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’ RESPONSE TO POLYMER80, INC.’S NOTICE REGARDING 

REMAINING CLAIMS

Pursuant to this Court’s Order, ECF No. 233 (July 12, 2023), Defendants hereby submit this 

Response to Intervenor-Plaintiff Polymer80, Inc.’s Notice Regarding Remaining Claims, ECF No. 

232 (July 7, 2023). The Court asked Defendants to “address (1) the issue of mootness as to 

Polymer80’s remaining claims1 and (2), if the Court determines Polymer80’s claims are not moot, 

whether Defendants agree to the proposed scheduling order (ECF No. 232-1)” submitted by 

Polymer80. ECF No. 233, at 1-2.

1. Polymer80’s remaining claims are not moot. As Defendants surmise, the Court 

inquired into the potential mootness of these claims because the Open Letter and Polymer80 Letter 

discuss the classification of products under the Final Rule, Definition of “Frame or Receiver” and 

1 Polymer80’s remaining claims – Counts I, III, V, VII, IX, XII, XIII in part, XIV in part, XV, XVI 

in part, and XVII in part – are those challenging ATF’s December 2022 Open Letter, see Appendix in 

Support of Polymer80, Inc.’s Brief in Support of its Motion to Intervene, ECF No. 159, APP 008-017 

(“Open Letter”), and ATF’s December 2022 letter to Polymer80, see id. at APP 047-056 (“Polymer80 

Letter”).

Case 4:22-cv-00691-O Document 247 Filed 08/02/23 Page 1 of 5 PageID 4949
2

Identification of Firearms, 87 Fed. Reg. 24,652 (April 26, 2022) (“Rule”), and this Court issued an 

opinion and entered a final judgment vacating the Rule. See Memorandum Opinion & Order on 

Parties’ Cross-Motions for Summary Judgment & Motions to Intervene, ECF No. 227, at (June 30, 

2023) (“Opinion” or “Op.”); Final Judgment, ECF No. 231, at 1 (July 5, 2023). However, Defendants 

have appealed the Opinion and Final Judgment to the Fifth Circuit. See Notice of Appeal, ECF No. 

234 (July 13, 2023); VanDerStok v. Garland, No. 23-10718 (5th Cir.). That appeal is pending. 

Therefore, regardless of whether Polymer80’s remaining claims would be moot in the event that this 

Court’s vacatur of the Rule withstands appellate review (an issue on which Defendants take no 

position at this time), those claims are not currently moot.

2. Defendants respectfully request that the Court not enter the scheduling order 

proposed by Polymer80, and instead, stay proceedings regarding Polymer80’s remaining claims 

pending resolution of the appeal in VanDerStok, No. 23-10718, an appeal in which Defendants are 

appellants and Polymer80 is an appellee. A district court “has broad discretion to stay proceedings as 

an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). This 

discretion “calls for the exercise of judgment, which must weigh competing interests and maintain an 

even balance.” Landis v. North American Co., 299 U.S. 248, 254-55 (1936).

“A stay pending the outcome of litigation between the same parties involving the same or 

controlling issues is an acceptable means of avoiding unnecessary duplication of judicial machinery.” 

ACF Indus., Inc. v. Guinn, 384 F.2d 15, 19 (5th Cir. 1967); see also Wolf Designs, Inc. v. Donald McEvoy Ltd., 

Inc., 341 F. Supp. 2d 639, 642 (N.D. Tex. 2004) (“[A] stay pending the outcome of litigation in another 

court between the same parties, involving the same or controlling issues, is an appropriate means of 

avoiding unnecessary waste of judicial resources.”). Such a stay is warranted where “there is substantial 

overlap in the underlying issues” and “where at least some of the issues in the case could be clarified 

or eliminated” in the related matter; such a stay ensures that “judicial resources will be conserved, and 

Case 4:22-cv-00691-O Document 247 Filed 08/02/23 Page 2 of 5 PageID 4950
3

duplication of efforts avoided.” ZeniMax Media Inc. v. Samsung Electronics Co., No. 3:17-cv-1288-D, 

2017 WL 4805524, at *4 (N.D. Tex. Oct. 25, 2017). Therefore, district courts routinely stay 

proceedings when an appeal is likely to shed substantial light on legal issues in a case.2

A stay is warranted here because the VanDerStok appeal will have substantial impact on the 

merits of Polymer80’s remaining claims. Polymer80 challenges the Open Letter and Polymer80 Letter. 

Those letters applied a provision of the Rule that provides that “a partially complete . . . frame or 

receiver” is a frame or receiver if it “may readily be completed, assembled, restored, or otherwise 

converted to function as a frame or receiver.” 27 C.F.R. § 478.12(c). The letters concluded that 

certain partially complete frames manufactured or sold by Polymer80 qualified as frames and firearms 

because they have “reached a stage of manufacture where they ‘may readily be completed, assembled, restored, 

or otherwise converted’ to a functional frame.” Open Letter, APP 016 (quoting 27 C.F.R. § 478.12(c)); 

accord Polymer80 Letter, APP 055. At issue in the VanDerStok appeal is the lawfulness of § 478.12(c), 

and the extent of ATF’s authority to regulate partially complete frames and receivers. See Op. 25-30. 

Therefore, it is virtually certain that the resolution of the VanDerStok appeal will have significant 

bearing on Polymer80’s remaining claims.

A stay will conserve resources of the parties and the Court. Both Polymer80’s remaining 

claims and the VanDerStok appeal involve the core legal issue of whether ATF has statutory authority 

2 See, e.g., Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 622 (S.D.N.Y. 2012) (“a court may also properly 

exercise its staying power when a higher court is close to settling an important issue of law bearing on 

the action”); Minn. Voters Alliance v. Walz, 494 F. Supp. 3d 610, 611-12 (D. Minn. 2020) (staying 

proceedings pending appeal of preliminary injunction because, among other things, the appeal was 

“likely to resolve some of the legal issues in dispute”); Beltronics USA, Inc. v. Midwest Inventory Distrib., 

LLC, 545 F. Supp. 2d 1188, 1190 (D. Kan. 2008) (staying proceedings to await Tenth Circuit’s 

resolution of a legal issue that “would significantly advance the course of th[e] litigation” and best 

serve “the time and effort of the parties and the court”); Bray v. QFA Royalties, LLC, No. 06-cv-02528, 

2007 WL 2688858, at *1 (D. Colo. Sept. 12, 2007) (staying proceedings pending appeal of preliminary 

injunction because “the Tenth Circuit’s determination of the legal issues inherent in [the] preliminary 

injunction decision will edify further proceedings on those same . . . claims for permanent injunctive 

relief”).

Case 4:22-cv-00691-O Document 247 Filed 08/02/23 Page 3 of 5 PageID 4951
4

to regulate partially complete frames and receivers that may readily be converted to a functional state. 

A stay would ensure that “judicial resources will be conserved, and duplication of efforts avoided,” 

ZeniMax Media, 2017 WL 4805524, at *4, because Defendants and Polymer80 would not need to 

litigate this issue simultaneously in two courts. Furthermore, a stay would not prejudice Polymer80 

because the parties could continue to litigate the case upon expiration of the stay. Given that the Fifth 

Circuit has expedited the appeal and scheduled oral argument for September 7, 2023, a stay would not 

be inordinately long, and would not unduly delay resolution of Polymer80’s claims.

CONCLUSION

Polymer80’s remaining claims are not moot. Rather than enter the schedule proposed by 

Polymer80, the Court should stay Polymer80’s remaining claims pending the Fifth Circuit’s resolution 

of VanDerStok v. Garland, 23-10718 (5th Cir.).

DATED: August 2, 2023 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/ Jeremy S.B. Newman

DANIEL RIESS

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) 532-3114

Email: jeremy.s.newman@usdoj.gov

Attorneys for Defendants

Case 4:22-cv-00691-O Document 247 Filed 08/02/23 Page 4 of 5 PageID 4952
5

CERTIFICATE OF CONFERENCE

I certify that I have conferred with counsel for Polymer80, Inc. (“Polymer80”), James W. 

Porter III and Marc A. Nardone, on August 2, 2023. Counsel for Polymer80 indicated that Polymer80 

opposes the entry of a stay and believes the briefing schedule it has proposed for resolving its 

remaining claims is appropriate.

/s/ Jeremy S.B. Newman

CERTIFICATE OF SERVICE

On August 2, 2023, 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/ Jeremy S.B. Newman

Case 4:22-cv-00691-O Document 247 Filed 08/02/23 Page 5 of 5 PageID 4953