1

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

JENNIFER VANDERSTOK; MICHAEL G. 

ANDREN; TACTICAL MACHINING, 

LLC, a limited liability company; 

FIREARMS POLICY COALITION, INC., a 

nonprofit corporation, 

Plaintiffs, 

v. 

MERRICK GARLAND, in his official 

capacity as Attorney General of the United 

States; UNITED STATES DEPARTMENT 

OF JUSTICE; STEVEN DETTELBACH, in 

his official capacity as Director of the 

Bureau of Alcohol, Tobacco, Firearms and 

Explosives; and BUREAU OF ALCOHOL, 

TOBACCO, FIREARMS AND 

EXPLOSIVES, 

Defendants. 

Civil Action No. 4:22-cv-691 

PETITION FOR JUDICIAL REVIEW OF AGENCY ACTION AND 

REQUEST FOR DECLARATORY JUDGMENT 

AND INJUNCTIVE RELIEF 

Plaintiffs Jennifer VanDerStok; Michael G. Andren; Tactical Machining, 

LLC; and Firearms Policy Coalition, Inc., file this Petition for Judicial Review of 

Agency Action and Request for Declaratory and Injunctive Relief against 

Defendants Merrick Garland, Attorney General of the United States, in his official 

capacity; the United States Department of Justice; Steven Dettelbach, Director of 

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the Bureau of Alcohol, Tobacco, Firearms and Explosives, in his official capacity; 

and the Bureau of Alcohol, Tobacco, Firearms and Explosives and state the 

following: 

INTRODUCTION 

1. The Executive Branch is not Congress. Congress maintains “All 

legislative Powers,” U.S. CONST. ART. I, § 1, and the president and his subordinate 

agencies may neither enact nor legislatively “interpret” statutes to advance desired 

outcomes not provided for in a law as passed by Congress. 

2. Despite this fundamental tenet of separation of powers, President 

Biden has both expressed and advanced his intentions to expand federal firearm 

regulations regardless of whether Congress concurs, in contravention of the 

constitutional limits on Executive authority.1

3. This lawsuit challenges, inter alia, the authority of the Department of 

Justice (“DOJ”) and the Bureau of Alcohol, Tobacco, Firearms and Explosives 

(“ATF,” collectively “Agencies”) to regulate items that are not firearms as if they 

were, and the Agencies’ failure to follow the rulemaking requirements of the 

Administrative Procedure Act (“APA”). 

 

1

 THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/speechesremarks/2021/04/08/remarks-by-president-biden-on-gun-violence-prevention/ (last visited Aug. 

10, 2022) (“I 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.”). 

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4. The Final Rule not only greatly departs from the Proposed Rule, but 

misconstrues the Gun Control Act (“GCA”), 18 U.S.C. § 921 et seq.; ignores the 

congressional intent conveyed by the text of the GCA; and defies long-standing 

agency interpretation by redefining what constitutes a “firearm” and, in particular, 

what constitutes the “frame or receiver” of a “weapon.” 

5. The GCA defines “firearm” 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(a)(3). 

6. The central dispute in this case is whether the coverage of “any 

weapon” that may be “readily converted to expel a projectile by the action of an 

explosive” and the separate coverage of “the frame or receiver of any such 

weapon” allows the expansion of coverage for anything that is not already a 

“weapon” but could be “readily converted” into a frame or receiver of an eventual 

weapon to qualify as a “firearm.” The Agencies claim that it is a natural extension 

of congressional intent to apply the readily converted language of subsection (A) to 

subsection (B), even though such language is notably lacking in subsection (B). 

Definition of “Frame or Receiver” and Identification of Firearms (“Final Rule”), 

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87 Fed. Reg. 24,652, 24,667 (Apr. 26, 2022).2 And yet Congress is presumed to 

include and exclude language knowingly and intentionally, and by omitting the 

“readily converted” from subsection (B) regarding frames and receivers, it must be 

presumed that Congress did not confer such expanded authority on the Agencies. 

And, more importantly, that is how such language would have more naturally been 

understood by legislators and the public when it was adopted. In the context of a 

statute imposing criminal liability, fundamental principles of statutory 

interpretation and the equally fundamental due process and separation of powers 

concerns driving the rule of lenity forbid the Agencies’ efforts to broaden the reach 

of the definition of “firearm.”

7. The Final Rule defies the plain language of the GCA and longstanding 

agency interpretation suggesting that the items at issue here, sometimes 

colloquially referred to as receiver blanks, unfinished frames or receivers, or 80% 

frames or receivers, are not firearms.3

 

2

 The Final Rule is available at: 

https://www.federalregister.gov/documents/2022/04/26/2022-08026/definition-of-frame-orreceiver-and-identification-of-firearms 

3

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

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

%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last visited Aug. 10, 2022) (“ATF has 

long held that items such as receiver blanks, ‘castings’ or ‘machined bodies’ in which the firecontrol 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.”). 

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8. “Frame or receiver” is not independently defined in the GCA but 

refers to the “frame or receiver” of a weapon as defined in 18 U.S.C. § 

921(a)(3)(A). Through this rulemaking, however, the Agencies are attempting to 

create a broad, sweeping definition by including items that are not yet the “frames 

or receivers” of such weapons and by including “frame or receiver kits.” 

9. Additionally, by treating non-frames and non-receivers as if they were 

actual frames and receivers of a weapon, the Agencies have expanded the reach of 

a criminal statute to cover “weapon parts kits” within the definition of a “firearm” 

under 18 U.S.C. § 921(a)(3)(A), even though such kits do not meet the 

congressionally defined term and do not actually contain a frame or receiver of a 

weapon. 

10. Congress never understood itself to be adopting language permitting 

every actual or potential part of a firearm be regulated as a firearm itself through 

the GCA.4 Congress also did not give the Agencies the authority to regulate the 

broad array of materials that may, at some point in the future, be manufactured into 

firearms by private individuals. Individuals that are not otherwise prohibited from 

 

4

 “Under the present definition of ‘firearm,’ any part or parts of such a weapon are 

included. It has been found that it is impractical to have controls over each small part of a 

firearm. Thus, the revised definition substitutes only the major parts of the firearm; that is, frame 

or receiver for the words ‘any part or parts.’” Fed. Defs.’ Mot. for Summ. J., Syracuse v. ATF, 

No. 1:20-cv-06885, 2021 WL 23326, ECF No. 98, at 34 (S.D.N.Y. Jan. 29, 2021) (internal 

quotations omitted) (quoting S. Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 

2112, 2200). 

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possessing firearms in the United States are free to personally manufacture 

firearms—there is no federal law that allows the Executive Branch to regulate or 

prohibit that practice. 

11. The Agencies’ Final Rule defies the APA, other federal statutes, and 

the United States Constitution. Accordingly, the declaratory, injunctive, and other 

relief Plaintiffs request is necessary to prevent the implementation and 

enforcement of this unconstitutional, illegal regulation that will directly impact the 

current and longstanding personal and business practices of Plaintiffs and many 

other similarly situated individuals and businesses. 

PARTIES 

12. Plaintiff Jennifer VanDerStok is a United States citizen who lives in 

Mineral Wells, Texas. Ms. VanDerStok owns at least one firearm—used for lawful 

purposes, including but not limited to self-defense—that she purchased from 

Federal Firearms Licensee (“FFL”) in accordance with federal law. Ms. 

VanDerStok does not currently own a firearm that she has manufactured herself 

using materials that Defendants do not currently classify as firearms, but Ms. 

VanDerStok wishes to manufacture a firearm using these products in the future and 

would do so but for the Agencies’ new attempt to treat those items as firearms in 

and of themselves. Ms. VanDerStok is a member of Plaintiff Firearms Policy 

Coalition, Inc. (“FPC”). 

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13. Plaintiff Michael G. Andren is a United States citizen who lives in 

Springtown, Texas. Mr. Andren owns at least one firearm that he purchased from 

an FFL in accordance with federal law. Mr. Andren also owns a firearm—used for 

lawful purposes, including but not limited to self-defense—that he manufactured 

himself using materials that Defendants do not currently classify as firearms. Mr. 

Andren wishes to and would continue to manufacture firearms using these products 

but for the Agencies’ new attempt to treat those items as firearms in and of 

themselves. Mr. Andren is a member of Plaintiff FPC. 

14. Plaintiff Tactical Machining, LLC is a producer and retailer of the 

items the Agencies seek to regulate under the Final Rule. Tactical Machining is a 

corporation in good standing registered and located in Deland, Florida. Tactical 

Machining has had several sales direct to customers in this district. Tactical 

Machining currently sells items that Defendants do not currently treat as firearms 

under the GCA—items that Tactical Machining submitted to the ATF for 

classification and that the ATF did not classify as firearms. Should Defendants 

succeed in amending the GCA via the Final Rule, Tactical Machining would be 

prohibited from continuing the direct sale of those items to consumers and would 

be required to serialize all newly regulated items and kits, including already 

existing products. These new requirements will negatively impact Tactical 

Machining and will likely put Tactical Machining out of business, a point that the 

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ATF anticipates and acknowledges in the Final Rule. Final Rule, at 24,723. At 

minimum, these new requirements will cost Tactical Machining a significant 

amount of monetary expenditure, including changes in business model, changes in 

product offerings, and a loss of customers. The ATF specifically notes that “there 

are 41 FFL and 43 non-FFL manufacturers that will be affected by the rule[,]” 

which includes Tactical Machining.5 Further, the “ATF estimates the majority of 

affected entities are small entities that would experience a range of costs, the 

largest cost being the dissolution of the entire business[,]” 6 which again includes 

Tactical Machining. Tactical Machining is a member of Plaintiff FPC. 

15. Plaintiff Firearms Policy Coalition, Inc. is a nonprofit organization 

incorporated under the laws of Delaware with its principal place of business in Las 

Vegas, Nevada. FPC’s purposes include defending and promoting the People’s 

rights—especially but not limited to First and Second Amendment rights—and 

advancing individual liberty and restoring freedom. FPC serves its members and 

the public through legislative advocacy, grassroots advocacy, litigation and legal 

efforts, research, education, outreach, and other programs. FPC represents its 

members and supporters—who include gun owners, individuals who wish to 

acquire firearms and ammunition, individuals who wish to manufacture their own 

 

5

 ATF, REGULATORY IMPACT ANALYSIS AND FINAL REGULATORY FLEXIBILITY ANALYSIS 

32 (2022), https://www.atf.gov/file/165811/download. 

6

 Id. at 124. 

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personal use firearms, licensed firearm retailers, shooting ranges, trainers and 

educators, and others—and brings this action on behalf of itself, its members, 

supporters who possess all the indicia of membership, and similarly situated 

members of the public. Plaintiff FPC submitted comments on the Proposed Rule.7

16. Defendant Merrick Garland is the United States Attorney General. As 

the Attorney General, Defendant Garland leads the Department of Justice. The 

Department of Justice oversees the Bureau of Alcohol, Tobacco, Firearms and 

Explosives—the agency that Congress has charged with enforcing the Gun Control 

Act, the National Firearms Act, and other federal laws. Attorney General Garland 

is sued in his official capacity. 

17. Defendant United States Department of Justice is a federal agency 

located at 950 Pennsylvania Avenue, NW, Washington, D.C., 20530. 

18. Defendant Steven Dettelbach is the Director of the Bureau of Alcohol, 

Tobacco, Firearms and Explosives. The Bureau of Alcohol, Tobacco, Firearms and 

Explosives is charged by Congress with enforcing the Gun Control Act, the 

National Firearms Act, and other federal laws. Director Dettelbach is sued in his 

official capacity. 

 

7

 FPC, COMMENT ON ATF’S PROPOSED RULE (Aug. 19, 2021), https://bit.ly/3zxj9RR. 

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

(“ATF”) is a federal agency located at 99 New York Avenue, NE, Washington, 

D.C., 20226. 

JURISDICTION AND VENUE 

20. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because 

Plaintiffs’ claims arise under federal law. 

21. This Court has jurisdiction pursuant to 5 U.S.C. § 701, et seq., 

because Plaintiffs’ claims arise under the Administrative Procedure Act. 

22. This Court has jurisdiction to grant the declaratory relief sought, 

pursuant to 28 U.S.C. § 2201, and additional relief pursuant to 28 U.S.C. § 2202. 

23. Venue is proper in this jurisdiction pursuant to 28 U.S.C. 

§ 1391(e)(1)(B) and (C) because Plaintiffs Andren and VanDerStok reside in this 

district; Plaintiff Tactical Machining has engaged in several business transactions 

in this district; and Plaintiff FPC has members that reside in this district, which 

include Plaintiffs Andren, VanDerStok, and Tactical Machining. 

STATEMENT OF FACTS 

I. Historical Background 

24. When reviewing a regulation of “Arms,” whatever the context, it is 

important to start by recognizing that the “People” have a right to keep and bear 

arms, and that any regulation burdening that right must be measured against 

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historical practices and understandings. “[I]t has always been widely understood 

that the Second Amendment . . . codified a pre-existing right.” N.Y. State Rifle & 

Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2127 (2022) (internal quotation and 

citation omitted). As relevant to this case, that pre-existing right and historical 

practice long encompassed the practice of gunsmithing—the production of 

firearms by private individuals. The rulemaking challenged here would make such 

historical practice nearly impossible for those individuals. Congress certainly did 

not legislate an express ban on such a practice, and basic principles of 

constitutional avoidance counsel against allowing an agency to imply such a likely 

unconstitutional ban from far more limited statutory language. 

25. That technology and manufacturing have evolved since the Founding 

does not alter the fundamental constitutional backdrop. “Just as the First 

Amendment protects modern forms of communications, . . . the Second 

Amendment extends, prima facie, to all instruments that constitute bearable arms, 

even those that were not in existence at the time of the founding.” District of 

Columbia v. Heller, 554 U.S. 570, 582 (2008); see Bruen, 142 S. Ct. at 2132 

(“Thus, even though the Second Amendment’s definition of ‘arms’ is fixed 

according to its historical understanding, that general definition covers modern 

instruments that facilitate armed self-defense.”) (citing Caetano v. Massachusetts, 

577 U.S. 411, 411–12 (2016) (per curiam)). 

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26. Importantly, “[t]he Second Amendment’s text makes no distinction 

between the different methods of acquiring the firearms that Americans have a 

right to keep and bear. The text shows no preference for purchasing a firearm built 

by another individual over building one’s own firearm. After all, it would not be 

much of a right if one unnecessarily had to pay others to exercise it[.]”8

27. The concept of manufacturing a firearm at home is not novel—

personal manufacturing of firearms has occurred since long before the Founding of 

our Nation. In fact, “[p]rivately made firearms have been in existence since the 

first ignition system was developed close to 500 years ago, in the 1400s.”9 During 

colonial times, American citizens manufactured and repaired arms—a valued skill 

that signified America’s independence and self-reliance.10 “Despite the emergence 

of armories, mass production, and the innovation of prominent manufacturers, the 

role of the individual never went away and still exists today.”11 Accordingly, The 

relevant history of arms in this country reflects a long and celebrated tradition of 

 

8

 Joseph G.S. Greenlee, The American Tradition of Self-Made Arms, 54 ST. MARY’S L.J., 

at 9 (Apr. 11, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3960566. 

9

 Stop Gun Violence: Ghost Guns, Hearing before the Subcomm. on the Constitution, 

Comm. on the Judiciary (“Stop Gun Violence”), 117th Cong. 4 (2021) (statement of Ashley 

Hlebinsky, Curator Emerita & Senior Firearms Scholar, Cody Firearms Museum, President, The 

Gun Code, LLC), 

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

ny%20Final.pdf. 

10

 The American Tradition of Self-Made Arms, at 2. 

11 Stop Gun Violence, at 6. 

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gunsmithing by private individuals, for their own benefit as well as for the benefit 

of their fellow citizens and the government. 

28. In light of the historically favorable view of gunsmithing, 

“[r]egulations on self-built arms are not longstanding. In fact, there were no 

restrictions on the manufacture of arms for personal use in America during the 

seventeenth, eighteenth, or nineteenth centuries. All such restrictions have been 

enacted within the last decade.”12 Efforts to restrict that practice thus run headlong 

into the Second Amendment, and efforts to do so through Executive Branch 

expansion of a more limited congressional enactment are particularly suspect.

II. Legal Background 

A. National Firearms Act and Gun Control Act 

29. In 1934, Congress enacted the National Firearms Act (“NFA”), 26 

U.S.C. § 5801 et seq., and “imposed a tax on the making and transfer of firearms 

defined by the Act, as well as a special (occupational) tax on persons and entities 

engaged in the business of importing, manufacturing, and dealing in NFA 

firearms.”13 “Firearms subject to the 1934 Act included [short barreled] shotguns 

 

12 The American Tradition of Self-Made Arms, at 40 (emphasis added). 

13

 National Firearms Act, ATF, https://www.atf.gov/rules-and-regulations/nationalfirearms-act (last visited Aug. 10, 2022). 

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and rifles . . ., certain firearms described as ‘any other weapons,’ machine guns, 

and firearm mufflers and silencers.”14

30. Congress then passed the GCA in 1968, which “amended the NFA 

definitions of ‘firearm’ by adding ‘destructive devices’ and expanding the 

definition of ‘machine gun.’”15

31. As Congress defined it in the GCA, and as it has stood since 1968, 

“[t]he term ‘firearm’ means (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(a)(3). Congress did not independently define the 

terms “frame or receiver” contained in subsection (B) of that overall definition. 

32. Under federal law, it is “unlawful . . . for any person . . . except a 

licensed importer, licensed manufacturer, or licensed dealer to engage in the 

business of importing, manufacturing, or dealing in firearms, or in the course of 

such business to ship, transport, or receive any firearm in interstate or foreign 

commerce[.]” 18 U.S.C. § 922(a)(1)(A). “The term ‘engaged in the business’ 

means . . . as applied to a manufacturer of firearms, a person who devotes time, 

 

14

 Id.

15

 Id.

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attention, and labor to manufacturing firearms as a regular course of trade or 

business with the principal objective of livelihood and profit through the sale or 

distribution of the firearms manufactured.” 18 U.S.C. § 921(a)(21). “The term ‘to 

predominately earn a profit’ means that the intent underlying the sale or disposition 

of firearms is predominately one of obtaining pecuniary gain, as opposed to other 

intents, such as improving or liquidating a personal firearms collection.” 18 U.S.C. 

§ 921(a)(22). 

33. Violations of the NFA and GCA can carry criminal penalties, 

including fines and up to five year’s imprisonment. 18 U.S.C. § 924(a)(1)(D) 

(“[W]hoever . . . willfully violates any other provision of this chapter, shall be 

fined under this title, imprisoned not more than five years, or both.”). 

B. Congress’s Delegation to the ATF 

34. The Attorney General has the authority to enforce the GCA and NFA, 

but lacks the authority to fill gaps or legislate. See 26 U.S.C. § 7801(a)(2)(A) 

(“The administration and enforcement of the following provisions of this title shall 

be performed by or under the supervision of the Attorney General[.]”); 26 U.S.C. 

§ 7805(a) (“[T]he Secretary shall prescribe all needful rules and regulations for the 

enforcement of this title[.]”). 

35. “Congress also authorized the Attorney General to prescribe ‘rules 

and regulations as are necessary to carry out the provisions’ of Chapter 44 of Title 

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18 of the Gun Control Act.” Gun Owners of Am. v. Garland, 19 F.4th 890, 897 

(6th Cir. 2021) (quoting 18 U.S.C. § 926(a)). 

36. “The Attorney General has directed the Director of the Bureau of 

Alcohol, Tobacco, Firearms and Explosives (ATF) to administer, enforce, and 

exercise the functions and powers of the Attorney General with respect to” both the 

GCA and NFA. Id.; see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,527 

(Dec. 26, 2018) (“The Department agrees that regulatory agencies may not 

promulgate rules that conflict with statutes.”).16

37. According to the ATF, “[a]mong ATF’s responsibilities is the 

classification of firearms[.]” Fed. Defs.’ Mot. to Dismiss, California v. ATF, No. 

3:20-cv-06761, 2020 WL 9849685, ECF No. 29, at 12 (N.D. Cal. Nov. 30, 2020).17

C. The ATF’s Prior Classifications 

38. The ATF maintains guides and images to convey and illustrate its 

treatment and classification of certain firearms and non-firearms. 

39. The ATF has had the same answer to this question for decades. “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 

 

16 The Bump-Stock-Type Devices rule is available at: 

https://www.federalregister.gov/documents/2018/12/26/2018-27763/bump-stock-type-devices 

17 All court filings refer to the ECF pagination. 

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bodies” in which the fire-control cavity is completely solid and unmachined have not reached the “stage of manufacture” which would 

result in the classification of a firearm according to the GCA.18

This response was available on the ATF’s website at the time of filing this Petition. 

“Classification letters from the late 1970s through the 1990s repeatedly sought to 

determine whether the ‘manufacturing process’ was sufficiently complete in order 

to be deemed a firearm.” Fed. Defs.’ Mot. for Summ. J., Syracuse v. ATF, No. 

1:20-cv-06885, 2021 WL 23326, ECF No. 98, at 16 (S.D.N.Y. Jan. 29, 2021). The 

ATF supplemented this answer with photos19 for clarification: 

 

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

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

%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last visited Aug. 10, 2022). 

19

 Id. (retrieved on Aug. 10, 2022). 

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40. ATF also answered the question of whether there are “restrictions on 

who can purchase receiver blanks[,]” stating, “[t]he Gun Control Act (GCA) does 

not impose restrictions on receiver blanks that do not meet the definition of a 

‘firearm.’”20 This response was available on the ATF’s website at the time of filing 

this Petition. 

D. Campaign Statements, Announcement, and Rulemaking Process 

41. Before President Biden took office, one of his campaign pillars was an 

amorphous plan to combat “gun violence.” This plan included “stop[ping] the 

 

20

 Are there restrictions on who can purchase receiver blanks?, ATF, 

https://www.atf.gov/firearms/qa/are-there-restrictions-who-can-purchase-receiver-blanks (last 

visited Aug. 10, 2022). 

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proliferation of these so-called ‘ghost guns’ by passing legislation requiring that 

purchasers of gun kits or [a] 3D printing code pass a federal background check.”21

42. Once elected, President Biden “urged Congress to swiftly pass gun 

control laws[.]”22 When Congress did not act to the Biden Administration’s liking, 

President Biden instead called upon the Agencies to dramatically expand their 

interpretation of the congressionally defined term “firearm” in order to accomplish 

the legislative agenda Congress itself declined to adopt. 

43. On April 11, 2022, President Biden declared that he had “instructed 

the Attorney General to write a regulation that would rein in the proliferation of 

‘ghost guns’ because [he] was having trouble getting it passed in the Congress[.]”23 

44. On May 21, 2021, the Department of Justice published a Proposed 

Rule directly in line with the Administration’s public stance and statements. 

Definition of “Frame or Receiver” and Identification of Firearms (“Proposed 

Rule”), 86 Fed. Reg. 27,720 (proposed May 21, 2021).24

 

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

https://joebiden.com/gunsafety/ (last visited Aug. 10, 2022). 

22 Biden Considers executive actions on guns, calls on Congress to pass weapons ban,

REUTERS (Mar. 23, 2021), https://www.reuters.com/article/usa-guns-idINKBN2BG0A5. 

23 Biden announces new rules for ‘ghost guns,’ introduces ATF director nominee, CBS

NEWS, at 2:51 (Apr. 11, 2022), https://www.cbsnews.com/video/biden-ghost-guns-atf-directornominee/#x. 

24 The Proposed Rule is available at: 

https://www.federalregister.gov/documents/2021/05/21/2021-10058/definition-of-frame-orreceiver-and-identification-of-firearms 

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45. The Biden Administration has sought to end run Congress and place 

restrictions on the ability of peaceable Americans to acquire materials to selfmanufacture firearms. The Final Rule requires rigorous compliance with a 

labyrinth of rules should a privately manufactured firearm ever come into the 

hands of a licensed dealer. This will naturally cause licensed dealers to turn away 

privately manufactured guns for repairs to avoid tangling with the complicated 

regulatory scheme, thus disincentivizing Americans to take part in the pastime of 

self-manufacturing guns. And this Administration will put numerous companies 

that produce these newly-regulated items and kits out of business—despite those 

companies’ specific reliance on the Agencies’ longstanding application of federal 

law.

46. The newly proposed regulation, inspired by the Biden 

Administration’s promises, takes stances that defy statutory construction and longstanding agency interpretation. 

III. The Agencies’ Unlawful Redefinition of “Firearm” 

A. Unlawful Definition of Frames or Receivers 

47. Statutorily, as it has stood since Congress enacted the GCA in 1968, 

“[t]he term ‘firearm’ means (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 

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

antique firearm.” 18 U.S.C. § 921(a)(3). 

48. The Agencies’ prior regulation defines a “frame or receiver” as “[t]hat 

part of a firearm which provides housing for the hammer, bolt or breechblock, and 

firing mechanism, and which is usually threaded at its forward portion to receive 

the barrel.” 27 C.F.R. § 478.11. This definition was established by an agency 

rulemaking in 1978. Title and Definition Changes, 43 Fed. Reg. 13,531, 13,537 

(Mar. 31, 1978). 

49. Just nine days after President Biden was sworn into office, the ATF 

recognized in a court filing that “pursuant to the . . . statutory definition, a device is 

a firearm if it is either: (1) a frame or receiver or (2) a device that is designed to or 

can readily be converted into a device that expels a projectile. Importantly, the 

‘designed to’ and ‘readily be converted’ language are only present in the first 

clause of the statutory definition.” Fed. Defs.’ Mot. for Summ. J., Syracuse, at 14 

(quoting 18 U.S.C. § 921(a)(3)(A)) (emphasis added). 

50. The ATF not only acknowledged, but affirmatively argued that even a 

nearly complete frame or receiver that can be “readily converted” into a frame or 

receiver was not a firearm under the GCA, nor was it an accurate statutory reading 

of the GCA to take express language from 18 U.S.C. § 921(a)(3)(A) and add it to 

18 U.S.C. § 921(a)(3)(B) when Congress had not done so. Id.

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51. Despite the clear distinction in the statute that “readily converted” is 

sequestered to one section of the statutory definition, the Final Rule did precisely 

what the ATF claimed was inaccurate—it imported “readily converted” into 18 

U.S.C. § 921(a)(3)(B). Final Rule, at 24,739 (“The terms ‘frame’ and ‘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[.]”). 

52. The Agencies newly define “readily” itself 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.” Id. at 24,735. Trailing behind the term “readily” in the Final Rule are eight 

amorphous factors that the ATF will “balance” to determine whether an object that 

is itself neither a weapon nor a frame or receiver of a weapon can nonetheless be 

“readily converted” into a firearm. Id. These factors include time, ease, expertise, 

equipment required, parts availability, expense, scope, and feasibility. Id. The Final 

Rule does not give any indication as to the weight assigned to each factor, giving 

the ATF near complete discretion on all classifications moving forward. 

53. The Agencies’ new interpretation of the GCA defies canons of 

statutory interpretation. Congress has the power to insert “readily converted” 

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within the subsection addressing “the frame or receiver of any such weapon” in the 

GCA and chose not to. Importing such an extension where Congress has not itself 

done so violates any number of statutory construction canons, not the least of 

which is the clear statement rule. See Clear-Statement Rule, BLACK’S LAW 

DICTIONARY (11th ed. 2019) (“[A] doctrine requiring the legal drafter to use clarity 

of expression before some effect will follow[.]”); Fed. Defs.’ Mot. for Summ. J., 

Syracuse, at 34 (quoting Allison Engine Co., Inc. v. U.S. ex rel. Saunders, 553 U.S. 

662, 671 (2008) (“When Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in disparate inclusion or exclusion.”) 

(internal quotation marks and alteration omitted)). 

54. The Agencies’ newly proposed definition also defies long-standing 

agency precedent. In litigation documents filed just a few days after President 

Biden was sworn in, the ATF declared it “applies a standard under which 

unfinished frames or receivers that have not yet reached a critical stage of 

manufacturing—devices that are not designed to expel a projectile and still require 

many steps, tools, and expertise to be converted into such a device—are not 

firearms within the meaning of the GCA.” Fed. Defs.’ Mot. for Summ. J., 

Syracuse, at 11 (emphasis added).

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55. “An unmachined frame or receiver is not ‘designed’ to expel a 

projectile, because its purpose is not to expel a projectile. Rather, its purpose is to 

be incorporated into something else that is designed to expel a projectile. Holding 

otherwise would mean that every part of a gun is designed to expel a projectile 

and, therefore, would be deemed a firearm under the GCA.” Id. at 31. Notably, the 

ATF recognized this would contravene the purpose of the GCA. Id. at 34 (“Under 

the present definition of ‘firearm,’ any part or parts of such a weapon are included. 

It has been found that it is impractical to have controls over each small part of a 

firearm. Thus, the revised definition substitutes only the major parts of the firearm; 

that is, frame or receiver for the words ‘any part or parts.’”) (internal quotations 

omitted) (quoting S. Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 

2112, 2200). 

56. “The object that is designed to expel a projectile is a gun—not its 

trigger, its hammer, the grip, front sight, or the frame. It is the combination of all 

these things into one that results in an object that is designed to expel a projectile. 

[The party’s] argument that unmachined frames and receivers are firearms because 

they are ‘designed to’ expel a projectile should therefore be rejected.” Id. at 32.

57. The ATF referenced some its own classification letters, including one 

letter that states: “[T]he devices at issue still required both machining to become 

finished frames/receivers and assembly with other parts to become operable 

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firearms. . . . [T]his process is not one whereby an unmachined frame can ‘readily’ 

be converted into a device that expels a projectile.” Id. at 36.

58. “Congress knew how to regulate devices based upon what was 

‘intended’ to be done with them. . . . The absence of analogous language in Section 

921’s definition of ‘firearm,’ forecloses any argument that unfinished frames or 

receivers are firearms simply because they are parts that will later be assembled 

into firearms, or because they are intended to be incorporated into firearms.” Id. at 

34. 

59. Under the Final Rule, the items in the photograph below25 labeled 

“not a firearm” are now firearms because “the terms ‘frame’ and ‘receiver’ include 

a partially complete frame or receiver ‘that is designed to, or may readily be 

completed, assembled, restored, or otherwise converted’ to accept the parts it is 

intended to house or hold.” Final Rule, at 24,685. 

 

25

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

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

%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last visited Aug. 10, 2022). 

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26

60. Additionally, the Agencies can exert broad discretion in determining 

what exactly constitutes a “frame or receiver.” The Final Rule declares, under the 

definition of “frame,” “receiver,” and “variant,” that “[t]he following are 

nonexclusive examples that illustrate the above definitions.” Final Rule, at 24,735 

(emphasis added); see id. at 24,739 (“[T]his section, the terms ‘frame’ and 

‘receiver’ shall include the specific part of a complete weapon, including variants 

thereof, determined (classified) by the Director to be defined as a firearm frame or 

receiver prior to April 26, 2022.”) (emphasis added). 

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61. The Final Rule also provides near complete discretion to the ATF’s 

Director to consider not just the item being classified, but also to consider outside 

information, whether provided with the item or not, to “determine” if it is a frame 

or receiver. Id. at 24,739 (“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.”). In this way, the Final Rule also 

seeks to regulate a “frame or receiver parts kit” as a frame or receiver itself. In 

other words, under the Final Rule, a link to a YouTube video on a retailer or 

producer’s website may have the effect of converting an unregulated item into a 

regulated frame or receiver. 

62. The Final Rule goes so far as to “[e]xpressly exclude[] from the 

definition of ‘frame or receiver’ unformed blocks of metal, liquid polymers, and 

other raw materials” because the ATF’s new classification is so expansive and 

departs so markedly from its previous classifications that they are not obviously 

excluded without explicit mention. Id. at 24,700. But such exclusions are entirely 

arbitrary, cannot be supported by the definitions the ATF otherwise seeks to apply, 

and thus illustrate why such regulatory redefinitions are overbroad and incorrect. 

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63. The Final Rule’s redefinition of “firearm,” specifically as to frames 

and receivers is not consistent with the statutory definition because the Final Rule 

includes items that do not meet the statutory definition of frame or receiver under 

the regulatory definition, thus broadening the ATF’s reach without congressional 

mandate or approval. See 18 U.S.C. § 921(a)(3). 

B. Unlawfully Designating Weapons Parts Kits as “Firearms” 

64. In addition to improperly expanding the terms “frame” and “receiver”, 

the Final Rule unlawfully treats parts kits as “firearms.” Initially, the Proposed 

Rule sought to add “a sentence at the end of the definition of ‘firearm’ in [27 

C.F.R. § 478.11] providing that ‘[t]he term shall include a weapon parts kit that is 

designed to or may readily be assembled, completed, converted, or restored to 

expel a projectile by the action of an explosive.’” Proposed Rule, at 27,726 

(emphasis added). 

65. In the Final Rule, the Agencies contravened their prior position and 

stated, “the language of section 921(a)(3)(A) should be read to include weapon 

parts kits and aggregations of weapon parts that . . . may or may not be designed to 

expel a projectile by the action of an explosive in their present form or 

configuration, but may readily be converted to do so.” Final Rule, at 24,684 

(emphasis added). 

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66. The Final Rule included in the definition of firearm “a weapon parts 

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

otherwise converted to expel a projectile by the action of an explosive.” Id. at 

24,735. 

67. The Agencies’ newly crafted regulatory definition that includes a 

collection of parts within the definition of a firearm defies long-standing agency 

precedent—explicitly argued in litigation in California v. ATF. 

68. In California v. ATF, the ATF declared in its motion to dismiss a 

contrary message to what it purports now, that it is required to regulate weapon 

parts kits: 

As a statutory matter, Congress has legislatively defined a “firearm” 

to be a weapon that may be readily converted to expel a projectile by 

the action of an explosive, or the frame or receiver of such weapon, 

but has explicitly excluded “firearms parts” from that definition. 

Congress has determined that “firearms” are subject to regulation 

under the GCA, and that anything that is not a firearm is largely 

excluded from federal regulation. This leaves a State like California 

free to enact its own regulations of firearm parts (as it has done), but 

does not permit ATF to extend federal regulation beyond the limits 

imposed by Congress. 

Fed. Defs.’ Mot. to Dismiss, California, at 10‒11. In other words, Congress chose 

to regulate complete weapons, or a single component of an incomplete weapon. 

69. The ATF goes on, stating, “Congress has chosen to exclude firearm 

parts from the scope of the GCA, including parts that could be assembled with a 

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homemade receiver and frame to make a firearm. Congress has also chosen to 

permit the home manufacture of unserialized firearms for personal use.” Id. at 20.

70. Congress granted the ATF the limited authority to regulate complete 

weapons (including those that may be readily converted into complete weapons) 

and the actual complete or functional receiver of a such weapon, but not items that 

may someday become a frame or receiver or even the individual parts of a weapon. 

71. In fact, “[t]here is nothing novel about the use of unregulated firearm 

parts to manufacture firearms for personal use; that possibility (whether by lawful 

makers or by prohibited persons) has been evident since Congress’s 1968 decision 

to exclude firearms parts from the GCA.” Id. at 21 n.10.

72. The Agencies now regulate weapon parts kits in contradiction with 

clear statutory language and the Agencies’ own long-standing precedent and 

understanding of the original public meaning of such language. Furthermore, 

Plaintiffs, and millions of other individuals, have relied on the original public 

meaning of such language, as confirmed by the ATF’s long-standing precedent, to 

establish and pursue their personal and business practices. Such a shift would 

detrimentally impact Plaintiffs and the population writ large.

IV. The Agencies’ Further APA Violations 

73. “Between May 21 and August 19, 2021, ATF received over 290,000 

comments on the proposed rule, Definition of ‘Frame or Receiver’ and 

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Identification of Firearms.”26 DOJ published the Final Rule in the Federal Register 

on April 26, 2022. The Final Rule violates numerous provisions of the APA 

beyond just the Agencies’ redefinition of congressionally established terms. 

A. The Definition of “Complete Weapon” is in Excess of the 

Agencies’ Authority 

74. The Agencies newly define a complete weapon as “[a] firearm other 

than a muffler or silencer that contains all component parts necessary to function, 

whether or not assembled or operable.” Final Rule, at 24,747 (emphasis added). 

By including unassembled weapons in the definition of “complete weapon” the 

ATF has created tremendous enforcement uncertainty. 

75. This definition is problematic considering the interchangeability of 

certain gun parts. For example, “law-abiding gun owners who legally own both AR 

rifles and pistols could be charged with a felony if they store their firearms 

unassembled.” Id. at 24,700. This is because an AR rifle and an AR pistol could 

theoretically create a new combination—an AR rifle lower and a pistol upper (with 

a barrel of less than 16 inches), when combined, create a short-barrel rifle. This 

matters because that individual would possess a “complete weapon” that is an NFA 

regulated item and cannot be lawfully owned without a federally issued tax stamp. 

Mere possession of the unregulated AR pistol upper in conjunction with an AR 

 

26 Comments on Proposed Rule 2021R-05, ATF, https://www.atf.gov/rules-andregulations/definition-frame-or-receiver/submit-comment (last visited Aug. 10, 2022). 

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rifle lower could now qualify as a felony under the Agencies’ definition of 

“complete weapon.” 

76. The Final Rule does not sufficiently respond to this dramatic 

expansion of federal regulation, intentional or not—violation of which bears 

potential felony charges, prison time, and the forfeiture of an individual’s right to 

possess a firearm under federal law. 

77. The Agencies fail to adequately address this concern and merely state 

the definition is needed for other purposes. See id. at 24,700 (“Firearms 

manufacturing is a continuum from raw material to a functional item, and the term 

‘complete weapon’ is needed to explain when the frame or receiver of a weapon in 

the process of being manufactured must be identified and recorded as required by 

the regulations.”). The ATF does not explain how the current regulatory system is 

insufficient in this regard, nor does the ATF have the authority to regulate the 

various firearm parts that will be caught up in this definition. 

B. The Final Rule is Not a Logical Outgrowth of the Proposed Rule 

78. The Proposed Rule sought to combine frame or receiver into a less 

technical single definition, defined as “[a] part of a firearm that, when the complete 

weapon is assembled, is visible from the exterior and provides housing or a 

structure designed to hold or integrate one or more fire control components, even if 

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pins or other attachments are required to connect those components to the housing 

or structure.” Proposed Rule, at 27,741. 

79. The Final Rule significantly departed from the Proposed Rule and 

defines “frame” and “receiver” as distinct terms accompanied by nearly six pages 

of diagrams and examples. Final Rule, at 24,735‒41. The Final Rule omitted four 

diagrams from the Proposed Rule and added five new diagrams. Compare

Proposed Rule, at 27,742‒46 with Final Rule, at 24,735‒41. 

80. The new, sweeping definition and diagrams associate a “frame” with 

handguns, a “receiver” with rifles or shotguns, and adds the term “variant,” which 

means “a weapon utilizing a similar frame or receiver design irrespective of new or 

different model designations or configurations, characteristics, features, 

components, accessories, or attachments.” Final Rule, at 24,735.27

 

27 “(1) The term ‘frame’ means the part of a handgun, or variants thereof, that provides 

housing or a structure for the primary energized component designed to hold back the hammer, 

striker, bolt, or similar component prior to initiation of the firing sequence (i.e., sear or 

equivalent), even if pins or other attachments are required to connect such component to the 

housing or structure. (2) The term ‘receiver’ means the part of a rifle, shotgun, or projectile 

weapon other than a handgun, or variants thereof, that provides housing or a structure for the 

primary component designed to block or seal the breech prior to initiation of the firing sequence 

(i.e., bolt, breechblock, or equivalent), even if pins or other attachments are required to connect 

such component to the housing or structure. (3) The terms ‘variant’ and ‘variants thereof’ mean a 

weapon utilizing a similar frame or receiver design irrespective of new or different model 

designations or configurations, characteristics, features, components, accessories, or attachments. 

For example, an AK-type firearm with a short stock and a pistol grip is a pistol variant of an AKtype rifle, an AR-type firearm with a short stock and a pistol grip is a pistol variant of an ARtype rifle, and a revolving cylinder shotgun is a shotgun variant of a revolver.” Final Rule, at 

24,735. 

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81. The definitions are followed by “nonexclusive examples that illustrate 

the above definitions[,]” and sub-definitions of what constitutes a “frame or 

receiver.” Id. at 24,735, 24,739‒41. 

82. Another significant change is that the Proposed rule sought to require 

a “manufacturer, importer, or maker of a firearm” identify “a complete weapon or 

complete muffler or silencer device no later than seven days following the date of 

completion of the active manufacturing process . . . or prior to disposition, 

whichever is sooner,” Proposed Rule, at 27,752, but the Final Rule replaces seven 

days with “no later than close of the next business day,” Final Rule, at 24,748. The 

Agencies did not provide any opportunity for comment on this significant change. 

83. Additional definitions were added to the Final Rule without being 

proposed in the Proposed Rule. For example, the definition of multi-piece frame or 

receiver was added to the Final Rule under sections 478.92(a)(iii) and 

479.102(a)(3) without being proposed in the Proposed Rule. See Final Rule, at 

24,741, 24,747. 

84. Additionally, under section 478.92(a)(4)(iii)(D), the requirements for 

privately made firearms marked by non-licensees was added without being 

proposed. See id. at 24,743. 

85. Although mentioned in the Proposed Rule, the Final Rule, for the first 

time, defines the term “primordial.” See Proposed Rule, at 27,729 (“Although this 

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addition is intended to capture when an item becomes a frame or receiver that is 

regulated irrespective of the type of technology used to complete the assembly, 

frame or receiver molds that can accept metal or polymer, unformed blocks of 

metal, and other articles only in a primordial state would not—without more—be 

considered a ‘partially complete’ frame or receiver.”). 

86. The Final Rule states, “[a]s used in this rule, the term ‘primordial’ 

refers to an item, such as an unmachined block of metal, liquid polymer, or other 

raw material that is in its original natural form or at an early stage of development 

without substantial processing.” Final Rule, at 24,663 n.49 (citing Primordial, 

Oxford English Dictionary, 

https://www.oed.com/view/Entry/151373?redirectedFrom=primordial#eid (“[T]hat 

[which] constitutes the origin or starting point from which something else is 

derived or developed.”)). 

87. In addition to definitional issues, the Proposed Rule and Final Rule 

omit sources that the agency presumably relied on for preparing both rules. The 

public did not have the opportunity to review those sources or provide comment. 

For example, regarding personally manufactured firearms, while the ATF claims 

that they are involved in crimes and difficult to trace, the assertion was 

unsupported by any cited evidence in the Proposed Rule and the ATF declined to 

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make available the evidence on which it purportedly relied for review, notice, and 

comment. 

88. The Final Rule included a significant amount of new and additional 

sources that were not provided to the public for review and comment. See, e.g., 

Final Rule, at 24,657‒58 (citing nearly two pages of DOJ Office of Public Affairs 

“OPA” sources not mentioned in the Proposed Rule; 57 new DOJ/OPA sources are 

cited throughout the entire Final Rule for the first time). 

89. No opportunity for additional comment was made available here on 

these new, critical elements of the Final Rule. 

C. The Agencies’ Failure to Adequately Explain and Failure to 

Consider 

90. The Final Rule fails to adequately explain why the ATF will now treat 

inoperable frames or receivers or inoperable frame or receiver kits as firearms, 

when they were previously not treated as such. Id. at 24,727‒28. The Final Rule 

(and indeed the Proposed Rule) includes “inoperable” without any explanation or 

justification. 

91. Despite suggesting that the ruling is “not intended to alter any prior 

determinations” on what is a “frame or receiver,” id. at 24,662, the ATF appears to 

be changing its mind on at least one firearm right on the face of the Final Rule—

the Beretta AR-70. 

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92. The Final Rule makes factually incorrect claims about split frame 

firearms. “[T]he concept of a ‘split receiver’ was nowhere near new. In fact, selfloading firearms invited, or even required, ‘split’ components as early as their 

introduction. These firearms were incredibly common, undisputedly in common 

lawful use, and thus very unlikely to have gone unnoticed by the ATF and its 

predecessor.”28

93. The ATF has long held that the upper receiver was the “firearm” and 

that the lower receiver and other parts were not themselves firearms. Yet now, the 

ATF is amending the regulation to declare that, for some firearms, such as ARstyle rifles, the lower receiver is the “frame or receiver.” 

94. The “ATF and its precursors were patently aware of striker-fired, 

selfloading firearms that were so tremendously popular they, in large part, led to 

the adoption of the very law the ATF purports to be interpreting. Many of the 

popular imported firearms targeted by the [GCA], which the ATF enforced, meet 

the exact factors the ATF here claims it could not have known about.”29

95. “In addition to this, hundreds of thousands of American made strikerfired pistols were flooding the market by 1968. To suggest that these firearms were 

so rare in what the ATF terms ‘civilian use’ compared to revolvers and break-open 

 

28 FPC, COMMENT ON ATF’S PROPOSED RULE 12‒13 (Aug. 19, 2021), 

https://bit.ly/3zxj9RR. 

29

 Id.

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shotguns, despite their popularity literally preceding the very law the ATF is 

presently interpreting, is implausible, to say the least.”30

CLAIMS FOR RELIEF 

COUNT I 

VIOLATION OF THE APA 

5 U.S.C. § 706 

(Exceeds the ATF’s Statutory Jurisdiction and Authority) 

96. Plaintiffs incorporate the preceding paragraphs by reference as if fully 

set forth herein. 

97. Under 5 U.S.C. § 706(2)(c), “[t]he reviewing court shall . . . hold 

unlawful and set aside agency action, findings, and conclusions found to be . . . in 

excess of statutory jurisdiction, authority, or limitations, or short of statutory 

right[.]” 

98. If the agency’s regulation is not consistent with a statutory definition 

established by Congress, the agency has gone outside the bounds of its authority 

since it derives its authority from Congress. See Peyton v. Reynolds Assocs., 955 

F.2d 247, 251 (4th Cir. 1992) (“If a regulation reflects an administrative 

interpretation which is inconsistent with the plain language of the statute under 

which it is promulgated, we do not defer to the agency’s interpretation.”). And 

 

30

 Id.

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even were there some ambiguity in the legislative language, such ambiguity would 

be resolved in a manner that narrowed, rather than expanded, the relevant statutes, 

consistent with clear statement principles, the constitutional avoidance doctrine, 

and the rule of lenity. The agency would not have discretion to expand any such 

terms to criminalize further behavior and would not receive deference of any such 

interpretive efforts. 

99. “Agencies have only those powers given to them by Congress, and 

enabling legislation is generally not an open book to which the agency may add 

pages and change the plot line.” West Virginia v. EPA, 142 S. Ct. 2587, 2609 

(2022) (quotations and citation omitted). 

100. The Final Rule purports to establish a regulation to “guide” the ATF’s 

administration of the NFA and GCA, but instead regulates new items Congress 

explicitly left out of the definition of “firearm,” and would grant the Agencies new, 

additional authority in excess of that proposed, considered, debated, or passed by 

Congress. 

101. The Agencies are attempting to regulate weapon parts Congress 

explicitly left out of the statute and impose felony charges for violations thereof. 

See 18 U.S.C. § 924(a)(1)(D) (“[W]hoever . . . willfully violates any other 

provision of this chapter, shall be fined under this title, imprisoned not more than 

five years, or both.”). 

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102. The Final Rule exceeds the ATF’s congressionally mandated 

jurisdiction and authority. 

COUNT II 

VIOLATION OF THE APA 

5 U.S.C. § 706 

(Fails to Observe Procedures Required by Law) 

103. Plaintiffs incorporate the preceding paragraphs by reference as if fully 

set forth herein. 

104. Under 5 U.S.C. § 706(2)(D), “[t]he reviewing court shall . . . hold 

unlawful and set aside any action, findings, and conclusions found to be . . . 

without observance of procedure required by law[.]” 

105. The APA’s rulemaking requirements include a mandate for federal 

agencies to provide the public with a meaningful opportunity to comment on the 

elements of a rule and the materials that form the basis for the rule. See, e.g., 

5 U.S.C. § 553(c); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1404 (9th 

Cir. 1995) (“The purpose of the notice and comment requirement is to provide for 

meaningful public participation in the rule-making process.”). 

Final Rule Not a Logical Outgrowth of Proposed Rule 

106. As part of the rulemaking process, the Agencies made significant 

changes to the Final Rule that do not logically grow out of the Proposed Rule. 

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107. An agency is prohibited by the APA from adopting a final rule that 

contains significant changes unless supplemental notice and opportunity to 

comment is provided. See 5 U.S.C. § 706; see also Mid Continent Nail Corp. v. 

United States, 846 F.3d 1364, 1374 (Fed. Cir. 2017) (applying “logical outgrowth” 

doctrine to vacate final rule that significantly deviated from proposed rule without 

notice). 

108. The Final Rule provides separate and distinct definitions for “frame,” 

“receiver,” and “variant” that were not proposed in the Proposed Rule and were not 

provided for comment. 

109. The Proposed Rule defined a frame or receiver as “[a] part of a 

firearm that, when the complete weapon is assembled, is visible from the exterior 

and provides housing or a structure designed to hold or integrate one or more fire 

control components, even if pins or other attachments are required to connect those 

components to the housing or structure.” Proposed Rule, at 27,741. Following the 

definition is just over a dozen illustrations. Id. at 27,742‒46. 

110. The Final Rule omitted four diagrams from the Proposed Rule and 

added five new diagrams. Compare Proposed Rule, at 27,742‒46, with Final Rule,

at 24,735‒41.

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111. The Final Rule significantly altered the time allowed for the 

identification of a firearm, down from 7 days to the next business day. Compare

Proposed Rule, at 27,752, with Final Rule, at 24,748. 

Lack Notice and Comment on Critical Elements of the Final Rule 

112. As part of the rulemaking process, the agencies relied on new 

information and made significant changes to the Final Rule that were not available 

for public comment. See United States v. Nova Scotia Food Prods. Corp., 568 F.2d 

240, 251 (2d Cir. 1977) (“If the failure to notify interested persons of the scientific 

research upon which the agency was relying actually prevented the presentation of 

relevant comment, the agency may be held not to have considered all ‘the relevant 

factors.’”); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir. 

2008) (“It would appear to be a fairly obvious proposition that studies upon which 

an agency relies in promulgating a rule must be made available during the 

rulemaking in order to afford interested persons meaningful notice and an 

opportunity for comment.”). 

113. For example, the Final Rule added 57 DOJ Office of Public Affairs 

sources, among others, that were not present in the Proposed Rule or offered for 

comment. 

114. The Final Rule added definitions and/or regulations for several terms, 

including but not limited to a multi-piece frame or receiver, privately made 

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firearms marked by licensees, and primordial, all without being proposed in the 

Proposed Rule or offered for comment. These definitions also cannot be said to 

have logically outgrown from the Proposed Rule. 

115. The Agencies included voluminous new sources in the Final Rule that 

were not provided for public review nor comment in the Proposed Rule. 

COUNT III 

VIOLATION OF THE APA 

5 U.S.C. § 706 

(Arbitrary, Capricious, and Not in Accordance with Law) 

116. Plaintiffs incorporate the preceding paragraphs by reference as if fully 

set forth herein.

117. Under 5 U.S.C. § 706(2)(A), “[t]he reviewing court shall . . . hold 

unlawful and set aside agency action, findings, and conclusions found to 

be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law[.]” 

Failure to Adequately Explain Change in Position 

118. “It is established administrative law that if the agency fails to 

acknowledge a change [in its position] and adequately explain it, the changed 

position will be afforded no deference in litigation under either Chevron . . . or 

Auer[.]” United Student Aid Funds, Inc. v. Devos, 237 F. Supp. 3d 1, 6 (D.D.C. 

2017) (internal quotation marks and citations omitted). 

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119. The Final Rule drastically departs from the Agencies’ longstanding 

treatment of firearms and non-firearms. 

120. The Final Rule abandons the Agencies’ treatment of non-firearm 

objects that was stated on the ATF’s official website, applied in numerous 

classification letters, and that the ATF argued in support of in active litigation—a 

position that individuals and corporations have relied on to structure their personal 

and business practices. 

121. The Agencies have failed to adequately reconcile their statements in 

California v. ATF and Syracuse v. ATF with their Final Rule, including, but not 

limited to, the Agencies’ treatment of “readily convertible.” 

122. The Agencies include new regulation of certain firearms, including 

but not limited to AR-style firearms and striker-fired handguns, in the Final Rule 

without adequate explanation, given the Agencies knew of both split receivers and 

striker-fired handguns at the time of their prior rulemaking defining firearms, 

which were already popular and widely used. 

123. The Agencies fail to adequately explain why the ATF will now treat 

inoperable frames or receivers or inoperable frame or receiver kits as firearms. 

Failure to Consider Important Aspects of the Problem and Relevant Comments 

and/or Sources 

124. The APA requires federal agencies, including Defendants, to (a) give 

general notice of proposed rulemaking in the Federal Register and thereafter (b) 

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

submission of written data, views, or arguments.” 5 U.S.C. § 553(c). 

125. The House and Senate reports regarding this provision state that “the 

agency must analyze and consider all relevant matter presented.” S. Rep. No. 752, 

796 Cong., 1st Sess. 15 (Nov. 19, 1945); H. Rep. No. 1980, 79th Cong., 1st Sess. 

25 (May 3,1946). 

126. “[Public] participation . . . in the rule-making process is essential in 

order to permit administrative agencies to inform themselves[.]” Report submitted 

by Pat McCarran, Chairman, U.S. Senate Committee on the Judiciary, 

Administrative Procedure Act, Legislative History 1944-46, 79th Cong. (July 26, 

1946). 

127. “[I]t is ‘arbitrary or capricious’ for an agency not to take into account 

all relevant factors in making its determination.” Hanly v. Mitchell, 460 F.2d 640, 

648 (2d Cir. 1972). 

128. Courts have recognized the importance of the public comment 

process, which is designed to prevent a person from being required to resort to, or 

be adversely affected by, significant rulemaking without having the opportunity to 

participate in that rulemaking. See Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 630 

(5th Cir. 2001); Ober v. EPA, 84 F.3d 304, 312‒15 (9th Cir. 1996); Idaho Farm 

Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401‒06 (9th Cir. 1995). 

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129. The Final Rule fails to adequately address a number of comments the 

Agencies received on the Proposed Rule within the Final Rule. For example, the 

Final Rule fails to adequately consider the implications of its “complete weapon” 

definition. See Final Rule, at 24,700 (“[T]he Department disagrees . . . that the 

application of the definition of ‘firearm’ to unassembled weapons creates 

enforcement uncertainty.”). Most importantly, fails to consider the fact that both 

split receivers and striker-fired pistols were in existence in 1968, thus Congress 

could not have intended for the ATF to regulate what it chose to ignore. 

130. There are a variety of other examples of such failure, including, but 

not limited to these instances of the Agencies’ failure to consider relevant 

comments and sources. 

COUNT IV 

VIOLATION OF THE U.S. CONSTITUTION 

U.S. CONST. ART. I 

(Separation of Powers & The Delegation Doctrine) 

131. Plaintiffs incorporate the preceding paragraphs by reference as if fully 

set forth herein. 

132. Article I, Section 1 of the U.S. Constitution provides: “All legislative 

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

133. Article I, Section 3 of the U.S. Constitution directs that the President 

“shall take Care that the Laws be faithfully executed[.]” 

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134. A “fundamental precept” of “another strand of [] separation-of-powers 

jurisprudence, the delegation doctrine,” “is that the lawmaking function belongs to 

Congress, U.S. CONST. ART. I, § 1, and may not be conveyed to another branch or 

entity.” Loving v. United States, 517 U.S. 748, 758 (1996). 

135. “Even before the birth of this country, separation of powers was 

known to be a defense against tyranny,” and “it remains a basic principle of our 

constitutional scheme that one branch of the Government may not intrude upon the 

central prerogatives of another.” Id. at 756‒57. 

136. When the ATF redefined the definition of “firearm,” it did so without 

congressional authority, thus violating the separation of powers. 

137. “[B]oth separation of powers principles and a practical understanding 

of legislative intent make us reluctant to read into ambiguous statutory text the 

delegation claimed to be lurking there.” West Virginia v. EPA, 142 S. Ct. 2587, 

2609 (2022). “A decision of such magnitude and consequence rests with Congress 

itself, or an agency acting pursuant to a clear delegation from that representative 

body.” Id. at 2616 (emphasis added). 

138. Congress may not “abdicate or [] transfer to others the essential 

legislative functions with which it is thus vested.” A.L.A. Schecter Poultry Corp. v. 

United States, 295 U.S. 495, 529 (1935). 

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139. Neither the president nor his subordinates, therefore, may exercise, 

Congress’ legislative power to declare entirely “what circumstances . . . should be 

forbidden” by law. Panama Refining Co. v. Ryan, 293 U.S. 388, 418‒19 (1935). 

140. A violation of the Constitution is always a violation of the APA. See 5 

U.S.C. § 706(2)(B). 

141. The Final Rule is not merely a regulatory change that allows the 

Agencies to enforce the NFA and GCA. The Final Rule would give the Agencies 

new power over new items that are not contemplated nor regulated under federal 

law. This rulemaking constitutes an executive branch agency making new law, 

bearing potential criminal penalties, in violation of the Delegation Doctrine as 

established by the structure of the U.S. Constitution and elucidated by the U.S. 

Supreme Court. 

COUNT V 

VIOLATION OF THE U.S. CONSTITUTION 

U.S. CONST. ART.II 

(The Take Care Clause) 

142. Plaintiffs incorporate the preceding paragraphs by reference as if fully 

set forth herein. 

143. Article I, Section 1 of the U.S. Constitution provides: “All legislative 

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

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144. Article I, Section 7, Clauses 2 and 3 of the U.S. Constitution require 

that “Every Bill” shall be passed by both the House of Representatives and the 

Senate and signed by the President “before it [may] become a Law.” 

145. Article II, Section 3 of the U.S. Constitution directs that the President 

“shall take Care that the Laws be faithfully executed[.]” 

146. A violation of the Constitution is always a violation of the APA. See 5 

U.S.C. § 706(2)(B). 

147. “In the framework of our Constitution, the President’s power to see 

that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). 

148. The Executive Branch cannot create new policies to be enforced with 

the force of federal law in the guise of enforcing a congressional enactment. Id. at 

587–88 (“The President’s order does not direct that a congressional policy be 

executed in a manner prescribed by Congress—it directs that a presidential policy 

be executed in a manner prescribed by the President.”); see Kendall v. U.S. ex rel. 

Stokes, 37 U.S. (12 Pet.) 524, 613 (1838) (rejecting the notion that “the obligation 

imposed on the President to see the laws faithfully executed, implies a power to 

forbid their execution”). 

149. “The Supreme Court has also invoked the Take Care Clause as the 

textual source of the President’s duty to abide by and enforce the laws enacted by 

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Congress—that is, as the instantiation of the President’s duty to respect legislative 

supremacy and not to act contra legem.” Jack Goldsmith & John F. Manning, The 

Protean Take Care Clause, 164 U. PA. L. REV. 1835, 1848 (2016). 

150. “Separate opinions by members of the Youngstown majority expressed 

a like sentiment about the Take Care Clause—that it obliges the President to 

respect the means and ends of statutory policy power specified by Congress. In his 

famous concurrence, Justice Jackson wrote that the clause confers on the President 

‘a governmental authority that reaches so far as there is law,’ thereby 

‘signify[ing] . . . that ours is a government of laws, not of men, and that we submit 

ourselves to rulers only if under rules.’” Id. at 1849‒50. 

151. “To similar effect, Justice Frankfurter quoted Justice Holmes for the 

proposition that ‘[t]he duty of the President to see that the laws be executed is a 

duty that does not go beyond the laws or require him to achieve more than 

Congress sees fit to leave within his power.’ Likewise, in Justice Douglas’s words, 

any authority conferred by the clause ‘starts and ends with the laws Congress has 

enacted.’” Id. at 1850. 

152. The Final Rule is not a faithful execution of congressionally enacted 

law. Instead, it is an executive created law offered under the guise of enforcing the 

NFA and GCA. The Final Rule violates the prohibition on the Executive of making 

law and violates the president’s duty to ensure the laws are faithfully executed. 

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COUNT VI

VIOLATION OF THE U.S. CONSTITUTION 

U.S. CONST. AMEND. V 

(Void for Vagueness) 

153. Plaintiffs incorporate the preceding paragraphs by reference as if fully 

set forth herein. 

154. A person of ordinary intelligence could not determine from the statute 

or the rule itself whether various objects were regulated. See Kolender v. Lawson, 

461 U.S. 352, 357 (1983) (“[T]he void-for-vagueness doctrine requires that a penal 

statute define the criminal offense with sufficient definiteness that ordinary people 

can understand what conduct is prohibited and in a manner that does not encourage 

arbitrary and discriminatory enforcement.”). 

155. The indeterminacy of the various tests gives the Agencies virtually 

unlimited and unpredictable discretion. See, e.g., Final Rule at 24,735 (listing eight 

un-ranked factors to determine what “readily” means); id. at 24,735‒41 (listing six 

pages of non-exclusive illustrations of what constitutes a “frame,” “receiver,” or 

“variants thereof”); id. at 24,739 (empower the Director to 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,” when classifying items). 

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156. Even long-standing agency classification letters are subject to change, 

thus adding to the obscurity. See Fed. Defs.’ Mot. for Summ. J., Syracuse, at 40 

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

classification letters make plain that the ATF has consistently adopted a standard 

whereby the degree of machining to the frame or receiver determined whether that 

device constituted a firearm.”). 

157. The Final Rule is unduly vague and violates the void for vagueness 

doctrine. 

PRAYER FOR RELIEF

Plaintiffs request the following relief from this Honorable Court: 

1. Holding unlawful and setting aside the Final Rule; 

2. Issuing preliminary and permanent injunctive relief enjoining 

Defendants from enforcing or implementing the Final Rule; 

3. Postponing the effective date of the Final Rule; 

4. Awarding Plaintiffs the costs of this action and reasonable attorney’s 

fees; and 

5. Awarding Plaintiffs such other relief as is just and appropriate. 

Respectfully submitted, 

/s/ R. Brent Cooper 

R. Brent Cooper (TX Bar No. 04783250) 

COOPER & SCULLY, P.C. 

900 Jackson Street, Suite 100 

Dallas, Texas 75202 

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Telephone: (214) 712-9500 

Telecopy: (214) 712-9540 

brent.cooper@cooperscully.com 

Cody J. Wisniewski* (CO Bar No. 50415) 

FIREARMS POLICY COALITION

5550 Painted Mirage Road, Suite 320 

Las Vegas, NV 89149 

Telephone: (916) 378-5785 

Telecopy: (916) 476-2392 

cwi@fpchq.org 

Kaitlyn D. Schiraldi* (TN Bar No. 039737)

Erin M. Erhardt* (CO Bar No. 49360)

MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way 

Lakewood, CO 80227 

Telephone: (303) 292-2021 

Telecopy: (877) 349-7074 

kschiraldi@mslegal.org 

eerhardt@mslegal.org 

*Pro hac vice applications forthcoming 

Attorneys for Plaintiffs 

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