UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

DIVISION 80 LLC, 

 

Plaintiff, 

 

 

v. 

 

 

MERRICK GARLAND, Case No. 3:22-CV-00148

in his official capacity as 

Attorney General of the United States, 

 

UNITED STATES DEPARTMENT OF Jury Trial Demanded

JUSTICE, 

 

GARY RESTAINO, 

in his official capacity as 

Acting Director of the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives,

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS, AND EXPLOSIVES,

 

Defendants. 

PLAINTIFF’S ORIGINAL COMPLAINT 

FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION

1. This lawsuit challenges the Biden Administration’s unlawful 

attempt to unilaterally rewrite federal law and destroy the ability of Americans 

to exercise their Second Amendment rights by privately making firearms.

2. ATF’s longstanding legal position has been that receiver blanks—

unfinished firearm parts from which individuals can make their own 

firearms—do not fall within ATF’s regulatory jurisdiction. ATF has stated this 

position on its website, in classification determinations issued to 

manufacturers after reviewing product samples, and in litigation.

3. President Biden campaigned on a promise to take legislative action 

imposing new regulations on receiver blanks but has thus far been unable to 

persuade Congress to pass such legislation. Frustrated with the constitutional 

process of bicameralism and presentment, President Biden politically 

pressured Defendants to take unilateral executive action to accomplish his 

failed policy agenda. 

4. In response to the Biden Administration’s political pressure, 

Defendants adopted a Final Rule that unlawfully rewrites federal law and 

repudiates ATF’s longstanding legal position on receiver blanks. Exhibit A.

The Final Rule expressly states that prior classification determinations “shall 

not continue to be valid or authoritative,” 87 Fed. Reg. at 24,741, and claims 

that receiver blanks fall within ATF’s regulatory jurisdiction.

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5. Plaintiff Division 80 is a business that distributes receiver blanks

to lawful businesses across the country. It currently does business without a 

federal firearms license (FFL) in reliance on ATF’s position that receiver 

blanks are unregulated. If the Final Rule goes into effect, Division 80 will no 

longer be able to continue distributing its products, putting it out of business.

ATF’s own Regulatory Impact Analysis and Final Regulatory Flexibility 

Analysis acknowledges this, stating that the Final Rule will cause businesses 

like Division 80 to “end up dissolving their businesses.” Exhibit B at 32.

Division 80 therefore seeks a temporary restraining order, preliminary 

injunction, and permanent injunction blocking the enforcement of the Final 

Rule, as well as a declaration from this Court that the Final Rule is unlawful.

PARTIES

6. Division 80 is a Texas limited liability company with its principal 

place of business in Galveston County, Texas. Its exclusive business is the 

distribution of receiver blanks that individuals may use to exercise their 

Second Amendment rights by making their own firearms. Division 80

distributes its products to businesses throughout the United States.

7. Defendant Merrick Garland is the Attorney General of the United 

States and the head of the United States Department of Justice.

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8. Defendant United States Department of Justice is an agency of the 

United States that administers and enforces the principal federal gun control 

statutes, the National Firearms Act of 1934 and the Gun Control Act of 1968.

9. Defendant Gary Restaino is the Chief Law Enforcement Officer 

and Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives.

10. Defendant Bureau of Alcohol, Tobacco, Firearms, and Explosives 

(ATF) is an agency of the United States that administers and enforces the 

principal federal gun control statutes, the National Firearms Act of 1934 and 

Gun Control Act of 1968.

JURISDICTION AND VENUE

11. This Court has jurisdiction pursuant to 5 U.S.C. §§ 701–706 and 

28 U.S.C. § 1331.

12. Venue is proper in this district pursuant to 28 U.S.C. 

§§ 1391(e)(1)(B) and (C). A substantial part of the events giving rise to these 

claims occurred in this district, a substantial part of the property that is the 

subject of the action is situated in this district, and Division 80 resides in this 

district. 

13. Division 80 has standing to assert the interests of itself and third 

parties, including its customers and suppliers. See, e.g., Craig v. Boren, 429 

U.S. 190 (1976).

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LEGAL BACKGROUND

14. The Gun Control Act of 1968 established the definition of a 

“firearm” for purposes of federal firearms regulations.

15. The Act states that “it is not the purpose of this title to place any 

undue or unnecessary Federal restrictions or burdens on law-abiding citizens 

with respect to the acquisition, possession, or use of firearms” for appropriate 

purposes. Gun Control Act of 1968, Pub. L. No. 90-618, § 101, 82 Stat. 1213, 

1213–14. It goes on to state that “this title is not intended to discourage or 

eliminate the private ownership or use of firearms by law-abiding citizens for 

lawful purposes, or provide for the imposition by Federal regulations of any 

procedures or requirements other than those reasonably necessary to 

implement and effectuate the provisions of this title.” § 101, 82 Stat. at 1214.

16. A “firearm” is defined as: “(A) any weapon (including a starter gun) 

which will or is designed to or may readily be converted to expel a projectile by 

the action of an explosive; (B) the frame or receiver of any such weapon; (C) 

any firearm muffler or firearm silencer; or (D) any destructive device. Such 

term does not include an antique firearm.” 18 U.S.C. § 921.

17. There is no statutory definition of a “frame or receiver.” 

18. 27 C.F.R. § 478.11 currently provides a one-sentence definition of

a “firearm frame or receiver” as: “That part of a firearm which provides housing 

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

usually threaded at its forward portion to receive the barrel.”

19. A strict licensing regime governs the importation, manufacture, 

and dealing of products that constitute firearms. 18 U.S.C. § 923(a) states that 

“[n]o person shall engage in the business of importing, manufacturing, or 

dealing in firearms . . . until he has filed an application with and received a 

license to do so from the Attorney General.” 18 U.S.C. § 923(i) requires licensed 

importers and licensed manufacturers to “identify by means of a serial number 

engraved or cast on the receiver or frame of the weapon, in such manner as the 

Attorney General shall by regulations prescribe, each firearm imported or 

manufactured by such importer or manufacturer.”

20. Failure to follow these federal licensing requirements can result in 

criminal liability. Under 18 U.S.C. § 924(a)(1), it is a crime to violate “any other 

provision of this chapter,” referring to Title 18, Chapter 44, of the United 

States Code, which contains sections 921–931. It is therefore of paramount 

importance for law-abiding businesses in the self-defense industry to have 

clarity and predictability about what products meet the definitions of a

“firearm” and “frame or receiver.”

21. It is equally important for law-abiding customers and for those 

who may not possess firearms (prohibited possessors) to have clarity on what 

products constitute a “firearm” and “frame or receiver.” 18 U.S.C. § 922(g) 

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makes it a crime for various categories of individuals “to ship or transport in 

interstate or foreign commerce, or possess in or affecting commerce, any 

firearm or ammunition; or to receive any firearm or ammunition which has 

been shipped or transported in interstate or foreign commerce.”

22. An improper substantive change in what constitutes a “firearm” or 

“frame or receiver” would have significant criminal consequences, giving rise 

to the due-process interests protected by the vagueness doctrine, Sessions v. 

Dimaya, 138 S. Ct. 1204 (2018), and rule of lenity, United States v. 

Thompson/Center Arms Co., 504 U.S. 505 (1992).

FACTUAL BACKGROUND

I. The United States of America Has a Long Tradition of 

Individuals Privately Making Their Own Firearms 

23. It is estimated that in the American colonies, around 2,500 to 3,000 

people were making firearms.1 While these people were able to make firearms 

from scratch, many ordered parts from England to assemble their firearms

more efficiently. Until the late 1700’s and the emergence of armories, 

gunmaking was primarily a civilian activity.

1 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), available at https://www.judiciary.senate.gov/imo/media/

doc/Ashley%20Hlebinsky%20Written%20Testimony%20Final.pdf.

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24. Gunmaking was essential to the Continental Army, and typically, 

it was more practical and efficient to assemble a gun from parts rather than 

building one completely from scratch.

25. Despite the emergence of armories, mass production, and the 

innovation of prominent manufacturers, the role of the individual in making 

guns never went away. Without the ingenuity of hobbyists, designers, and 

private individuals, much of the innovation in the firearms industry would not 

have been possible.

26. Today, many law-abiding Americans make their own firearms 

using gun parts and receiver blanks, which are also commonly known as 

“incomplete receivers,” “unfinished receivers,” or “80% receivers.”

27. A receiver blank is a piece of raw material that has undergone 

some of the stages of manufacture necessary to create a firearm receiver, but 

which still requires additional machining to produce a functioning firearm

receiver. The phrase “80% receiver” is not a legal term but refers to the 

colloquial understanding that receiver blanks have undergone 80% or less of 

the stages of manufacture necessary to produce a functioning receiver. The 

remaining stages of manufacture must be performed by the individual owner 

using appropriate machinery to produce a functioning receiver.

28. Receiver blanks are popular among do-it-yourself hobbyists, who 

appreciate the challenge of using machinery to build a firearm from raw 

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materials and unfinished components.

29. Receiver blanks are purchased by law-abiding citizens who cherish

the historic right of Americans to build their own firearms. Customers for 

receiver blanks include people of all colors, men and women, veterans, blueand white-collar workers, parents, retirees, and government employees—a 

virtual melting pot of the country.

30. The receiver-blank industry has been unfairly maligned by some 

politicians, anti-Second Amendment groups, and the media, who point to

misconduct that is already prohibited by federal law as a justification for 

preventing law-abiding Americans from privately making firearms. See infra, 

at ¶¶ 38–51 (compiling the Biden Administration’s statements). 

31. For example, it is already illegal for a prohibited possessor to own 

a firearm under 18 U.S.C. § 922(g), and it is already illegal to engage in the 

business of selling or distributing firearms without a license under 18 U.S.C. 

§ 923(a). Even though a lawfully acquired firearm can be used in an illegal 

manner, that does not justify a complete destruction of businesses’ ability to 

sell firearms and individuals’ ability to purchase them. Similarly, even though 

lawfully, privately made firearms can be used in an illegal manner, that does 

not justify a complete destruction of businesses’ ability to sell receiver blanks 

and individuals’ ability to purchase them and privately make firearms in a 

lawful manner.

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II. ATF Previously Classified Receiver Blanks as Unregulated 

Materials

32. ATF has long held, and told the public, that receiver blanks do not 

meet the definitions of a “firearm” or “frame or receiver.” Its website states:

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

Receiver blanks that do not meet the definition of a “firearm” are 

not subject to regulation under the Gun Control Act (GCA). ATF 

has long held that items such as receiver blanks, “castings” or 

“machined bodies” in which the fire-control cavity area is 

completely solid and un-machined have not reached the “stage of 

manufacture” which would result in the classification of a firearm

according to the GCA.2

Are there restrictions on who can purchase receiver 

blanks?

The Gun Control Act (GCA) does not impose restrictions on 

receiver blanks that do not meet the definition of a “firearm.” . . . .3

What is ATF doing in regards to people making their own 

firearms?

An individual may generally make a firearm for personal 

use. . . . .4

Does an individual need a license to make a firearm for 

personal use?

No, a license is not required to make a firearm solely for personal 

use. . . . .5

2 Exhibit C.

3 Exhibit D.

4 Exhibit E.

5 Exhibit F.

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33. ATF’s website also includes photographs of receiver blanks that 

ATF has determined are not regulated firearm receivers:6

6 Exhibit C.

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34. For the last several decades, ATF has permitted industry to 

request written determinations from ATF as to the classification of sample 

products. ATF’s Firearms and Ammunition Technology Division conducts a 

thorough technological analysis of the sample and provides industry with a 

classification determination as to whether the sample is a firearm regulated 

under the Gun Control Act or National Firearms Act.

35. For example, in a recent lawsuit that dealt with whether a 

particular product was a “firearm,” the government submitted a certified 

administrative record containing numerous classification determinations sent 

to manufacturers stating that their receiver-blank products were not firearms.

See ATF’s Certified Set of Documents Comprising the Record, at 64–70, 

California Rifle & Pistol Ass’n, Inc. v. ATF, No. 1:14-CV-1211 (E.D. Cal. Jan. 

9, 2015), ECF No. 19-3 (containing the images that follow).

 

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36. Prior to the Biden Administration, ATF defended these 

classification determinations in litigation brought by gun-control activists:

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 firecontrol cavity, which accommodates the firing components. The 

longstanding position of ATF is that, where a block of metal (or

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, 2020 WL 9849685.

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, 1:20-CV-06885 

(S.D.N.Y. Jan. 29, 2021), ECF No. 98.

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37. Manufacturers, distributors, and retailers invested capital, 

created American jobs, and sold lawful products to customers based on their 

good-faith reliance on ATF’s application of the GCA through written 

classification determinations.

III. The Biden Administration Announces That It “Will Not Wait for

Congress to Act to Take Its Own Steps” on Gun Control

38. President Biden campaigned on a promise to “[s]top ‘ghost guns,’” 

referring to firearms “assembl[ed] . . . on [one’s] own . . . by buying a kit of 

disassembled gun parts.”7 Specifically, he promised to “pass[] legislation” to 

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

39. After President Biden took office, members of Congress proposed 

bills changing the way ATF classifies receiver blanks not currently defined as 

firearms. None of those bills have become law. S. 1558, 117th Cong. (2021)

(Untraceable Firearms Act of 2021); H.R. 1454, 117th Cong. (2021) (Ghost 

Guns Are Guns Act).

40. Because the Biden Administration could not accomplish its 

legislative goal through the constitutional process of bicameralism and 

presentment, it unlawfully sought to implement its policies through unilateral 

executive action.

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

DEMOCRATS, https://joebiden.com/gunsafety/.

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41. On April 7, 2021, the Biden Administration announced that 

President Biden was “reiterating his call for Congress to pass legislation” on 

firearms regulations.8 The announcement stated that “this Administration will 

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

announcement instructed the United States Department of Justice to “within 

30 days . . . issue a proposed rule to help stop the proliferation” of so-called 

“ghost guns.”

42. On April 8, 2021, President Biden, Vice President Harris, and 

Attorney General Garland held a press conference on gun policy 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

43. Attorney General Garland stated in his remarks that “the 

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

8 FACT SHEET: Biden-Harris Administration Announces Initial Actions to 

Address the Gun Violence Public Health Epidemic, WHITE HOUSE (Apr. 7, 2021),

https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/07/

fact-sheet-biden-harris-administration-announces-initial-actions-to-addressthe-gun-violence-public-health-epidemic/.

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

8, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/

04/08/remarks-by-president-biden-on-gun-violence-prevention/.

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or “gap,”10 even though the proliferation of such products was actually the 

direct result of ATF’s proper legal determination and carefully considered 

decision to issue classification determinations approving the unregulated sale 

of such products.

44. On May 7, 2021, Attorney General Garland signed ATF proposed 

rule 2021R-05, entitled: “Definition of ‘Frame or Receiver’ and Identification of 

Firearms.”

45. On May 11, 2021, the U.S. Senate Committee on the Judiciary’s 

Subcommittee on the Constitution held a hearing on proposed legislation 

addressing the regulation of receiver blanks. At the hearing, Senator Richard 

Blumenthal admitted that one reason he proposed the legislation was that 

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

46. During the ninety-day comment period for the proposed rule, the 

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

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-violenceghost-guns (stating at 22:19 that “they are guns, except under federal law”).

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47. 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 stated that “this spring, the Justice 

Department will issue a final rule to regulate these so-called ‘ghost guns.’”12

48. As the one-year anniversary of President Biden’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. 

49. 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 a 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.”13 Shortly thereafter, Mr. Richardson was removed as Acting Director 

and replaced with the current Acting Director Gary Restaino.

12 Remarks by President Biden at a Gun Violence Prevention Task Force 

Meeting, WHITE HOUSE (Feb. 3, 2022), https://www.whitehouse.gov/briefingroom/speeches-remarks/2022/02/03/remarks-by-president-biden-at-a-gunviolence-prevention-task-force-meeting/.

13 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/atfbiden-gun-reform.html.

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50. 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 Democrats potentially lose control of Congress.”14 The article noted 

that Democrats were “exasperated” at how much time it was taking for the 

Biden Administration to issue a final rule.

51. On April 11, 2022, President Biden and Vice President Harris 

announced at the White House Rose Garden that the Final Rule had been 

completed. 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.”15 President Biden explained that the purpose of the Final Rule was 

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

14 Laura Barron-Lopez, Democrats Exasperated With Biden on Gun Control, 

POLITICO (Apr. 8, 2022), https://www.politico.com/news/2022/04/08/democratsbiden-gun-control-00024097.

15 Remarks by President Biden Announcing Actions to Fight Gun Crime and 

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

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/04/11/

press-briefing-by-press-secretary-jen-psaki-april-11-2022/.

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licensed dealer to sell them” without complying with the same regulatory 

requirements governing the manufacture and sale of complete firearms.

52. The Final Rule was published in the Federal Register on April 26, 

2022. Exhibit A.

IV. ATF’s Unlawful and Unconstitutional Final Rule

A. Definition of a “Frame or Receiver” as Including “Partially 

Complete, Disassembled, or Nonfunctional” Frames and 

Receivers

53. 18 U.S.C. § 921(a)(3) defines a “firearm” as including “any weapon 

(including a starter gun) which will or is designed to or may readily be 

converted to expel a projectile by the action of an explosive” and “the frame or 

receiver of any such weapon,” but it does not define what constitutes a “frame 

or receiver.”

54. 27 C.F.R. § 478.11 currently provides a one-sentence definition of 

a “firearm frame or receiver” as: “That 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.”

55. The Final Rule deletes that definition of a “firearm frame or 

receiver” and replaces it with a convoluted multi-page definition of a “frame or 

receiver” that is unconstitutionally vague and subjective.

56. Part of the proposed new definition states:

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Partially complete, disassembled, or nonfunctional frame or 

receiver. The terms “frame” or “receiver” shall include a partially 

complete, disassembled, or nonfunctional frame or receiver, 

including a frame or receiver parts kit, that is designed to or may 

readily be completed, assembled, restored, or otherwise converted 

to function as a frame or receiver, i.e., to house or provide a 

structure for the primary energized component of a handgun, 

breech blocking or sealing component of a projective weapon other 

than a handgun, or internal sound reduction component of a 

firearm muffler or firearm silencer, as the case may be. The 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). 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, or otherwise made available by the seller or distributor of the 

item or kit to the purchaser or recipient of the item or kit. 

87 Fed. Reg. at 24,739.

57. If item A can readily be made into item B, it is by definition not yet 

item B. The Final Rule abuses the English language in order to expand ATF’s 

regulatory jurisdiction to cover materials that can “readily” be made into

regulated products. This attempt to drastically expand ATF’s regulatory 

jurisdiction is in excess of ATF’s statutory authority.

58. In classification determinations issued to manufacturers, ATF has 

stated that receiver blanks do not meet the definition of a regulated “firearm” 

under federal law. ATF has defended these classification determinations in 

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litigation brought by gun-control activists. But the Final Rule expressly 

repudiates ATF’s prior classification determinations:

Prior determinations by the Director that a partially complete, 

disassembled, or nonfunctional frame or receiver, including a parts 

kit, was not, or did not include, a “firearm frame or receiver” under 

§ 478.11, or “frame or receiver” under § 479.11, as those terms 

were defined prior to April 26, 2022, shall not continue to be valid 

or authoritative after that date. Such determinations shall include 

those in which the Director determined that the item or parts kit 

had not yet reached a stage of manufacture to be, or include, a 

“firearm frame or receiver” under § 478.11, or “frame or receiver” 

under § 479.11, as those terms were defined prior to [April 26, 

2022].

87 Fed. Reg. at 24,741.

59. ATF’s complete reversal of its legal position is arbitrary, 

capricious, and an abuse of discretion.

60. The phrases “partially complete,” “may readily be completed, 

assembled, restored, or otherwise converted to function as a frame or receiver,”

and “stage of manufacture where it is clearly identifiable as an unfinished 

component part of a weapon” are so vague as to make it impossible for 

manufacturers, distributors, and customers to understand which product 

designs are regulated by the Final Rule and which are not. Among other things, 

this creates extreme uncertainty and will cause prolific waste in determining 

which facets of the firearms manufacturing supply chain require a federal 

firearms license. This uncertainty will force companies involved in the supply 

chain for manufacturing firearms to withdraw from the industry. 

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61. These vague phrases, when combined with the Final Rule’s 

authorization of the ATF Director to “consider any associated templates, jigs, 

molds, equipment, tools, instructions, guides, or marketing materials,” 

effectively delegate to the ATF Director unbounded, unconstitutional

discretion to determine by diktat which products fall within ATF’s jurisdiction.

62. There is no reason why the existence of “instructions” or “tools” 

would have any bearing on whether an item meets the legal definition of a 

firearm “frame or receiver.”

63. Because the definition of a firearm “frame or receiver” has 

consequences for criminal liability, vagueness in that definition violates due 

process of law. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Furthermore, 

the rule of lenity applies, and Chevron deference is inappropriate. See Leocal 

v. Ashcroft, 543 U.S. 1 (2004); United States v. Thompson/Center Arms Co., 

504 U.S. 505 (1992).

B. Definition of “Readily” by Reference to Eight Unranked, 

Unweighted Factors

64. The Final Rule creates a new definition of “readily” as a “process, 

action, or physical state that is fairly or reasonably efficient, quick, and easy, 

but not necessarily the most efficient, speediest, or easiest process, action, or 

physical state.” 87 Fed. Reg. at 24,735; see also id. at 24,747.

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65. The Final Rule then provides a non-exclusive list of eight

unranked, unweighted factors, none of which is dispositive. 

66. The first factor is “(a) Time, i.e., how long it takes to finish the 

process.”

67. The second factor is “(b) Ease, i.e., how difficult it is to do so.”

68. The third factor is “(c) Expertise, i.e., what knowledge and skills 

are required.”

69. The fourth factor is “(d) Equipment, i.e., what tools are required.”

70. The fifth factor is “(e) Parts availability, i.e., whether additional 

parts are required, and how easily they can be obtained.”

71. The sixth factor is “(f) Expense, i.e., how much it costs.”

72. The seventh factor is “(g) Scope, i.e., the extent to which the subject 

of the process must be changed to finish it.”

73. The eighth factor is “(h) Feasibility, i.e., whether the process would 

damage or destroy the subject of the process, or cause it to malfunction.”

74. By making the definition of a “frame or receiver” turn on whether 

the product “may readily be completed, assembled, restored, or otherwise 

converted to function as a frame or receiver” and then defining the word 

“readily” in such a vague manner, the Final Rule creates an unconstitutionally 

vague standard and effectuates an unconstitutional delegation of legislative 

authority to the ATF Director.

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C. Definition of a “Firearm” as Including Weapon Parts Kits

75. 18 U.S.C. § 921(a)(3) defines the term “firearm” as including four 

categories of items: “(A) any weapon (including a starter gun) which will or is 

designed to or may readily be converted to expel a projectile by the action of an 

explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler 

or firearm silencer; or (D) any destructive device. Such term does not include 

an antique firearm.”

76. 27 C.F.R. § 478.11 currently defines a “firearm” as including the 

four categories of items contained in 18 U.S.C. § 921(a)(3), tracking the 

statutory text almost verbatim: “Any weapon, including a starter gun, which 

will or is designed to or may readily be converted to expel a projectile by the 

action of an explosive; the frame or receiver of any such weapon; any firearm 

muffler or firearm silencer; or any destructive device; but the term shall not 

include an antique firearm. In the case of a licensed collector, the term shall 

mean only curios and relics.”

77. The Final Rule amends 27 C.F.R. § 478.11 by adding the following 

fifth category to the definition of a “firearm,” which has no basis in the 

statutory text of 18 U.S.C. § 921(a)(3):

The 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. The 

term shall not include a weapon, including a weapon parts kit, in 

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which the frame or receiver of such weapon is destroyed as 

described in the definition “frame or receiver.”

87 Fed. Reg. at 24,735.

78. Under this new provision, a collection of parts, none of which 

independently constitutes a firearm, could nonetheless be characterized by the 

government as a firearm based on an arbitrary determination that the items, 

when grouped together, can “readily” be assembled into a firearm.

79. Buried in footnote 45 of the Notice of Proposed Rulemaking, ATF 

takes the position that “persons who engage in the business of selling or 

distributing such weapon parts kits cannot avoid licensing, marking, 

recordkeeping, or excise taxation by selling or shipping the parts in more than 

one box or shipment to the same person, or by conspiring with another person 

to do so.” 86 Fed. Reg. at 27,726 n.45.

80. ATF’s position in this footnote is that companies that sell or 

distribute individual components which could be used to assemble a firearm 

must keep records of which parts have been sold or distributed to each 

individual customer. The companies would then be required to analyze the 

amorphous (and ultimately impossible to answer) question of whether the 

totality of the parts that have been sold or distributed to that particular 

customer, in that particular timeframe, could collectively constitute a firearm. 

These recordkeeping requirements are incomprehensible and impracticable.

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81. In its responses to public comments in the Final Rule, ATF stood 

by its position in footnote 45. 87 Fed. Reg. at 24,713.

82. By adding weapon parts kits to the definition of a “firearm,” the 

Final Rule takes an existing rule that closely tracks the four statutory 

categories of “firearms” set forth by Congress and adds a brand new fifth 

category that Congress did not include. This violates the plain, unambiguous 

text of the statute, which evinces Congress’s intent to create only four 

categories of “firearms,” not five. By adding a fifth category with no basis in 

the statutory text, the Final Rule goes beyond merely interpreting or clarifying 

the statute adopted by Congress and instead seeks to rewrite it.

83. The legislative history cited in the Notice of Proposed Rulemaking 

proves that Congress did not intend to regulate mere parts of firearms. Prior 

to the enactment of the modern law regulating firearms, a firearm was defined 

as including “any part or parts” of a firearm. 86 Fed. Reg. at 27,720. When the 

modern law regulating firearms was adopted, Senator Dodd stated: “The 

present definition of this term includes ‘any part or parts’ of a firearm. It has 

been impractical to treat each small part of a firearm as if it were a weapon. 

The revised definition substitutes the words ‘frame or receiver’ for the words 

‘any part or parts.’” Id. As this legislative history confirms, the Final Rule 

unlawfully seeks to regulate firearm parts that Congress intentionally sought 

to exempt from regulation.

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D. New Regulations on “Privately Made Firearms” That Are 

Sweeping in Scope

84. The Final Rule creates a new term, “privately made firearm,” 

which it defines as a “firearm, including a frame or receiver, completed, 

assembled, or otherwise produced by a person other than a licensed 

manufacturer, and without a serial number placed by a licensed manufacturer 

at the time the firearm was produced.” 87 Fed. Reg. at 24,735.

85. The Final Rule states that “licensees must legibly and 

conspicuously identify each privately made firearm or ‘PMF’ received or 

otherwise acquired (including from a personal collection) not later than the 

seventh day following the date of receipt or other acquisition, or before the date 

of disposition (including to a personal collection), whichever is sooner.” 87 Fed. 

Reg. at 24,742. It further states that “PMFs must be identified by placing, or 

causing to be placed under the licensee’s direct supervision, an individual 

serial number on the frame or receiver, which must not duplicate any serial 

number placed by the licensee on any other firearm.” Id.

86. The Final Rule also requires licensees to “identify . . . or cause 

another person to so identify, each privately made firearm received or 

otherwise acquired (including from a personal collection) by the licensee” 

before the effective date of the Final Rule “within sixty (60) days from that 

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date, or prior to the date of final disposition (including to a personal collection), 

whichever is sooner.” 87 Fed. Reg. at 24,743.

87. The Supplementary Information in the Notice of Proposed 

Rulemaking notes that “PMFs currently in inventory that a licensee chooses 

not to mark may also be destroyed or voluntarily turned in to law enforcement 

within the 60-day period.” 86 Fed. Reg. at 27,732.

88. These “identify, destroy, or surrender” requirements are arbitrary, 

capricious, and beyond the scope of ATF’s statutory authority. The effect of 

these requirements is that any time a person takes a privately made firearm 

to a licensed gunsmith for repair or a licensed pawnbroker for a loan, causing 

the licensee to accept the firearm into his dominion and control, the licensee 

will have to identify and physically alter the firearm by engraving a serial 

number on it and make an entry in the licensee’s records. 

89. The Final Rule also requires licensees to retain records indefinitely 

until the “business or licensed activity is discontinued.” 87 Fed. Reg. at 24,746. 

This requirement is tantamount to creating an unlawful national gun registry 

for privately made firearms.

90. The Final Rule’s regulations on privately made firearms are so 

onerous that many licensees will cease to work with privately made firearms 

to avoid the Final Rule’s excessive regulatory burdens. The lack of availability 

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of basic services for owners of privately made firearms will deter individuals 

from exercising their historically recognized right to make their own firearms.

91. The coercive effect of these regulations will be to wipe out the 

secondary resale market for receiver blanks and firearms produced by 

individuals from receiver blanks, and more broadly, to eliminate the consumer

market for receiver blanks entirely.

92. The Final Rule’s excessive regulations on “privately made 

firearms” cumulatively violate the constitutional rights of Division 80, its 

suppliers, and its customers.

93. To the extent the Final Rule’s regulations on “privately made 

firearms” apply to purely intrastate activities, they exceed Congress’s 

authority under the Commerce Clause.

94. The Final Rule’s excessive regulations on “privately made 

firearms” cumulatively effectuate unconstitutional takings in violation of the 

Fifth Amendment.

V. The Final Rule Will Destroy Division 80’s Entire Business

95. Division 80 is a Texas limited liability company with its principal 

place of business in Galveston County, Texas. Its exclusive business is the 

distribution of receiver blanks to businesses that lawfully market the products 

to customers who wish to exercise their Second Amendment rights by making 

their own firearms. 

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96. Division 80 lawfully operates without an ATF license because 

ATF’s longstanding position has been that receiver blanks are unregulated 

raw materials.

97. Division 80 fulfills orders by shipping receiver blanks to businesses 

across the country that place orders for products. The bulk of its customers are 

out of state.

98. By unlawfully enacting legislative changes through its 

redefinitions of “firearm” and “frame or receiver,” the Final Rule reverses 

ATF’s longstanding legal position and subjects currently unregulated receiver 

blanks to the same regulatory requirements as fully functional firearms. 

99. Under the Final Rule, Division 80 would no longer be able to 

continue with its business of distributing receiver blanks through mail 

shipment without an ATF license.

100. By delegating to the ATF Director unbounded discretion to apply 

vague and capacious standards for what constitutes a “firearm” and “frame or 

receiver,” the Final Rule makes it impossible for manufacturers to determine 

with any reasonable certainty which regulatory requirements apply to a 

product design.

101. By imposing unlawful and excessive identification and 

recordkeeping requirements on licensees who take “privately made firearms”

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into their custody, the Final Rule will eliminate consumer demand for receiver 

blanks.

102. In summation, the Final Rule will wipe out Division 80’s business.

Treating Division 80’s products as regulated firearms would render its

business operations illegal. And the bureaucratic red tape imposed by the Final 

Rule will eliminate consumer demand for Division 80’s products.

103. The Regulatory Impact Analysis and Final Regulatory Flexibility 

Analysis written by ATF acknowledges that the Final Rule will destroy nonFFL businesses such as Division 80. According to ATF, it is “unlikely that a 

significant number of non-FFLs” will continue to do business and non-FFLs will 

“end up dissolving their businesses.” Exhibit B at 32. “[E]mployees will lose 

their jobs” as a result of these businesses dissolving, causing “unemployment.”

Exhibit B at 42. 

104. The political rhetoric of the Biden Administration attacking socalled “ghost guns” makes it clear that Defendants’ goal is to wipe out the 

receiver-blank industry and destroy businesses such as Division 80. The Final 

Rule is certain to accomplish that goal if it takes effect. Division 80 has no 

choice but to seek preliminary and permanent injunctive relief and a 

declaration that the Final Rule is unlawful.

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CLAIMS FOR RELIEF

COUNT I

The Final Rule Exceeds Defendants’ Statutory Authority

105. All preceding paragraphs of this complaint are hereby

incorporated by reference.

106. The Final Rule, including its definitions of “frame or receiver,” 

“readily,” and “firearm,” and its regulations on “privately made firearms,”

exceed Defendants’ statutory authority.

107. The Final Rule is “not in accordance with law” and is “in excess of

statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 

U.S.C. § 706(2)(A), (C).

COUNT II

The Adoption of the Final Rule Violates the Separation of Powers

108. All preceding paragraphs of this complaint are hereby 

incorporated by reference.

109. Article I, § 1 of the Constitution states: “All legislative Powers 

herein granted shall be vested in a Congress of the United States.”

110. Article I, § 7, Clause 2 of the Constitution requires that “Every 

Bill” be passed by both the House of Representatives and the Senate and 

presented to the President “before it [may] become a Law.”

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111. The Final Rule is not a valid interpretation of federal law. It is an 

unconstitutional attempt by Defendants to exercise legislative powers that 

belong to Congress. And it is an unconstitutional attempt to rewrite statutes

without satisfying the requirements of bicameralism and presentment.

COUNT III

The Final Rule is Unconstitutionally Vague

112. All preceding paragraphs of this complaint are hereby

incorporated by reference.

113. The Supreme Court has recognized that laws defining the scope of 

criminal liability are unconstitutionally vague if they do not provide fair notice 

to the public of what conduct is proscribed. Sessions v. Dimaya, 138 S. Ct. 1204 

(2018). The vagueness doctrine “guards against arbitrary or discriminatory 

law enforcement” and “is a corollary of the separation of powers—requiring 

that Congress, rather than the executive or judicial branch, define what 

conduct is sanctionable and what is not.” Id. at 1212.

114. Numerous aspects of the Final Rule are unconstitutionally vague, 

including its definitions of a “frame or receiver,” “readily,” and “firearm.”

115. These definitions are so vague that even an experienced lawyer

specializing in firearms law cannot say for certain which products fall within 

those definitions. The ordinary citizen therefore could not possibly understand 

how to properly comply with the statutes without risking criminal sanction. 

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COUNT IV

The Final Rule is Arbitrary, Capricious, and an Abuse of Discretion

116. All preceding paragraphs of this complaint are hereby 

incorporated by reference.

117. ATF previously stated on its website that receiver blanks do not 

meet the definitions of a “firearm” or “frame or receiver.” 

118. ATF previously reviewed product samples from industry and 

issued written classification determinations stating that receiver blanks do not 

meet the definitions of a “firearm” or “frame or receiver.”

119. Prior to the Biden Administration, ATF defended the lawfulness of 

those classification determinations in litigation.

120. The Final Rule reverses ATF’s longstanding legal interpretation, 

which has generated significant reliance interests, without a reasonable 

explanation.

121. The Final Rule contains internally self-contradictory provisions.

122. ATF’s stated explanation for the Final Rule is a pretext for its true 

goal of unlawfully expanding its jurisdiction.

123. ATF did not adequately consider alternative regulatory approaches 

that could have avoided the destruction of businesses such as Division 80.

124. The Final Rule is therefore “arbitrary,” “capricious,” and “an abuse 

of discretion.” 5 U.S.C. § 706(2)(A).

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COUNT V

The Final Rule Was Adopted Without 

Observance of Procedure Required by Law

125. All preceding paragraphs of this complaint are hereby 

incorporated by reference.

126. The Notice of Proposed Rulemaking did not satisfy the notice 

requirements of 5 U.S.C. § 553(b).

127. The Final Rule is not the logical outgrowth of the proposed rule. 

128. The process of notice-and-comment rulemaking requires an agency 

to “give interested persons an opportunity to participate in the rule making 

through submission of written data, views, or arguments” and to give 

“consideration of the relevant matter presented.” 5 U.S.C. § 553(c).

129. Approximately 290,000 members of the public submitted 

comments to the proposed rule. 

130. Defendants did not adequately consider all relevant arguments 

raised in those comments and provide appropriately reasoned responses to 

them. 

131. The Final Rule does not provide an accurate and adequate “concise 

general statement” of its basis and purpose. 5 U.S.C. § 553(c).

132. The Final Rule was therefore adopted “without observance of 

procedure required by law.” 5 U.S.C. § 706(2)(D).

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COUNT VI

The Final Rule Violates the Nondelegation Doctrine

133. All preceding paragraphs of this complaint are hereby 

incorporated by reference.

134. If this Court concludes that the Final Rule is authorized by statute, 

then the statutory scheme unconstitutionally delegates legislative power with 

no intelligible principle, violating the nondelegation doctrine. See A.L.A. 

Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama 

Refining Co. v. Ryan, 293 U.S. 388 (1935). 

135. Various provisions of the Final Rule effectuate a double delegation 

by interpreting Congress’s delegation of authority to ATF as allowing for the 

promulgation of a rule that in turn delegates to the ATF Director unbounded

discretion to create and unilaterally revise legislative standards.

COUNT VII

The Final Rule is Contrary to 

Constitutional Right, Power, Privilege, or Immunity

136. All preceding paragraphs of this complaint are hereby 

incorporated by reference.

137. Division 80 has standing to assert the interests of itself and third 

parties, including its customers and suppliers. See Craig v. Boren, 429 U.S. 190 

(1976).

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138. The Supreme Court has recognized that the Constitution’s 

guarantee of equal protection applies to the federal government.

139. The Second Amendment protects “the right of the people to keep 

and bear Arms.”

140. The Ninth Amendment recognizes that the people have inalienable 

rights not expressly enumerated in the Constitution. 

141. The Final Rule violates the constitutional rights of Division 80, its 

suppliers, and its customers to, among other things, be free from 

discriminatory government action, be free from irrational government action, 

keep and bear arms, engage in lawful self-defense, privately make firearms, 

possess property lawfully acquired, and earn a living by manufacturing and 

selling lawful goods in commerce.

142. The Final Rule is therefore “contrary to constitutional right, 

power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).

COUNT VIII

The Final Rule Exceeds the Limits of the Commerce Clause

143. All preceding paragraphs of this complaint are hereby

incorporated by reference.

144. To the extent the Final Rule imposes regulations on intrastate 

activities, those requirements exceed Congress’s authority under the 

Commerce Clause. U.S. CONST. art. I, § 8, cl. 3.

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COUNT IX

The Final Rule Effectuates a Regulatory Taking 

of “Privately Made Firearms” Without Just Compensation

145. All preceding paragraphs of this complaint are hereby

incorporated by reference.

146. The Supreme Court has recognized that the appropriation of 

personal property by the government without just compensation can violate 

the Fifth Amendment’s Takings Clause. See Horne v. Dep’t of Agriculture, 576 

U.S. 351, 357 (2015).

147. The Supreme Court has also recognized that onerous government 

regulations can effectuate a regulatory taking. See Penn Cent. Transp. Co. v. 

City of New York, 438 U.S. 104, 124 (1978) (noting that the Court looks at the 

“economic impact of the regulation” and “the extent to which the regulation 

has interfered with distinct investment-backed expectations”); Penn. Coal Co. 

v. Mahon, 260 U.S. 393, 415 (1922) (“[I]f regulation goes too far it will be 

recognized as a taking.”).

148. The Final Rule seeks to require licensees with “privately made 

firearms” in their inventories to either mark them according to the Final Rule’s 

specifications, destroy them, or “voluntarily” turn them over to a law 

enforcement agency. The Final Rule places no restrictions on what the 

government may choose to do with “privately made firearms” that are

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“voluntarily” surrendered to the government. 

149. The Final Rule’s regulations on “privately made firearms” 

effectuate a regulatory taking of personal property without just compensation.

PRAYER

WHEREFORE, Plaintiff asks this Court to enter an order and a judgment:

a. Holding unlawful and setting aside the Final Rule;

b. Declaring that the Final Rule is unlawful;

c. Issuing preliminary and permanent injunctive relief enjoining 

Defendants from enforcing or implementing the Final Rule;

d. Postponing the effective date of the Final Rule;

e. Awarding Plaintiff the costs of this action and reasonable attorney’s 

fees; and

f. Awarding such other relief as the Court deems equitable and just.

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Respectfully Submitted, 

Michael J. Sullivan

Massachusetts Bar No. 487210

Pro Hac Vice Forthcoming

ASHCROFT LAW FIRM LLC

200 State Street, 7th Floor

Boston, MA 02109

Phone: (617) 573-9400

Fax: (703) 247-5446

Email: msullivan@ashcroftlawfirm.com

/s/ Cory R. Liu

Cory R. Liu

Attorney-in-Charge

Texas Bar No. 24098003

S.D. Texas Bar No. 3047640

ASHCROFT LAW FIRM LLC

919 Congress Ave., Ste. 1325

Austin, TX 78701

Phone: (512) 370-1800

Fax: (703) 247-5446

Email: cliu@ashcroftlawfirm.com

Counsel for Plaintiff Division 80 LLC

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