________________________________________________________________ 

________________________________________________________________ 

No. 23A____ 

________________________________________________________________ 

________________________________________________________________ 

IN THE SUPREME COURT OF THE UNITED STATES 

_______________ 

MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL., APPLICANTS 

v. 

JENNIFER VANDERSTOK 

_______________ 

APPLICATION FOR A STAY OF THE JUDGMENT 

ENTERED BY THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

_______________ 

ELIZABETH B. PRELOGAR 

 Solicitor General 

 Counsel of Record 

 Department of Justice 

 Washington, D.C. 20530-0001 

 SupremeCtBriefs@usdoj.gov 

 (202) 514-2217 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 1 of 44 PageID 5087
PARTIES TO THE PROCEEDING 

Applicants (defendants-appellants below) are the U.S. Department of Justice; the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF); Merrick B. Garland, in his official capacity as 

Attorney General of the United States; and Steven Dettelbach, in 

his official capacity as Director of ATF. 

Respondents (plaintiffs-appellees below) are Jennifer 

VanDerStok; Michael G. Andren; Tactical Machining, L.L.C.; and 

Firearms Policy Coalition, Inc. Additional respondents (intervenor plaintiffs-appellees below) are Blackhawk Manufacturing Group, 

Inc. (doing business as 80 Percent Arms); Defense Distributed; 

Second Amendment Foundation, Inc.; Not An L.L.C. (doing business 

as JSD Supply); and Polymer80, Inc. 

RELATED PROCEEDINGS 

United States District Court (S.D. Tex.): 

VanDerStok v. Garland, No. 22-cv-691 (July 5, 2023) 

United States Court of Appeals (5th Cir.): 

VanDerStok v. Garland, No. 22-11071 (notice of appeal filed 

Nov. 1, 2022) 

VanDerStok v. Garland, No. 22-11086 (notice of appeal filed 

Nov. 4, 2022) 

VanDerStok v. Garland, No. 23-10463 (notice of appeal filed 

May 1, 2023) 

VanDerStok v. Garland, No. 23-10718 (July 24, 2023) (denying 

stay pending appeal) 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 2 of 44 PageID 5088
IN THE SUPREME COURT OF THE UNITED STATES 

_______________ 

No. 23A____ 

MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL., APPLICANTS 

v. 

JENNIFER VANDERSTOK 

_______________ 

APPLICATION FOR A STAY OF THE JUDGMENT 

ENTERED BY THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

_______________ 

Pursuant to Rule 23 of the Rules of this Court and the All 

Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of 

applicants Merrick B. Garland, et al., respectfully applies for a 

stay of the judgment entered on July 5, 2023, by the United States 

District Court for the Northern District of Texas (App., infra, 

6a-45a), pending the consideration and disposition of the government’s appeal to the United States Court of Appeals for the Fifth 

Circuit and, if the court of appeals affirms, pending the timely 

filing and disposition of a petition for a writ of certiorari and 

any further proceedings in this Court. 

This case concerns a district court’s nationwide vacatur of 

a regulation issued by the Bureau of Alcohol, Tobacco, Firearms, 

and Explosives (ATF) to respond to the urgent public safety and 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 3 of 44 PageID 5089
2 

law enforcement crisis posed by the exponential rise of untraceable 

firearms commonly called “ghost guns.” Ghost guns can be made 

from kits and parts that are available online to anyone with a 

credit card and that allow anyone with basic tools and rudimentary 

skills (or access to Internet video tutorials) to assemble a fully 

functional firearm in as little as twenty minutes. Some manufacturers of those kits and parts assert that they are not “firearms” 

regulated by federal law, and thus can be sold without serial 

numbers, transfer records, or background checks. Those features 

of ghost guns make them uniquely attractive to criminals and others 

who are legally prohibited from buying firearms. 

Over the last several years, police departments around the 

Nation have confronted an explosion of crimes involving ghost guns. 

In 2017, law enforcement agencies submitted roughly 1600 ghost 

guns to the Bureau of Alcohol, Tobacco, Firearms, and Explosives 

(ATF) for tracing. App., infra, 52a. By 2021, that number was 

more than 19,000 -- an increase of more than 1000% in just four 

years. Ibid. And those submissions to ATF have been largely 

futile because the lack of serial numbers makes ghost guns “nearly 

impossible to trace.” Ibid. 

In 2022, ATF responded to that crisis by issuing a regulation 

updating its interpretation of the statutory definition of a regulated “firearm.” See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022) (Rule). 

In defining that term, Congress recognized that limiting the fedCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 4 of 44 PageID 5090
3 

eral firearms laws to functional firearms would invite evasion, 

and it thus broadly defined “firearm” to include “any weapon” that 

“will or is designed to or may readily be converted to expel a 

projectile by the action of an explosive.” 18 U.S.C. 921(a)(3)(A). 

Congress also included “the frame or receiver of any such weapon,” 

18 U.S.C. 921(a)(3)(B), ensuring that the key structural component 

of a firearm is subject to serial-number, background-check, and 

recordkeeping requirements, even if it is sold alone. 

The Rule addresses both of those prongs of that definition. 

It makes clear that a parts kit that allows a purchaser to readily 

assemble an operational weapon is a “firearm.” 27 C.F.R. 478.11; 

see 87 Fed. Reg. at 24,735. And it clarifies that a “frame or 

receiver” includes “a partially complete, disassembled, or nonfunctional frame or receiver” that may be readily converted into 

a functional one -- by, for example, simply drilling holes or 

removing plastic rails to allow the frame or receiver to accept 

other parts. 27 C.F.R. 478.12(c); see 87 Fed. Reg. at 24,739. 

The Rule does not prohibit the purchase, sale, or possession 

of any firearm, nor does it prohibit any individual lawfully entitled to possess a firearm from making one at home. Instead, it 

simply requires compliance with the uncontroversial federal laws 

“imposing conditions and qualifications on the commercial sale of 

arms,” District of Columbia v. Heller, 554 U.S. 570, 626-627 

(2008). Under the statute as interpreted in the Rule, commercial 

manufacturers and sellers of certain weapon parts kits and parCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 5 of 44 PageID 5091
4 

tially completed frames or receivers must obtain licenses, mark 

products with serial numbers, conduct background checks, and keep 

records to allow law enforcement to trace firearms used in crimes.

Manufacturers and sellers of ghost-gun kits, along with other 

plaintiffs, have filed at least a half dozen suits challenging the 

Rule. Two district courts have rejected those challenges or denied 

preliminary relief, and other suits remain pending. In this case, 

however, the district court pretermitted that litigation by vacating the Rule nationwide. The court’s decision rested on a 

cramped interpretation that contradicts both the text of the statute and common sense. And the court compounded its error by 

granting universal relief. 

First, contrary to the district court’s conclusion, a weapon 

parts kit falls squarely within the plain meaning of the statutory 

definition, which expressly includes items that can “readily be 

converted” into functional firearms. 18 U.S.C. 921(a)(3)(A). 

Every speaker of English would recognize that a tax on sales of 

“bookshelves” applies to IKEA when it sells boxes of parts and the 

tools and instructions for assembling them into bookshelves. The 

court’s insistence on treating guns differently contradicts ordinary usage and makes a mockery of Congress’s careful regulatory 

scheme. 

Second, the term “frame or receiver” is naturally read to 

include a partially completed frame or receiver that can readily 

be made functional. Again, that accords with ordinary usage. Just 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 6 of 44 PageID 5092
5 

as a bicycle is still a bicycle even if it is sold without pedals, 

a frame or receiver is still a frame or receiver even if the buyer 

must drill a few holes or remove some plastic tabs before attaching 

other parts of the firearm. And again, the district court’s contrary interpretation transforms Congress’s broad definition of 

“firearm” into a self-defeating invitation to evasion of serialization, recordkeeping, and background-check requirements. 

Third, the district court erred in granting nationwide vacatur. Such universal remedies contradict Article III and traditional equitable principles, which limit courts to “case-by-case 

judgments with respect to the parties in each case.” Arizona v. 

Biden, 40 F.4th 375, 396 (6th Cir. 2022) (Sutton, C.J., concurring). And as three Justices recently emphasized, even if district 

courts were empowered to issue such universal remedies, at the 

very least they must “‘think twice -- and perhaps twice again -- 

before granting’ such sweeping relief.” United States v. Texas, 

143 S. Ct. 1964, 1985 (2023) (Gorsuch, J., concurring in the judgment) (citation omitted). The court failed to do that here. 

The Fifth Circuit stayed the district court’s vacatur to the 

extent it applied to portions of the Rule that respondents had not 

challenged and that the district court had not even purported to 

find unlawful. But the Fifth Circuit declined to stay the vacatur 

of the two challenged provisions. In so doing, it offered no 

analysis of the merits, no defense of the district court’s universal remedy, and no meaningful discussion of the equities. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 7 of 44 PageID 5093
6 

The district court’s universal vacatur is irreparably harming

the public and the government by reopening the floodgates to the 

tide of untraceable ghost guns flowing into our Nation’s communities. Once those guns are sold, the damage is done: Some will 

already be in the hands of criminals and other prohibited persons 

-- and when they are inevitably used in crimes, they are untraceable. Those profound harms to public safety and law enforcement 

dwarf any harm a stay would impose on respondents. Under a stay, 

respondents would remain free to make, sell, and buy weapon parts 

kits and partial frames and receivers; they would need to comply 

only with the same straightforward and inexpensive administrative 

requirements that apply to commercial sales of all other firearms.

This Court should stay the district court’s vacatur in full. 

A stay would prevent further irreparable harm to the public while 

allowing the litigation in this case and other challenges to the 

Rule to proceed in the ordinary course. But given the gravity and 

urgency of the public safety issues at stake, if the Court is not 

prepared to grant a stay it may wish to construe this application 

as a petition for a writ of certiorari before judgment, grant the 

petition, and set this case for argument this fall. Cf. United 

States v. Texas, 143 S. Ct. 51 (2022) (No. 22A17). 

STATEMENT 

A. Background 

1. In the Gun Control Act of 1968, Congress imposed requirements on persons who import, manufacture, or deal in “fireCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 8 of 44 PageID 5094
7 

arms.” 18 U.S.C. 922, 923. Such persons must obtain a federal 

license, maintain records of the acquisition and transfer of firearms, and conduct background checks before transferring firearms 

to non-licensees. 18 U.S.C. 922(t), 923(a) and (g)(1)(A). Importers and manufacturers are also required to identify firearms 

with a serial number on the receiver or frame. 18 U.S.C. 923(i). 

As this Court has recognized, that “comprehensive scheme” has 

“twin goals”: “keep[ing] guns out of the hands of criminals and 

others who should not have them[] and * * * assist[ing] law 

enforcement authorities in investigating serious crimes.” 

Abramski v. United States, 573 U.S. 169, 180 (2014). The Act’s 

background-check requirements “prevent felons and other prohibited 

persons from acquiring” firearms in the first place. App., infra, 

52a. And the Act’s record-keeping and serialization requirements 

are essential to the investigation and prosecution of crimes because they allow “law enforcement to determine where, by whom, or 

when” a firearm was manufactured and “to whom [it was] sold or 

otherwise transferred.” 87 Fed. Reg. at 24,652. 

Congress broadly defined “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.” 18 

U.S.C. 921(a)(3). Congress did not define the terms “frame” or

“receiver,” which generally refer to the primary structural comCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 9 of 44 PageID 5095
8 

ponents of firearms to which fire-control components are attached. 

Congress authorized the Attorney General to prescribe “such 

rules and regulations as are necessary to carry out” the Act. 18 

U.S.C. 926(a). The Attorney General has delegated that authority 

to ATF. 28 C.F.R. 0.130(a). In 1968, ATF promulgated a regulation 

defining “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.” 33 Fed. Reg. 18,555, 18,558 (Dec. 14, 1968). 

That regulation “provide[d] direction as to which portion of a 

weapon is the frame or receiver for purposes of licensing, serialization, and recordkeeping, thereby ensuring that a component 

necessary for the functioning of the weapon could be traced if 

later involved in a crime.” 87 Fed. Reg. at 24,652. 

2. The Rule at issue here took effect on August 24, 2022. 

87 Fed. Reg. at 24,652. It updates ATF’s regulations concerning 

the definition of a firearm and related requirements, and specifically addresses the rapid proliferation of ghost guns. This case 

concerns two provisions of the Rule. 

First, the Rule clarifies that the statutory definition of

“firearm” includes certain parts kits. As the Rule explains, 

“technological advances have * * * made it easier for companies 

to sell firearm parts kits” -- “some of which contain all of the 

components necessary” for a buyer “to complete a functional weapon 

within a short period of time.” 87 Fed. Reg. at 24,652, 24,662. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 10 of 44 PageID 5096
9 

For example, one kit permits a purchaser to assemble a fully functional Glock-style semiautomatic pistol in as little as 21 minutes. 

App., infra, 70a-71a, 81a-88a; see id. at 82a-83a (photographs of 

weapon parts kits). Because some manufactures failed or refused 

to treat such kits as firearms, they did not mark them with serial 

numbers, and sellers did not maintain records of their transfer or 

conduct background checks on purchasers. See 87 Fed. Reg. at 

24,655, 24,662. For those reasons, it has proved almost impossible 

for law enforcement to trace such firearms when they are used in 

crimes: out of 45,240 unserialized firearms recovered from crime 

scenes from 2016 through 2021 that were submitted for federal 

tracing, ATF was able to successfully complete only 445 traces to 

individual unlicensed purchasers. Id. at 24,656, 24,659. 

To make clear there is no ghost-gun regulatory loophole, the 

Rule defines “firearm” to “include a weapon parts kit that is 

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

otherwise converted to expel a projectile by the action of an 

explosive.” 87 Fed. Reg. at 24,735. And the Rule defines “readily” as “[a] process, action, or physical state that is fairly or 

reasonably efficient, quick, and easy,” noting that the “factors 

relevant in making this determination include” the “[t]ime,” “difficult[y],” “knowledge,” “skills,” and “[e]quipment” associated 

with “finish[ing] the process.” Ibid. ATF explained that regulating such kits is consistent with Section 921(a)’s definition of

“firearm,” which includes “any weapon” that “is designed to or may 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 11 of 44 PageID 5097
10 

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

explosive,” 18 U.S.C. 921(a)(3)(A). See 87 Fed. Reg. at 24,662. 

Second, the Rule clarifies the Act’s definition of “frames or

receivers.” The Rule explains that, as with weapon parts kits, 

“partially complete or unassembled frames or receivers * * * are 

often sold in kits where the frame or receiver can readily be 

completed or assembled to a functional state.” 87 Fed. Reg. at 

24,663. Some frame or receiver kits can be completed in under 30 

minutes. Id. at 24,686. And a manufacturer can “produc[e] and 

sell[] frames or receivers that are missing * * * a single hole 

necessary to install the applicable fire control component, or 

that has a small piece of plastic that can easily be removed to 

allow installation of that component.” App., infra, 54a.1 Before 

ATF’s adoption of the Rule, it was sometimes unclear whether the 

prior regulation’s definition of “frame or receiver” covered such 

products. See 87 Fed. Reg. at 24,663. 

The Rule therefore provides that “[t]he 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.” 87 Fed. Reg. at 24,739. The Rule lists examples of 

1 For pictures, see p. 23, infra. For a video of the 

assembly of a frame parts kit that was cited in the Rule’s preamble, see https://web.archive.org/web/20200331211935/https://www.

youtube.com/watch?v=ThzFOIYZgIg (cited at 87 Fed. Reg. at 47,686). 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 12 of 44 PageID 5098
11 

products that fall within that definition. A kit containing the 

necessary parts and “a compatible jig or template” so that “a 

person with online instructions and common hand tools may readily 

complete or assemble” the parts “to function as a frame or receiver” is included under the Rule. Ibid. The Rule likewise 

covers a “partially complete billet or blank of a frame or 

receiver” -- that is, a machined, molded, or manufactured frame or 

receiver structure -- “with one or more template holes drilled or 

indexed in the correct location” so that “a person with common 

hand tools may readily complete the billet or blank to function as 

a frame or receiver.” Ibid. 

B. Proceedings Below 

1. Respondents -- two individual firearm owners, two advocacy organizations, and five entities that manufacture or distribute products regulated by the Rule -- filed or intervened in this 

suit. As relevant here, they challenged the portions of the Rule 

that define “firearm” to include certain weapon parts kits and 

define “frame or receiver” to include some partially complete, 

disassembled, or nonfunctional frames and receivers, alleging that 

those provisions of the Rule are inconsistent with the Act. 

Between September 2022 and March 2023, the district court 

entered a series of preliminary injunctions based on its determination that the two challenged provisions of the Rule were likely 

contrary to the Act. See, e.g., D. Ct. Doc. 118, at 3, 5-6 (Nov. 

3, 2022). The preliminary injunctions only prohibited the govCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 13 of 44 PageID 5099
12 

ernment from enforcing the two challenged provisions against certain respondents and the customers of some of the manufacturing 

respondents. See, e.g., id. at 11-12. In so doing, the court 

“decline[d] [respondents’] invitation to issue a nationwide injunction.” D. Ct. Doc. 89, at 19 (Oct. 1, 2022). In the court’s 

view, “a broad injunction would [have] far exceed[ed] the ‘particular’ tailoring necessary to redress [respondents’] injuries.” 

Ibid. The government appealed those party-specific preliminary 

injunctions but did not seek stays pending appeal. 

2. On June 30, 2023, the district court granted respondents’ motions for summary judgment, finding that ATF “acted in 

excess of its statutory jurisdiction” in adopting the two challenged portions of the Rule. App., infra, 40a; see id. at 6a-43a. 

As to weapon parts kits, the district court held that “Congress’s definition does not cover weapon parts, or aggregations of 

weapon parts, regardless of whether the parts may be readily 

assembled into something that may fire a projectile.” App., 

infra, 37a. The court believed ATF’s contrary interpretation 

“render[s] [Section] 921(a)(3)(B)’s carveout for ‘frame[s] or receiver[s]’ superfluous.” Ibid. The court also noted that the 

Act’s destructive-device provision includes language referring to 

“any combination of parts” or parts that “may be readily assembled.” Id. at 38a (quoting 18 U.S.C. 921(a)(4)(C)). In the 

court’s view, Congress’s use of such language elsewhere in the Act 

indicates that the phrase “may readily be converted to” a working 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 14 of 44 PageID 5100
13 

firearm, 18 U.S.C. 921(a)(3), does not include “a weapon parts kit 

that * * * may readily be * * * assembled” into a working 

firearm, 87 Fed. Reg. at 24,735. See App., infra, 38a. 

The district court also found invalid the Rule’s provision 

defining “frame or receiver” to include a partially complete, disassembled, or nonfunctional frame or receiver. App., infra, 30a35a. The court “acknowledge[d]” that the statute gives ATF some 

“discretion to decide ‘whether a particular component is a frame 

or receiver’ based upon that component’s degree of completeness.” 

Id. at 33a (citation omitted). But the court viewed the Rule as 

treating an item as a frame or receiver “even after ATF determines 

that the component in question is not a frame or receiver.” Id. 

at 33a-34a. And the court emphasized that “Congress could have” 

-- but did not -- “include[] firearm parts that ‘may readily be 

converted’ to frames or receivers, as it did with ‘weapons’ that 

‘may readily be converted’ to fire a projectile.” Id. at 32a 

(quoting 18 U.S.C. 921(a)(3)(A)). The court therefore held that 

“[a] part that has yet to be completed or converted to function as 

a frame or receiver is not a frame or receiver.” Id. at 34a. 

The district court vacated the Rule nationwide, relying on 

Fifth Circuit precedent holding that vacatur is the “default rule” 

whenever a district court finds that an agency action is unlawful. 

App., infra, 41a (citation omitted). The court rejected the government’s request to limit relief “to the parties.” Id. at 42a. 

And although respondents had challenged only two discrete proviCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 15 of 44 PageID 5101
14 

sions of the Rule, the court extended the vacatur to the entire 

Rule without explanation or analysis. Ibid. 

3. On July 5, the district court entered a final judgment

memorializing its vacatur of the Rule. App., infra, 44a-45a. On 

July 18, the court declined to stay the vacatur pending appeal but 

granted a seven-day administrative stay. Id. at 5a. 

4. On July 24, the Fifth Circuit granted in part and denied 

in part a stay pending appeal. App., infra, 1a-4a. The court 

concluded that the government was likely to succeed on its argument 

that “the vacatur was overbroad” because the district court had 

“analyzed the legality of only two of the numerous provisions of 

the rule, which contains an explicit severability clause.” Id. at 

3a (citing 87 Fed. Reg. at 24,730). But the Fifth Circuit declined 

to stay the vacatur of the two challenged provisions of the Rule, 

stating without elaboration that “ATF has not demonstrated a strong 

likelihood of success on the merits, nor irreparable harm in the 

absence of a stay.” Ibid. The court expedited the appeal, ibid., 

and will hold oral argument on September 7, 2023, see C.A. Doc. 63 

(July 25, 2023).2

2 The Fifth Circuit’s stay order specified that, “[t]o 

allow time for additional proceedings as appropriate, this order 

is administratively STAYED for 10 days.” App., infra, 4a. That 

appears to have been a response to the government’s request that, 

if the Fifth Circuit declined to stay the district court’s vacatur

pending appeal, it “enter an administrative stay of at least ten 

days to permit the Supreme Court to consider an application for a 

stay.” C.A. Doc. 9, at 1 (July 18, 2023). But the Fifth Circuit 

stayed its own order rather than the district court’s vacatur, 

which means that the vacatur of the entire Rule took effect when 

the district court’s seven-day administrative stay expired at 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 16 of 44 PageID 5102
15 

ARGUMENT 

An applicant for a stay pending appeal and certiorari must 

establish (1) “a reasonable probability that this Court would 

eventually grant review,” (2) “a fair prospect that the Court would 

reverse,” and (3) “that the applicant would likely suffer irreparable harm absent the stay” and “the equities” otherwise support 

relief. Merrill v. Milligan, 142 S. Ct. 879, 880 (2022) (Kavanaugh, J., concurring). Those requirements are satisfied here. 

I. THIS COURT WOULD LIKELY GRANT REVIEW IF THE COURT OF APPEALS 

AFFIRMED THE DISTRICT COURT’S NATIONWIDE VACATUR 

The district court’s nationwide vacatur nullifies the central 

provisions of a regulation adopted to respond to the recent explosion of ghost guns and close a perceived loophole that was 

resulting in widespread evasion of the federal laws regulating 

commercial firearm sales. If the Fifth Circuit affirmed the vacatur of those provisions, this Court’s review would plainly be 

warranted: Even in the absence of a circuit conflict, this Court 

frequently grants stays or plenary review in response to district 

court decisions granting universal relief against important federal regulations or policies. See, e.g., Biden v. Nebraska, 143 

S. Ct. 477 (2022) (No. 22A444); Wolf v. Innovation Law Lab, 140 

11:59 p.m. on July 25 -- and that the Fifth Circuit’s partial stay 

of that order will not take effect until August 3. The government 

called the Fifth Circuit’s attention to this apparent oversight, 

see C.A. Doc. 59 (July 25, 2023), but the court has not yet clarified or corrected its order. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 17 of 44 PageID 5103
16 

S. Ct. 1564 (2020) (No. 19A960); Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (No. 19A230). 

II. THE GOVERNMENT IS LIKELY TO SUCCEED ON THE MERITS 

There is more than “a fair prospect that the Court would 

reverse” if it granted review. Merrill, 142 S. Ct. at 880 (Kavanaugh, J., concurring). A weapon parts kit falls within the

plain meaning of the Act’s definition of “firearm.” The term 

“frame or receiver” is naturally interpreted to include partially 

complete receivers that can easily be made functional. And at a 

minimum, the district court erred in granting universal vacatur, 

wiping the Rule off the books nationwide and pretermitting litigation pending in other courts. 

A. A Weapon Parts Kit Falls Within The Plain Meaning Of The

Act’s Definition Of “Firearm” 

1. The Act’s text and context make clear that the weapon 

parts kits covered by the Rule are “firearms” under the Act. The 

Act defines “firearm” to encompass “any weapon * * * which will 

or is designed to or may readily be converted to expel a projectile 

by the action of an explosive.” 18 U.S.C. 921(a)(3)(A). The plain 

meaning of “convert” is “[t]o change or turn from one state to 

another: alter in form, substance, or quality: transform, transmute.” Webster’s Third New International Dictionary of the English 

Language 499 (1968) (Webster’s) (capitalization omitted). The Act 

thus includes items that may readily be “transform[ed]” into a 

working firearm -- or, put differently, items that may readily be 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 18 of 44 PageID 5104
17 

“change[d]” into a functional firearm from a different “state” or 

“form.” Ibid. 

The Rule’s inclusion of parts kits is entirely consistent 

with that plain-text interpretation. The Rule defines “firearm” 

to “include a weapon parts kit that is designed to or may readily 

be completed, assembled, restored, or otherwise converted to expel 

a projectile by the action of an explosive.” 87 Fed. Reg. at 

24,735. The terms “complete[],” “assemble[],” and “restore[]” fit 

comfortably within the plain meaning of “convert”: all are a type 

of transformation or change from one state or form to another. 

When a person “completes” a parts kit, he transforms it from an 

unfinished state or form into a “finished” state. Webster’s 465. 

When he “assembles” a parts kit, he “fit[s] together various parts” 

of the weapon to make it into “an operative whole.” Id. at 131. 

And when he “restores” a parts kit, he “brings [it] back” to its 

“former or original state” as a usable weapon. Id. at 1936. A 

“weapon parts kit that is designed to or may readily be completed, 

assembled, [or] restored” into an operational firearm, 87 Fed. 

Reg. at 24,735, is thus a “weapon * * * which will or is designed 

to or may readily be converted” into an operational firearm, 18 

U.S.C. 921(a)(3)(A). 

Even setting aside the Act’s express inclusion of items that 

can “readily be converted” into usable firearms, a covered firearm 

parts kit qualifies as a firearm as a matter of ordinary usage. 

If a state placed a tax on the sale of tables, chairs, couches, 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 19 of 44 PageID 5105
18 

and bookshelves, IKEA surely could not avoid that tax by claiming 

that it does not sell any of those items and instead sells “furniture parts kits” that must be assembled by the purchasers. So 

too with guns: An ordinary speaker of English would recognize 

that a company in the business of selling kits that can be assembled into firearms in minutes -- and that are designed, marketed, 

and used for that express purpose -- is in the business of selling 

firearms. A contrary conclusion blinks reality. 

2. The district court nonetheless held that the Act’s definition of “firearm” does not include “aggregations of weapon 

parts, regardless of whether the parts may be readily assembled 

into something that may fire a projectile.” App., infra, 37a. 

The court did not attempt to reconcile that conclusion with ordinary usage or with the plain meaning of “convert” -- indeed, the 

court all but read the “may readily be converted” language out of 

the statute. Instead, the court believed that other statutory 

provisions compelled the conclusion that collections of weapon 

parts can never be treated as firearms. But the court misunderstood the provisions on which it relied. 

First, the district court thought that including parts kits

within Section 921(a)(3)(A) would make Section 921(a)(3)(B)’s specific inclusion of “frame[s] or receiver[s]” superfluous because 

it would “read the statute as authorizing regulation of (A) weapon 

parts generally and (B) two specific weapon parts.” App., infra, 

37a. But the Rule does not interpret Section 921(a)(3)(A) to 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 20 of 44 PageID 5106
19 

include “weapon parts generally.” It does not extend to weapon 

parts writ large, such as standalone triggers, barrels, clips, 

frames, or receivers, because those parts cannot “readily be completed, assembled, restored, or otherwise converted” into an operational weapon. 87 Fed. Reg. at 24,735. Instead, the relevant 

part of the Rule reaches only weapon parts kits that “readily” -- 

that is, with “fair[] or reasonabl[e] efficien[cy], quick[ness], 

and eas[e]” -- “may be completed, assembled, restored, or otherwise 

converted to” a functional weapon. Id. at 24,735. Those kits are 

covered by Section 921(a)(3)(A) because they can “readily be converted” into operational firearms. Ibid. Section 921(a)(3)(B), 

in contrast, covers standalone frames or receivers even if they 

are not part of a kit and cannot otherwise be readily converted 

into a functional weapon. There is no superfluity. 

The district court also noted that the Act defines “destructive device” to include “any combination of parts either designed 

or intended for use in converting any device into any destructive 

device * * * and from which a destructive device may be readily 

assembled,” 18 U.S.C. 921(a)(4)(C). App., infra, 37a-38a. In the 

court’s view, because that provision refers to combining parts and 

assembly but Section 921(a)(3)(A) does not, the latter provision 

cannot be read to include weapon parts kits. That is doubly wrong. 

First, Section 921(a)(4)(C) -- which was added to federal law after 

the text at issue here, compare Pub. L. No. 90-351, § 902, 82 Stat. 

197, 227, with Pub. L. No. 90-618, § 102, 82 Stat. 1213, 1214-1215 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 21 of 44 PageID 5107
20 

-- serves a different function by expanding the definition of 

destructive device to include parts “designed or intended for use 

in converting any device into any destructive device,” not just 

combinations of parts that themselves constitute a destructive 

device. 18 U.S.C. 921(a)(4)(C) (emphasis added). Second, and in 

any event, Section 921(a)(3)(A)’s plain text encompasses weapon 

parts kits because completing or assembling a kit is a type of 

“conver[sion]” under the Act. 18 U.S.C. 921(a)(3)(A). It was 

thus unnecessary (and would have been superfluous) for Congress to 

include additional language in Section 921(a)(3)(A). “Congress’s 

use of more detailed language in another provision” that was enacted separately provides no reason to depart from the statute’s 

“most natural reading.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk 

A/S, 566 U.S. 399, 416 (2012). 

3. Finally, the district court’s reading of Section

921(a)(3)(A) leads to bizarre and illogical results that would 

thwart the Act’s careful design. The court appeared to accept 

that “disassembled” weapons are subject to the Act’s requirements, 

App., infra, 39a, but exempted parts kits that can be assembled 

into a fully functional weapon in a matter of minutes, see id. at 

70a-71a, 81a-88a. There is no logical basis for drawing that line, 

which would allow fully functional firearms quickly assembled from 

parts kits to entirely circumvent the Act’s serialization, recordkeeping, and background-check requirements -- preventing law enforcement from tracing those firearms and prosecuting dangerous 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 22 of 44 PageID 5108
21 

criminals. This Court should reject an interpretation that would 

so gravely “undermine -- indeed, for all practical purposes, would 

virtually repeal -- the gun law’s core provisions.” Abramski, 573 

U.S. at 179. Courts “should not lightly conclude that Congress 

enacted a self-defeating statute.” Pugin v. Garland, 143 S. Ct. 

1833, 1841 (2023) (citation omitted). 

B. A Partially Completed Or Nonfunctional Frame Or Receiver 

That Can Readily Be Completed Qualifies As A “Frame Or 

Receiver” 

The Rule also correctly interprets the terms “frame” and “receiver” to 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.” 87 Fed. Reg. at 24,739. In reaching a contrary conclusion, the district court again misread the Act’s text, ignored 

ordinary usage, and adopted a wooden construction that would thwart 

the Act’s design. 

1. A “frame” or “receiver” need not be fully complete or 

functional to fall within the plain meaning of those terms. A 

“frame” is “a basic structural unit onto or into which other constituents of a whole are fitted, to which they attach, or with 

which they are integrated”; in this context, the term refers to 

“the basic unit of a handgun which serves as a mounting for the 

barrel and operating parts of the arm.” Webster’s 902. And a 

“receiver” is “something that acts as a receptacle or container”; 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 23 of 44 PageID 5109
22 

here, “the metal frame in which the action of a firearm is fitted 

and to which the breech end of the barrel is attached” or “the 

main body of the lock in a breech mechanism.” Id. at 1894. Neither 

of those definitions suggests that a product that is missing “a 

single hole necessary to install the applicable fire control component, or that has a small piece of plastic that can easily be 

removed to allow installation of that component,” App., infra, 

54a, ceases to be the “basic unit of a handgun” or its “receptacle 

or container,” Webster’s 902, 1894. The Act likewise lacks any 

language specifying that a “frame” or “receiver” must be “complete,” “operable,” or “functional.” 

Nor does ordinary usage support the district court’s decision 

to read those missing adjectives into the Act. A bicycle is still 

a bicycle even if lacks pedals, a chain, or some other component 

needed to render it complete or allow it to function. So too if 

the bicycle is shipped with plastic guards attached to the gears 

or brakes that must be removed before operation, or with a seat 

tube that the user must cut to length before installing. No one 

could deny that a company selling and shipping products in any of 

those conditions was engaged in selling “bicycles.” 

Again, there is no reason in language or logic to treat firearm frames and receivers any differently. Consider two images 

from a recent ATF document implementing the Rule: 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 24 of 44 PageID 5110
23 

The picture on the left depicts the frame of a Glock-style handgun; 

no one disputes that it is a “frame” covered by the statute. ATF, 

Open Letter on Impact of Final Rule 2021-05F on Partially Complete 

Polymer80, Lone Wolf, and Similar Semiautomatic Pistol Frames, at 

4 (Dec. 27, 2022), https://perma.cc/VP62-S26P (Open Letter). The 

picture on the right depicts a partially complete frame sold by 

respondent Polymer80. Id. at 7. The difference between the two 

is the presence of the “temporary rails or blocking tabs” that are 

circled in red. Id. at 6. Those tabs “are easily removable by a 

person with novice skill, using common tools, such as a Dremeltype rotary tool, within minutes.” Ibid. Once the tabs are 

removed, the Polymer80 product is a fully functional frame that is 

“immediately capable of accepting” the remaining parts of a firearm. Ibid. It is entirely natural to refer to that product as a 

“frame.” In fact, it is hard to know what else to call it. 

The Rule thus accords with the natural reading of the statute 

and ordinary usage. As the Rule notes, “the crucial inquiry is at 

what point an unregulated piece of metal, plastic, or other mateCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 25 of 44 PageID 5111
24 

rial becomes a ‘frame or receiver’ that is a regulated item under 

Federal law.” 87 Fed. Reg. at 24,685. That is inevitably a 

question of degree that cannot be reduced to bright line rules. 

But the Rule’s focus on whether a frame or receiver can “readily” 

be converted to functional status incorporates a concept that is 

familiar in the law and that accords with ordinary usage. 

Some examples illustrate the point. On the one hand, the 

Rule includes frames and receivers missing a single hole or including an unnecessary piece of plastic that can easily be removed. 

App., infra, 54a. The Rule also covers kits containing all necessary parts to rapidly assemble a frame or receiver using tools 

that are part of the kit and common hand tools. 87 Fed. Reg. at 

24,739. That includes “‘partially complete’ pistol frame products” like the Polymer80 product pictured above that “incorporate 

temporary rails or blocking tabs that are easily removable by a 

person with novice skill, using common tools, * * * within 

minutes.” Open Letter 6. On the other hand, the Rule does not 

cover products that, even though they may be a precursor to a frame 

or receiver, lack markings, tabs, or tools that would allow an 

individual to easily make the product functional (and are not 

otherwise readily convertible to a functional frame or receiver). 

See ATF, Open Letter on Impact of Final Rule 2021-05F on Partially 

Complete AR-15/M-16 Type Receivers (Sept. 27, 2022), 

https://perma.cc/4AKT-NWS5. For example, the Rule does not treat 

as a “frame or receiver” a standalone “partially complete AR-type 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 26 of 44 PageID 5112
25 

receiver with no indexing or machining of any kind performed in 

the area of the fire control cavity.” Id. at 3 (emphasis omitted); 

see id. at 3-4 (photographs of products that are not frames or 

receivers under the Rule); see also 87 Fed. Reg. at 24,739 (identifying additional examples of the Rule’s treatment of products). 

The Rule’s understanding of “frame or receiver” is also consistent with ATF’s longstanding interpretation and implementation 

of the Act. As the Rule explains, “ATF has long held that a piece 

of metal, plastic, or other material becomes a frame or receiver 

when it has reached a ‘critical stage of manufacture’” –- that is, 

when a product “is ‘brought to a stage of completeness that will 

allow it to accept the firearm components [for] which it is designed * * * , using basic tools in a reasonable amount of 

time.’” 87 Fed. Reg. at 24,685 (quoting ATF Letter to Private 

Counsel #303304, at 3–4 (Mar. 20, 2015)). Indeed, since shortly 

after Congress adopted the Act, ATF has consistently determined 

that various products should be treated as “frames or receivers” 

based on the manufacturing stage that those products have reached.3

3 For example, in a 1978 classification letter ATF found 

that a partially machined frame “ha[d] reached a stage of manufacture such that it may be readily converted to functional condition” and “[t]herefore[] [was] a firearm.” App., infra, 65a; 

see id. at 67a. Additional examples abound. See, e.g., id. at 

68a (1980 letter explaining that “if an unfinished receiver could 

be converted to functional condition within a few hours[’] time 

using common hand tools, or simple grinding, cutting, drilling, or 

welding operations, it would likely qualify as a firearm”); id. at 

69a (1983 letter finding that a “basically complete” receiver where 

“[a]pproximately 75 minutes * * * was required to make the receiver functional” was a firearm); see also Administrative Record 

1-645 (collecting additional ATF classification letters). 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 27 of 44 PageID 5113
26 

2. The district court “acknowledge[d]” that the statute affords ATF some “discretion to decide ‘whether a particular component is a frame or receiver’ based upon that component’s ‘degree 

of completeness.’” App., infra, 33a (citation omitted). But the 

court viewed the Rule as creating a “logical contradiction” by 

treating parts as “both not yet a receiver and [a] receiver at the 

same time.” Id. at 34a. The Rule does no such thing. Instead, 

it defines the point in the manufacturing process at which an item 

has sufficient qualities to fit within the term “frame or receiver” 

–- at which point it ceases to be a not-yet frame or receiver. 

The district court also emphasized that Congress defined 

“firearm” to include weapons that are “designed to or may readily 

be converted to” function as firearms but did not include a similar 

phrase for frames and receivers. App., infra, 32a. In the court’s 

view, that omission indicates that “frame or receiver” cannot include readily completable frames and receivers. Ibid. But that 

inference does not follow. Section 921(a)(3)(A) is part of the 

express definition of the term “firearm.” If Congress had limited 

that definition to weapons that “will * * * expel a projectile 

by the action of an explosive,” 18 U.S.C. 921(a)(3)(A) (emphasis 

added), it would have departed from ordinary meaning by including 

only functional firearms. In contrast, Congress did not define 

“frame or receiver.” Accordingly, those terms should be interpreted consistent with their ordinary meaning, which is not limited 

to complete or functional frames or receivers. And if anything, 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 28 of 44 PageID 5114
27 

the fact that Congress has repeatedly defined “firearm” and other 

weapons-related terms to include non-operational weapons that can 

easily be converted or restored to an operational state further 

underscores that ATF properly took the same approach in interpreting the undefined terms “frame” and “receiver.” See, e.g., 26 

U.S.C. 5845(b), (c), and (d). 

Finally, the district court’s reading of “frame or receiver” 

thwarts the Act’s manifest design and invites circumvention 

through trivialities. It entirely excuses from the Act’s coverage 

products that, but for a single hole or piece of plastic, are fully 

functional frames and receivers. That would frustrate one of the 

Act’s principal goals: ensuring that firearms transfers are adequately vetted and recorded so that weapons do not fall into the 

hands of prohibited persons (and, when they do, that such persons 

can be prosecuted). The Act should not be read to create such “a 

large and obvious loophole” in its core provisions. Maui v. Hawaii 

Wildlife Fund, 140 S. Ct. 1462, 1473 (2020). 

C. The District Court Erred In Granting Universal Relief

The district court compounded its errors on the merits by 

reflexively granting the sweeping remedy of universal vacatur. As 

Members of this Court have recognized, such universal remedies are 

“inconsistent with longstanding limits on equitable relief and the 

power of Article III courts” and impose a severe “toll” on courts. 

Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring). And even if universal vacatur were not categorically 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 29 of 44 PageID 5115
28 

foreclosed, such “an extraordinary remedy” would “demand truly 

extraordinary circumstances to justify it.” United States v. 

Texas, 143 S. Ct. 1964, 1985 (2023) (Gorsuch, J., concurring in 

the judgment). No such circumstances exist here. 

1. Under Article III, “a plaintiff’s remedy must be ‘limited to the inadequacy that produced his injury.’” Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (brackets and citation omitted). 

Principles of equity reinforce that constitutional limitation. A 

federal court’s authority is generally confined to the relief 

“traditionally accorded by courts of equity” in 1789. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U.S. 

308, 319 (1999); see id. at 318-319. Such relief must “be no more 

burdensome to the defendant than necessary to provide complete 

relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 

702 (1979). Thus, English and early American “courts of equity” 

typically “did not provide relief beyond the parties to the case.” 

Hawaii, 138 S. Ct. at 2427 (Thomas, J., concurring). 

Universal relief is irreconcilable with those constitutional 

and equitable limitations. By definition, it extends to parties 

who were not “plaintiff[s] in th[e] lawsuit, and hence were not 

the proper object of th[e court’s] remediation.” Lewis v. Casey, 

518 U.S. 343, 358 (1996). And when a court awards relief to 

nonparties, it exceeds the relief “traditionally accorded by 

courts of equity” in 1789. Grupo Mexicano, 527 U.S. at 319; see 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 30 of 44 PageID 5116
29 

Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 424-445 (2017) (Bray). 

Universal relief also creates other constitutional, legal, 

and practical problems. It “strains our separation of powers” by 

“allowing individual judges to act more like a legislature by 

decreeing the rights and duties of people nationwide.” Texas, 143 

S. Ct. at 1985 (Gorsuch, J., concurring in the judgment). It 

circumvents the procedural rules governing joinder and class actions. See id. at 1981. It encourages forum shopping by empowering a single district judge to nullify the decisions of other 

courts upholding the challenged agency action. See id. at 1986. 

And it operates asymmetrically: The government must prevail in 

every suit to keep its policy in force, but plaintiffs can derail 

a federal regulation or policy nationwide with a single district

court victory. See DHS v. New York, 140 S. Ct. 599, 601 (2020) 

(Gorsuch, J., concurring in the grant of stay). 

The prospect that a single district court decision can halt 

a government policy nationwide for years while the ordinary appellate process unfolds often leaves the Executive Branch with 

little choice but to seek emergency appellate relief. See New 

York, 140 S. Ct. at 600-601 (Gorsuch, J., concurring in the grant 

of stay). Emergency litigation in turn deprives the judicial 

system, including this Court, of the benefits that accrue when 

different courts grapple with complex legal questions in a conCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 31 of 44 PageID 5117
30 

sidered, orderly dialogue. See Texas, 143 S. Ct. at 1985 (Gorsuch, 

J., concurring in the judgment). 

This case vividly illustrates those problems. The district 

court’s vacatur effectively countermands other district court decisions that have denied at least preliminary relief to other 

plaintiffs challenging the Rule. See Morehouse Enterprises, LLC, 

v. ATF, No. 22-cv-116 (D.N.D. Sept. 27, 2022), appeal pending, 

Nos. 22-2812, 22-2854 (8th Cir.) (Morehouse); Division 80, LLC, v. 

Garland, No. 22-cv-148 (S.D. Tex. June 12, 2023). It also pretermits pending challenges to the Rule in two other district 

courts, see Miller v. Garland, No. 22-cv-2579 (D.D.C.); California 

v. ATF, No. 20-cv-6761 (N.D. Cal.), and a pending Eighth Circuit 

appeal, see Morehouse, supra (argued Mar. 14, 2023). In effect, 

the district court below claimed a veto power over all other federal judges in the country. And the court’s nationwide vacatur 

has compelled the government to seek emergency relief from this

Court, short-circuiting the ordinary process of percolation. 

2. The district court viewed universal vacatur as “a less 

drastic remedy” than an injunction because “vacatur does nothing 

but re-establish the status quo absent the unlawful agency action.” 

App., infra, 42a (citation omitted). But that sidesteps the Article III and equitable bases for limiting relief to the plaintiffs 

before the court -- and ignores the various ways in which nationwide vacaturs disrupt the standard process of litigation. In any 

event, vacatur is practically equivalent to an injunction compelCase 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 32 of 44 PageID 5118
31 

ling the agency to rescind the challenged action. Indeed, the 

court denied respondents’ remaining claims -- including claims for 

permanent injunctive relief -- as “moot” “because vacatur provides 

[respondents] full relief.” Id. at 42a, 45a; see D. Ct. Doc. 93, 

at 57 (Oct. 5, 2022). 

The district court also invoked 5 U.S.C. 706(2), which provides that a reviewing court “shall hold unlawful and set aside 

agency action, findings, and conclusions” found to be unlawful. 

App., infra, 41a. But Section 706(2) does not provide a basis for 

nationwide vacatur. At the outset, Section 706(2) “does not say 

anything about ‘vacating’ agency action (‘wholesale’ or otherwise),” Texas, 143 S. Ct. at 1982 (Gorsuch, J., concurring in the 

judgment); indeed, it does not pertain to remedies at all. Instead, it directs a court to disregard unlawful “agency action, 

findings, and conclusions” in resolving the case before it. 5 

U.S.C. 706(2); see John Harrison, Section 706 of the Administrative 

Procedure Act Does Not Call for Universal Injunctions or Other 

Universal Remedies, 37 Yale J. on Reg. Bull. 37, 42 (2019-2020). 

That understanding is consistent with the standard account of 

judicial review of statutes, which holds that judicial review is 

merely “the negative power to disregard an unconstitutional enactment” in deciding a case. Massachusetts v. Mellon, 262 U.S. 

447, 488 (1923). Of course, when a court declines to give effect 

to an agency action in the case before it on the ground that the 

action is unlawful, it may issue appropriate relief. But 5 U.S.C. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 33 of 44 PageID 5119
32 

703 points outside the Administrative Procedure Act (APA) for the 

available remedies, specifying that “[t]he form of proceeding” is 

a traditional “form of legal action,” such as “actions for declaratory judgments or writs of prohibitory or mandatory injunction or 

habeas corpus.” There is no reason to think that, after “nodd[ing] 

to traditional standing rules and remedial principles” in Section 

703, “Congress proceeded just a few paragraphs later to plow right 

through those rules and empower a single judge to award a novel 

form of relief affecting parties and nonparties alike.” Texas, 

143 S. Ct. at 1983 (Gorsuch, J., concurring in the judgment). To 

the contrary, the contemporaneous understanding of the term “set 

aside” further confirms that it “does not depart from, but rather 

incorporates, background rules of equity and judgments.” Aditya 

Bamzai, The Path of Administrative Law Remedies, 98 Notre Dame L. 

Rev. 2037, 2041 (2023) (Bamzai). 

Even if Section 706 did speak to remedies, it would not suggest that courts should “set aside,” 5 U.S.C. 706(2), a rule on a 

universal basis. Congress enacted the APA against a background 

rule that statutory remedies should be construed in accordance 

with “traditions of equity practice.” Hecht Co. v. Bowles, 321 

U.S. 321, 329 (1944); see Bray 438 n.121. There is nothing to 

suggest that the APA “upset the bedrock practice of case-by-case 

judgments with respect to the parties in each case” by allowing 

every district judge to nullify agency action nationwide. Arizona, 

40 F.4th at 396 (Sutton, C.J., concurring). 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 34 of 44 PageID 5120
33 

3. Even if this Court were to conclude that that the APA 

does authorize universal vacatur -- or if the Court were not prepared to definitively resolve the question now -- it should make 

clear that district courts should stop reflexively imposing that 

profoundly disruptive result as the “default rule” in every case 

challenging agency action. App., infra, 41a (citation omitted). 

Instead, “a district court should ‘think twice -- and perhaps twice 

again -- before granting’ such sweeping relief.” Texas, 143 

S. Ct. at 1985 (Gorsuch, J., concurring in the judgment) (citation 

omitted). At a minimum, a court should “carefully consider” the 

grave systemic and separation-of-powers issues raised by universal 

vacatur. Id. at 1986. And if “party-specific relief can adequately protect the plaintiff’s interests,” then reviewing courts 

“should not hesitate to hold that broader relief is an abuse of 

discretion.” Ibid. 

Here, the district court did not find -- and could not plausibly have found -- that universal vacatur was necessary to provide 

relief to respondents. Indeed, it had previously found just the 

opposite, concluding that universal preliminary relief would have 

“far exceed[ed] the ‘particular’ tailoring necessary to redress 

[respondents’] injuries and afford them complete relief.” D. Ct. 

Doc. 89, at 19. Nor could the court have justified the vacatur’s 

disruptive effects on nonparties and litigation pending before 

coordinate courts. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 35 of 44 PageID 5121
34 

At a minimum, therefore, this Court should stay the district 

court’s vacatur as applied to individuals and entities that are 

not parties to this case. And granting such a stay would be the 

most natural way for the Court to begin to curb the lower courts’ 

routine issuance of universal relief. Once this Court grants 

plenary review, questions about the scope of relief ordinarily 

become less important: Because of “vertical stare decisis,” this 

Court’s holding determines the validity of the challenged agency 

action nationwide even if the judgment is party-specific. Bamzai 

at 2068. The scope of relief matters -- and the serious systemic 

costs of universal remedies are felt -- where, as here, challenges 

to an agency’s action remain pending in the lower courts and have 

not yet reached this Court in the ordinary course. 

III. THE EQUITIES OVERWHELMINGLY FAVOR A STAY 

The district court’s vacatur of the challenged provisions of 

the Rule imposes grave and irreparable harm to the government and 

the public by enabling the irreversible flow of large numbers of 

untraceable ghost guns into our Nation’s communities. On the other 

side of the ledger, a stay would impose only a minimal burden on 

respondents’ lawful activities: They would be entirely free to 

continue making, selling, and buying the exact same products so 

long as they complied with the routine regulatory requirements 

that tens of thousands of licensees abide by on daily basis. 

 A. The recent explosion in the availability and use of ghost 

guns is a grave threat to public safety. Ghost gun kits are 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 36 of 44 PageID 5122
35 

available online to anyone with a credit card -- or, for that 

matter, an anonymous pre-paid “debit card” bought at “7-Eleven.” 

Tom Jackman & Emily Davies, Teens Buying “Ghost Guns” Online, With 

Deadly Consequences, Wash. Post (July 12, 2023) (Teens Buying Ghost 

Guns), https://perma.cc/TJE5-3WF2. Minors in particular “have 

discovered the ease with which they can acquire the parts for a 

ghost gun” and “have been buying, building, and shooting the homemade guns with alarming frequency.” Ibid. 

Ghost guns thus provide a ready means for felons, minors, and 

others who are prohibited from buying firearms to circumvent the 

law -- thwarting Congress’s “comprehensive scheme” intended to 

“verify a would-be gun purchaser’s identity,” “check on his background,” and thereby “keep guns out of the hands of criminals and 

others who should not have them.” Abramski, 573 U.S. at 180. And 

on the back end, the lack of records and serial numbers means that 

ghost guns have “severely undermine[d]” law enforcement’s ability 

to “determine where, by whom, or when” a firearm used in a crime 

was manufactured and “to whom [it was] sold or otherwise transferred.” 87 Fed. Reg. at 24,652, 24,659; see id. at 24,655-24,660. 

That, in turn, has impaired law enforcement’s ability to apprehend 

violent criminals who may pose an ongoing threat to public safety. 

By ensuring that ghost guns are regulated as what they actually 

are -- firearms –- the two challenged provisions of the Rule “prevent easy circumvention of the [Act’s] entire regulatory scheme” 

and are thus “critical to public safety.” App., infra, at 53a. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 37 of 44 PageID 5123
36 

The district court’s vacatur prevents ATF from relying on the 

Rule and effectively gives respondents -- and other ghost-gun manufacturers and sellers -- the green light to resume distribution 

of ghost guns without background checks, records, or serial numbers. That poses an acute threat to public safety. Tens of 

thousands of ghost guns are recovered by law enforcement each year 

-- more than 19,000 in 2021, a 1000% increase from 2017. App., 

infra, 52a. The numbers continue to grow: Over the last eleven

months, more than 23,000 suspected ghost guns “were recovered at 

crime scenes and submitted for tracing.” Id. at 53a. Police 

departments are also confronting “the soaring use of ghost guns in 

violent crimes.” Teens Buying Ghost Guns. 

Vacatur of the challenged provisions has also already created 

–- and will continue to engender -– widespread confusion among law 

enforcement, regulated parties, and the general public. See App., 

infra, 62a-63a. Such confusion harms ATF and the public. ATF has 

devoted substantial resources to implementing and training its own 

officers and the public about the Rule. Ibid. And, except as to 

some respondents and their customers (who obtained preliminary 

injunctions), the entirety of the Rule was effective and enforceable for over ten months -- from its effective date until its 

recent nationwide vacatur. Permitting vacatur to continue during 

this litigation would require ATF to expend substantial additional 

resources to re-educate its officers and the public. Id. at 63a. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 38 of 44 PageID 5124
37 

B. On the other side of the ledger, respondents will incur 

minimal, if any, injuries from a stay of the vacatur of the challenged provisions. Those provisions do not forbid the sale or 

purchase of any firearm, weapon parts kit, or other item. Rather, 

they clarify that certain items are “firearms” and therefore must 

be sold in accordance with the Act’s licensing, recordkeeping, and 

background-check requirements. Those requirements are not particularly onerous. An entity that already possesses a federal 

firearms manufacturer’s license is permitted to sell the firearms 

that it manufactures at retail, see 27 C.F.R. 478.41(b), subject 

to certain restrictions on direct sales to out-of-state customers, 

18 U.S.C. 922(b)(3). Even for such customers, sales are permitted 

so long as the firearm is shipped to a licensee in the customer’s 

state of residence, which can then transfer the firearm to the 

customer after fulfilling background-check and recordkeeping requirements. Respondents who wish to manufacture, sell, or purchase 

regulated products therefore may do so as long as they comply with 

the Act. 

Tens of millions of firearms owners regularly bear the minor 

costs associated with statutory compliance when they purchase 

firearms. And there are around 80,000 licensed firearms manufacturers and dealers around the country -- which comply with the 

Act’s requirements in manufacturing and selling millions of firearms each year. See App., infra, 59a. Critically, three of the 

manufacturing respondents already have federal licenses, which 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 39 of 44 PageID 5125
38 

means that they presumably have in place processes necessary to 

comply with the Act’s serialization and record-keeping requirements. See ATF, Complete Federal Firearms Listings (Jan. 2023), 

https://perma.cc/G3KD-NHWF (entries for Tactical Machining, 

L.L.C.; Blackhawk Manufacturing Group, Inc.; and Polymer80, Inc.). 

It would be a minimal burden for those respondents to abide by 

those processes for products covered by the challenged portions of 

the Rule during the pendency of the appeal. 

In addition, all respondents have been required to comply 

with the Rule’s requirements for at least some period of time. 

The Rule went into effect on August 24, 2022, but the earliest 

that a respondent obtained a preliminary injunction was on September 2, 2022 -- and one of the manufacturing respondents did not 

obtain relief until the district court’s vacatur on June 30, 2023. 

See App., infra, 13a-14a, 21a; D. Ct. Doc. 56 (Sept. 2, 2022). In 

short, requiring respondents to continue to comply with the Act’s 

licensing, recordkeeping, and background-check requirements will 

only require them to incur incidental costs of compliance with the 

Act, which are dwarfed by the substantial harms to the government 

and the public from nationwide vacatur of the Rule. 

C. The Fifth Circuit did not acknowledge the profound harms 

inflicted by the vacatur, conclude that a stay would irreparably 

harm respondents, or otherwise engage in meaningful analysis of 

the equities. Instead, it stated only that the vacatur “effectively maintains, pending appeal, the status quo that existed for 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 40 of 44 PageID 5126
39 

54 years.” App., infra, 3a. That reflects a serious misunderstanding. To begin with, the Rule has been the “status quo” since 

August 2022 for everyone except some respondents and their customers who secured preliminary relief. More fundamentally, there 

was no such thing as a ghost gun in 1968. As recently as 2017, 

they were a novelty being sold in relatively small numbers. It is 

only over the last five years that the manufacturing respondents 

and others have dramatically changed the status quo by selling 

tens if not hundreds of thousands of firearms outside the Act’s 

regulations. Even if respondents might ultimately persuade this 

Court that the Act compels ATF to tolerate such evasion, the approach that would appropriately balance the equities and preserve 

the status quo while the litigation proceeds is a stay -- not a 

vacatur that allows the continued, irreversible flow of ghost guns.

IV. IN THE ALTERNATIVE, THE COURT MAY WISH TO TREAT THIS APPLICATION AS A PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT

For the foregoing reasons, this Court should stay the district 

court’s vacatur. If, however, the Court denies that relief or 

grants it only in part, the Court may wish to construe this application as a petition for a writ of certiorari before judgment, 

grant the petition, and set the case for expedited briefing and 

argument on the question whether the Rule’s challenged provisions 

are consistent with the statutory definition of “firearm.” The 

government would be prepared to brief this case on a schedule that 

would allow it to be argued during the November 2023 sitting. 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 41 of 44 PageID 5127
40 

A writ of certiorari before judgment under 28 U.S.C. 2101(e) 

is an extraordinary remedy, but as in past cases involving universal relief against important government policies, the issues 

presented by the district court’s vacatur are “of such imperative 

public importance as to justify deviation from normal appellate 

practice and to require immediate determination in this Court.” 

Sup. Ct. R. 11; cf. Biden v. Nebraska, 143 S. Ct. 477 (2022) (No. 

22A444); United States v. Texas, 143 S. Ct. 51 (2022) (No. 22A17). 

As explained, every day that the vacatur is in place is another 

day that untraceable ghost guns are entering circulation, often 

through sales to prohibited persons. And although the Fifth Circuit has scheduled oral argument for September 2023, it is impossible to know when that court will issue a decision. If, as seems 

likely, that does not occur until late 2023 or early 2024, this 

Court could not hear the case in the ordinary course until October 

Term 2024 -- which means that the Court may not issue a decision 

on the merits until June 2025, nearly two years from now. Particularly on an urgent public safety issue of national importance, 

a single district judge should not be allowed to dictate universal 

policy for such an extended period absent this Court’s review. 

CONCLUSION 

The application for a stay of the district court’s judgment 

vacating the Rule should be granted. At a minimum, the Court 

should stay the district court’s judgment to the extent it applies 

to nonparties. And if the Court does not stay the vacatur in full, 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 42 of 44 PageID 5128
41 

it may wish to construe this application as a petition for a writ 

of certiorari before judgment, grant the petition, and set the 

case for expedited briefing and argument. 

Respectfully submitted. 

ELIZABETH B. PRELOGAR 

 Solicitor General 

JULY 2023 

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 43 of 44 PageID 5129
APPENDIX

Court of appeals order partially granting and partially 

denying stay pending appeal and granting ten-day 

administrative stay (5th Cir. July 24, 2023) ................1a

District court order denying stay pending appeal and 

granting seven-day administrative stay

(N.D. Tex. July 18, 2023) ...................................5a

District court opinion and order granting vacatur

(N.D. Tex. June 30, 2023) ...................................6a

District court final judgment (N.D. Tex. July 5, 2023)........44a

Declaration of Matthew P. Varisco (July 14, 2023).............46a

Excerpts from administrative record:

ATF letter (Apr. 20, 1978) ................................65a

ATF letter (June 11, 1980) ................................68a

ATF letter (May 3, 1983) ..................................69a

ATF letter (Dec. 4, 2020) .................................70a

Excerpts from Affidavit of Tolliver Hart (Dec. 9, 2020) ...77a

Case 4:22-cv-00691-O Document 257-1 Filed 08/21/23 Page 44 of 44 PageID 5130