UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

 Plaintiffs, Case No. 4:22-cv-00691-O

 v.

MERRICK GARLAND, in his official 

capacity as Attorney General of the United 

States, et al., 

 Defendants.

DEFENDANTS’ SUPPLEMENTAL BRIEF REGARDING

RULE 65(A)(2) CONSOLIDATION AND PLAINTIFFS’ COUNT I

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TABLE OF CONTENTS

INTRODUCTION.........................................................................................................................................................1

BACKGROUND............................................................................................................................................................1

ARGUMENT...................................................................................................................................................................1

I. This Court Should Not “Consolidate” the Ultimate Determination on the Merits of Plaintiffs’ 

Count I with the Court’s Previously Issued Preliminary Injunction Decision. .............................4

II. Plaintiffs Are Not Entitled to Judgment on Count I Because ATF Acted Within the 

Authority Delegated to It by Statute. ..........................................................................................................5

A. The Amended Definition of “Frame or Receiver” .................................................................6

B. The Amended Definition of “Firearm”....................................................................................12

III. In Any Event, This Court Should Not Grant Plaintiffs Relief Beyond What is Necessary to 

Remedy Plaintiffs’ Alleged Injuries. ..........................................................................................................15

CONCLUSION.............................................................................................................................................................18

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TABLE OF AUTHORITIES

CASES

Am. Trucking Ass’n v. Atchison, Topeka, and Santa Fe Ry. Co.,

387 U.S. 397 (1967).....................................................................................................................................................6

California v. Texas, 

141 S. Ct. 2104 (2021)..............................................................................................................................................16

Communications Maint., Inc. v. Motorola, Inc., 

761 F.2d 1202 (7th Cir. 1985)..................................................................................................................................5

Daniels Health Servs., L.L.C. v. Vascular Health Scis., L.L.C., 

710 F.3d 579 (5th Cir. 2013)....................................................................................................................................2

DHS v. New York, 

140 S. Ct. 599 (2020) ................................................................................................................................................17

Duncan v. Walker, 

533 U.S. 174 (2001).....................................................................................................................................................4

H & W Indus., Inc. v. Formosa Plastics Corp., USA, 

860 F.2d 172 (5th Cir. 1988)....................................................................................................................................4

Lewis v. Casey, 

518 U.S. 343 (1996)...................................................................................................................................................16

Morehouse Enters. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 

No. 3:22-CV-116, 2022 WL 3597299 (D.N.D. Aug. 23, 2022)..................................................................12

Murphy v. Nat’l Collegiate Athletic Assn., 

138 S. Ct. 1461 (2018)..............................................................................................................................................16

Nat’l Rifle Ass’n v. Brady,

914 F.2d 475 (4th Cir. 1990)....................................................................................................................................6

New York v. Burger,

482 U.S. 691 (1987)...................................................................................................................................................11

Scott v. Schedler, 

826 F.3d 207 (5th Cir. 2016)..................................................................................................................................16

Schlesinger v. Reservists Comm. to Stop the War, 

418 U.S. 208 (1974)...................................................................................................................................................16

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Texas v. Biden,

20 F.4th 928 (5th Cir. 2021)...................................................................................................................................17

Trump v. Hawaii, 

138 S. Ct. 2392 (2019)..............................................................................................................................................17

United States v. Annis,

446 F.3d 852 (8th Cir. 2006)..................................................................................................................................13

United States v. Ryles,

988 F.2d 13 (5th Cir. 1993).....................................................................................................................................13

United States v. Stewart,

451 F.3d 1071 (9th Cir. 2006)................................................................................................................................13

United States v. Theodoropoulous,

866 F.2d 587................................................................................................................................................................13

United States v. Wick,

697 F. App’x 507 (9th Cir. 2017)..........................................................................................................................13

Univ. of Texas v. Camenisch, 

451 U.S. 390 (1981).....................................................................................................................................................4

STATUTES

5 U.S.C. § 706(2).............................................................................................................................................................17

18 U.S.C. § 921(a)(3) ...............................................................................................................................................passim

18 U.S.C. § 922(g)......................................................................................................................................................3, 17

18 U.S.C. § 926(a).............................................................................................................................................................6

26 U.S.C. § 5845(b)........................................................................................................................................................11

26 U.S.C. § 7801(a)(2).....................................................................................................................................................6

28 U.S.C. § 599A(c)(1)....................................................................................................................................................6

REGULATIONS

28 C.F.R. § 0.130(a)(1)-(2) .............................................................................................................................................6

Final Rule, Commerce in Firearms and Ammunition, 

33 Fed. Reg. 18,555 (Dec. 14, 1968), codified at 27 C.F.R. § 478.11 ..............................................................7

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

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87 Fed. Reg. 24,652 (Apr. 26, 2022) ..............................................................................................................passim

OTHER AUTHORITIES

S. Rep. No. 88-1340 (1964).........................................................................................................................................12

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INTRODUCTION

This Court has notified the parties that it intends to consolidate its ultimate decision on the 

merits of Plaintiffs’ Count I claim with the Court’s September 2, 2022 decision granting Plaintiffs’ 

motion for a preliminary injunction. Defendants respectfully submit that consolidation would be 

inappropriate procedurally for several reasons. First, Rule 65(a)(2) only contemplates consolidation, 

and simultaneous resolution, of a pending preliminary injunction motion and final trial on the merits; 

it does not contemplate a retroactive consolidation after a preliminary injunction has been issued. 

Consolidation would be particularly inappropriate here because Defendants have now produced an 

administrative record containing information relevant to Plaintiffs’ Count I claim that was not before 

the Court when it considered Plaintiffs’ motion for preliminary injunction. This Court should consider 

that claim anew in light of the information now available to it and the parties’ briefing on summary 

judgment. Consolidation would also ignore the very different legal standards and burdens that apply 

to preliminary injunctions and final merits determinations. Accordingly, Rule 56, not Rule 65(a)(2), is 

the appropriate standard and procedural mechanism for resolving Plaintiffs’ Count I claim.

Most fundamentally, consolidating the ultimate merits decision to enter judgment forPlaintiffs

on Count I would be inappropriate because Plaintiffs have failed to show that they are entitled to such 

judgment on the merits. The Final Rule’s amended definitions of “frame or receiver” and “firearm” 

are both reasonable interpretations of statutory terms because they are consistent with the plain 

language and intent of the Gun Control Act and existing practice and caselaw. However, in the event 

this Court were to convert its September 2 preliminary injunction decision into a final judgment on 

the merits through a Rule 65(a)(2) consolidation, any remedy ordered by the Court should be narrowly 

tailored to address the harms the Court has held Plaintiffs have demonstrated. 

BACKGROUND

Plaintiffs filed their Complaint on August 11, 2022. Count I of Plaintiffs’ Complaint alleges 

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that ATF violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, because, in amending 

the definitions of certain terms, ATF acted in excess of the authority granted to it by federal firearms 

statutes. Compl. ¶¶ 96-102. On August 17, 2022, Plaintiffs filed a motion for a preliminary injunction. 

ECF No. 15. On August 29, 2022, the date Defendants’ response to Plaintiffs’ motion for preliminary 

injunction was due, this Court issued an order directing the parties to brief the issue of whether “the 

Court should advance the preliminary injunction motion to a determination on the merits” pursuant 

to Federal Rule 65. ECF No. 33. 

Both parties submitted briefing on the issue on August 31, 2022, and both parties took the 

position that this Court should not consolidate the hearing on the Plaintiffs’ motion for preliminary 

injunction with a trial on the merits of Plaintiffs’ claims pursuant to Federal Rule 65(a)(2). ECF Nos. 

53 & 54. In opposing consolidation, Plaintiffs noted that “[i]n the APA context, because the district 

court acts as an appellate tribunal and the evidence is almost exclusively limited to the administrative 

record, claims are normally resolved on summary judgment.” ECF No. 54 at 1 n.1 (citations omitted). 

Plaintiffs argued that the Court should not consolidate the preliminary injunction and ultimate merits 

determination, and should instead grant Plaintiffs’ motion for a preliminary injunction and resolve the 

merits after the filing of the administrative record and summary judgment briefing. Id. at 7. 

On September 2, 2022, this Court entered an order granting Plaintiffs’ motion for a 

preliminary injunction. ECF No. 56. In doing so, this Court first examined whether Plaintiffs had 

shown a likelihood of success on the merits which, according to the Court, did not require the plaintiff 

to show “that [it] is entitled to summary judgment.” Id. at 6 (quoting Daniels Health Servs., L.L.C. v. 

Vascular Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013)). The Court held that, under the relevant 

standard, Plaintiffs had shown that they were likely to succeed on the merits of their Count I claim, 

and noted that the Court was not reaching the issue of whether Plaintiffs had shown a likelihood of 

success on the merits of any of their other claims. Id. at 15. The Court held that one plaintiff, Tactical 

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Machining, had also satisfied the other required factors of irreparable harm, id. at 16-20, and that the 

public interest favored the entry of an injunction, id. at 21-22, and therefore entered a preliminary

injunction against ATF implementing or enforcing, against Tactical Machining, the Final Rule’s 

amended definitions at issue, id. at 23. On October 1, 2022, the Court expanded the scope of its 

injunction to include Tactical Machining’s customers. ECF No. 89. On October 3, 2022, this Court 

entered a sua sponte order clarifying that the injunction does not provide relief to anyone prohibited 

from receiving or possessing a firearm pursuant to 18 U.S.C. § 922(g), even if they are a Tactical 

Machining customer, so that ATF may continue to apply the Final Rule’s amended definitions with 

respect to anyone falling within the prohibitions of § 922(g). ECF No. 91.

On September 23, 2022, the Court ordered Defendants to produce the administrative record 

no later than October 24, 2022. ECF No. 82. On October 7, 2022, the Parties submitted a Joint 

Report on scheduling, agreeing that “this case will likely be resolved through dispositive motions 

without a trial,” and proposing a staggered summary judgment briefing schedule beginning with 

Plaintiffs’ motion for summary judgment due 60 days from the later of the date the administrative 

record is filed or the date any objections or motions regarding the sufficiency of the administrative 

record are resolved. ECF No. 95 at 3. The Court adopted this briefing schedule in an order issued 

October 24, 2022. ECF No. 105 at 2. Also on October 24, 2022, Defendants filed a notice of filing 

of the administrative record and provided the administrative record to all relevant parties. ECF No. 

106. On October 25, 2022, this Court issued an order notifying the parties that the Court intends “to 

consolidate the hearing on preliminary injunction to a trial on the merits” only as to Count I of the 

Plaintiffs’ (including the Intervenor-Plaintiffs) Complaints. ECF No. 107. 

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ARGUMENT

I. This Court Should Not “Consolidate” the Ultimate Determination on the Merits 

of Plaintiffs’ Count I with the Court’s Previously Issued Preliminary Injunction 

Decision. 

Rule 65(a)(2) provides that “[b]efore or after beginning the hearing on a motion for a preliminary 

injunction, the court may advance the trial on the merits and consolidate it with the hearing.” (emphasis 

added). This provision authorizes a consolidation decision only before or during the “hearing on a 

motion for a preliminary injunction.” If the drafters of the Rule had intended this provision to provide 

a procedural vehicle to consolidate the decisions, it surely could have said so, and the word “beginning” 

would serve no purpose and would have been omitted. However, they did not do so, and there is no 

mention in the rule of a decision to consolidate after a preliminary injunction decision has been made

(and when there is thus no pending preliminary injunction “hearing” to “consolidate” with a “trial on 

the merits”). Cf. Duncan v. Walker, 533 U.S. 167, 174 (2001) (refusing to adopt interpretation of the 

statute that would render a word “insignificant, if not wholly superfluous”) (citation omitted). Here, 

because there is no “hearing on a motion for a preliminary injunction” scheduled or contemplated, 

there is nothing for this Court to consolidate its decision on the merits of Plaintiffs’ Count I with 

under the plain language of Rule 65(a)(2). 

Further, as the Supreme Court has noted, “it is generally inappropriate for a federal court at 

the preliminary-injunction stage to give a final judgment on the merits [via Rule 65(a)(2)],” Univ. of 

Texas v. Camenisch, 451 U.S. 390, 395 (1981), and a court should only do so in instances where an 

“expedited decision on the merits [is] appropriate,” id. The Fifth Circuit has cautioned courts against 

using Rule 65(a)(2) to issue final judgment on the merits in some circumstances, noting:

The primary objection is that the court is rendering sua sponte summary judgment 

without providing notice or conducting a summary judgment hearing as required by 

Fed. R. Civ. P. 56. In addition, the issues which are considered in the preliminary 

injunction hearing are entirely different from the focus of a summary judgment 

adjudication. Thus, it is a “risky approach” to assume that the often incomplete 

evidence adduced at a preliminary injunction hearing is sufficient to determine whether 

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a claimant is entitled to judgment as a matter of law. 

H & W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d 172, 177 (5th Cir. 1988) (vacating district 

court’s decision on the merits because “[a]lthough the court employed the language of a summary 

judgment determination, its decision does not comport with the court’s reasoning in [Standard Oil Co. 

of Tx. v.] Lopeno Gas [Co., 240 F.2d 504 (5th Cir. 1957)] or with standard summary judgment 

procedures”) (citation omitted); cf. Communications Maint., Inc. v. Motorola, Inc., 761 F.2d 1202, 1205 (7th

Cir. 1985) (noting that Rule 65(a)(2) consolidation is “a risky approach” because “the questions 

focused on differ in deciding a motion for preliminary injunction and in deciding a motion for 

summary judgment” given the different legal standards and burdens). 

Defendants are not aware of any instance in which a court has retroactively decided to 

consolidate “the hearing on a motion for a preliminary injunction” with “the trial on the merits” 

months after issuing a decision on the preliminary injunction. This Court’s decision on Plaintiffs’ 

motion for a preliminary injunction was issued on September 2, 2022, and all parties agreed at that 

time that consolidation was inappropriate because summary judgment would call for a different legal 

standard and would likely rely on evidence in the Administrative Record that was not available to the 

Court at the time it decided the motion for preliminary injunction. Defendants have now filed the 

Administrative Record, and the Parties have negotiated and proposed a schedule for Rule 56 summary 

judgment briefing which the Court has adopted. No exigent circumstances here demand an urgent 

resolution of Count I or any of Plaintiffs’ other causes of action; all plaintiffs (including Intervenor 

Plaintiffs) who this Court has held will be subject to irreparable harm from the Final Rule are protected 

by this Court’s preliminary injunction. Rule 56, not Rule 65(a)(2), is therefore the appropriate avenue 

for resolution of Plaintiffs’ claims, including Count I.

II. Plaintiffs Are Not Entitled to Judgment on Count I Because ATF Acted Within the

Authority Delegated to It by Statute. 

Furthermore, any “consolidation” that would convert this Court’s preliminary injunction

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decision – which awarded certain Plaintiffs limited relief because, the Court found, among other 

things, they made a strong showing of likelihood of success on the merits of their Count I claim –

into a final judgment would be wrong on the merits. ATF acted well within its statutory authority in 

promulgating the Final Rule. 

The Attorney General (AG) is responsible for enforcing the Gun Control Act (“GCA”) and 

the National Firearms Act (“NFA”), and Congress and the AG have expressly delegated the 

responsibility for administering and enforcing the GCA and NFA to the Director of ATF.1

 18 U.S.C. 

§ 926(a) delegates to the AG the authority to prescribe “such rules and regulations as are necessary to 

carry out the provisions” of the statute. “Because § 926 authorizes the [AG] to promulgate those 

regulations which are ‘necessary,’ it almost inevitably confers some measure of discretion to determine 

what regulations are in fact ‘necessary.’” Nat’l Rifle Ass’n v. Brady, 914 F.2d 475, 479 (4th Cir. 1990). 

Pursuant to this authority, ATF has for years issued regulations that define statutory terms, including 

“firearm” and “frame or receiver.” However, existing regulations are not inflexible rules designed to 

last indefinitely; instead, agencies “are neither required nor supposed to regulate the present and future 

within the inflexible limits of yesterday.” Am. Trucking Ass’n v. Atchison, Topeka, and Santa Fe Ry. Co., 

387 U.S. 397, 416 (1967). Although Plaintiffs argue that portions of the Final Rule’s amended 

definitions of two terms – “frame or receiver” and “firearm” – do not comport with the language of 

the statute, Plaintiffs have not demonstrated that they are entitled to judgment on this claim. 

A. The Amended Definition of “Frame or Receiver”

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.” 

18 U.S.C. § 921(a)(3) (emphasis added). “Frame or receiver” is not defined in the statute. Id. § 921. 

1 See 18 U.S.C. § 926(a); 26 U.S.C. § 7801(a)(2); 28 U.S.C. § 599A(c)(1); 28 C.F.R. § 0.130(a)(1)-(2). 

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ATF has therefore long provided regulations defining the statutory term “frame or receiver.” The 

agency first defined the term “frame or receiver” in 1968 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 position.” Final Rule, Commerce in Firearms and Ammunition, 33 Fed. Reg. at 18,555, 

18,558 (Dec. 14, 1968), codified at 27 C.F.R. § 478.11. 

Under the previous definition, ATF regularly examined products that manufacturers and 

sellers submitted for classification decisions that were not complete, functional frames or receivers to 

determine if they were sufficiently advanced in the manufacturing process to be considered a “frame 

or receiver” under the regulatory definition. The Administrative Record, which was not available to 

the Court at the time of its preliminary injunction decision, contains a number of instances pre-dating 

the amended definition of “frame or receiver” in the Final Rule in which ATF made a determination 

as to when an incomplete or nonfunctional frame or receiver becomes a “frame or receiver.” See, e.g., 

ATF000010 (Classification Letter from Apr. 20, 1978 finding that product “has reached a stage of 

manufacture such that it may be readily converted to functional condition. Therefore, it is a firearm and is 

subject to all applicable controls under the provisions of the [GCA].”) (emphasis added); ATF000017 

(Letter from Aug. 2, 1978, stating that “[i]t is [ATF’s] position that an unfinished firearm receiver which 

may be readily converted to functional condition is a firearm as defined.”) (emphasis added); ATF000020 

(Letter from Mar. 22, 1979 stating “[t]he frame or receiver of a firearm is considered to be subject to 

the provisions of the [GCA] at such time that it has reached a stage in its manufacture where the frame

can be readily converted to fire.”); ATF000023 (Classification Letter from Jan. 31, 1980 stating that

“a ‘piece of metal’ is considered to be a firearm receiver and subject to the provisions of the [GCA] at 

such time as it reaches a stage in manufacture where it can be readily converted to a functional condition.”) 

(emphasis added); ATF000052-53 (Classification Letter from Dec. 27, 2002 determining that 

unfinished AR-15 receivers were considered a “frame or receiver,” and thus a “firearm,” under the 

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GCA because of the degree to which the components had been manufactured and machined); 

ATF000062-63 (Classification Letter from Jan. 29, 2004 determining that unfinished AR-15 type 

receivers were a “frame or receiver” under the regulatory definition because of “the stage of 

manufacture” of the unfinished receivers); ATF000110 (Classification Letter from Nov. 19, 2007 

determining that “your planned receiver will be sufficiently complete to be classified as the frame or 

receiver of a firearm” based on the “machining/drilling operations [that] will have been performed on 

the final product you wish to sell”); ATF000206-07 (Classification Letter from May 17, 2013 

examining the machining that would and would not be performed on the unfinished receiver and 

finding that “your submitted item will not be sufficiently complete to be classified as the frame or 

receiver of a firearm and thus would not be a ‘firearm’ as defined in the GCA) (emphasis in original); 

ATF000496-97 (Classification Letter from Feb. 23, 2015 finding that unfinished receiver submitted 

“has reached a point in the manufacturing process to be classified as a ‘firearm’ as defined in 18 U.S.C. 

§ 921(a)(3)” but instructing manufacturer that if the same product were sold but with the trigger cavity 

unmachined/solid, ATF would not classify the product as a “frame or receiver”). Under the previous 

definition, then, ATF regularly applied the definition of “frame or receiver” to some unfinished or 

incomplete frames or receivers if they had reached a sufficiently advanced stage of the manufacturing 

process that they could readily be converted to a functional state. 

In light of this historical practice, and to address court decisions interpreting ATF’s prior 

definition of “frame or receiver” such that up to 90 percent of all firearms in the United States would 

have no component qualifying as a “frame or receiver” under the GCA, 87 Fed. Reg. at 24,652, 24,655, 

the Final Rule amended the definition of “frame or receiver.” Specifically, the Final Rule provided 

that:

(c) Partially complete, disassembled, or nonfunctional frame or receiver. The terms “frame” and 

“receiver” shall include a partially complete, disassembled, or nonfunctional frame or 

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receiver, including a frame or receiver parts kit, that is designed to or may readily2 be 

completed, assembled, restored, or otherwise be converted to function as a frame or 

receiver, i.e., to house or provide a structure for the primary energized component of 

a handgun, breech blocking or sealing component of a projectile weapon other than a 

handgun, or internal sound reduction component of a firearm muffler or firearm 

silencer, as the case may be. The terms shall not include a forging, casting, printing, 

extrusion, unmachined body, or similar article that has not yet reached a stage of 

manufacture where it is clearly identifiable as an unfinished component part of a 

weapon (e.g., unformed block of metal, liquid polymer, or other raw material). 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.

87 Fed. Reg. at 24,739. The Final Rule then sets forth five non-exhaustive illustrative examples of 

components that either would or would not be considered a “frame or receiver” under the Final Rule’s 

amended definition. Id.

Plaintiffs have not stated what they believe to be the “ordinary meaning” or plain meaning for 

the terms frame or receiver. Rather, “frame or receiver” is a statutory term that Congress did not 

define or provide any guidance as to its meaning, leaving the precise definition of that term to the 

discretion and expertise of ATF. And ATF has enacted regulations defining the term “frame or 

receiver” since shortly after the enactment of the GCA in 1968 that are consistent with common and 

technical dictionary definitions. See 87 Fed. Reg. at 24,654 & n.7, 24,693, & n.118. Importantly for 

this Court’s inquiry, even under the previous definition, an issue that ATF has regularly resolved in 

issuing classification decisions was determining when in the manufacturing process an item becomes a

frame or receiver. In this Court’s decision granting Plaintiffs’ motion for preliminary injunction, the 

Court noted that “[t]hat which may become a receiver is not itself a receiver.” ECF No. 56 at 8 (emphasis 

in original). However, this Court also noted that “[a]n incomplete receiver may still be a receiver 

2

 The Rule separately defines “readily” to mean 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 statement. 87 Fed. Reg. 24,735. With respect to ATF’s classification of 

firearms, relevant factors to making this determination include: (1) time, (2) ease, (3) expertise, (4) 

equipment, (5) parts availability, (6) expense, (7) scope, and (8) feasibility. Id. 

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within the meaning of the statute, depending on the degree of completeness.” Id. at 10. 

Resolving the tension between these two ideas – that “an incomplete receiver may still be a 

receiver” but “that which may become a receiver” is not – is the crux of the challenged portion of the 

Final Rule’s amended definition of “frame or receiver.” ATF is charged with determining when a 

component changes from a “gun part” unregulated by the GCA into a “frame or receiver” that is 

considered a “firearm” under 18 U.S.C. § 921, and the agency has done so for decades with little 

controversy or determination that it acted in excess of its statutory delegation of authority. As this 

Court specifically noted, the question of “how much machining is necessary to transform a component 

into a frame or receiver . . . lies with ATF.” ECF No. 56 at 10; see also id. at 11 n.21 (stating that “some 

degree of finality or functionality” is required for a nonfunctional receiver to be considered a “frame 

or receiver” but that “[t]he determination of degree likely rests with ATF.”). The challenged portion 

of the amended definition of the Final Rule only provides more specific guidance about the criteria 

ATF uses in making that determination. The Final Rule does not provide that all unfinished frames 

or receivers are considered “frame[s] or receiver[s]” for purposes of the GCA – the amended 

definition specifically notes that the amended definition “shall not include a forging, casting, printing, 

printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture 

where it is clearly identifiable as an unfinished component part of a weapon.” 87 Fed. Reg. at 24,739. 

Rather, the Final Rule only considers an unfinished receiver to a be a “frame or receiver” if it is both 

clearly identifiable as a component part of a weapon (i.e., at least “partially complete”) and “is designed 

to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or 

receiver.” Id. 

In its preliminary injunction opinion, this Court concluded that the Final Rule’s amended 

definition of “frame or receiver” likely exceeded ATF’s statutory authority because it would “regulate 

a component as a ‘frame or receiver’ even after ATF determines that the component in question is not 

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a frame or receiver.” ECF No. 56 at 10 (emphasis in original). But the Final Rule’s amended definition 

treats a component as a frame or receiver only when ATF has determined that the component is a 

frame or receiver. Indeed, as the above-cited portions of the Administrative Record demonstrate, 

ATF has for decades classified some incomplete or nonoperational frames or receivers as frames or 

receivers under the GCA based upon whether they have reached a stage of manufacture such that 

they can be readily converted to a functional condition. 

ATF’s use of the term “readily” in the Final Rule’s amended definition incorporates a term 

and concept that Congress has used repeatedly in federal firearms laws, both in the GCA and

elsewhere. See, e.g., 26 U.S.C. § 5845(b) (defining “machinegun” as “any weapon which shoots, is 

designed to shoot, or can readily be restored to shoot, automatically . . .”). This definition of “frame 

or receiver” ensures that the GCA and NFA accomplish what Congress intended those statutes to do. 

Under any other approach, persons could easily circumvent the requirements of the GCA and NFA 

by producing or purchasing almost-complete frames or receivers that could easily be altered to 

produce a functional frame or receiver. This would thwart Congress’s purpose in enacting the GCA 

and NFA to “ensure[] that weapons [are] distributed through regular channels and in a traceable 

manner,” thus making “possible the prevention of sales to undesirable customers and the detection 

of the origin of particular firearms.” New York v. Burger, 482 U.S. 691, 713 (1987). As this Court 

acknowledged in its preliminary injunction order, the statute does not limit “frame or receiver” to only 

complete, functional receivers; “[a]n incomplete receiver may still be a receiver within the meaning of 

the statute, depending on the degree of completeness.” ECF No. 56 at 10. By updating the definition 

of “frame or receiver” to only consider as a “frame or receiver” those partially complete receivers 

which have reached the stage of the manufacturing process at which they “may readily be completed, 

assembled, restored, or otherwise converted” to a functional frame or receiver, ATF has taken a 

sensible approach that is consistent with the language and purpose of the GCA. As another court 

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held in rejecting an argument virtually identical to that raised by the Plaintiffs here, “adopting 

Plaintiffs’ position would appear to contradict the plain language of the GCA, which clearly defined 

‘firearms’ more broadly than a fully operational weapon.” Morehouse Enters. v. ATF, No. 3:22-CV-116, 

2022 WL 3597299 at *6 (D.N.D. Aug. 23, 2022), appeal docketed No. 22-2812 (8th Cir.).

Accordingly, the challenged portion of the amended definition of “frame or receiver” 

reasonably determines when in a component’s manufacturing process it becomes a frame or receiver, 

and that determination is consistent with the language and intent of the GCA as well as decades of 

ATF practice. Plaintiffs therefore should not prevail on the merits of their Count I claim as to the 

amended definition of “frame or receiver.” 

B. The Amended Definition of “Firearm”

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.” 18 U.S.C. § 921(a)(3). The plain language of subsection (A) makes clear that 

“firearm” does not encompass only weapons that are complete or functional. Specifically, the 

language “or is designed to or may readily be converted to [function as a weapon]” makes clear that 

Congress intended the definition to include weapons in a variety of states of disassembly, disrepair, or 

functionality. The definition’s express inclusion of a “starter gun” – a gun designed for use with 

“blank ammunition,” but which may be converted to expel live ammunition – is further evidence of

Congressional intent to encompass more than only fully functional weapons within the definition.3

 

3

 The legislative history confirms as much, demonstrating that Congress was particularly concerned 

with the example of a “do-it-yourself gunsmith” who made bulk purchases of starter pistols. “[H]e 

would then, at his residence, disassemble them, and using an electric hand drill mounted in a drill press 

stand, bore out the plugged barrel and enlarge the cylinder chambers to accommodate .22-caliber 

cartridges.” S. Rep. 88-1340, at 14 (Aug. 7, 1967). This concern would apply with equal if not greater 

force to a disassembled, partially complete weapon that must have some minor additional machining 

to expel a lethal projectile by the action of an explosive. 

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See S. Rep. No. 88-1340, at 14 (1964). 

Consistent with the plain language of the statute, federal courts have long recognized that a 

disassembled or nonfunctional weapon can constitute a “firearm” for purposes of the GCA.4

Furthermore, as the materials in the Administrative Record show, ATF interpreted the statutory 

definition of “firearm” to encompass certain weapon parts kits even prior to the Final Rule’s amended 

definition. See ATF000723-29 (Dec. 4, 2020 Chief Counsel Memorandum concluding that “buy build 

shoot” kits sold are firearms under the GCA because they “are weapons which are designed to, or 

may readily be converted to expel a projectile by the action of an explosive”); ATF000817 (Dec. 9, 

2020 application for search warrant approved by federal judge describing “buy build shoot” kits as 

firearms under § 921). 

When ATF issued the Final Rule, the amended definition of “firearm” included “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. 24,735. This additional language in 

the Final Rule’s amended definition does not alter the statutory language of § 921(a)(3)(A); rather, it 

clarifies that a specific subset of products on the market falls within the statutory language of “any 

weapon . . . which . . . is designed to or may readily be converted to expel a projectile by the action of 

an explosive.” Id. at 24,662 n.44. 

This amended definition is consistent with the plain language of the statute. There can be 

little doubt that at least some weapon parts kits are “designed to” fire a projectile, as these products 

are marketed and sold to, and purchased by, customers for the sole purpose of assembling the kits 

into functional weapons capable of firing a projectile. Moreover, many such parts kits “may readily 

4

 See, e.g., United States v. Wick, 697 F. App’x 507, 508 (9th Cir. 2017); United States v. Stewart, 451 F.3d 

1071, 1073 n.2 (9th Cir. 2006); United States v. Annis, 446 F.3d 852, 857 (8th Cir. 2006); United States v. 

Ryles, 988 F.2d 13, 16 (5th Cir. 1993); United States v. Theodoropoulous, 866 F.2d 587, 595 n.3 (3d Cir. 

1989). 

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be completed [or] assembled . . . to expel a projectile” – they are marketed and sold on the basis of 

the relative ease of assembling or completing the individual parts contained in the kit into a functional 

weapon. But the Final Rule does not categorically provide that any collection of components sold 

together, or any product billed as a parts kit, constitutes a “firearm” under the GCA. Rather, the Final 

Rule is clear that in order to be “readily” convertible to expel a projectile, the conversion of a weapon 

parts kit “must be fairly or reasonably efficient, quick, and easy” after examining the enumerated 

factors in the regulatory definition of “readily.” 87 Fed. Reg. at 24,735. 

As this Court noted in its preliminary injunction order, § 921(a)(3)(A) “covers disassembled, 

nonfunctional, and antique firearms because they are ‘designed’ to fire projectiles even if they are practically 

unable to do so.” ECF No. 56 at 9 (emphasis added). Indeed, it is difficult to discern any principled 

distinction between a “disassembled” or “nonfunctional” firearm that is designed to fire a projectile 

even if it is “practically unable to do so” in its current form, and a weapon parts kit. A weapon parts 

kit is nothing more than a disassembled, currently nonfunctional weapon incapable of firing a 

projectile in its present form, but that is designed and intended to be assembled or completed to do 

so. Under Plaintiffs’ reading, a disassembled or partially disassembled handgun that is missing one 

minor component that may be readily procured elsewhere cannot be considered a “firearm” subject 

to the licensure, background check, marking or record-keeping requirements that federal firearms laws 

require. There is no indication that Congress intended such an absurd result. Plaintiffs’ interpretation

would create a substantial loophole that would allow anyone, including individuals who may be

lawfully prohibited from receiving or possessing a firearm, to purchase a disassembled weapon that 

may be assembled or completed in short order, frustrating the core purposes of the GCA, including 

assisting law enforcement in its goals of preventing and solving crimes involving firearms. 

Accordingly, the challenged portion of the amended definition of “firearm” reasonably 

specifies that certain products that already qualify as a “firearm” under the statutory definition of that 

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15

term are in fact “firearms.” Because this is consistent with the intent and purpose of the GCA as well 

as federal case law and prior ATF practice, Plaintiffs are not entitled to prevail on the merits of their 

Count I claim as to the amended definition of “firearm.”

III. In Any Event, This Court Should Not Grant Plaintiffs Relief Beyond What is 

Necessary to Remedy Plaintiffs’ Alleged Injuries. 

For the reasons set forth above, this Court should not consolidate an ultimate decision on the 

merits of Plaintiffs’ Count I with the Court’s previous preliminary injunction decision, and should not 

rule for Plaintiffs on Count I in any event. However, in the event that this Court were to do so, and 

were to enter final judgment on behalf of Plaintiffs, it should carefully tailor its remedies to only those 

necessary to remedy any demonstrated harms of the Plaintiffs. 

Plaintiffs request much broader relief than that which this Court has thus far granted them 

under the preliminary injunction. In their Complaint, Plaintiffs seek an order “[h]olding unlawful and 

setting aside the Final Rule,” and “[i]ssuing . . . permanent injunctive relief enjoining Defendants from 

enforcing or implementing the Final Rule.” Compl. at Prayer for Relief ¶¶ 1, 2. This Court should 

not grant such broad, sweeping relief under the present circumstances. 

As an initial matter, this Court should not “hold unlawful” or “set aside” the entire Final Rule, 

or enter a permanent injunction enjoining Defendants from enforcing or implementing the entire 

Final Rule, as Plaintiffs request in their Complaint. Plaintiffs’ motion for a preliminary injunction, 

which this Court has stated it intends to consolidate with a final determination on the merits, only 

argues that ATF exceeded the scope of its statutory authority with regard to two specific portions of 

amended definitions in the Final Rule – the addition of subsection (c) to the definition of “frame or 

receiver,” ECF No. 16 at 14-19, and the addition of language concerning “weapon parts kits” to the 

definition of “firearm,” id. at 19-21. In its order granting Plaintiffs’ motion for preliminary injunction, 

the Court only considered these two provisions in assessing whether Plaintiffs were likely to succeed 

on the merits of their Count I claim. ECF No. 56 at 6-16. Therefore, because any issue of whether 

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16

ATF exceeded its statutory authority in any of the other portions of the Final Rule has not been 

presented to or considered by the Court, any relief this Court might grant with regard to the Final 

Rule should be limited to these two challenged provisions. Cf. 87 Fed. Reg. at 24,730 (“[I]n the event 

any provision of this rule, an amendment or revision made by this rule, or the application of such 

provision or amendment or revisions to any person or circumstance is held to be invalid or 

unenforceable by its terms, the remainder of this rule . . . shall not be affected and shall be construed 

so as to give them the maximum effect permitted by law.”). 

Furthermore, any remedy or relief this Court provides Plaintiffs should be narrowly tailored 

to the actual harms allegedly suffered by Plaintiffs as a result of the challenged portions of the Final 

Rule’s amended definitions. “Remedies . . . ordinarily ‘operate with respect to specific parties.’” 

California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quoting Murphy v. Nat’l Collegiate Athletic Assn., 138 S.

Ct. 1461, 1486 (2018)) (Thomas, J., concurring). “In the absence of any specific party, they do not 

simply operate ‘on legal rules in the abstract.’” Id. (quoting Murphy, 138 S. Ct. at 1486) (Thomas, J., 

concurring); cf. Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course be limited to the 

inadequacy that produced the injury in fact that the plaintiff has established.”); Schlesinger v. Reservists 

Comm. to Stop the War, 418 U.S. 208, 222 (1974) (when “the relief sought produces a confrontation 

with one of the coordinate branches of the Government,” the “framing of relief” may be “no broader 

than required by” the “discrete factual context within which the concrete injury occurred or is 

threatened.”); Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (relief must be “narrowly tailor[ed] . . 

. to remedy the specific action which gives rise to the order as determined by the substantive law at 

issue.”). In granting Plaintiffs’ motion for preliminary injunction, this Court narrowly tailored its relief 

to only the Plaintiff, Tactical Machining, that the Court held had shown that it would be irreparably 

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17

harmed by the Final Rule absent an injunction. ECF No. 56 at 22. 5

 In doing so, the Court noted that 

“Plaintiffs have also not shown that nationwide injunctive relief is appropriate at this stage.” Id. 

Plaintiffs have made no additional showing why broader relief than they have received under the terms 

of the Court’s preliminary injunction would be appropriate or necessary to remedy their alleged harms. 

Under the Court’s preliminary injunction, Tactical Machining and BlackHawk Manufacturing are able 

to operate their businesses and sell their respective products to anyone not prohibited from receiving

or possessing a firearm pursuant to 18 U.S.C. § 922(g), without being subject to the challenged 

provisions of the Final Rule’s amended definitions, and those provisions likewise cannot be 

implemented or enforced against Tactical Machining and BlackHawk Manufacturing’s customers who 

are not so prohibited. In the absence of any showing that a broader remedy is needed to cure any 

harm or prejudice suffered by any Plaintiff, this Court should not order permanent injunctive relief 

any broader than the scope of the Court’s preliminary injunction.6 Cf. DHS v. New York, 140 S. Ct. 

599, 599-601 (2020) (“The real problem here is the increasingly common practice of trial courts 

ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ 

‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw – they direct how the defendant 

must act toward persons who are not parties to the case.”) (Gorsuch, J., concurring in the grant of 

stay); Trump v. Hawaii, 138 S. Ct. 2392, 2425-33 (2019) (nationwide injunctions “appear to be 

inconsistent with longstanding limits on equitable relief and the power of Article III courts” and “are 

5

 The scope of the preliminary injunction was later enlarged to cover Tactical Machining’s customers, 

and BlackHawk Manufacturing, an Intervenor, and its customers, based on the Court’s conclusion 

that such relief was necessary to protect those parties from irreparable harm. ECF No. 188. 

6

 Defendants additionally note that 5 U.S.C. § 706(2) does not authorize the vacatur of agency rules. 

Section 706 does not pertain to remedies at all, which are instead governed by 703. Section 706 is a 

rule of decision directing the reviewing court to disregard unlawful “agency action, findings, and 

conclusions” in resolving the case or controversy before it. However, Defendants acknowledge that 

the Fifth Circuit has concluded that a district court may render an agency action “void” in an action 

brought under § 706. See Texas v. Biden, 20 F.4th 928, 957 (5th Cir. 2021). 

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beginning to take a toll on the federal court system – preventing legal questions from percolating 

through the federal courts, encouraging forum shopping, and making every case a national emergency 

for the courts and for the Executive Branch.”) (Thomas, J., concurring).

CONCLUSION

For the foregoing reasons, this Court should not consolidate the resolution of the merits of 

Plaintiffs’ Count I with the Court’s previous decision granting Plaintiffs’ request for a preliminary 

injunction. In any event, Plaintiffs are not entitled to judgment on Count I. To the extent the Court 

were to disagree, it should narrowly tailor any relief to remedy the harms demonstrated by Plaintiffs. 

DATED: December 5, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ALEXANDER K. HAAS

Director, Federal Programs Branch

LESLEY FARBY

Assistant Director, Federal Programs Branch

/s/ Martin M. Tomlinson 

DANIEL RIESS

MARTIN M. TOMLINSON

TAISA M. GOODNATURE

JEREMY S.B. NEWMAN

Trial Attorneys

Civil Division, Federal Programs Branch

U.S. Department of Justice

1100 L Street, NW

Washington, DC 20005

Phone: (202) 353-4556

Email: martin.m.tomlinson@usdoj.gov

Attorneys for Defendants

Case 4:22-cv-00691-O Document 132 Filed 12/05/22 Page 23 of 24 PageID 1760
CERTIFICATE OF SERVICE

On December 5, 2022, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Texas, using the electronic case filing system 

of the court. I hereby certify that I have served all parties electronically or by another manner 

authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Martin M. Tomlinson 

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