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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

 Plaintiffs, 

BLACKHAWK MANUFACTURING 

GROUP INC. d/b/a 80 Percent Arms,

 Intervenor-Plaintiff,

DEFENSE DISTRIBUTED, and

THE SECOND AMENDMENT 

FOUNDATION, INC.

 Intervenors-Plaintiffs,

v.

MERRICK GARLAND, in his Official 

Capacity as Attorney General of the United 

States, et al.,

 Defendants.

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

Defense Distributed’s

Opposed Emergency Motion for Injunction Pending Appeal

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Table of Contents

Table of Contents............................................................................................................................i

Table of Authorities.......................................................................................................................ii

Argument ....................................................................................................................................... 1

I. The Court should issue an injunction pending appeal........................................................2

A. The Court has jurisdiction to issue an injunction pending appeal. .........................2

B. An injunction pending appeal is consistent with the Supreme Court stay..............3

C. An injunction pending appeal is warranted.............................................................4

D. An injunction pending appeal preserves the status quo..........................................5

II. The Court should uphold its existing preliminary injunction.............................................6

Conclusion .....................................................................................................................................8

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Table of Authorities

Cases

Heffernan v. City of Paterson, N.J., 

578 U.S. 266 (2016)............................................................................................................8

Wooten v. Roach, 

964 F.3d 395 (5th Cir. 2020) ..............................................................................................3

Rules

Fed. R. App. P. 8(a)(1) ............................................................................................................... 2, 3

Secondary Authorities

11A Charles A. Wright & Arthur R. Miller et. al., Federal Practice & Procedure

§ 2908 (4th ed. West 2021). ...............................................................................................3

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Intervenor Plaintiff Defense Distributed files this emergency motion for an injunction 

pending appeal. The Defendants were conferred with and oppose.

Argument

Defense Distributed moves for the injunction pending appeal that it sought once already. 

See Doc. 239 (Defense Distributed’s motion); Doc. 242 (Agencies’ response); Doc. 243 (Defense 

Distributed’s reply). The Court denied the original motion as moot because, at that time, the Fifth 

Circuit had issued an order leaving this Court’s final judgment in effect during the appeal. Doc. 

245. But yesterday the Supreme Court overrode the Fifth Circuit and issued an order staying this 

Court’s final judgment during the appeal. Ex. A. Because of that stay, Defense Distributed’s need

for individual relief is no longer moot. So the instant motion should be ruled on as soon as possible.

The motion should be granted because Defense Distributed will ultimately prevail and 

should be protected from the Rule’s enforcement in the meantime. There is a reason the Agencies 

never seriously sought a stay as to Defense Distributed in particular. This Court rightly held that 

Defense Distributed’s case against the Rule is meritorious, Doc. 227, and the Fifth Circuit likewise 

rightly held that “ATF has not demonstrated a strong likelihood of success” in defending the 

Rule’s challenged provisions. Doc. 246 at 3. Apart from whatever might be said of nationwide

vacatur, all other factors regarding Defense Distributed in particular point toward preserving the 

status quo and stopping the irreparable harm that Rule enforcement causes. The Supreme Court’s

stay is not to the contrary because it yields no material holdings at all (no opinion was issued) and

because it pertains only to the distinct question of staying a nationwide APA vacatur—not the 

present question of a particular party’s personalized injunction. On a clean slate, the Court should 

grant the motion and enter an injunction pending appeal for Defense Distributed. 

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I. The Court should issue an injunction pending appeal. 

First, Defense Distributed requests personalized protection from the Agencies’ 

enforcement of the Rule via an injunction pending appeal. Specifically, Defense Distributed 

requests an injunction pending appeal that parallels the preliminary injunction this Court issued as 

the March 8, 2023, “Opinion & Order on Defense Distributed and the Second Amendment 

Foundation, Inc.’s Motion for a Preliminary Injunction.” Doc. 188. The preliminary injunction’s 

key conclusion as to Defense Distributed and its customers was as follows:

Doc. 188 at 10. That same kind of personalized injunction should be entered pending appeal. 

A. The Court has jurisdiction to issue an injunction pending appeal.

The Agencies said before that the Court lacks jurisdiction to issue an injunction pending 

appeal. Doc. 242 at 2. But the jurisdiction to issue an injunction pending appeal clearly exists. 

The Agencies’ jurisdictional doubt contradicts Federal Rule of Appellate Procedure 8. 

Rule 8 rightly presupposes this Court’s jurisdiction to issue the requested injunction pending 

appeal by providing that a party “must ordinarily move first in the district court for . . . an order 

. . . granting an injunction while an appeal is pending”:

(1) Initial Motion in the District Court. A party must ordinarily move first in 

the district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

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(B) approval of a bond or other security provided to obtain a stay of 

judgment; or

(C) an order suspending, modifying, restoring, or granting an injunction 

while an appeal is pending.

Fed. R. App. P. 8(a)(1). Courts everywhere therefore know that “the power to act with regard to 

an injunction pending an appeal exists in both the trial and appellate courts.” 11A Charles A. 

Wright & Arthur R. Miller et. al., Federal Practice & Procedure § 2908 (4th ed. West 2021). 

The Agencies’ jurisdictional doubt also contradicts the administrative stay they obtained

from this Court, Doc. 238. Their logic about jurisdiction to render an injunction pending appeal 

applies equally to a stay pending appeal. So if the Court lacks jurisdiction to give Defense 

Distributed an injunction pending appeal, it likewise lacked jurisdiction to give the Agencies their

administrative stay pending appeal, Doc. 238. But as Rule 8 shows in requiring both stays and 

injunctions pending appeal to be sought first at a district court, the necessary jurisdiction exists. 

Wooten v. Roach, 964 F.3d 395 (5th Cir. 2020) (cited by the Agencies before), does not 

apply. The basic rule it states is all well and good. A notice of appeal divests district courts of 

control over “those aspects of the case involved in the appeal.” Id. at 403. But as Rule 8 shows, 

what this motion seeks is not a subject of the jurisdictional divestiture. The appeal is about what 

kind of final judgment to enter. The motion is about what to do while the Fifth Circuit decides that. 

B. An injunction pending appeal is consistent with the Supreme Court stay.

The Agencies will likely say that this motion’s requested relief conflicts with the Supreme 

Court’s stay. But because the relief this motion requests differs in at least two material respects 

from what the Supreme Court stay accounts for, there is no such conflict.

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Material difference one is about the subject of relief—nationwide relief versus personalized

party relief. Whereas the Court’s final judgment and Supreme Courtstay concern nationwide relief 

for the entire country, this motion is about individualized relief for a party to the case. 

Material difference two is about the vehicle of relief—relief via an APA vacatur versus relief 

via an injunction. Where the Court’s final judgment and Supreme Court stay concern relief via an 

APA vacatur of the Rule, this motion is about a personalized district court injunction against the 

Agencies’ enforcement of the Rule. 

Hence, this motion is in no way inconsistent with the Supreme Court’s stay order. The 

procedural differences show that it is perfectly proper for the case to entail both (1) a stay pending 

appeal of the final judgment’s nationwide APA vacatur, and (2) a personalized injunction pending 

appeal halting the Agencies’ enforcement of the Rule against Defense Distributed in particular.

C. An injunction pending appeal is warranted.

On the merits, Defense Distributed should receive an injunction pending appeal for the 

same reasons that the Court’s March 8 order granted Defense Distributed a preliminary 

injunction. Doc. 188. That injunction was justified both by the reasons that the Court expressly 

announced in that decision, id., as well as the additional reasons that Defense Distributed and SAF 

gave in their briefs, see Docs 163, 176, and 184. The federal government’s reasons for seeking stays

pending appeal in the Fifth Circuit and Supreme Court focused on the judgment’ nationwide aspect 

of the final judgment’s APA vacatur; they did not seriously contend that a stay was warranted as 

to the protection of Defense Distributed individually. So regardless of how the final judgment’s 

nationwide aspects fare, Defense Distributed in particular is entitled to an injunction protecting 

them in particular for the duration of the appeal.

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Emergency relief is needed now for the reasons Defense Distributed first introduced at the 

preliminary injunction stage. The situation is dire. If Defense Distributed is not protected by 

either the Court’s existing final judgment or an individualized injunction pending appeal—if the 

Agencies are allowed to resume enforcement of the Final Rule against Defense Distributed—then 

Defense Distributed will go out of business and cease to exist. See Doc. 164 at 5-6 (“The Final 

Rule irreparably harms Defense Distributed.”); Doc. 164-01 (declaration of Cody Wilson, Defense 

Distributed’s director). Then and now, “the new Final Rule’s effect on Defense Distributed is 

devastating.” Doc. 164-1 at 5. “The new Final Rule will destroy Defense Distributed, soon, unless 

the government is enjoined from enforcing the new Final Rule against it and its customers.” Id.

D. An injunction pending appeal preserves the status quo.

The Agencies said before that Defense Distributed’s motion seeks to (1) alter the status 

quo and (2) alter the final judgment. Doc. 242 at 1. But neither is correct.

The relief Defense Distributed seeks would not alter the status quo. It would preserve it. 

The status quo is a world in which the Agencies are not enforcing the Final Rule against Defense 

Distributed. The Court recognized and preserved that status quo when it issued Defense 

Distributed’s preliminary injunction. Doc. 188. And the Court recognized and preserved that 

same status quo when it issued the final judgment. See Doc. 227 at 37 (“vacating the unlawful 

assertion of the agency’s authority would be minimally disruptive because vacatur simply ‘establish[es] 

the status quo’ that existed for decades prior to the agency’s issuance of the Final Rule last year”). 

The Fifth Circuit’s stay denial correctly concluded that letting the Rule’s challenged provisions be 

vacated “effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 

2022.” Doc. 246 at 3. 

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The order Defense Distributed requests would not alter the final judgment either. The 

requested injunction would be a brand new order that operates independently of the final 

judgment. Whereas the final judgment adjudicates the case’s claims by issuing final legal relief 

(e.g., vacatur), Defense Distributed’s requested injunction adjudicates no claim and merely 

preserves the status quo with a temporary exercise of equitable power; and whereas the final 

judgment operates nationwide (because it is acting on a claim for that relief), Defense Distributed’s 

requested injunction operates only as to Defense Distributed. Whatever criticisms the Agencies 

link to changing the final judgment are therefore baseless. 

II. The Court should uphold its existing preliminary injunction. 

Alternatively, if the Court does not issue an injunction pending appeal, Defense Distributed 

requests personalized protection from the Agencies’ enforcement of the Rule via an order 

expressly upholding the Court’s existing preliminary injunction. Technically, an order upholding 

the continued force Defense Distributed’s preliminary injunction should not be necessary because 

that preliminary injunction already maintains its full force as a matter of law. But an order expressly 

saying so is needed because the Agencies oppose that view. They posit that an order staying the 

Court’s final judgment somehow halts the final judgment’s vacatur of the final rule but does not

revive the March 8 preliminary injunction issued for Defense Distributed’s benefit, Doc. 188. That 

position is wrong and its chilling effect seriously exacerbates the irreparable harm Defense 

Distributed suffers. To resolve that uncertainty and put a definitive halt to the Agencies’ 

continued enforcement of the Rule against Defense Distributed in particular, the Court should 

issue an order declaring what is already true: So long as the Supreme Court stay is in effect, this 

Court’s Document 188 preliminary injunction for Defense Distributed is in effect as well.

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As a matter of law, the Supreme Court order staying this Court’s summary judgment and 

final judgment has resurrected this Court’s March 8 preliminary injunction order for Defense 

Distributed automatically, without the need for any further party or Court action. It is true that 

final judgments usually operate via the merger rule to extinguish interlocutory orders like 

preliminary injunctions. But this action’s summary judgment and final judgment have been 

stayed.

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 So just as the parties all must temporarily proceed as though the final judgment is not 

accomplishing any vacatur, they must also temporarily proceed as though the final judgment is not 

triggering the merger rule and extinguishing Defense Distributed’s preliminary injunction. 

In other words, stays like the one issued here do not operate in the one-sided fashion the 

Agencies wish they did. Either this Court’s summary and final judgments carry all of their

operational effects today or they carry none. By obtaining yesterday’s stay, the Agencies are stuck 

with none. In exchange for temporarily going without the part of those judgments they dislike (the 

vacatur), the Agencies must temporarily go without the part of those judgments they like (the 

extinction of the preliminary injunction). Cf. Heffernan v. City of Paterson, N.J., 578 U.S. 266, 272 

(2016) (“After all, in the law, what is sauce for the goose is normally sauce for the gander.”). 

The Agencies have not cited and counsel has not located any authority upholding a 

different rule. Indeed, the Agencies just told the Fifth Circuit in their appellant’s brief for this very 

case that “the effect of any judgment should be bidirectional.” Br. of Appellants at 42, VanDerStok 

v. Garland, No. 23-10718 (5th Cir.) (filed Aug. 9, 2023). If that is true—if all judgments must be 

1 The Court did not stay enforcement of the judgments—it stayed the judgments themselves. Ex. A. 

Indeed, an order staying enforcement of an APA vacatur would be a meaningless non sequitur, as 

there is no enforcement to enjoin. An APA vacatur operates by fiat – the judgment itself delivers 

all of the judicial power at issue - without the need for a party to take further enforcement steps. 

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“bidirectional”—then there is no escaping the conclusion that the Supreme Court’s stay order 

has both the effect of nullifying the APA vacatur and the effect of resurrecting Defense 

Distributed’s preliminary injunction. 

Thus, the Court should expressly hold that, for so long as the Supreme Court’s stay order 

suspends this Court’s summary and final judgments, the preliminary injunction that this Court 

entered for Defense Distributed remains in effect. 

Conclusion

The Court should enter an injunction pending appeal ordering that, until the matter’s 

appeals are concluded, Defendants and their officers, agents, servants, and employees are enjoined 

from implementing and enforcing against Defense Distributed and its customers (except for those 

individuals prohibited from possessing firearms under 18 U.S.C. § 922(g)) the provisions in 27 

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

Alternatively, the Court should enter an order holding that Defense Distributed’s preliminary 

injunction, Doc. 188, remains in force for so long as the Supreme Court’s stay is in effect. 

Respectfully submitted,

FLORES LAW PLLC

By /s/ Chad Flores

Chad Flores

cf@chadfloreslaw.com

State Bar No. 24059759

917 Franklin Street, Suite 600

Houston, Texas 77002

(713) 893-9440

Counsel for Defense Distributed

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