IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK; 

MICHAEL G. ANDREN; 

TACTICAL MACHINING, LLC, a limited liability 

company; and 

FIREARMS POLICY COALITION, INC., a nonprofit 

corporation,

 Plaintiffs,

and

BLACKHAWK MANUFACTURING GROUP INC. 

d/b/a 80 PERCENT ARMS, DEFENSE 

DISTRIBUTED; and SECOND AMENDMENT 

FOUNDATION, INC.,

 Intervenor-Plaintiffs,

 v.

MERRICK GARLAND, in his official capacity as 

Attorney General of the United States; 

UNITED STATES DEPARTMENT OF JUSTICE; 

STEVEN DETTELBACH, in his official capacity as 

Director of the Bureau of Alcohol, Tobacco, Firearms 

and Explosives; and 

BUREAU OF ALCOHOL, TOBACCO, FIREARMS 

AND EXPLOSIVES,

 Defendants.

 Civil Action No. 4:22-cv-691-O

BLACKHAWK MANUFACTURING GROUP INC. d/b/a 80 PERCENT ARMS’ 

OPPOSED EMERGENCY MOTION TO CLARIFY THE STATUS OF

INJUNCTIVE RELIEF, OR, IN THE ALTERNATIVE, FOR AN INJUNCTION TO 

ENFORCE UNSTAYED ASPECTS OF FINAL JUDGMENT, OR

A PRELIMINARY INJUNCTION PENDING APPEAL

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Intervenor-Plaintiff BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms 

(collectively, as used herein, “BlackHawk”), through its undersigned counsel, respectfully files 

this emergency motion for clarification of the status of the injunctive relief granted to BlackHawk, 

including ECF No. 118 (November 2, 2022, preliminary injunction), or, in the alternative, for a 

new injunction to enforce this Court’s final judgment, or for a preliminary injunction pending 

appeal.1

Defendants 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 (collectively, the 

“Government”) oppose the relief in this motion. The Government’s position is that the ATF rule 

at issue (the “Final Rule” discussed infra) remains effective against everyone, including plaintiffs 

in this case such as BlackHawk. The Government also declined to provide assurances that they 

would decline to exercise their discretion to enforce the Final Rule against any of the plaintiffs in 

this case, such as BlackHawk. This is despite the fact that both this Court and the U.S. Court of 

Appeals for the Fifth Circuit has concluded that the Government is unlikely to succeed on the 

merits of its claim that the Final Rule is lawful.

In addition to the arguments raised by Defense Distributed, BlackHawk states as follows 

in support of this emergency motion.

1 BlackHawk respectfully incorporates by reference the arguments made in Defense Distributed’s 

Emergency Motion for Injunction Pending Appeal. See ECF No. 249. BlackHawk respectfully moves to 

join Defense Distributed’s motion and requests its motion to be briefed on the same schedule as that motion.

See ECF No. 250. BlackHawk also respectfully incorporates by reference its earlier memorandum of law 

in support of its motion for preliminary injunction. ECF No. 102.

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STATEMENT

This Court has concluded that the federal government may not “lawfully regulate partially 

manufactured firearm components, related firearm products, and other tools and materials in 

keeping with the Gun Control Act of 1968,” and “that the government’s recently enacted Final 

Rule, Definition of ‘Frame or Receiver’ and Identification of Firearms, 87 Fed. Reg. 24,652 

(codified at 27 C.F.R. pts. 447, 478, and 479), is unlawful agency action taken in excess of the 

ATF’s statutory jurisdiction.” ECF No. 227 at 3. During the litigation of this important question, 

this Court entered a preliminary injunction on November 3, 2022, to protect BlackHawk, ordering

that “Defendants and their officers, agents, servants, and employees are enjoined from 

implementing and enforcing against BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms 

the provisions in 27 C.F.R. §§ 478.11 and 478.12 that the Court has preliminarily determined are 

unlawful.” ECF No. 118 at 11–12. 

This Court later ruled for plaintiffs on the merits, granting motions for summary judgment 

on June 30, 2023. ECF No. 227. This Court vacated the Final Rule, and entered final judgment on

July 5, 2023. ECF No. 231. This Court rejected the Government’s request for a stay pending 

appeal, as did the Fifth Circuit, concluding “the ATF has not demonstrated a strong likelihood of 

success on the merits, nor irreparable harm in the absence of a stay[.]” See ECF No. 246 at 3 

(Unpublished Order, Case No. 23-10718 (July 24, 2023)).

The Government filed an application with the Supreme Court of the United States for a 

stay of this Court’s judgment entered on July 5, 2023. In addition to arguing the merits, the 

Government’s application argued that a “nationwide vacatur” was not available because “[s]uch 

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, 

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396 (6th Cir. 2022) (Sutton, C.J., concurring).” Government’s Application for a Stay of Judgment, 

Garland, Att’y Gen., et al. v. Vanderstok, Jennifer, et al., No. 23A82 (July 2023) (“Gov’t 

Application”), submitted herewith as Exhibit A.

The Supreme Court granted the Government’s application on August 8, 2023, and stayed

this Court’s June 30, 2023 order and July 5, 2023 judgment only “insofar as they vacate the final 

rule.” See ECF No. 249-1 (Garland, Att’y Gen., et al. v. Vanderstok, Jennifer, et al., No. 23A82, 

Order in Pending Cases (Aug. 8, 2023)). As noted, the Government apparently takes the position 

now that, despite the granting of injunctive relief and a favorable summary judgment ruling on the 

merits by this Court, the Final Rule nonetheless applies to and may be enforced against 

BlackHawk.

ARGUMENT

I. THIS COURT SHOULD CONFIRM THAT THE PRIOR INJUNCTIVE RELIEF

GRANTED TO BLACKHAWK REMAINS IN EFFECT EITHER AS A 

CONTINUATION OF ITS PRELIMINARY INJUNCTION, OR AS A NEW 

PRELIMINARY OR PERMANENT INJUNCTION

This Court should enter an order making explicit that its earlier injunctive relief that the 

Government is enjoined from implementing and enforcing the unlawful sections of the Final Rule 

against BlackHawk, ECF No. 118 at 12, remains in effect by operation of law, by reinstatement, 

or by issuing new relief (or all three). This Court has the jurisdiction and authority to do so under 

its inherent and ancillary powers. See United States v. Ruiz, 536 U.S. 622, 628 (2002) (“[A] federal 

court always has jurisdiction to determine its own jurisdiction.”); Gumbel v. Pitkin, 124 U.S. 131, 

144 (1888) (“So the equitable powers of courts of law over their own process, to prevent abuses, 

oppression, and injustice, are inherent and equally extensive and efficient, as is also their power to 

protect their own jurisdiction and officers in the possession of property that is in the custody of the 

law.”); Hecht Co. v. Bowles, 321 U.S. 321, 329–30 (1944) (describing “the requirements of equity 

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practice with a background of several hundred years of history” and noting that “[a]n appeal to the 

equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which 

guides the determinations of courts of equity....The essence of equity jurisdiction has been the 

power of the [district court] to do equity and to mould [sic] each decree to the necessities of the 

particular case.”) (internal quote omitted). The Government apparently takes the position that this

relief expired upon entry of final judgment in this case, see ECF No. 231, both on merger and 

mootness grounds. But now that the Supreme Court has stayed the final judgment to the extent it

vacates the Final Rule, events have overtaken that analysis and neither of those explanations apply

to invalidate the availability of injunctive relief to BlackHawk. See ECF No. 249-1. In fact, that

recent ruling essentially turns back the clock of this litigation, and, consequently, the interim 

protections granted to BlackHawk as a litigant challenging unlawful agency action pending final 

relief and appellate review remain in full effect.2

In addition to or in lieu of clarification that the original relief remains in place, this Court 

should enter a new injunction that parallels the preliminary injunction this Court previously issued, 

ECF No. 118, specifically to enforce the unstayed aspect of its final judgment. ECF No. 231. It is 

axiomatic that federal courts possess “inherent power to enforce [their] judgments.” Peacock v. 

Thomas, 516 U.S. 349, 356 (1996); see also Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 

559, 577 (5th Cir. 2005) (“District courts can enter injunctions as a means to enforce prior 

judgments.”); see Thomas v. Hughes, 27 F.4th 363, 370 (5th Cir. 2022) (noting that “it is well 

established that courts have the power to enforce their judgments through injunctive relief” and 

affirming district court’s post-judgment order entered after party noticed its appeal). Here, the 

2 Notably, at no time did the Government seek a stay of that ruling; its appeal of the granting of a preliminary 

injunction to BlackHawk is currently pending before the Fifth Circuit as Case No. 22-11086. To the extent 

the Government wishes to pursue its argument that preliminary relief is improper, it can do so on appeal, 

including at oral argument scheduled for September 7, 2023.

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Supreme Court stayed only a limited portion of this Court’s judgment, leaving intact that aspect 

that does not “vacate the final rule.” ECF No. 249-1. This Court consequently has the authority—

and in BlackHawk’s view, respectfully, the obligation—to enforce its judgment and provide relief 

and protection to BlackHawk to the extent it does not already exist or its existence is disputed. See

Mata v. Lynch, 576 U.S. 143, 150 (2015) (federal courts have a “virtually unflagging obligation ... 

to exercise” the jurisdiction they possess).

This Court finally also may wish to clarify that should vacatur of the offending sections of 

the Final Rule not be available, this Court understood and would have expected that the relief and 

protections granted to BlackHawk would continue as a permanent injunction. After all, the 

Government itself acknowledged in briefing before the Supreme Court that the only reason this 

Court denied the remaining claims in the case—including claims for permanent injunctive relief—

was on mootness grounds “because vacatur provides Plaintiffs full relief.” Gov’t Application at 31 

(citing ECF No. 227 at 37; ECF No. 231 at 2). And, as the Government also observed, “partyspecific relief can adequately protect the plaintiff’s interests,” id. at 33, and that it would accept a 

party-specific judgment in this case—even one that involved vacatur of a rule. Id. at 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.”).

BlackHawk notes here that it surely would elevate form over substance—and likely 

represent prosecutorial vindictiveness, perhaps even misconduct—for the Government now to 

argue that BlackHawk is not entitled to any relief after successfully prevailing on its claims before 

this Court, thereby rendering it an immediate target for criminal prosecution under a regulation 

whose legal survival is exceedingly precarious. As noted, the Government endorsed party-specific 

relief in this very case and, moreover, the Supreme Court only stayed this Court’s summary 

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judgment opinion and final judgment “insofar as they vacate the final rule.” ECF No. 249-1. That 

necessarily means that this Court’s legal ruling that that “the ATF has acted in excess of its 

statutory jurisdiction by promulgating” the Final Rule, ECF No. 227 at 35, survives and has the 

force of law. As an issue that has been fully and fairly litigated between the parties, principles of 

issue preclusion (and fairness) bind the Government in any future case against BlackHawk—civil 

or criminal—and plainly should preclude the Government’s enforcement of unlawful agency 

action against BlackHawk.

II. THIS COURT IN THE ALTERNATIVE SHOULD GRANT BLACKHAWK A 

PRELIMINARY INJUNCTION PENDING APPEAL

In the alternative or addition to clarifying the injunctive relief protecting BlackHawk, this 

Court should affirmatively grant BlackHawk an injunction pending appeal that parallels the 

preliminary injunction this Court previously issued. ECF No. 118. BlackHawk already has 

established its entitlement to such relief. Id. The Government did not seek a stay of that ruling and, 

in any event, the Fifth Circuit already has concluded when denying the Government’s motion for 

a stay of the judgment that “the ATF has not demonstrated a strong likelihood of success on the 

merits, nor irreparable harm in the absence of a stay.” ECF No. 246 at 3. The law of the case 

doctrine therefore resolves this issue (at both the trial court and appellate levels) and this Court 

should alternatively grant a preliminary injunction pending appeal. See Med. Ctr. Pharmacy v. 

Holder, 634 F.3d 830, 834 (5th Cir. 2011) (“The law-of-the-case doctrine posits that when a court 

decides upon a rule of law, that decision should continue to govern the same issue in subsequent 

stages in the same case.”) (internal quotes omitted). 

III. THE GOVERNMENT IS JUDICIALLY ESTOPPED FROM OPPOSING THE 

RELIEF SOUGHT BY THIS MOTION

The relief sought here is consistent with the Government’s position in the Supreme Court 

in requesting a stay of this Court’s judgment where the Government argued that party-specific 

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relief could fully redress plaintiffs’ asserted injuries. See, e.g., Gov’t Application at 28 (arguing 

that relief must “be no more burdensome to the defendant than necessary to provide complete relief 

to the plaintiffs” (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); id. at 30 (asserting 

that Article III and equity favors “limiting relief to the plaintiffs before the court”). After prevailing 

on its application for a stay before the Supreme Court, the Government is judicially estopped from 

arguing that party-specific relief is unavailable here for BlackHawk. See Hall v. GE Plastic Pac. 

PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (“Judicial estoppel ‘prevents a party from asserting a 

position in a legal proceeding that is contrary to a position previously taken in the same or some 

earlier proceeding.’”) (quoting Ergo Sci., Inc. v. Martin, 73 F.3d 595, 600 (5th Cir. 1996); see also 

Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303 (5th Cir. 1998) (the doctrine “applies to 

protect the integrity of the courts—preventing a litigant from contradicting its previous, 

inconsistent position when a court has adopted and relied on it”).

The Government’s inconsistent positions (arguably gamesmanship) in seeking to have it 

both ways—particularly with respect to jurisdiction—should be soundly rejected. The 

Government is not be entitled to reap the benefits of both post-judgment stay relief by this Court

(which stayed the applicability of this Court’s order and judgment and allowed the Government to 

file an emergency appeal, ECF No. 238) and of the Supreme Court’s stay of this Court’s order and 

judgment (which allowed the Final Rule to remain in place pending appeal) and then argue that 

this Court lacks the power to issue an injunction so that it may avoid consequences it believes are 

objectionable and adverse to its interests (such as the important—indeed critical—interim relief 

entered by this Court) that serves to address a showing of irreparable harm and protect successful

litigants like BlackHawk.

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CONCLUSION

As it demonstrated in BlackHawk’s initial preliminary injunction papers, in the event this 

Court does not enter the relief sought here BlackHawk will be unable to continue its core business 

operations, and not only may be unable to continue to pursue its legal rights, but may cease to 

exist. See ECF No. 103-1. Surely this is not a fair result for a litigant challenging unlawful agency 

action that both the trial and appellate courts, respectively, have found is likely to succeed on the 

merits. The Government’s contrary, heavy-handed position is unjust, lacks support in both law and 

equity, and should be rejected.

Respectfully submitted,

/s/ Brian D. Poe

Brian D. Poe 

TX Bar No. 24056908

BRIAN D. POE, ATTORNEY AT LAW PLLC

The Bryce Building 

909 Throckmorton Street 

Fort Worth, Texas 76102 

Phone: (817) 870-2022

Fax: (817) 977-6501

bpoe@bpoelaw.com

Michael J. Sullivan

Pro Hac Vice, MA Bar No. 487210

Nathan P. Brennan 

Pro Hac Vice, MN Bar No. 389954

ASHCROFT LAW FIRM LLC

200 State Street, 7th Floor

Boston, MA 02109

Phone: (617) 573-9400

Fax: (617) 933-7607

msullivan@ashcroftlawfirm.com

nbrennan@ashcroftlawfirm.com

Counsel for Intervenor-Plaintiff BlackHawk 

Manufacturing Group Inc. d/b/a 80 Percent Arms

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CERTIFICATE OF SERVICE

I hereby certify that, on August 14, 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/ Brian D. Poe

Brian D. Poe

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CERTIFICATE OF CONFERENCE

I hereby certify that, Intervenor-Plaintiff’s counsel conferred with Defendants’ counsel, via email, 

and Defendants stated, on August 14, 2023, they oppose this Motion.

/s/ Brian D. Poe

Brian D. Poe

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