirrors the relief currently 

afforded to Tactile Machining, LLC........................................................................... 12

ARGUMENT................................................................................................................................ 13

I. THE COURT’S SEPTEMBER 2 ORDER ESTABLISHES THAT JSD SUPPLY

IS LIKELY TO PREVAIL ON THE MERITS.......................................................... 13

II. JSD SUPPLY HAS SHOWN IT WILL SUFFER IRREPARABLE 

HARM IN THE ABSENCE OF INJUNCTIVE RELIEF......................................... 14

A. The Final Rule Will Likely Put JSD Supply Out of Business..................................... 14

B. The Scope of Injunctive Relief Must Be Nationwide to Preserve the Status Quo and 

Allow JSD Supply to Continue Doing Business......................................................... 16

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III. JSD SUPPLY’S INJURY OUTWEIGHS ANY HARM TO DEFENDANTS OR THE 

PUBLIC ............................................................................................................................ 16

CONCLUSION............................................................................................................................. 18

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TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 

141 S. Ct. 2485 (2021).............................................................................................................. 15

Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A.,

875 F.2d 1174 (5th Cir. 1989)................................................................................................. 14

BST Holdings, LLC v. OSHA, 

17 F.4th 604 (5th Cir. 2021)..................................................................................................... 16

California v. ATF, 

No. 3:20-CV-06761 (N.D. Cal. Nov. 30, 2020)......................................................................... 5

City of Dallas v. Delta Air Lines, Inc., 

847 F.3d 279 (5th Cir. 2017).................................................................................................... 12

City of Dallas, Texas v. Hall,

2008 WL 11350041 (N.D. Tex. July 28, 2008)....................................................................... 17

City of Syracuse v. ATF, 

No. 1:20-CV-06885 (S.D.N.Y. Jan. 29, 2021)........................................................................... 5

Cobell v. Kempthorne, 

455 F.3d 301 (D.C. Cir. 2006).................................................................................................. 17

Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 

600 F.2d 1184 (5th Cir. 1979).................................................................................................. 13

Def. Distributed v. United States Dep’t of State, 

838 F.3d 451 (5th Cir. 2016).................................................................................................... 13

Dist. 50, United Mine Workers of Am. v. Int’l Union, Union Mine Workers of Am., 

412 F.3d 165 (D.C. Cir. 1969).................................................................................................. 17

Family Rehab., Inc. v. Azar, 

3:17-CV-3008, 2018 WL 3155911 (N.D. Tex. June 28, 2018)................................................ 13

Green Valley Special Util. Dist. v. City of Schertz, 

969 F.3d 460 (5th Cir. 2020).................................................................................................... 16

Jacksonville Port Auth. v. Adams, 

556 F.2d 52 (D.C. Cir. 1997).................................................................................................... 17

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Janvey v. Alguire, 

647 F.3d 585 (5th Cir. 2011).................................................................................................... 15

Jiao v. Xu, 

28 F.4th 591 (5th Cir. 2022)..................................................................................................... 14

Milsen Co. v. Southland Corp., 

454 F.2d 363 (7th Cir. 1971).................................................................................................... 14

Miss. Power & Light Co. v. United Gas Pipe Line Co., 

760 F.2d 618 (5th Cir. 1985).................................................................................................... 13

N. Mariana Islands v. United States, 

686 F. Supp. 2d 7 (D.D.C. 2009).............................................................................................. 16

N.Y. Progress & Prot. PAC v. Walsh, 

733 F.3d 483 (2d Cir. 2013) ..................................................................................................... 16

Productos Carnic, S.A. v. Cent. Amer. Beef & Seafood Trading Co., 

621 F.2d 683 (5th Cir. 1980).................................................................................................... 13

Texas v. EPA, 

829 F.3d 405 (5th Cir. 2016).................................................................................................... 15

Texas v. Seatrain Int’l, S.A., 

518 F.2d 175 (5th Cir. 1975).................................................................................................... 13

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015).............................................................................................. 16, 17

Thunder Basin Coal Co. v. Reich, 

510 U.S. 200 (1992) ................................................................................................................. 15

Tri-State Generation and Transmission Ass’n, Inc. v. Shoshone River Power, Inc., 

805 F.2d 351 (10th Cir. 1986).................................................................................................. 15

U.S. Navy SEALs 1-26 v. Biden, 

578 F. Supp. 3d 822 (N.D. Tex. 2022)..................................................................................... 18

Wages and White Lion Invs., LLC v. FDA, 

16 F.4th 1130 (5th Cir. 2021)................................................................................................... 15

Statutes

18 U.S.C. § 921(a)(3)(B) .......................................................................................................... 3, 10

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Other Authorities

Gun Control Act of 1968 ................................................................................................................ 3

H.R. 1454, 117th Cong. (2021)....................................................................................................... 6

S. 1558, 117th Cong. (2021)........................................................................................................... 6

Rules

27 C.F.R. § 478.11.............................................................................................................. 1, 10, 11

Definition of “Frame or Receiver” and Identification of Firearms, 

86 Fed. Reg. 27 (May 21, 2021)................................................................................................. 7

Definition of “Frame or Receiver” and Identification of Firearms, 

87 Fed. Reg. 24 (Apr. 26, 2022)................................................................................................. 9

Title and Definition Changes, 

43 Fed. Reg. 13,531, 13 (Mar. 31, 1978) ................................................................................... 4

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INTRODUCTION

On September 2, 2022 and on November 3, 2022, this Court granted a preliminary 

injunction as requested by Plaintiff Tactical Machining, LLC (“Tactical Machining”) and 

Intervenor Blackhawk Manufacturing Group, Inc. See Order and Opinion on Preliminary 

Injunction dated September 2, 2022 (“September 2 Order”), ECF No. 56 and Order and Opinion 

on Blackhawk Manufacturing Group Inc. d/b/a/ 80 Percent Arms’ (“BlackHawk”) Preliminary 

Injunction dated November 3, 2022 (“November 3, 2022 Order), ECF No. 118. Reiterating its 

September 2, 2022 Order, in the November 3, 2022 Order, the Court found that ATF Final Rule

2021R-05F, which was published in the Federal Register on April 26, 2022 and went into effect

on August 24, 2022 (“Final Rule”) included provisions that are “facially unlawful” and that 

“unlawfully expand ATF’s authority beyond the boundaries set by the Gun Control Act.” ECF No. 

56 at 9, 12. In granting preliminary injunctive relief to BlackHawk, this Court found that because 

BlackHawk’s challenge to the Final Rule paralleled the Plaintiff’s claims,1 it “similarly finds that 

BlackHawk has shown a substantial likelihood of success on the merits of its claims.” ECF No. 

118 at 5-6.

Like Tactical Machining and BlackHawk, Intervenor-Plaintiff Not an LLC d/b/a JSD 

Supply (“JSD Supply”) is manufacturer for whom nearly 60% of its products are subject to 

regulation under the Final Rule. See Declaration of Jordan Vinroe dated January 3, 2023 and

submitted herewith as Exhibit A (“Vinroe Decl.”) ¶ 7.

Like Tactical Machining and BlackHawk, JSD Supply faces an existential threat to its 

ability to continue operating because of the sharp decline in sales caused by the profound 

1 Plaintiffs collectively “have demonstrated a strong likelihood of success on their claims that the 

Final Rule—specifically, 27 C.F.R. §§ 478.11, 478.12(c)—exceeds the scope of ATF’s authority 

under the Gun Control Act.” Id. at 15. 

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uncertainty as to potential criminal ramifications in the ATF’s enforcement of the Final Rule since 

it took effect August 24, 2022. Vinroe Decl. ¶¶ 10–16. Since the Final Rule’s effective date, JSD 

Supply’s average daily revenue has declined by more than 60% as many of its customers have 

expressed alarm at the prospect of possibly committing a felony by merely purchasing JSD 

Supply’s products. Id. ¶ 14. Currently, JSD Supply is operating under financial hardship and 

burning through its cash reserves. Id. ¶¶ 17-19. If sales do not recover quickly, JSD Supply risks 

being forced to shut down and cease operations well before a final judgment is rendered in this 

proceeding. Id. ¶¶ 19. 

Like Tactical Machining and BlackHawk, JSD Supply faces nonrecoverable compliance 

costs which this Court found in its September 2 Order constitute irreparable harm. ECF No. 56 at 

17‒19. Like Tactical Machining and BlackHawk, JSD Supply was forced to discontinue popular 

product offerings from its online store after the Final Rule took effect in order to avoid the 

possibility of criminal or civil exposure under the Final Rule’s vague provisions. Vinroe Decl. ¶¶ 

10-11; ECF No. 56 at 17. However, unlike Tactical Machining—who for now is protected from 

ATF’s enforcement of the unlawful Final Rule—JSD Supply remains exposed to pervasive 

confusion, uncertainty, loss of liberty, and plummeting revenue as it attempts to continue operating 

in a massively destabilized marketplace. Compare ECF No. 56 at 17 with Vinroe Decl. 

The Biden Administration’s political rhetoric makes it clear that it seeks to wipe out JSD 

Supply and companies like it, and thereby significantly limit the ability of U.S. citizens to legally 

buy parts, tools, and jigs—which for decades prior to the Final Rule were legal under the Gun 

Control Act and earlier classification letters issued by ATF—in order to make their own firearms

and enjoy the full scope of rights guaranteed by the Constitution, including their Second 

Amendment rights. The Final Rule is already achieving measurable success in accomplishing the 

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White House’s misguided goals. JSD Supply therefore requests that the Court grant preliminary 

injunctive relief on a nationwide basis suspending enforcement of the Final Rule and re-instituting 

the status quo as it existed prior to August 24, 2022, which will allow JSD Supply to continue 

engaging in the lawful, interstate purchase and sale of frame and receiver blanks, jigs and tools,

while the Court adjudicates the Final Rule’s lawfulness. Alternatively, JSD Supply requests that 

this Court enjoins ATF’s ability to rescind the lawful classification letter issued to JSD Supply by 

ATF on November 21, 2017 in order for JSD Supply to lawfully continue selling non-regulated 

receiver blanks with non-regulated tools, jigs, and instructions as it did prior to the Final Rule’s 

effective date. See ATF Classification Determination dated November 21, 2017, submitted 

herewith as Exhibit B.

STATEMENT OF FACTS

I. BACKGROUND

A. Statutory and Regulatory Background

The United States of America has a long tradition of individuals privately making their 

own firearms, which dates back to the American Revolution. “[G]un-making at home was essential

to the Continental Army, and typically, it was more practical and efficient to assemble [a firearm 

from parts] rather than completely start from scratch.”2 Law-abiding individuals in this country 

have always been allowed to make their own firearms, even after the passage of the Gun Control 

Act of 1968 (“GCA”).

2 Stop Gun Violence: Ghost Guns: Hearing Before the Subcomm. on the Constitution, of 

the S. Comm. on the Judiciary, 117th Cong. 5 (testimony of Ashley Hlebinsky; emphasis 

in original), 

https://www.judiciary.senate.gov/imo/media/doc/Ashley%20Hlebinsky%20Written%20T

estimony%20Final.pdf

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The “frame or receiver” of a firearm is the component of the firearm that is subject to 

federal firearms regulations. See 18 U.S.C. § 921(a)(3)(B) (defining a “firearm” as including “the 

frame or receiver of any such weapon”). Today, many Americans who choose to make their own 

firearms do so using frame and receiver blanks, also known as “unfinished” or “incomplete” 

frames and receivers, which are raw materials that have undergone some, but not all, of the stages 

of manufacturing necessary to produce a complete, functioning firearm frame or receiver.

As noted in the Court’s September 2 Order and November 3 Order, in 1978 the ATF 

promulgated a rule interpreting the phrase “frame or receiver.” ECF No. 56 at 2; ECF No.118 at 

2, 5. The rule defined the “frame or receiver” of a firearm as “[t]hat part of a firearm which provides 

housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded 

at its forward portion to receive the barrel.” Title and Definition Changes, 43 Fed. Reg. 13,531, 

13,537 (Mar. 31, 1978). That definition remained in place for over 40 years, during which time 

ATF has issued written classification determinations to businesses stating that their frame and 

receiver blank products are not firearms after its Firearms and Ammunition Technology Division 

reviewed product samples from industry. Consequently, businesses like JSD Supply and other 

manufacturers, distributors, and retailers invested capital, created American jobs, and sold lawful 

products to customers based on their good-faith reliance on ATF’s written classification 

determinations.

As recently as November 2020 and January 2021, the Department of Justice and ATF 

defended these classification determinations in litigation against gun-control proponents:

Plaintiffs’ challenges to ATF’s classifications also seek to undercut the process under 

which, for decades, ATF has reviewed numerous items to determine if they should be 

classified as “firearms” under the GCA, bringing to bear the agency’s technical, scientific, 

mechanical, and legal expertise. Receivers for the AR-15, the most common rifle in 

America, have a space within them called the fire- control cavity, which accommodates the 

firing components. The longstanding position of ATF is that, where a block of metal (or 

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other material) that may someday be manufactured into a receiver bears no markings that 

delineate where the fire-control cavity is to be formed and has not yet been even partially 

formed, that item is not yet a receiver . . ..

Fed. Defs.’ Mot. Dismiss at 2, California v. ATF, No. 3:20-CV-06761 (N.D. Cal. Nov. 30, 2020), 

ECF No. 29 at 11, 2020 WL 9849685.

3

 In 2021 Defendants emphasized ATF’s consistent 

application of classification standards spanning more than four decades:

The Record contains classification letters dating back to the 1970s. These classification 

letters make plain that ATF has consistently adopted a standard whereby the degree of 

machining to the frame or receiver determined whether the device constituted a firearm....

... Not one of the above-noted classification letters made reference to the amount of time 

that would be required to transform the given device into a fully functional frame or 

receiver. Further, these letters are only a few of the examples contained in the Record of 

ATF making determinations based on the degree of machining performed on the unfinished 

frame or receiver with no reference whatsoever to the time required to transform the device 

into a fully functional frame or receiver.

Fed. Defs.’ Mot. for Summ. J. at 30–32, City of Syracuse v. ATF, No. 1:20-CV-06885 (S.D.N.Y. 

Jan. 29, 2021), ECF No. 98 at 40–42.

4

B. The Biden Administration Announces That It “Will Not Wait for Congress to 

Act to Take Its Own Steps” on Gun Control

President Biden campaigned on a promise to “Stop ‘ghost guns’” which the Biden 

campaign described as a weapon obtained illegally by people “assembling one on their own [] by 

buying a kit of disassembled gun parts.”5 Specifically, then-candidate Biden promised to “pass[] 

legislation” to “stop the proliferation of these so-called ‘ghost guns.’”

3 The government’s brief is available at

https://storage.courtlistener.com/recap/gov.uscourts.cand.366534/gov.uscourts.cand.3665

34.29.0.pdf

4 The government’s brief is available at

https://storage.courtlistener.com/recap/gov.uscourts.nysd.542991/gov.uscourts.nysd.5429

91.98.0.pdf

5 The Biden Plan to End Our Gun Violence Epidemic, BIDEN-HARRIS DEMOCRATS, 

https://joebiden.com/gunsafety/ (last visited Sep. 19, 2022). 

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After President Biden took office, members of Congress proposed bills changing the way 

ATF classifies frame and receiver blanks not currently defined as firearms. None of those bills 

became law. See, e.g., S. 1558, 117th Cong. (2021) (Untraceable Firearms Act of 2021)

6

; H.R. 

1454, 117th Cong. (2021) (Ghost Guns Are Guns Act).7 Because the Biden Administration was 

unable to accomplish its legislative goal through the constitutional process of bicameralism and 

presentment, it turned to unilateral executive action and unlawful means to achieve its aims for 

regulating firearms.

On April 7, 2021, the White House announced that President Biden was “reiterating his 

call for Congress to pass legislation.”8 The announcement also stated that “this Administration 

will not wait for Congress to act to take its own steps” on gun control. The announcement 

instructed the Department of Justice to “within 30 days ... issue a proposed rule to help stop the 

proliferation” of so-called “ghost guns.”

On April 8, 2021, President Biden, Vice President Harris, and Attorney General Garland 

held a press conference at the White House Rose Garden. President Biden stated that he “asked 

the Attorney General and his team to identify for me immediate, concrete actions I could take now 

without having to go through the Congress.”9 Attorney General Garland stated in his remarks that 

6 https://www.congress.gov/bill/117th-congress/senate-bill/1558

7 https://www.congress.gov/bill/117th-congress/house-bill/1454

8 Fact Sheet: Biden-Harris Administration Announces Initial Actions to Address the Gun 

Violence Public Health Epidemic, THE WHITE HOUSE (Apr. 7, 2021), 

https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/07/fact-sheetbiden-harris-administration-announces-initial-actions-to-address-the-gun-violencepublic-health-epidemic/.

9 Remarks by President Biden on Gun Violence Prevention, THE WHITE HOUSE (Apr. 8, 

2021), https://www.whitehouse.gov/briefing-room/speechesremarks/2021/04/08/remarks-by-president-biden-on-gun-violence-prevention/.

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“the proliferation of the so-called ghost guns” was caused by a “regulatory loophole” or “gap,”10

even though the proliferation of such products was actually the direct result of ATF’s proper legal 

determinations pursuant to the GCA, and carefully considered decisions to issue classification 

determinations approving the lawful, unregulated sale of such products.

On May 7, 2021, Attorney General Garland announced ATF proposed rule 2021R–05, 

titled Definition of “Frame or Receiver” and Identification of Firearms, 86 Fed. Reg. 27,720 (May 

21, 2021). On May 11, 2021, the U.S. Senate Committee on the Judiciary’s Subcommittee on the 

Constitution held a hearing on proposed legislation addressing so-called “ghost guns.” At the 

hearing, Senator Richard Blumenthal admitted that one reason he proposed the legislation was that 

“under federal law” frame and receiver blanks are not classified as firearms.11

During the 90-day comment period for the proposed rule—from May 21 to August 19, 

2021—the public submitted approximately 290,000 comments on the proposed rule.12

In February 2022, President Biden and Attorney General Garland traveled to New York 

City for a meeting of the Gun Violence Prevention Task Force. At that meeting, President Biden 

10 Attorney General Garland’s Full Remarks on Gun Violence Prevention at the White 

House Rose Garden, U.S. DEP’T OF JUSTICE (Apr. 8, 2021), 

http://www.justice.gov/opa/speech/attorney-general-garland-s-full-remarks-gunviolence-prevention-white-house-rose-garden.

11 Stop Gun Violence: Ghost Guns: Hearing Before the Subcomm. on the Constitution, of 

the S. Comm. On the Judiciary, 117th Cong. 5 (statement of Sen. Blumenthal), 

https://www.judiciary.senate.gov/meetings/stop-gun-violence-ghost-guns (stating at 

22:19 that “they are guns, except under federal law”).

12 ATF, Comments on Proposed Rule 2021R-05, https://www.atf.gov/rules-andregulations/definition-frame-or-receiver/submit-comment.

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stated that “this spring, the Justice Department will issue a final rule to regulate these so-called 

‘ghost guns.’”13

As the one-year anniversary of the Biden Administration’s press conference at the White 

House Rose Garden drew near, political pressure mounted on the Biden Administration to issue a 

final rule as soon as possible. In March 2022, the New York Times reported that then-Acting ATF 

Director Marvin Richardson stated at an industry gathering that ATF was expected to announce 

its Final Rule by June 2022. A Department of Justice spokesperson said he “was simply reading 

from a White House budget office document,” but two White House officials told the New York 

Times that “Mr. Richardson had misspoken and that the rule would, in fact, be finished by early 

April.”14 Shortly thereafter, Mr. Richardson was removed from his position as Acting Director and 

replaced with the Acting Director Gary Restaino.

On April 8, 2022, exactly one year after the President’s press conference at the White 

House Rose Garden, Politico reported that Senator Chris Murphy and more than 100 Democrat 

legislators sent a letter to President Biden on March 25, 2022, “pressing Biden to take unilateral 

action on guns,” including “[f]inaliz[ing] a regulation to crack down on so-called ghost guns before 

13 Remarks by President Biden at a Gun Violence Prevention Task Force Meeting, THE 

WHITE HOUSE (Feb. 3, 2022), https://www.whitehouse.gov/briefing-room/speechesremarks/2022/02/03/remarks-by-president-biden-at-a-gun-violence-prevention-taskforce-meeting/.

14 See Glenn Thrush, Dueling Messages Muddle Biden’s Agenda on Guns, N.Y. TIMES 

(Mar. 4, 2022), https://www.nytimes.com/2022/03/04/us/politics/atf-biden-gunreform.html.

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Democrats potentially lose control of Congress.”15 The article noted that Democrats were 

“exasperated” at how much time it was taking for the Biden Administration to issue a final rule.

On April 11, 2022, President Biden announced at the White House Rose Garden that the 

Final Rule was complete. President Biden stated that a “year ago this week ... I instructed the 

Attorney General to write a regulation that would rein in the proliferation of ghost guns because I 

was having trouble getting anything passed in the Congress.”16 He explained that the Final Rule’s 

purpose was to make it “illegal to manufacture” weapon parts kits and “[i]llegal for a licensed 

dealer to sell them” without complying with the same regulatory requirements governing the 

manufacture and sale of complete firearms.

The Final Rule was published on April 26, 2022, Definition of “Frame or Receiver” and 

Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022),

17 and took effect on August 24, 

2022.

C. The Final Rule Purports to Regulate Partial Frames and Receivers and 

Creates a New Definition of “Firearm”

In its analysis of ATF’s promulgation of the Final Rule, this Court observed that “[r]ather

than merely updating the terminology, ATF decided to regulate partial frames and receivers.” ECF 

No. 56 at 3 (emphasis in original). As described in the Court’s September 2 Order: 

Under the new Final Rule, “[t]he terms ‘frame’ and ‘receiver’ shall include a partially 

complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver 

15 Laura Barrón-López, Democrats Exasperated With Biden on Gun Control, POLITICO 

(Apr. 8, 2022), https://www.politico.com/news/2022/04/08/democrats-biden-gun-control00024097.

16 Remarks by President Biden Announcing Actions to Fight Gun Crime and His Nominee 

for ATF Director, Steve Dettelbach, THE WHITE HOUSE (Apr. 11, 2022), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/04/11/press-briefingby-press-secretary-jen-psaki-april-11-2022/.

17 The Final Rule is available at https://www.federalregister.gov/d/2022-08026.

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parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise 

converted to function as a frame or receiver.” Id. § 478.12(c). But “[t]he terms shall not 

include a forging, casting, printing, extrusion, unmachined body, or similar article that has 

not yet reached a stage of manufacture where it is clearly identifiable as an unfinished 

component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw 

material).” Id. When determining whether an object is a frame or receiver, the ATF 

Director is not limited to looking only at the object. “When issuing a classification, the 

Director may consider any associated templates, jigs, molds, equipment, tools, instructions, 

guides, or marketing materials that are sold, distributed, or possessed with the item or kit . 

. . .” Id.

Id. at 3. 

The Final Rule also changes and broadens ATF’s definition of “firearm” to include “a 

weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise 

converted to expel a projectile by the action of an explosive.” 27 C.F.R. § 478.11 (definition of 

“firearm”).

II. THIS COURT HAS ALREADY DETERMINED THAT THE FINAL RULE 

EXCEEDS ATF’S STATUTORY AUTHORITY UNDER THE PLAIN LANGAUGE 

OF THE GUN CONTROL ACT

In seeking a preliminary injunction, Plaintiffs argued that the Final Rule exceeds ATF’s 

statutory authority under the GCA in two ways: first, it “expands ATF’s authority over parts that 

may be ‘readily converted’ into frames or receivers, when Congress limited ATF’s authority to 

‘frames or receivers’ as such”; and second, it “unlawfully treats weapon parts kits as firearms.” 

ECF No. 56 at 6. This Court found that “Plaintiffs are likely to succeed on both claims.” Id. 

A. September 2 Order: “Parts that may become receivers are not receivers”

The Court’s September 2 Order found that the “text of the Gun Control Act resolves 

[Plaintiffs’] motion” for a preliminary injunction, ECF No. 56 at 6, and in its analysis determined:

The Final Rule’s redefinition of “frame or receiver” conflicts with the statute’s plain 

meaning. The definition of “firearm” in the Gun Control Act does not cover all firearm 

parts. It covers specifically “the frame or receiver of any such weapon” that Congress 

defined as a firearm. 18 U.S.C. § 921(a)(3)(B). That which may become a receiver is not 

itself a receiver.

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Id. at 8 (emphasis in original). This Court’s analysis concluded that ATF’s newly expanded 

definitions in the Final Rule were “facially unlawful”:

Congress excluded other adjectives that ATF adds to its definition. The Final Rule covers 

“disassembled” and “nonfunctional” frames and receivers. 27 C.F.R. § 478.12(c). 

Congress’s definition does not. ... 

ATF’s new definition of “frame or receiver” in 27 C.F.R. § 478.12(c) is facially unlawful. 

By comparison, the Final Rule includes definitions of “frame” and “receiver” in § 

478.12(a) that appear to be consistent with the statute. This further highlights that the Final 

Rule’s expansion of authority in § 478.12(c) to firearm parts that are not yet frames or 

receivers goes beyond Congress’s definition. In other words, § 478.12(a) describes the full 

scope of frames and receivers that are consistent with the statutory scheme. ATF’s 

expansion in § 478.12(c), on the other hand, covers additional parts that are “designed to 

or may readily be completed, assembled, restored, or otherwise converted to function as a 

frame or receiver.” 27 C.F.R. § 478.12(c). But Congress intentionally omitted that language 

from the definition. Section 478.12(c) is thus facially unlawful because it describes only 

parts that Congress intentionally excluded from its definition of “firearm.” It is purely an 

expansion of authority beyond the statutory language.

Id. at 9–10 (emphasis added). 

This Court’s September 2 Order went on to reject Defendants’ counterarguments that ATF 

was entitled to deference in regulating components that ATF itself determined to not be a frame or 

receiver. Id. at 10. The Court likewise found Defendants’ attempt to invoke “boundless 

congressional intent” regarding the GCA to be unpersuasive as justification for the Final Rule’s 

overreach: 

Contrary to Defendants’ broad framing, ‘the regulatory goals of the Gun Control Act were 

narrower: the Act ensured that ‘weapons [were] distributed through regular channels and 

in a traceable manner and [made] possible the prevention of sales to undesirable customers 

and the detection of the origin of particular firearms.’” New York v. Burger, 482 U.S. 691, 

713 (1987) (emphases added) (alterations in original) (citing United States v. Biswell, 406 

U.S. 311, 315–16 (1972)). When Congress sought to regulate parts of weapons, it did so 

meticulously.

Id. at 11. 

B. September 2 Order: “A weapons parts kit is not a firearm”

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The September 2 Order also found that “Plaintiffs are also likely to succeed on their claim 

that the Final Rule unlawfully treats weapon parts kits as firearms.” ECF No. 56 at 12. This Court 

explained how the Final Rule’s use of “weapons parts kits” impermissibly expanded ATF’s 

authority beyond the scope provided by the GCA:

The Final Rule contains its own definition of “firearm,” notwithstanding that the Gun 

Control Act already defines the term. Under the Final Rule, “[t]he term shall include a 

weapon parts kit that is designed to or may readily be completed, assembled, restored, or 

otherwise converted to expel a projectile by the action of an explosive.” 27 C.F.R. § 478.11 

(definition of “firearm”). That language conflicts with the statute’s definition of “firearm.”

ATF has no general authority to regulate weapon parts. But the Final Rule grants ATF 

that general authority by copying language used throughout the statutory definition. It takes 

phrases like “designed to” and “may readily be converted” and “assembled” from various 

places in the statute, cobbling them together to form ATF’s own definition of “firearm.” 

Those terms may add a patina of credibility to the drafting, but they tarnish Congress’s 

carefully crafted definition. More importantly, they unlawfully expand ATF’s authority 

beyond the boundaries set by the Gun Control Act.

Id. at 12 (emphasis added). 

C. November 3 Order: proper scope of relief is that which mirrors the relief 

currently afforded to Tactical Machining, LLC.

This Court’s November 3, 2022 Order found that the relevant facts and law weigh 

in favor of granting intervenor BlackHawk’s request for a preliminary injunction: 

As BlackHawk requests and the Government concedes, 41 the proper scope of relief 

is that which mirrors the relief currently afforded to Tactical Machining, LLC.42

Thus, any protective relief provided to BlackHawk must be sufficient to redress its 

injuries, without being overly inclusive. As this Court has previously found, 

BlackHawk’s injuries cannot be remedied if its only source of revenue—customer 

willingness to transact business—has been severely curtailed. Thus, the Court finds 

that the proper remedy is an injunction that applies to the company itself and to its 

customers.

This Court also noted that the Government’s purported regulation of firearm parts was 

“contrary to the plain language of the GCA.” ECF 118 at 5. It then stated “the Government’s 

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likely ultra vires enforcement efforts upset more than fifty years of ATF regulatory precedent 

against a public that has relied on that historic posture.” ECF 118 at 10.

ARGUMENT

Because the Final Rule is unlawful and could ultimately destroy JSD Supply’s business, 

JSD Supply seeks a preliminary injunction to “preserve the status quo and thus prevent irreparable 

harm until the respective rights of the parties can be ascertained.” City of Dallas v. Delta Air Lines, 

Inc., 847 F.3d 279, 285 (5th Cir. 2017). Courts look to four factors in deciding whether to grant 

preliminary injunctive relief: “(1) a substantial likelihood of success on the merits; (2) a substantial 

threat of irreparable injury; (3) the threatened injury to the movant outweighs the threatened harm 

to the party sought to be enjoined; and (4) granting the injunctive relief will not disserve the public 

interest.” Id. The third and fourth factors—“assessing the harm to the opposing party and weighing 

the public interest”—“merge when the Government is the opposing party.” Nken v. Holder, 556 

U.S. 418, 435 (2009). The decision on whether to grant preliminary relief is left to the district 

court’s sound discretion. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 

(5th Cir. 1985). To prevail on a preliminary injunction motion, the movant must “present a prima 

facie case” but “is not required to prove his case in full.” Id. at 684. 

I. THE COURT’S SEPTEMBER 2 AND NOVEMBER 3 ORDERS ESTABLISHES 

THAT JSD SUPPLY IS LIKELY TO PREVAIL ON THE MERITS

A movant “appealing to the conscience of the chancellor to maintain the status quo ... is 

not required to prove to a moral certainty that his is the only correct position.” Texas v. Seatrain 

Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975). “As long as the court cannot say there is no likelihood 

of prevailing on the merits but finds the factor of substantial likelihood of success present to some 

degree, then the party seeking the injunction has met its burden.” Family Rehab., Inc. v. Azar, 

3:17-CV-3008, 2018 WL 3155911, at *3 (N.D. Tex. June 28, 2018) (citing Productos Carnic, S.A. 

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v. Cent. Amer. Beef & Seafood Trading Co., 621 F.2d 683, 686 (5th Cir. 1980)). “A preliminary 

injunction may issue ... despite the existence of a plausible defense, as long as the movant 

demonstrates a substantial likelihood of success.” Dallas Cowboys Cheerleaders, Inc. v. 

Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979). The likelihood of success on the 

merits is “arguably the most important of the four factors necessary to grant a preliminary 

injunction[.]” Def. Distributed v. United States Dep’t of State, 838 F.3d 451, 463 (5th Cir. 2016).

Here, this Court has already found that the claims JSD Supply asserts are likely to prevail 

on the merits. Compare ECF No. 56 at 6, 12, 15 and 22 (finding, inter alia, that provisions of the 

Final Rule are “facially unlawful”, that the Final Rule is outside the scope of ATF’s authority 

under the GCA, and that the Final Rule unlawfully treats weapons parts kits as firearms) and JSD 

Supply’s Complaint ¶¶ 56–61, ¶¶ 80–86, ¶¶ 102–106. 

II. JSD SUPPLY HAS SHOWN IT WILL SUFFER IRREPARABLE HARM IN THE 

ABSENCE OF INJUNCTIVE RELIEF

A. The Final Rule Will Likely Put JSD Supply Out of Business 

Nearly 60% of JSD Supply’s business is producing and selling items that are subject to the 

Final Rule. Vinroe Decl. ¶ 7. Without injunctive relief, JSD Supply will be subject to possible 

criminal charges if it attempts to sell the parts, jigs, and/or tools that ATF determines violates the 

Final Rule and, under ATF’s incorrect interpretation embodied in the Final Rule, therefore the 

GCA or, alternatively, if it continues its present prohibition on selling its parts, jigs, and/or tools

arguably covered by the Final Rule, JSD Supply may not survive the pendency of the case and 

could go out of business well before the unlawfulness of the Final Rule is determined in a final 

judgment. Id. ¶¶ 21–21.

Irreparable injury exists where “the potential economic loss is so great as to threaten the 

existence of the movant’s business.” Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 

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875 F.2d 1174, 1179 (5th Cir. 1989); see also Jiao v. Xu, 28 F.4th 591, 598 (5th Cir. 2022) (quoting 

Atwood Turnkey, 875 F.2d at 1179); Tri-State Generation and Transmission Ass’n, Inc. v. 

Shoshone River Power, Inc., 805 F.2d 351, 356 (10th Cir. 1986) (“A threat to trade or business 

viability may constitute irreparable harm.”); Milsen Co. v. Southland Corp., 454 F.2d 363, 367 

(7th Cir. 1971) (“[Plaintiffs] have presented an appropriate case for preliminary injunction. . . 

[because plaintiffs] will lose their stores and may not be able to finance the trial on their legal 

claims if they lose their business now[.]”).

Additionally, “harm is irreparable where there is no adequate remedy at law, such as 

monetary damages.” Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011). “Indeed, ‘complying 

with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable 

compliance costs.’” Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal 

Co. v. Reich, 510 U.S. 200, 220‒21 (1992) (Scalia, J., concurring in part)). In a case against the 

federal government, “federal agencies generally enjoy sovereign immunity for any monetary 

damages.” Wages and White Lion Invs., LLC v. FDA, 16 F.4th 1130, 1142 (5th Cir. 2021). 

Therefore, JSD Supply’s “lack of a ‘guarantee of eventual recovery’ is another reason that its 

alleged harm is irreparable.” Id. (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 

141 S. Ct. 2485, 2489 (2021)). 

Not only can JSD Supply not seek monetary damages against Defendants, but the ATF

acknowledges the Final Rule will shut down an entire industry. By the ATF’s own estimation, “the 

final rule could potentially affect 132,023 entities, including FFLs and non-FFL manufacturers 

and retailers of firearms parts kits with partially complete frames or receivers.”18 ATF further 

18ATF, REGULATORY IMPACT ANALYSIS AND FINAL REGULATORY FLEXIBILITY 

ANALYSIS at 124 (2022), available at https://www.atf.gov/file/165811/download.

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estimates that “the majority of affected entities are small entities that would experience a range of 

costs, the largest cost being the dissolution of the entire business.”19

B. The Scope of Injunctive Relief Must Be Nationwide to Preserve the Status 

Quo and Allow JSD Supply to Continue Doing Business

An injunction on a nationwide level is necessary because JSD Supply receives some of its 

inventory from out of state and most of its customers are out of state. Vinroe Decl. ¶ 12, ¶ 19. An 

injunction applying to only JSD Supply would not protect any manufacturers that supply the 

products that JSD Supply sells or any of JSD Supply’s customers. Without a nationwide injunction 

to preserve the status quo, JSD Supply would essentially have no products, no customers, and no 

vendors. Id. As a result, JSD Supply would be unable to continue its operations as run before the 

Final Rule and would likely be forced out of business. Id. ¶¶18-19; see Green Valley Special Util. 

Dist. v. City of Schertz, 969 F.3d 460 (5th Cir. 2020) (en banc) (noting that when “crafting an 

injunction, district courts are guided by the Supreme Court’s instruction that the scope of injunctive 

relief is dictated by the extent of the violation established”); Texas v. United States, 809 F.3d 134, 

188 (5th Cir. 2015) (affirming the grant of a preliminary injunction when there was “a substantial 

likelihood that a geographically-limited injunction would be ineffective” at remedying the 

plaintiff’s injury).

Because JSD Supply cannot continue its pre-Final Rule operations without a nationwide 

injunction, the issuance of nationwide relief is a necessary and essential remedy to reinstate and 

preserve the status quo while this Court decides this case.

III. JSD SUPPLY’S INJURY OUTWEIGHS ANY HARM TO DEFENDANTS OR THE 

PUBLIC 

19 Id. (emphasis added).

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Finally, the injury to JSD Supply far outweighs any potential harm to Defendants or the 

public interest. Defendants face no harm from temporary relief. The relief sought is no more than

what the law has dictated for over 50 years. Further, government officials have no legitimate 

interest in implementing an unlawful rule. See N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 

488 (2d Cir. 2013) (recognizing that government officials “do[] not have an interest in the 

enforcement of an unconstitutional law”).

Moreover, the “public interest” is properly “served by maintaining our constitutional 

structure and maintaining the liberty of individuals[.]” BST Holdings, LLC v. OSHA, 17 F.4th 604, 

618 (5th Cir. 2021); see N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009)

(“[T]he public interest is served when administrative agencies comply with their obligations under 

the APA.”); see also Jacksonville Port Auth. v. Adams, 556 F.2d 52, 58‒59 (D.C. Cir. 1997)

(“[T]here is an overriding public interest ... in the general importance of an agency’s faithful 

adherence to [its] statutory mandate.”). 

Even if Defendants had a legitimate interest in implementing the Final Rule, they, and the 

public, face no substantial prejudice from suspended implementation. The government’s interest 

“can be effectively vindicated after a trial on the merits,” Texas v. United States, 809 F.3d at 187, 

whereas JSD Supply’s interest cannot be, given that the Final Rule will destroy its business.

JSD Supply, its customers—and indeed all Americans—risk the possibility of criminal 

penalties for the production, sale, and purchase of items that have not historically been considered 

firearms prior to the Final Rule’s taking effect on August 24. See generally, Vinroe Decl. This 

regulatory risk extends to the sharing of technical instructions by JSD Supply, who has been 

compelled to self-censor and refrain from free discourse with its customers because of the profound 

uncertainty surrounding the Final Rule. Id. ¶ 8. Indeed, JSD Supply and similar producers and 

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retailers across the country must suffer the loss of civil liberties or risk the potential destruction of 

their businesses. Defendants, on the other hand, will not suffer significant harm by maintenance 

of the long-standing, 54-year status quo regarding what constitutes a “firearm” while this Court 

considers the merit of the Final Rule. Indeed, granting a preliminary injunction during the 

pendency of this litigation serves the public interest by allowing the Court to provide clarity on the 

validity of the Final Rule while “ensur[ing] the status quo is maintained so the legal system can 

resolve [an] important dispute.” City of Dallas, Texas v. Hall, 2008 WL 11350041, at *3 (N.D. 

Tex. July 28, 2008); see also Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006) (quoting 

Dist. 50, United Mine Workers of Am. v. Int’l Union, Union Mine Workers of Am., 412 F.3d 165, 

168 (D.C. Cir. 1969)) (“The usual role of a preliminary injunction is to preserve the status quo 

pending the outcome of litigation.”); U.S. Navy SEALs 1-26 v. Biden, 578 F. Supp. 3d 822, 840 

(N.D. Tex. 2022) (“An injunction does not disserve the public interest when it prevents 

constitutional deprivations.”).

Finally, the public interest in preserving full access to and enjoyment of the guarantees of 

the First and Second Amendments undoubtedly weighs in favor of enjoining enforcement of ATF’s 

unlawful Final Rule for the pendency of this litigation. U.S. Navy SEALs 1-26, at 840 (“An 

injunction does not disserve the public interest when it prevents constitutional deprivations.”).

CONCLUSION

For the foregoing reasons, JSD Supply respectfully requests that this Court enjoin 

enforcement of the Final Rule nationwide and re-institute the status quo as it existed prior to 

August 24, 2022 until a decision can be reached on the merits. Alternatively, JSD Supply requests 

that the Court issue a determination that JSD Supply is entitled to the same injunctive relief and 

protections granted to Tactical Machining in the Court’s September 2 Order. Further and 

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alternatively, JSD Supply requests the Court enjoin Defendants’ ability to rescind the lawful 

classification letter issued to JSD Supply by ATF on November 21, 2017, in order for JSD Supply

to lawfully continue selling non-regulated receiver blanks with non-regulated tools, jigs, and 

instructions as it did prior to the Final Rule’s effective date.

Respectfully submitted, 

/s/ Matthew J. Smid

MATTHEW J. SMID

TX Bar No. 24063541

ATTORNEY AT LAW

301 Commerce Street, Suite 2001

Fort Worth, Texas 76102

Phone: (817) 332-3822 Phone

Fax: (817) 332-2763 Fax

matt@mattsmidlaw.com

J. Mark Brewer

TX Bar No. 02965010

BREWER & PRITCHARD, P.C.

800 Bering Dr., Suite 201

Houston, TX 77057

(713) 209-2910

brewer@bplaw.com

Counsel for proposed Intervenor-Plaintiff Not an 

LLC dba JSD Supply 

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