UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK; MICHAEL 

G. ANDREN; TACTICAL MACHINING 

LLC, a limited liability company; 

FIREARMS POLICY COALITION, 

INC., a nonprofit corporation,

Plaintiffs,

v.

BLACKHAWK MANUFACTURING 

GROUP INC., doing business as 80 

PERCENT ARMS,

Intervenor Plaintiff, 

v. 

MERRICK GARLAND, in his Official 

capacity as Attorney General of the 

United States; UNITED STATES 

DEPARTMENT OF JUSTICE; STEVEN 

DETTELBACH, in his official capacity as 

Director of the Bureau of Alcohol, 

Tobacco, Firearms and Explosives; 

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS, AND EXPLOSIVES,

Defendants.

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Civil Action No. 4:22-cv-00691-O

OPINION & ORDER ON BLACKHAWK MANUFACTURING GROUP INC. d/b/a 80 

PERCENT ARMS’ PRELIMINARY INJUNCTION

Before the Court are Intervenor-Plaintiff BlackHawk Manufacturing Group Inc. d/b/a 80 

Percent Arms’ Motion for Preliminary Injunction (Pl.’s Mot., ECF No. 102) and Brief in Support 

(Pl.’s Br. in Supp., ECF No. 103), both filed October 20, 2022; Defendants’ Brief in Opposition 

to BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms’ Motion for Preliminary 

Injunction (Defs.’ Resp., ECF No. 109), filed October 28, 2022; and BlackHawk Manufacturing 

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Group Inc. d/b/a 80 Percent Arms’ Reply in Support of Motion for Preliminary Injunction (Pl.’s 

Reply, ECF No. 112), filed October 31, 2022. Having considered the parties’ briefing, the Court 

GRANTS Intervenor-Plaintiff’s motion. 

I. BACKGROUND

The United States Congress has delegated the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (“ATF”) authority to regulate firearms in interstate commerce under the Gun Control 

Act of 1986. On April 26, 2022, ATF promulgated a Final Rule that purports to regulate partially 

manufactured firearm parts and weapon parts kits.1 The Rule took effect on August 24, 2022.2

Prior to its taking effect, on August 11, 2022, Plaintiffs brought this suit to challenge the legality 

of the Final Rule and claim, among other things, that the regulation exceeds the statutory authority 

that Congress vested in ATF.

3 Original Plaintiffs include Texas residents and firearm owners 

Jennifer VanDerStok and Michael G. Andren (“Individual Plaintiffs”); Firearms Policy Coalition, 

Inc. (“FPC”), a nonprofit organization, comprised of individuals and entities nationwide, that 

exists to promote Second Amendment rights through legislative and legal advocacy;4and Tactical 

Machining, LLC (“Tactical” or “Tactical Machining”), which manufactures and sells the products 

subject to the regulations at issue in this dispute.5 Within a week of filing their complaint, on 

October 17, 2022, Plaintiffs moved for a preliminary injunction seeking to broadly enjoin the 

Government from enforcing its Final Rule.6

1 See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022) 

(codified at 27 C.F.R. pts. 447, 478, 479).

2

Id.

3 Compl. 1, ECF No. 1. 

4 Compl. 8, ECF No. 1. 

5 Decl. of Darren Peters, Sr. 1–5, ECF No. 16-1, ¶¶ 4–11 (identifying partially manufactured frames or 

receivers as Tactical Machining’s primary product offering, along with other parts potentially subject to the 

Rule). 

6 Pls.’ Mot. for Prelim. Inj., ECF No. 15. 

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On September 2, 2022, the Court issued its First Opinion in which it found that provisions 

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

ATF’s authority under the Gun Control Act (“GCA”).

7 Having made this preliminary finding, the 

Court enjoined Defendants, including the Attorney General, Department of Justice, ATF, and the 

ATF Director, along with their officers, agents, servants, and employees, from implementing or 

enforcing the rule against only Tactical Machining but otherwise denying injunctive relief to the 

remaining Plaintiffs.

8

In its Second Opinion on the proper scope of the preliminary injunction, 

issued October 1, 2022, the Court extended the injunction to the Individual Plaintiffs and—for the 

purpose of providing Tactical Machining complete relief—to Tactical’s customers.9

Intervenor-Plaintiff BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms

(“BlackHawk”)—a manufacturer and retailer who sells products subject to ATF’s Final Rule—

was permitted to intervene in the suit under the Court’s Order, issued October 18, 2022,

10 and now 

seeks its own protective preliminary injunction.

11 BlackHawk initially participated in the lawsuit 

peripherally by filing a declaration in support of Plaintiffs’ original motion for preliminary 

injunction and moved to intervene a week before this Court, in its Second Opinion, again denied 

injunctive relief to Plaintiff-FPC’s association members—of which BlackHawk is one.12

BlackHawk seeks a preliminary injunction that mirrors the relief currently afforded to 

Tactical Machining.13 BlackHawk’s request for injunctive relief rests on its claims that the Final 

Rule was issued in excess of ATF’s statutory authority, is facially unlawful, and unlawfully 

7 First Opinion 15, 22–23, ECF No. 56.

8

Id.

9 Second Opinion 20–22, ECF No. 89. 

10 Oct. 18 Order, ECF No. 98. 

11 Pl.’s Mot. 1, 3, ECF No. 102. 

12 Pl.’s Reply 4, ECF No. 112. 

13 Pl.’s Br. in Supp. 3, 16–17, ECF No. 103. 

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purports to regulate weapon parts kits as firearms contrary to the strictures of the GCA.14

In response, the Government primarily contends that BlackHawk has not substantiated 

the irreparable harm it will suffer absent injunctive relief, particularly in light of its “monthslong delay” in seeking preliminary relief.15 The parties have briefed the issue and the motion is 

ripe for review. 

II. LEGAL STANDARD

The decision to extend interlocutory relief is committed to the district court’s sound 

discretion. See Miss. Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 

1985). To establish entitlement to a preliminary injunction, BlackHawk must demonstrate: (1) a 

substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm; (3) that 

the balance of hardships weighs in its favor; and (4) that the issuance of the preliminary injunction 

will not disserve the public interest. Daniels Health Servs., L.L.C. v. Vascular Health Scis., L.L.C., 

710 F.3d 579, 582 (5th Cir. 2013). The last two factors merge when the government is the opposing 

party. Nken v. Holder, 556 U.S. 418, 435 (2009). 

Once it has determined that a party is entitled to injunctive relief, a court must make a 

separate determination regarding the appropriate scope of that prospective injunction. “[T]he scope 

of injunctive relief is dictated by the extent of the violation established[.]” Califano v. Yamasaki, 

442 U.S. 682, 702 (1979). In other words, because it is an extraordinary remedy, an injunction 

“should be no more burdensome to the defendant than necessary to provide complete relief to the 

plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 756 (1994) (cleaned up). Thus, an 

injunction must “redress the plaintiff’s particular injury,” and no more. Gill v. Whitford, 138 S. Ct. 

1916, 1934 (2018) (citation omitted). As movant, the party seeking relief bears the burden of 

14 Pl.’s Br. in Supp. 14, ECF No. 103; Intervenor Compl. ¶¶ 61, 90–91, 106–10, ECF No. 99. 

15 Defs.’ Response 4–8, ECF No. 109. 

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proving all four elements of the preliminary injunction. Nichols v. Alcatel USA, Inc., 532 F.3d 364, 

372 (5th Cir. 2008); Miss. Power & Light Co., 760 F.2d at 621. 

III. ANALYSIS

A. Plaintiff is Likely to Succeed on the Merits

BlackHawk must first show a substantial likelihood that it will succeed on the merits of its

claims. Daniels Health Servs., 710 F.3d at 582. “To show a likelihood of success, the plaintiff 

must present a prima facie case, but need not prove that he is entitled to summary judgment.” Id.

As BlackHawk correctly points out, this Court has already preliminarily determined that the 

original Plaintiffs’ statutory interpretation claims are likely to prevail on the merits.16 BlackHawk 

raises nearly identical interpretive claims (that the Final Rule was issued in excess of ATF’s 

statutory authority under the APA; is facially unlawful; and contravenes the GCA’s clear statutory 

prescriptions) in its complaint.17

Rather than recite its previous analysis with respect to the interpretive claims verbatim, the 

Court incorporates by reference the reasoning in its First Opinion.18 To summarize: the Final Rule 

purports to regulate firearm parts—including incomplete, non-functional receivers and weapon 

parts kits—contrary to the plain language of the GCA, which confined ATF’s authority to 

regulation of “firearms,” a term clearly defined by the statute.

19 Moreover, the Final Rule’s 

expanded definition of “frame or receiver” to include partially manufactured, non-functional 

receivers within the meaning of “firearms”—contrary to the GCA’s clear statutory definition—is 

facially unlawful.20 Because BlackHawk challenges the Final Rule on these grounds, the Court 

16 Pl.’s Br. in Supp. 14, ECF No. 103 (citing the Court’s First Opinion, ECF No. 56). 

17 Intervenor Compl. ¶¶ 61, 90–91, 106–10, ECF No. 99.

18 First Opinion 6–16, ECF No. 56. 

19 Id.

20 Id.

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similarly finds that BlackHawk has shown a substantial likelihood of success on the merits of its 

claims. 

B. Plaintiff Will Suffer Irreparable Harm Absent Injunctive Relief

In the Fifth Circuit, a harm is considered “irreparable only ‘if it cannot be undone through

monetary remedies.’” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 

2012) (quoting Interox Am. v. PPG Indus., Inc., 736 F.2d 194, 202 (5th Cir.1984)). A showing of

economic loss is usually insufficient to establish irreparable harm because damages may be

recoverable at the conclusion of litigation. Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011).

However, “an exception exists where the potential economic loss is so great as to threaten the

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

875 F.2d 1174, 1179 (5th Cir. 1989). And where costs are nonrecoverable because the governmentdefendant enjoys sovereign immunity from monetary damages, as is the case here, irreparable

harm is generally satisfied. See Wages & White Lion Invs., L.L.C. v. FDA, 16 F.4th 1130, 1142

(5th Cir. 2021). Irreparable harm must also be concrete and not merely de minimis. Daniels Health 

Servs., L.L.C., 710 F.3d at 585; Dennis Melancon, Inc., 703 F.3d at 279 (cleaned up).

The Court has already decided this issue with respect to BlackHawk. When analyzing

associational standing in its Second Opinion on the proper scope of the preliminary injunction, the 

Court found that: 

Plaintiffs have indeed shown that at least one of FPC’s members, BlackHawk 

Manufacturing Group, Inc., d/b/a 80 Percent Arms, faces a substantial threat of 

irreparable harm . . . . Plaintiffs discuss BlackHawk’s alleged injuries at length, 

describing the manufacturer-retailer’s substantial decrease in sales following 

enactment of the Final Rule due to widespread customer concern about purchasing 

its products [].

21

21 Second Opinion 14–15, ECF No. 89 (citing Pls.’ Mot. to Expand Prelim. Inj. 16–18, ECF No. 63; Decl. 

of Daniel Lifschitz 6–8, ECF No. 62-5 ¶¶ 13, 16, 17); see also BlackHawk’s Br. in Supp. of Mot. to 

Intervene 5, ECF No. 77; Ex. A, Decl. of Daniel Lifschitz ¶¶ 15, 20, ECF No. 77-3 (noting BlackHawk’s 

“average daily revenue since the rule took effect has dropped by more than 90%” and that it has “enough 

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In response, the Government claims BlackHawk could avert this injury by simply 

complying with the Rule.22 But “it is no answer to say that [Plaintiff] may avoid the harm by 

complying with an [] agency rule” that is likely unlawful. 23 And as this Court has previously held, 

“Defendants’ argument relies on the incorrect legal premise that compliance costs are not an 

irreparable harm.”24 To this, the Government counters that any nonrecoverable compliance costs 

are de minimis, and therefore not cognizable.25 The Government suggests this Court agrees by 

claiming it “has since found that FFLs can make sales to out-of-state purchasers through a local 

FFL with costs that are, at most, de minimis.”26 But that misreads the Court’s prior Opinion, 

wherein the Court found that Individual Plaintiffs’ compliance costs—incurred in the form of a 

one-time $30 FFL transfer fee—were de minimis.27 The Court said nothing regarding the 

manufacturer’s (there, Tactical Machining’s) compliance costs being de minimis. Indeed, 

BlackHawk’s burden of complying with the Final Rule’s requirements would entail an overhaul 

of its entire online, direct-to-customer business model, in addition to the costs incurred through 

administrative compliance and other FFL-related fees.28

The Government also focuses on BlackHawk’s “unexcused delay” in seeking preliminary 

injunctive relief—a fact it claims “weighs heavily against [BlackHawk’s] assertion that it would 

suffer irreparable harm without such relief.”29 The Government calculates this purported delay 

from the date the Final Rule was announced to the date that BlackHawk moved for its preliminary

cash on hand to continue paying [its] expenses for 2 to 3 months while [it] operate[s] at a loss . . . [before 

being] forced to shut down . . . and cease operations”). 

22 Defs.’ Resp. 8, ECF No. 109. 

23 First Opinion 19, ECF No. 56. 

24 Id. at 17–18. 

25 Defs.’ Resp. 8, ECF No. 109. 

26 Id. (citing the Court’s Second Opinion at 7–8, ECF No. 89). 

27 Second Opinion 8, ECF No. 89. 

28 Pl.’s Reply 2–3, ECF No. 112. 

29 Defs.’ Resp. 4, ECF No. 109. 

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injunction: a period of five months and eleven days.30 But the Government’s timeline by which it 

measures the supposed delay is exaggerated. Though not as a named-Plaintiff, BlackHawk initially 

participated in this lawsuit when it filed a declaration in support of the Plaintiffs’ motion for 

preliminary injunction on September 8, 2022, only fifteen days after the Final Rule took effect and 

within a month of Plaintiffs’ initial complaint. Moreover, BlackHawk’s interests were quasirepresented in the case via its membership status in FPC, who was seeking injunctive relief on 

behalf of all its association members. Within two weeks of its initial involvement in the ongoing 

proceedings, BlackHawk moved to intervene and simultaneously filed a proposed motion for 

preliminary injunction. In the Court’s view, these efforts to vindicate its interests are far from an 

undue delay sufficient to overcome BlackHawk’s clear demonstration of irreparable harm and bar 

injunctive relief. 

Even if BlackHawk had effectively “[sat] on its rights”31 for five months, that length of 

time alone is not dispositive given that any determination of a movant’s timeliness seems to turn

on the facts of the particular case. See, e.g., ADT, LLC v. Cap. Connect, Inc., 145 F. Supp. 3d 671,

699 (N.D. Tex. 2015) (finding an eight-month delay reasonable); Wireless Agents, L.L.C. v. TMovile USA, Inc. 2006 WL 1540587, 3 (N.D. Tex. June 6, 2006) (finding a year’s delay

unreasonable). For these reasons, the Court finds that BlackHawk has adequately demonstrated it 

will suffer irreparable harm absent injunctive relief. 

C. The Balance of Equities and Public Interest Weigh in Plaintiff’s Favor

The final two elements necessary to support a grant of injunctive relief—the balance of 

equities (the difference in harm to the respective parties) and the public interest—“merge” when 

the government is a party. Nken, 556 U.S. at 435. In this assessment, the Court weighs “the

30 See id. at 5.

31 Id. at 7.

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competing claims of injury and [] consider[s] the effect on each party of the granting or 

withholding of the requested relief,” while also considering the public consequences of granting 

injunctive relief. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008)

(internal citations omitted). 

BlackHawk argues that its threatened injury (complete elimination of its business) and the 

public’s interest in lawful government action far outweighs any potential harm the government 

would incur in being temporarily prevented from enforcing its unlawful Rule.32 On the other hand, 

Defendants assert injuries to their interests in law enforcement and public safety, which they argue 

cannot be vindicated if BlackHawk is given interim injunctive relief.33 This will result, they say, 

because without compliance with the Final Rule, “no safeguard at the point of purchase would 

prevent the sale to prohibited persons of products that can readily be converted into functional 

firearms,” and BlackHawk’s sale of noncompliant products “would render it far less likely that 

law enforcement would be able to trace the firearms in the event they were used to commit a 

crime.”34 In other words, once those injuries occur, they cannot be remediated. 

As with its analysis of likely success on the merits, the Court’s prior reasoning with respect 

to the balance of equities and competing public interests applies to BlackHawk’s motion 

for injunctive relief. In its First Opinion, this Court found that any injury to the Government’s

general interest in law enforcement and public safety is appreciably undermined by this 

Court’s preliminary determination that the Final Rule is likely unlawful.35 Moreover, it 

found that Plaintiffs’ liberty interest—as law-abiding citizens who wish to engage in 

historically lawful conduct (the purchase and sale of now-regulated parts)—outweighs the

34 Id. at 10 (citing 87 Fed. Reg. at 25,643).

35 First Opinion 21–22, ECF No. 56.

32 

33

Pl.’s Br. in Supp. 17–18, ECF No. 103; Pl.’s Reply 8–9, ECF No. 112. 

Defs.’ Resp. 9–11, ECF No. 109. 

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Government’s remaining interest in preventing prohibited persons from unlawfully possessing 

firearms.36 That reasoning applies with equal force here and is strengthened by the fact that the 

Government’s likely ultra vires enforcement efforts upset more than fifty years of ATF 

regulatory precedent against a public that has relied on that historic posture.37

And even if it is true that, during the interim litigation, the non-enforcement of point-ofsale safeguards and record-keeping requirements against BlackHawk may undermine the public 

interest in law enforcement and public safety—a status quo that has persisted for decades—that 

purported injury does not outweigh the existential harm threatening BlackHawk’s continued 

operation. Nor does it outweigh the harm to the public’s interest in a government that abides by its 

own statutory and constitutional obligations. Indeed, “[t]here is generally no public interest in the 

perpetuation of unlawful agency action. To the contrary, there is a substantial public interest in 

having governmental agencies abide by the federal laws that govern their existence and 

operations.” League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)

(cleaned up). Just as the Government has an interest in the law’s enforcement, so too does the 

public have an equally compelling interest in enforcement of the laws that govern its governing 

authorities. 

Finally, while the Government argues that “BlackHawk affirmatively seeks to protect the

ability of potentially dangerous individuals such as felons, unlawful drug users, and domestic 

abusers to obtain items and kits that can readily be converted into functional firearms,” BlackHawk 

makes no such request.38 Indeed, no less than three times, BlackHawk reiterates that it seeks 

36 Id. at 22.

37 See Pl.’s Br. in Supp. 18, ECF No. 103 (noting creation and maintenance of the industry under ATF’s

54-year status quo regarding what constitutes a lawful “firearm” under the Gun Control Act).

38 Defs.’ Resp. 12, ECF No. 109 (emphasis added).

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“injunctive relief that matches the relief currently provided to Tactical.”39 When BlackHawk 

moved for an injunction, the Court’s protective relief included Tactical and its customers but 

explicitly excepted any customers prohibited from possessing firearms under 18 U.S.C. § 922(g).40

Thus, the Government’s alleged harm to the public interest in preventing prohibited persons from 

obtaining firearms (by purchasing parts) is mitigated by the injunction’s narrow tailoring. The

Court therefore finds that the balance of hardships and the public interest weigh in favor of granting 

BlackHawk’s request for injunctive relief. 

* * * *

Having considered the arguments, evidence, and law, the Court determines that the relevant 

factors weigh in favor of granting a preliminary injunction. As BlackHawk requests and the 

Government concedes,

41 the proper scope of relief is that which mirrors the relief currently 

afforded to Tactical Machining, LLC.42 Thus, any protective relief provided to BlackHawk must 

be sufficient to redress its injuries, without being overly inclusive. As this Court has previously 

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

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

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

IV. CONCLUSION

BlackHawk has shown it is entitled to a preliminary injunction against Defendants’ 

enforcement of the Final Rule. Accordingly, the Court GRANTS the motion and ORDERS that 

Defendants and their officers, agents, servants, and employees are enjoined from implementing 

39 Pl.’s Br. in Supp. 16, 17, 19, ECF No. 103.

40 See generally First Opinion and Clarification of Opinion (ECF Nos. 89, 91). 

41 The Government agrees that if injunctive relief is granted, it should cover only BlackHawk and its 

customers not prohibited from possessing firearms under 18 U.S.C. § 922(g). Defs.’ Resp. 12, ECF no. 109. 

42 Pl.’s Br. in Supp. 16, 17, 19, ECF No. 103; Defs.’ Resp. 14, ECF No. 109. 

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and enforcing against BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms the provisions 

in 27 C.F.R. §§ 478.11 and 478.12 that the Court has preliminarily determined are unlawful. 

Reflecting the scope of relief currently afforded to Tactical Machining, LLC, the injunction also 

covers BlackHawk’s customers (except for those individuals prohibited from possessing firearms 

under 18 U.S.C. § 922(g)). The Court waives the security requirement of Federal Rule of Civil 

Procedure 65(c). See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).

SO ORDERED this 3rd day of November, 2022. 

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