UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

 Plaintiffs, Case No. 4:22-cv-00691-O

 v.

MERRICK GARLAND, in his official 

capacity as Attorney General of the United 

States, et al., 

 Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUEST TO

EXPAND SCOPE OF PRELIMINARY INJUNCTION (ECF NOS. 62-63) 

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TABLE OF CONTENTS

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

I. This Court Should Not Issue a Nationwide Injunction. .............................................................. 1 

II. This Court Should Not Extend Its Preliminary Injunction to the Individual 

Plaintiffs, Non-Party Members of FPC, Or FPC Itself................................................................ 7 

III. The Existing Preliminary Injunction Provides Complete Relief to Tactical 

Machining. ......................................................................................................................................................13 

CONCLUSION...........................................................................................................................................................16

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TABLE OF AUTHORITIES

Cases

Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 

810 F.3d 335 (5th Cir. 2016)..................................................................................................................................12 

Arizona v. Biden, 

40 F.4th 375 (6th Cir. 2022).......................................................................................................................... 4-5, 15

Badii v. Rick’s Cabaret Int’l, Inc., 

No. 3:12-CV-4541-B, 2014 WL 550593 (N.D. Tex. Feb. 11, 2014)............................................................ 8 

Bulgin v. DHS, 

6:21-CV-00002-H, 2021 WL 3704985 (N.D. Tex. Feb. 10, 2021).............................................................12

California v. U.S. Bureau of Land Mgmt.,

277 F. Supp. 3d 1106 (N.D. Cal. 2017)................................................................................................................ 6 

Carr v. City of Florence, 

729 F. Supp. 783 (N.D. Ala. 1990), aff’d mem., 934 F.2d 1264 (11th Cir. 1991)....................................... 9 

Ctr. for Biological Diversity v. Regan, 

No. CV 21-119 (RDM), 2022 WL 971067 (D.D.C. Mar. 30, 2022)............................................................ 6 

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................................................................................................................... 8

Dennis Melancon, Inc. v. City of New Orleans, 

703 F.3d 262 (5th Cir. 2012).................................................................................................................................... 8 

Dennis v. Dowdle, 

937 F.2d 612 (9th Cir. 1991).................................................................................................................................... 9 

DHS v. New York, 

140 S. Ct. 599 (2020) ..........................................................................................................................................passim

Dist. of Columbia v. Heller, 

554 U.S. 570 (2008)...................................................................................................................................................16 

Div. 80, LLC v. Garland, 

No. 3:22-CV-148, 2022 WL 3648454 (S.D. Tex. Aug. 23, 2022)................................................................. 5 

Enter. Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 

762 F.2d 464 (5th Cir. 1985).................................................................................................................................... 8 

Expo Grp., Inc. v. Castillo, 

No. 3:19-CV-1356-G, 2019 WL 4671511 (N.D. Tex. Sept. 25, 2019) .....................................................12

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Friends of the Earth, Inc. v. Chevron Chem. Co.,

129 F.3d 826 (5th Cir. 1997)..................................................................................................................................10

Georgia v. President of the United States, 

--- F.4th ----, No. 21-14269, 2022 WL 3703822 (11th Cir. Aug. 26, 2022)...................................4, 6, 15

Gill v. Whitford,

138 S. Ct. 1916 (2018)....................................................................................................................................2, 4, 15

Guedes v. ATF,

920 F.3d 1 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020).....................................................................12

Hunt v. Wash. State Apple Advert. Comm’n,

432 U.S. 333 (1977)...................................................................................................................................................10

In re CorrLine Int’l, LLC,

516 B.R. 106 (Bankr. S.D. Tex. 2014)...............................................................................................................8-9

Louisiana v. Becerra,

20 F.4th 260 (5th Cir. 2021)........................................................................................................................2-3, 4-6

Louisiana v. Becerra,

571 F. Supp. 3d 516 (W.D. La. 2021)....................................................................................................................3

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992).....................................................................................................................................................8

Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994)................................................................................................................................................2, 7

McDonald v. City of Chicago,

561 U.S. 742 (2010)...................................................................................................................................................16

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

760 F.2d 618 (5th Cir. 1985)....................................................................................................................................8

Monumental Task Comm., Inc. v. Foxx,

157 F. Supp. 3d 573, 586 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 

678 F. App’x 250 (5th Cir. 2017)........................................................................................................................6-7

Morehouse Enters., LLC v. ATF, 

3:22-CV-116, 2022 WL 3597299 (D.N.D. Aug. 23, 2022), appeal filed, No. 22-2854 

(8th Cir. Aug. 31, 2022) .............................................................................................................................................5

N.Y. State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022)..............................................................................................................................................16

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Nagy v. FMC Butner,

376 F.3d 252 (4th Cir. 2004)....................................................................................................................................9

Nat. Res. Def. Council v. U.S. Dep’t of Energy,

362 F. Supp. 3d 126 (S.D.N.Y. 2019)....................................................................................................................6

NLRB v. Aurora City Lines, Inc.,

299 F.2d 229 (7th Cir. 1962)....................................................................................................................................8

NLRB v. Richter’s Bakery,

140 F.2d 870 (5th Cir. 1944)....................................................................................................................................9

Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t Emps., AFL-CIO,

473 U.S. 1301, 1305 (1985).......................................................................................................................................6

Safety-Kleen Corp. v. EPA, 

Nos. 92-1629, 92-1639, 1996 U.S. App. LEXIS 2324, at *2-3 (D.C. Cir. Jan. 19, 1996)......................6

Tenth Street Residential Ass’n v. City of Dallas,

968 F.3d 492 (5th Cir. 2020)..................................................................................................................................11

Texas v. United States,

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

Trump v. Hawaii,

138 S. Ct. 2392 (2018)............................................................................................................................................3-4

Trump v. Int'l Refugee Assistance Project,

137 S. Ct. 2080 (2017)..............................................................................................................................................11

Usery v. Pilgrim Equip. Co.,

527 F.2d 1308 (5th Cir. 1976)..................................................................................................................................9

VanDerStok v. ATF, 

4:22-CV-00691-O, 2022 WL 4009048 (N.D. Tex. Sept. 2, 2022)................................................1-2, 7, 13

Warth v. Seldin,

422 U.S. 490 (1975)...................................................................................................................................................10

World Outreach Conf. Ctr. v. City of Chicago,

234 F. Supp. 3d 904 (N.D. Ill. 2017), aff’d, 896 F.3d 779 (7th Cir. 2018)..................................................9

Statutes

5 U.S.C. § 705................................................................................................................................................................6-7

18 U.S.C. § 921................................................................................................................................................................14

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18 U.S.C. § 922......................................................................................................................................................... 13-14

18 U.S.C. § 923................................................................................................................................................................14

Rules

Fed. R. Civ. P. 65............................................................................................................................................................11

Regulations

27 C.F.R. § 478.11 ..........................................................................................................................................................15 

27 C.F.R. § 478.12 ...................................................................................................................................................14-15

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

87 Fed. Reg. 24,652 (Apr. 26, 2022) .........................................................................................................1, 14-15

Other Authorities

ATF, Are “80%” or “unfinished” receivers illegal?, 

https://www.atf.gov/firearms/qa/are-%E2%80%9C80%E2%80%9D-or-

%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last visited Sept. 15, 2022)........................14 

FFL DEALER NETWORK, Your FFL Transfer Fee, 

https://www.ffldealernetwork.com/blog/your-ffl-transfer-fee (last visited Sept. 15, 2022).............. 8 

TACTICAL MACHINING, 100% Billet Lower Receiver Stripped Model 18X Anodized, 

https://www.tacticalmachining.com/80-anodized-billet-lower-receiver-strippedmodel-18x.html (last visited Sept. 15, 2022) .....................................................................................................14 

U.S. BUREAU OF LAB. STATS., CPI Inflation Calculator, 

https://www.bls.gov/data/inflation_calculator.htm (last visited Sept. 15, 2022).................................. 9 

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INTRODUCTION

Pursuant to this Court’s Opinion and Order of September 2, 2022, see VanDerStok v. ATF, 

No. 4:22-CV-00691-O, 2022 WL 4009048 (N.D. Tex. Sept. 2, 2022), at *11, Defendants submit this 

Response to Plaintiffs’ Request to Expand the Preliminary Injunction, ECF No. 63 (“Pls.’ Req.”). As 

set forth in greater detail below, Plaintiffs offer no basis to conclude that a nationwide injunction is 

necessary to protect Tactical Machining, LLC (“Tactical Machining”) from irreparable harm as a result 

of the Rule.

1

 Their contention that a nationwide injunction is warranted merely because this Court 

has held that they are likely to succeed on the merits of a facial APA challenge is foreclosed by Supreme 

Court and Fifth Circuit precedent. The Individual Plaintiffs, meanwhile, do not face cognizable 

irreparable harm from the potential payment of a one-time, $30 federal firearms licensee (“FFL”)

transfer fee. As to the Firearms Policy Coalition (“FPC”), Plaintiffs do not establish that FPC has 

associational standing on behalf of its members, because Plaintiffs fail to provide evidence of any 

indicia of FPC’s membership. Moreover, even if Plaintiffs had standing to bring suit on behalf of 

FPC’s members, they do not establish that those members uniformly satisfy the requirements for 

Article III standing, much less preliminary injunctive relief, as required for a membership-wide 

injunction. And FPC itself does not offer any concrete, non-conclusory evidence that it requires 

preliminary injunctive relief to continue engaging in its own organizational activities. Finally, the 

existing Preliminary Injunction is sufficient to provide complete relief to Tactical Machining. 

I. This Court Should Not Issue a Nationwide Injunction.

This Court previously declined to issue a nationwide injunction2 because Plaintiffs had not 

1 Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 

2022).

2 Defendants use the phrase “nationwide injunction” to refer to Plaintiffs’ request for an injunction 

barring enforcement of the Rule “against any individuals [or] entities” nationwide, Pls.’ Req. at 1; see 

also id. at 14-18, as distinct from the existing injunction that protects Tactical Machining throughout

the United States, not solely in this District.

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established that such an injunction was necessary to provide complete relief to Plaintiffs. See

VanDerStok, 2022 WL 4009048, at *10. In their Request to Expand the Preliminary Injunction, 

Plaintiffs do not attempt to establish otherwise. See generally Pls.’ Req. at 14-18. Instead, they argue

that nationwide relief is appropriate as a matter of course when a plaintiff demonstrates a likelihood 

of success on a facial challenge pursuant to the APA. See id. at 14 (“Because this Court has recognized 

a facial flaw in Defendants’ Rule under the APA, Plaintiffs request an injunction broadly prohibiting 

Defendants from enforcing their unlawful Rule.” (capitalization altered)); id. at 15 (“Where a party 

brings a facial challenge alleging that agency action violated APA procedures, a nationwide injunction 

is appropriate.” (internal quotation marks and citation omitted)); id. at 18 (“[B]ased on this Court’s 

and appellate precedent related to facial APA challenges, and because the Final Rule itself is in excess 

of Defendants’ congressionally mandated authority, Plaintiffs request that this Court broadly enjoin 

enforcement of the Final Rule.”).

As this Court has explained, however, “[i]njunctive relief should be no more burdensome to 

the defendant than necessary to provide complete relief to the plaintiffs.” VanDerStok, 2022 WL 

4009048, at *10 (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)). The Supreme 

Court likewise has recently reaffirmed that “[a] plaintiff’s remedy must be tailored to redress the 

plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018); see also, e.g., DHS v. New 

York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring) (“Equitable remedies, like remedies in 

general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.”). 

Those principles are equally controlling in an APA case as in any other, because they are predicated 

on Article III of the Constitution. See Gill, 138 S. Ct. at 1933 (“The Court’s constitutionally prescribed 

role is to vindicate the individual rights of the people appearing before it.”). 

Consistent with these principles, the Fifth Circuit has reaffirmed that the scope of any 

injunction must be justified in light of the particular circumstances of the case. See Louisiana v. Becerra, 

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20 F.4th 260, 263 (5th Cir. 2021) (per curiam). Further, it has clarified that nationwide injunctions are 

not “the norm,” including in APA cases. Id.; see also Compl. ¶¶ 116-29, 134-49, 155-73 (bringing APA 

claims), Louisiana v. Becerra, 571 F. Supp. 3d 516 (W.D. La. 2021) (No. 3:21-CV-03970), ECF No. 1. 

Accordingly, in Becerra, the Fifth Circuit stayed a nationwide injunction insofar as it applied beyond 

the States that had brought suit, rejecting the plaintiffs’ argument that nationwide relief was warranted 

because the challenged agency action had “nationwide scope.” 20 F.4th at 263-64; see id. at 264 

(distinguishing Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), in which nationwide relief 

was appropriate because of the “constitutional uniformity principle” that applies to immigration 

matters). 

As noted, Plaintiffs do not attempt to establish that a nationwide injunction is necessary to 

afford them complete relief. Nor do they attempt to distinguish Becerra, an APA case in which the 

Fifth Circuit partially stayed a nationwide preliminary injunction of a rule of nationwide applicability 

and “great significance,” which the district court had held likely exceeded the scope of the agency’s 

statutory authority. Becerra, 20 F.4th at 264; see also Louisiana v. Becerra, 571 F. Supp. 3d 516, 535-37 

(W.D. La. 2021), vacated and remanded, No. 21-30734, 2022 WL 2116002 (5th Cir. June 13, 2022). Their 

request for nationwide relief fails for those reasons alone.

Moreover, in recent years, courts and Supreme Court Justices increasingly have questioned the 

constitutional basis for nationwide injunctions, while also noting the pernicious effects of such 

injunctions on our judicial system. For example, Justice Thomas has expressed “skeptic[ism] that 

district courts have the authority to enter universal”—i.e., nationwide—“injunctions,” which “did not 

emerge until a century and a half after the founding” and “appear to be inconsistent with longstanding 

limits on equitable relief and the power of Article III courts.” Trump v. Hawaii, 138 S. Ct. 2392, 2425 

(2018) (Thomas, J., concurring). Justice Gorsuch has raised the same concerns. See DHS, 140 S. Ct. 

at 600 (Gorsuch, J., concurring). And regardless of whether nationwide injunctions are 

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constitutionally permissible, they “take a toll on the federal court system” by “preventing legal 

questions from percolating through the federal courts, encouraging forum shopping, and making every 

case a national emergency for the courts and for the Executive Branch.” Hawaii, 138 S. Ct. at 2425 

(Thomas, J., concurring); see also DHS, 140 S. Ct. at 600 (Gorsuch, J., concurring) (noting that 

nationwide injunctions undermine “[t]he traditional system” in which “multiple judges and multiple 

circuits . . . weigh in only after careful deliberation, a process that permits the airing of competing 

views that aids th[e Supreme] Court’s own decisionmaking process”). 

Other courts of appeals share these views. Very recently, the Eleventh Circuit vacated in part 

a nationwide injunction because it was “too broad,” notwithstanding the court’s determination that 

the challenged policy likely exceeded the Executive Branch’s scope of authority. Georgia v. President of 

the United States, --- F.4th ----, No. 21-14269, 2022 WL 3703822, at *1 (11th Cir. Aug. 26, 2022). The 

Eleventh Circuit noted that, “by cutting off parallel lawsuits, nationwide injunctions frustrate 

foundational principles of the federal court system.” Id. at *15. In particular, such injunctions

“encourage gamesmanship, motivating plaintiffs to seek out the friendliest forum and rush to litigate 

important legal questions in a preliminary posture”; “disturb comity by hindering other courts from 

evaluating legal issues for themselves”; and “escalate pressure on the Supreme Court docket by limiting 

percolation and raising the stakes of individual lower-court decisions.” Id. (collecting authorities). 

Chief Judge Sutton of the Sixth Circuit similarly has characterized nationwide injunctions as “a 

springing easement on the customary deliberative process for dealing with issues of national 

importance” and has opined that “[t]he sooner they are confined to discrete settings or eliminated 

root and branch the better.” Arizona v. Biden, 40 F.4th 375, 398 (6th Cir. 2022) (Sutton, C.J., 

concurring). Tellingly, every decision of a court within the Fifth Circuit that Plaintiffs cite to support 

their contention that a nationwide injunction is presumptively appropriate in a case bringing a facial 

challenge under the APA predates Gill, Becerra, and the recent pronouncements of other courts of 

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appeals and Supreme Court Justices, as do all but two of the out-of-circuit cases they cite. See Pls.’ 

Req. at 15-17. 

Of particular relevance here, the Fifth Circuit has explained that courts should be especially

loath to issue nationwide injunctions where other courts already have disagreed on the relevant legal 

question. See Becerra, 20 F.4th at 263 (noting the importance of “judicial restraint” where “[o]ther 

courts [we]re considering the[] same issues, with several courts already and inconsistently ruling”). 

Here, in contrast to this Court’s conclusion with respect to Plaintiffs’ likelihood of success on the 

merits, another court has held that the Rule “falls well-within the ATF’s agency rulemaking authority 

as delegated by Congress.” Morehouse Enters., LLC v. ATF, No. 3:22-CV-116, 2022 WL 3597299, at 

*5 (D.N.D. Aug. 23, 2022), appeal filed, No. 22-2854 (8th Cir. Aug. 31, 2022). The Morehouse plaintiffs—

which include seventeen States, see Am. Compl., Morehouse Enters., LLC v. ATF, No. 3:22-CV-116

(D.N.D. July 27, 2022), ECF No. 22—have appealed that order to the Eighth Circuit. If this Court 

were to enter a nationwide injunction, it would effectively nullify the decision of the Morehouse court 

that all four of the factors governing preliminary injunctive relief “weigh[ed] against a preliminary 

injunction” as to the plaintiffs in that action, Morehouse, 2022 WL 3597299, at *12, and would eliminate 

any practical effect of the Eighth Circuit’s consideration of the appeal. Similarly, another court within 

the Fifth Circuit has held that the plaintiff in that action had not established that it faced irreparable 

harm as a result of the Rule or that the balance of equities favored preliminary injunctive relief. See

Div. 80, LLC v. Garland, No. 3:22-CV-148, 2022 WL 3648454, at *1 (S.D. Tex. Aug. 23, 2022). 

Although that court did not address the merits, a nationwide preliminary injunction would grant the 

plaintiff in Division 80 a “victor[y]” it sought but “did not earn” in light of its failure to establish 

irreparable harm or that the balance of equities tipped in its favor. Arizona, 40 F.4th at 396 (Sutton, 

C.J., concurring); cf. DHS, 140 S. Ct. at 601 (Gorsuch, J., concurring) (noting the “asymmetric” 

“stakes” and “gamesmanship and chaos” that result where “a single successful challenge is enough to 

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stay the challenged rule across the country”).

3

To the extent that Plaintiffs rely on the text of 5 U.S.C. § 705 to argue for a nationwide 

injunction, that provision is unavailable because the Rule already has taken effect. Consistent with the 

plain text of Section 705, courts have held that the phrase “postpone the effective date” of an agency 

action authorizes the “postpone[ment of] the effective date of a not yet effective rule, pending judicial 

review,” but not suspension of a rule that is already in effect. Safety-Kleen Corp. v. EPA, Nos. 92-1629, 

92-1639, 1996 U.S. App. LEXIS 2324, at *2-3 (D.C. Cir. Jan. 19, 1996) (per curiam) (emphasis added); 

accord Ctr. for Biological Diversity v. Regan, No. 21-119 (RDM), --- F. Supp. 3d ----, 2022 WL 971067, at 

*21 (D.D.C. Mar. 30, 2022) (collecting cases); Nat. Res. Def. Council v. U.S. Dep’t of Energy, 362 F. Supp. 

3d 126, 151 (S.D.N.Y. 2019); California v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d 1106, 1118 (N.D. 

Cal. 2017). Although these cases addressed an agency’s own decision to “postpone the effective date”

of an action, Section 705 uses identical language in the context of “the reviewing court . . . 

postpon[ing] the effective date of an agency action.” 5 U.S.C. § 705.4

 In any event, courts have held 

that the standard for issuing a court-ordered stay pursuant to Section 705 “is the same as the standard 

for issuance of a preliminary injunction.” Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 

3 To the extent that Plaintiffs suggest that confusion may result if courts reach different conclusions 

as to whether the Rule is within ATF’s statutory authority in cases brought by different plaintiffs, see

Pls.’ Req. at 8, that risk is a function of our judicial system’s design, with its “1,000 active and senior 

district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of 

appeal,” DHS, 140 S. Ct. at 600-01 (Gorsuch, J., concurring); see also Georgia, 2022 WL 3703822, at *14 

(noting that, “when Congress desires to deviate from this system of diffuse review, it has the tools to 

do so”). Indeed, the Fifth Circuit has expressly held that a purported “need for uniformity” in the 

application of a nationwide rule is not a sufficient justification for a nationwide injunction, at least 

absent an express Constitutional requirement of uniformity. Becerra, 20 F.4th at 264.

4 That Section 705 also authorizes reviewing courts to “preserve status or rights pending conclusion 

of the review proceedings” does not change the result. An order staying a rule after it has taken effect 

would not preserve, but rather alter, the status quo. See, e.g., Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t 

Emps., AFL-CIO, 473 U.S. 1301, 1305 (1985) (explaining that a temporary restraining order that would 

have prevented implementation of regulations “would . . . have disturbed the status quo,” rather than 

“preserv[ing]” it) (internal quotation marks omitted)).

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586 (E.D. La. 2016), aff’d sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250 (5th Cir. 

2017). Thus, even if Section 705 relief were available after the effective date of an agency action, 

Plaintiffs’ request for expanded relief pursuant to that provision would fail for the reasons discussed

throughout this filing.

In sum, this Court already has explained, consistent with controlling precedent, that 

“[i]njunctive relief should be no more burdensome to the defendant than necessary to provide 

complete relief to the plaintiffs.” VanDerStok, 2022 WL 4009048, at *10 (emphasis added) (quoting 

Madsen, 512 U.S. at 765). Even after being provided a second opportunity to address that standard, 

Plaintiffs have not established that a nationwide injunction is necessary to provide them with complete 

relief. Nor do they offer any basis to distinguish Becerra—which Defendants cited in response to 

Plaintiffs’ Preliminary Injunction Motion, see ECF No. 41, at 36—in which the Fifth Circuit stayed a 

preliminary injunction to the extent it extended nationwide in circumstances directly analogous to 

those presented here. The Court should reject Plaintiffs’ request for a nationwide injunction for those 

reasons, and because nationwide relief would be inconsistent with fundamental jurisdictional, 

equitable, and prudential principles—especially where a split of authority already has developed, as it 

has here. 

II. This Court Should Not Extend Its Preliminary Injunction to the Individual 

Plaintiffs, Non-Party Members of FPC, or FPC Itself.

The Court also should not expand the scope of the Preliminary Injunction to cover the 

Individual Plaintiffs, non-party members of FPC, or FPC itself. With respect to the Individual 

Plaintiffs, neither Ms. VanDerStok nor Mr. Andren has carried the burden of establishing that she or 

he faces concrete, irreparable harm that would support extending preliminary injunctive relief. Both 

Individual Plaintiffs attest that, but for the Rule, they would purchase an “80% Lower” alongside a 

jig, guide, or instructions from Tactical Machining or another direct sales manufacturer within the next 

three to four months. See ECF No. 62-1 (“VanDerStok Suppl. Decl.”), ¶¶ 2, 6; ECF No. 62-2 

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(“Andren Suppl. Decl.”), ¶ 2, 6. They acknowledge that they already can purchase such products 

together, provided they request that the products be shipped to an FFL in their home state. See

VanDerStok Suppl. Decl. ¶ 3; Andren Suppl. Decl. ¶ 3. The licensees that Ms. VanDerStok and Mr. 

Andren likely would use to facilitate such a transfer would charge a transfer fee of $30. See

VanDerStok Suppl. Decl. ¶ 3; Andren Suppl. Decl. ¶ 3.

Plaintiffs cite no authority, and Defendants are aware of none, for the proposition that 

payment of a one-time fee of approximately $305warrants the “extraordinary remedy” of a preliminary 

injunction. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). To 

the contrary, it is well established that the harm a plaintiff faces in the absence of injunctive relief must 

be “more than de minimis.” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 

2012) (quoting Enter. Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 

1985)). In numerous contexts, courts in this Circuit have held that monetary injuries exceeding $30 

in today’s value6 are nominal or de minimis. See, e.g., Badii v. Rick’s Cabaret Int’l, Inc., No. 3:12-CV4541-B, 2014 WL 550593, at *8 (N.D. Tex. Feb. 11, 2014) (holding that an individual employee’s loss 

of $80 to $90 in a single instance was de minimisfor purposes of an employment discrimination claim); 

5 ATF does not require FFLs to charge a transfer fee. Plaintiffs cite a website representing that a 

typical transfer fee for products not regulated under the National Firearms Act is between $15 and 

$25. See Pls.’ Req. at 3 (citing FFL DEALER NETWORK, Your FFL Transfer Fee, 

https://www.ffldealernetwork.com/blog/your-ffl-transfer-fee) (last visited Sept. 15, 2022)). 

However, even if an FFL might conceivably charge such a fee—which is an allegation of “possible 

future injury” rather than one that is “certainly impending,” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 

409 (2013) (internal quotation marks and emphasis omitted)—it would be “the result of the 

independent action of some third party not before the court” and not “fairly traceable” to any 

challenged action of Defendants, Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal 

punctuation omitted). 

6 Courts recognize that, in applying past precedents involving monetary thresholds, the inflationary 

value of those thresholds must be taken into account. See, e.g., In re CorrLine Int’l, LLC, 516 B.R. 106, 

153 (Bankr. S.D. Tex. 2014) (using the Consumer Price Index to determine the equivalent value of a 

monetary threshold that the Fifth Circuit set in 1971); cf. NLRB v. Aurora City Lines, Inc., 299 F.2d 229, 

231 (7th Cir. 1962) (“The time has not yet arrived when $2,000 is but a trifle.”).

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In re CorrLine Int’l, LLC, 516 B.R. at 153 (holding that claims for less than $275 are de minimis for 

bankruptcy purposes); Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1314 (5th Cir. 1976) (holding that a 

cost of $10 per year was “so nominal as to be de minimis”)7

; NLRB v. Richter’s Bakery, 140 F.2d 870, 

871 (5th Cir. 1944) (“De minimis in the law has always been taken to mean trifles—matters of a few 

dollars or less.” (internal quotation marks omitted)).8

 

So, too, have courts in other jurisdictions. See, e.g., Nagy v. FMC Butner, 376 F.3d 252, 253-54 

(4th Cir. 2004) (holding that a claim for $25 was de minimis for purposes of determining whether a 

complaint was frivolous within the meaning of the in forma pauperis statute)9

; Dennis v. Dowdle, 937 F.2d 

612 (9th Cir. 1991) (holding that restitution of $30 was de minimis for purposes of a due process 

claim)10; Carr v. City of Florence, 729 F. Supp. 783, 791 (N.D. Ala. 1990) (holding that a judgment of 

$100 was purely technical or de minimis in the attorney’s fee context),

11 aff’d mem., 934 F.2d 1264 (11th 

Cir. 1991); World Outreach Conf. Ctr. v. City of Chicago, 234 F. Supp. 3d 904, 909 (N.D. Ill. 2017) (same, 

as to awards ranging between $1 and $100), aff’d, 896 F.3d 779 (7th Cir. 2018). In sum, even if Ms. 

VanDerStok and Mr. Andren might pay a $30 FFL transfer fee within the next several months as a 

result of the Rule, that fee would not constitute cognizable irreparable harm, both because it would 

be de minimis and because it would not be attributable to Defendants.

7 $10 in 1976 was equivalent to approximately $53 today. See U.S. BUREAU OF LAB.STATS., CPI Inflation 

Calculator, https://www.bls.gov/data/inflation_calculator.htm (last visited Sept. 15, 2022) (“CPI 

Index”).

8 The potential $30 FFL transfer fee that Ms. VanDerStok and Mr. Andren invoke equates to less than 

a few dollars—approximately $1.76—in 1944 value. See CPI Index. 

9 $25 in 2004 was equivalent to approximately $40 today. See CPI Index.

10 $30 in 1991 was equivalent to approximately $66 today. See CPI Index.

11 $100 in 1990 was equivalent to approximately $230 today. See CPI Index.

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There also is no basis to extend the Preliminary Injunction to non-party members of FPC. 12 

On that score, Plaintiffs invoke associational standing doctrine, which provides that an organization 

may bring suit in a representative capacity on behalf of its members if certain requirements are 

satisfied. See Pls.’ Req. at 9-10 (citing Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 

(1977); Warth v. Seldin, 422 U.S. 490, 511 (1975)). One such requirement is that the members of the 

organization must bear relevant “indicia of membership,” including, for example, that they elect the 

organization’s leadership, that they may serve in the organization’s leadership, and that they finance 

its activities. Hunt, 432 U.S. at 344-45; see also Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 

826, 829 (5th Cir. 1997) (holding that the “Hunt ‘indicia of membership’ test” was satisfied where the 

organization had “a clearly articulated and understandable membership structure” and its members 

“elected the governing body of the organization and . . . financed its activities”). 

Plaintiffs offer no evidence as to FPC’s membership structure or mechanism for electing its 

governing body, to the extent that governing body is elected, or of any other relevant indicia. Their 

bare claim that “FPC has hundreds of thousands of members, donors, and supporters across the 

country,” and that individuals can “join” FPC on its website, Combs Suppl. Decl. ¶¶ 6, 8, is inadequate 

to establish that FPB is a bona fide membership organization for purposes of associational standing. 

Plaintiffs thus fail to establish Article III standing to bring suit on behalf of FPC’s members.13 

Moreover, even if FPC were a bona fide membership organization that could claim associational 

standing, Plaintiffs have not demonstrated that a preliminary injunction extending to all of its members 

12 The only FPC members who are parties to this action are Ms. VanDerStok, Mr. Andren, and Tactical 

Machining. See ECF No. 1 (“Compl.”), ¶¶ 12-14; ECF No. 62-4 (“Combs Suppl. Decl.”), ¶ 7. All 

three are adequately protected by the existing Preliminary Injunction for the reasons discussed 

throughout this filing.

13 Because Plaintiffs do not establish associational standing on behalf of FPC’s members, there is no 

basis to issue an injunction to BlackHawk Manufacturing Group, Inc., for example, or any other entity 

that is a member of FPC but is not a party to this action in its own right.

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would be warranted. They offer no basis to infer that each one of FPC’s members is suffering an 

Article III injury, much less that each member faces irreparable harm absent injunctive relief, as would 

be separately required to extend an injunction to FPC’s entire membership. See, e.g., Tenth Street 

Residential Ass’n v. City of Dallas, 968 F.3d 492, 500 (5th Cir. 2020) (“Associational standing requires 

that the individual members of the group each have standing . . . . ” (emphasis added)); see also supra

page 2 (explaining that a preliminary injunction must be tailored to the irreparable harm threatening

each particular plaintiff). Indeed, with respect to FPC’s individual members, it strains credulity that 

each one would purchase an item classified as a firearm under one of the enjoined provisions of the 

Rule within the next several months, but for the Rule. Moreover, the requirement to pay a nominal 

fee to an FFL to facilitate such a purchase is not cognizable harm for purposes of a preliminary 

injunction. See supra pages 7-9. To the extent that Plaintiffs offer to submit additional declarations 

pertaining to harm purportedly faced by FPC’s members, see Pls.’ Req. at 11 n.3, they offer no 

justification for failing to submit such declarations in support either of their Preliminary Injunction 

Motion or their pending Request to Expand the Preliminary Injunction. 

Further, because Plaintiffs do not offer any evidence of whether and to what extent FPC

maintains records of its membership, much less provide those records, an injunction extending to 

FPC’s non-party members would fail the requirements that “[e]very order granting an injunction” 

must “state its terms specifically” and “describe in reasonable detail—and not by referring to the 

complaint or other document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1)(B), 

65(d)(1)(C).

The two cases on which Plaintiffs rely to argue for an injunction extending to FPC’s entire 

membership are inapposite. See Pls.’ Req. at 14. First, Trump v. International Refugee Assistance Project, 

137 S. Ct. 2080 (2017) (per curiam), allowed relief only as to those who had demonstrated “concrete 

burdens” absent relief and vacated the challenged injunctions as to individuals with “no connection 

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to the United States.” Id. at 2087-88. That holding only underscores that plaintiffs cannot obtain 

broad injunctive relief without demonstrating that the equities require it as to each plaintiff. Second, 

in the cited Order of the D.C. Circuit in Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019), cert. denied, 140 S. 

Ct. 789 (2020); see Pls’ Req. at 14, the court issued a very brief administrative stay of the effective date 

of a Rule to allow the court time to decide a highly expedited appeal, and it extended that stay to all 

bona fide members of the appellant membership organizations. Several days later, the court affirmed 

the district court’s denial of a preliminary injunction. See Guedes, 920 F.3d at 6. That brief 

administrative stay in no way establishes that a purported membership organization is entitled to a 

preliminary injunction applying to all of its members where it fails to satisfy associational standing 

requirements and does not demonstrate that each of its members faces irreparable harm warranting 

extraordinary relief.

Finally, Plaintiffs do not establish that FPC, in its own right, faces concrete, non-speculative 

irreparable harm absent preliminary injunctive relief—an issue that they address only in a footnote. 

See Pls.’ Req. at 13 n.4; Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 

339 n.4 (5th Cir. 2016) (“Arguments subordinated in a footnote are insufficiently addressed in the 

body of the brief, and thus are waived.” (internal quotation marks omitted)). Plaintiffs attest that, as 

an organization, FPC owns certain products that the Rule covers, which it uses as demonstratives for 

advocacy purposes. See Combs Suppl. Decl. ¶¶ 9-11. They state that, if those products are treated as 

firearms, “it will be virtually impossible [for FPC] to use them” for those purposes, “because of the 

onerous severity of criminal laws that apply to firearms, as well as the patchwork of different federal, 

state, and local laws regarding firearms and their possession, transport, and transfer, among other 

restrictions.” Id. ¶ 11. Such vague and conclusory statements do not support the issuance of 

preliminary injunctive relief. See, e.g., Bulgin v. DHS, No. 6:21-CV-00002-H, 2021 WL 3704985, at *2 

(N.D. Tex. Feb. 10, 2021); Expo Grp., Inc. v. Castillo, No. 3:19-CV-1356-G, 2019 WL 4671511, at *7 

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(N.D. Tex. Sept. 25, 2019). Absent even a single example of the laws or regulations to which Plaintiffs

allude, or any explanation of how those laws and regulations, in conjunction with the Rule, cause

irreparable harm to FPC in the context of its advocacy activities, there is no basis in the record to 

enjoin any provision of the Rule as to FPC.

III. The Existing Preliminary Injunction Provides Complete Relief to Tactical 

Machining.

No extension of the Preliminary Injunction to Tactical Machining’s customers is necessary to 

afford complete relief to Tactical Machining, because Plaintiffs do not plausibly allege that the decrease 

in sales that Tactical Machining has experienced is attributable to the Rule, as opposed to Tactical 

Machining’s voluntary decision to cease selling jigs alongside their unfinished receivers. Plaintiffs 

attest that, “[i]f it were not prohibited by the Final Rule, Tactical Machining would again manufacture 

and sell jigs, which from Tactical Machining’s past experience, would significantly increase sales of 

Tactical Machining’s other products.” ECF No. 62-3 (“Cherry Suppl. Decl.”), at ¶ 17. The Rule does 

not, however, prohibit Tactical Machining—an FFL—from selling products classified as firearms. It 

is true, as this Court has recognized, that out-of-state customers could face liability under 18 U.S.C. 

§ 922(a)(3) unless they purchase items classified as firearms under the Rule—such as certain unfinished 

receivers sold with jigs, a product combination that Tactical Machining does not currently offer—

through an in-state FFL. See VanDerStok, 2022 WL 4009048, at *10. But Tactical Machining has not

offered jigs for sale alongside its unfinished receivers since several months before the Rule took effect, 

see Cherry Suppl. Decl. ¶ 15, and thus has no evidence of whether or to what extent its sales would 

recover if it resumed offering jigs for purchase to out-of-state customers, provided that an in-state 

FFLs facilitates the transfer. Notably, Tactical Machining already offers numerous products on its 

website that may be transferred only through an FFL, and thus has the infrastructure in place to 

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14

support such sales.14 Plaintiffs thus rely only on pure speculation for their assertion that Tactical 

Machining’s sales would not recover to prior levels if Tactical Machining resumed offering unfinished 

receivers and jigs for sale together. See Cherry Suppl. Decl. ¶¶ 7-10, 16-17. 

To the extent that Plaintiffs contend that demand for Tactical Machining’s products that are 

not classified as firearms under the Rule has been limited by its customers’ general confusion or

misplaced fear of liability under 18 U.S.C. § 922(a)(3), see Pls.’ Req. at 6-8, the plain text of the Rule 

resolves any such concerns. For example, Plaintiffs cite numerous customer inquiries whether socalled “80% receivers” are banned under the Rule and/or must be serialized under the Rule. See

Cherry Supp. Dec., Ex. A. An “80% receiver” is a colloquial term sometimes used to refer to receiver 

blanks. See ATF, Are “80%” or “unfinished” receivers illegal?, https://www.atf.gov/firearms/qa/are-

%E2%80%9C80%E2%80%9D-or-%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last 

visited Sept. 15, 2022). No provision of the Rule purports to or could be interpreted to “ban” any 

product, including unfinished receivers. With respect to serialization, meanwhile, the Rule states that 

“[a] billet or blank of an AR-15 variant receiver without critical interior areas having been indexed, 

machined, or formed that is not sold, distributed, or possessed with instructions, jigs, templates, 

equipment, or tools such that it may readily be completed is not a receiver.” 87 Fed. Reg. at 24,739 

(codified at 27 C.F.R. § 478.12(c), Example 4)). And the GCA requires only firearms, including the 

frame or receiver of a firearm, to be marked with a serial number. 18 U.S.C. §§ 921(a)(3), 923(i). 

14 See, e.g., TACTICAL MACHINING, 100% Billet Lower Receiver Stripped Model 18X Anodized, 

https://www.tacticalmachining.com/80-anodized-billet-lower-receiver-stripped-model-18x.html

(last visited Sept. 15, 2022) (“When ordering an FFL item from us it is important that you understand 

the process. We cannot ship your order to your house, so we must ship it to a licensed firearms dealer. 

We do not have a network of dealers but can gladly call a few dealers in your area to find one that will 

accept a transfer. Once you have found a dealer that will accept a transfer, have them provide us a 

copy of their FFL and we can ship the item to them.”). 

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Additionally, voluntary classifications are available to the extent that Tactical Machining or its 

customers have remaining doubts regarding the application of the Rule to a particular product. See 87 

Fed. Reg. at 24,666. In the accompanying Motion for Clarification, Defendants respectfully request 

that the Court clarify that the existing Preliminary Injunction does not prohibit ATF from proceeding 

with its classification of the product that Tactical Machining recently submitted, and that the Court

defer consideration of Plaintiffs’ Request to Expand the Preliminary Injunction until after ATF has 

completed its classification. If ATF deems the submitted product not to be a firearm under the Rule, 

then any purported harm resulting from confusion or fear in the purchase of that product would be 

eliminated. 

For these reasons, the existing Preliminary Injunction is sufficient to eliminate any irreparable 

harm to Tactical Machining as a result of the Rule. In the event that the Court were to conclude 

otherwise, however, Defendants respectfully request that that the Court clarify that any expansion of 

the Preliminary Injunction is limited to customers who purchase any product from Tactical Machining 

that is classified as a firearm solely pursuant to one of the provisions of the Rule that the Court has 

held likely exceeds the scope of ATF’s statutory authority: namely, 27 C.F.R. § 478.11, solely as it 

applies to weapons parts kits, or 27 C.F.R. § 478.12(c).

Plaintiffs also devote several sections of their Request to Expand the Preliminary Injunction 

to arguing that various non-parties, including would-be customers of Tactical Machining, themselves 

face irreparable harm absent preliminary injunctive relief. See Pls.’ Req. at 2-5. These arguments 

misunderstand the relevant inquiry. Alleged irreparable harm to non-parties is not a basis for a 

preliminary injunction; the relevant question is the scope of relief necessary to afford complete relief 

to the parties. See, e.g., Gill, 138 S. Ct. at 1933. Plaintiffs have not sought to certify a class, which is 

the proper “mechanism for applying a judgment to third parties,” subject to Rule 23’s “careful[] . . . 

procedures.” Arizona, 40 F.4th at 396 (Sutton, C.J., concurring); see also Georgia, 2022 WL 3703822, at 

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*16 (“Several procedural devices allow nonparties with similar interests to seek the protection of 

injunctive relief—class certification under Rule 23, joinder and intervention in an existing lawsuit, or 

even filing a new lawsuit of their own.”). Additionally, Plaintiffs’ request to protect “other sellers” 

than Tactical Machining and “other buyers” than the customers on whom Tactical Machining relies 

for its financial viability, Pls.’ Req. at 8, is nothing more than a repackaged request for a nationwide 

injunction, which the Court should reject for the reasons set forth above. See supra pages 1-7.

In any event, none of the purported harms to non-parties that Plaintiffs invoke would call for 

preliminary injunctive relief, even if such non-parties were properly before the Court. For the reasons 

discussed above, see supra pages 7-9, potential payment of a one-time, nominal fee does not constitute 

irreparable harm sufficient to warrant a preliminary injunction, and any risk of confusion if courts 

reach different conclusions on the same legal issue is not a valid basis for a single court to bind all 

non-parties nationwide under its ruling, see Pls.’ Req. at 2-4, 8. Meanwhile, Plaintiffs’ abbreviated 

argument that injunctive relief is required to prevent harm to non-party individuals’ Second 

Amendment rights lacks merit. See id. at 5. Plaintiffs have not asserted a Second Amendment claim 

in this case, and with good reason: the Supreme Court has held repeatedly that restrictions on the 

commercial sale of firearms are presumptively valid under the Second Amendment. See Dist. of 

Columbia v. Heller, 554 U.S. 570, 626-27 (2008); McDonald v. City of Chicago, 561 U.S. 742, 786 (2010);

N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022); Bruen, 142 S. Ct. at 2162 

(Kavanaugh, J., concurring). Under that longstanding precedent, the Rule—which does not ban the 

possession of any product, by anyone, but merely regulates the commercial sale of certain firearms—

is consistent with the Second Amendment.

CONCLUSION

For the foregoing reasons, this Court should deny Plaintiffs’ Request to Expand the 

Preliminary Injunction.

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DATED: September 15, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ALEXANDER K. HAAS

Director, Federal Programs Branch

LESLEY FARBY

Assistant Director, Federal Programs Branch

/s/ Daniel Riess 

DANIEL RIESS

MARTIN M. TOMLINSON

TAISA M. GOODNATURE

JEREMY S.B. NEWMAN

Trial Attorneys

Civil Division, Federal Programs Branch

U.S. Department of Justice

1100 L Street, NW

Washington, DC 20005

Phone: (202) 353-4556

Email: martin.m.tomlinson@usdoj.gov

Attorneys for Defendants

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CERTIFICATE OF SERVICE

On September 15, 2022, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Texas, using the electronic case filing system 

of the court. I hereby certify that I have served all parties electronically or by another manner 

authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Daniel Riess 

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