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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

Plaintiffs,

v.

BLACKHAWK MANUFACTURING GROUP

INC., et al.

Intervenor Plaintiffs,

v.

MERRICK GARLAND, in his official

capacity as Attorney General of the United States, et

al.,

Defendants.

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

JOINT STATUS REPORT

Pursuant to this Court’s Order, Doc. 273 (Nov. 20, 2023), directing the parties to meet and

confer and provide a joint statusreport and overview of how the partiesintend to proceed following

the remand of this case from the Fifth Circuit, the parties have conferred and have not come to an

agreement. They are therefore jointly submitting alternative proposals for this Court’s

consideration, laid out more fully below.

Plaintiffs’ and Intervenor-Plaintiffs’ Position: On November 9, 2023, the Fifth Circuit

affirmed in part and vacated and remanded in part the judgment of this Court. While the panel

agreed with this Court’s decision holding unlawful “(1) ATF’s proposed definition of ‘frame or

receiver’ including incomplete frames or receivers; and (2) ATF’s proposed definition of ‘firearm’

including weapon part kits,” it vacated this Court’s order vacating the entire Rule and remanded

Case 4:22-cv-00691-O Document 274 Filed 12/04/23 Page 1 of 7 PageID 5356
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to this Court for further consideration of the appropriate scope of the remedy. VanDerStok v.

Garland, No. 23-10718, 2023 WL 7403413, at **5, 12. Accordingly, Plaintiffs and IntervenorPlaintiffs request that this Court establish a briefing schedule to resolve the limited question of the

appropriate scope of the remedy in this case. To that end, Plaintiffs and Intervenor-Plaintiffs

respectfully propose the following briefing schedule:

 December 12, 2023: Plaintiffs’ and Intervenor-Plaintiffs’ Briefs on Remedy

 January 12, 2024: Defendants’ Response

 January 26, 2024: Plaintiffs’ and Intervenor-Plaintiffs’ Replies

The Government’s request that this Court abstain from any further proceedings in this case

until after it has decided whether to seek certiorari (and if it does decide to do so, until the Supreme

Court has finished dealing with the case) should not be countenanced. As this Court previously

found when it granted Plaintiffs a preliminary injunction, the Rule is inflicting irreparable harm

each day that the challenged portions remain operative. For example, it is inflicting such severe

economic harm on Tactical Machining, Defense Distributed, and BlackHawk as to threaten their

continued viability. See generally Supp. Decl. of Darren Peters, Sr., Doc. 55-1 (Aug. 31, 2022);

Decl. of Daniel Lifschitz, Doc. 103-1 (Oct. 20, 2022); Decl. of Cody Wilson, Doc. 164-1 (Jan. 12,

2023). This existential threat to Plaintiffs’ and Intervenor-Plaintiffs’ businesses cannot later be

recovered as monetary damages against Defendants due to sovereign immunity.1Indeed, the Fifth

Circuit expedited issuance of the mandate so that this Court could more quickly take jurisdiction

over this case and resolve outstanding questions related to the appropriate remedy in this case. See

 

1

Indeed, the Rule very nearly already put Tactical Machining out of business. See Rob

Romano (@2Aupdates), X (Oct. 27, 2023, 12:07 PM),

https://twitter.com/2Aupdates/status/1717936074155045346; Rob Romano (@2Aupdates), X

(Oct. 27, 2023, 4:05 PM), https://x.com/2aupdates/status/1728157833223377006?s=51.

Case 4:22-cv-00691-O Document 274 Filed 12/04/23 Page 2 of 7 PageID 5357
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Unpublished Order, VanDerStok v. Garland, No. 23-10718, Doc. 221-1 (5th Cir. Nov. 20, 2023).

It would be inappropriate, given the stakes here and the ongoing harm to the parties, to delay

consideration of this important issue. And that is true regardless of whether any remedy ordered

by this Court is stayed pending appellate review. Every day of delay in adjudicating the merits of

the remedy is a day of delay in appellate review of such adjudication and thus of ultimate resolution

of the case.

Defendants’ Position: 

1. The status of this case is as follows. Previously, the Supreme Court stayed this 

Court’s vacatur of the Rule “pending the disposition of the appeal in the United States Court of 

Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is 

timely sought.” Garland v. VanDerStok, No. 23A82 (U.S. Aug. 8, 2023) (Supreme Court Stay 

Order). The conclusive nature of the Supreme Court’s ruling was acknowledged most recently by 

the Fifth Circuit’s entry of a stay in Polymer80 v. Garland, No. 23-10527 (5th Cir. Nov. 30, 2023), 

on the basis of the Supreme Court Stay Order.

 2. Consistent with the Supreme Court Stay Order—as demonstrated most recently by 

the Fifth Circuit’s Polymer80 ruling—this Court would need to stay any relief that it might grant 

until the Supreme Court acts on any timely petition for a writ of certiorari the government may 

file.

 3. At the present juncture, briefing on remedies is unnecessary because the Court 

would need to stay any remedy that it might grant. Such briefing could also prove to be a waste 

of the parties’ and the Court’s resources. For example, if Defendants were to ultimately prevail in 

the Supreme Court, that would eliminate any need for relief, and no briefing on remedies would 

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be necessary or appropriate. And at a bare minimum, a Supreme Court decision could be highly 

relevant to the proper scope of relief.

 4. Defendants therefore respectfully propose that they promptly file a status report 

notifying the Court when they seek Supreme Court review or when the time for seeking such 

review has expired, whichever occurs first. 

 5. Plaintiffs’ contention that briefing on remedies is necessary at the present juncture 

because of irreparable harm they will allegedly incur is meritless. As explained above, this Court 

would need to stay any relief that it might grant until the Supreme Court acts on any timely 

certiorari petition. And in any event, the Supreme Court entered its Stay Order despite Plaintiffs’ 

arguments that they would suffer irreparable harm if this Court’s vacatur were stayed as to them.

 6. Additionally, and in the alternative, if the Court were to instead decide that 

remedial briefing is appropriate at the present juncture, then the schedule proposed by Plaintiffs 

for such briefing is acceptable to Defendants. 

DATED this the 4th day of December, 2023.

Jointly submitted,

/s/ R. Brent Cooper 

R. Brent Cooper (TX Bar No. 04783250)

Benjamin D. Passey (TX Bar No. 24125681)

Nathan C. Flanigin (TX Bar No. 24137919)

COOPER & SCULLY, P.C.

900 Jackson Street, Suite 100

Dallas, Texas 75202

Telephone: (214) 712-9500

Fax: (214) 712-9540

brent.cooper@cooperscully.com

ben.passey@cooperscully.com

nathan.flanigin@cooperscully.com

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

FPC ACTION FOUNDATION

5550 Painted Mirage Road, Suite 320

/s/ Daniel Riess (with authorization)

Daniel M. Riess (TX Bar No. 24037359)

Jeremy S.B. Newman

(MA Bar No. 688968)

Taisa M. Goodnature

(NY Bar No. 5859137)

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS

BRANCH

1100 L Street, NW

Washington, DC 20005

Telephone: (202) 353-3098

Fax: (202) 616-8470

Daniel.Riess@usdoj.gov

jeremy.s.newman@usdoj.gov

taisa.m.goodnature@usdoj.gov

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Las Vegas, NV 89149

Telephone: (916) 517-1665

Fax: (916) 476-2392

cwi@fpchq.org

Counsel for Plaintiffs Jennifer VanDerStok,

Michael G. Andren, Tactical Machining, LLC,

and Firearms Policy Coalition

/s/ Chad Flores (with authorization)

Chad Flores (TX Bar No. 24059759)

FLORES LAW PLLC

917 Franklin St., Suite 600

Houston, TX 77002

Telephone: (713) 364-6640

cf@chadflores.law

Counsel for Intervenor Plaintiffs Defense

Distributed, Second Amendment Foundation,

Inc., and Not An LLC d/b/a JSD

Supply

Brian Daniel Poe (TX Bar No. 24056908)

BRIAN D POE ATTORNEY PLLC

909 Throckmorton Street

Fort Worth, TX 76102

Telephone: (817) 870-2022

Fax: (817) 977-6501

bpoe@bpoelaw.com

/s/ Michael J. Sullivan (with authorization)

Michael J. Sullivan* (MA Bar No. 487210)

J. Christopher Amrhein, Jr.*

(MA Bar No. 703170)

Nathan P. Brennan* (MN Bar No. 389954)

ASHCROFT LAW FIRM, LLC

200 State Street, 7th Floor

Boston, MA 02109

Telephone: (617) 573-9400

Fax: (617) 933-7607

msullivan@ashcroftlawfirm.com

camrhein@ashcroftlawfirm.com

nbrennan@ashcroftlawfirm.com

Counsel for Intervenor Plaintiff Blackhawk

Manufacturing Group Inc.

Attorneys for Defendants

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Dennis L. Daniels, Jr. (TX Bar No. 24107402)

BRADLEY ARANT BOULT CUMMINGS LLP

1445 Ross Avenue, Suite 3600

Dallas, TX 75202

Telephone: (214) 257-9846

Fax: 214-939-8787

dldaniels@bradley.com

/s/ James W. Porter, III (with authorization)

James W. Porter, III* (AL Bar No. 1704J66P)

BRADLEY ARANT BOULT CUMMINGS

1819 Fifth Avenue North

One Federal Place

Birmingham, AL 35203

Telephone: (205) 521-8285

Fax: (205) 488-6285

jporter@bradley.com

Marc A. Nardone* (DC Bar No. 1023570)

BRADLEY ARANT BOULT CUMMINGS LLP

1615 L Street NW, Suite 1350

Washington, DC 20036

Telephone: (202) 719-8256

Fax: (202) 719-8356

mnardone@bradley.com

Counsel for Intervenor Plaintiff Polymer80 Inc.

*Admitted pro hac vice

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CERTIFICATE OF SERVICE

I hereby certify that on December 4, 2023 a true and correct copy of the foregoing

document was served via the Court’s CM/ECF system to all counsel of record.

/s/ R. Brent Cooper

R. Brent Cooper

COOPER & SCULLY, P.C.

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