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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.

MERRICK GARLAND, in his official

capacity as Attorney General of the United

States; et al.,

Defendants.

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

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR CLARIFICATION

Plaintiffs oppose Defendants’ motion seeking permission to apply an agency rule the

Court has found likely to be unlawful to Tactical Machining’s products, with the potential

outcome that Defendants would thereby destroy Tactical Machining’s entire business. Further,

major premises underlying Defendants’ motion are false, and the motion should therefore be

denied.

First, this Court has already found that the Final Rule at issue likely exceeds agency

authority and violates the APA. See Order, ECF No. 56 at 6 (“Plaintiffs have shown a strong

likelihood that they will succeed on the merits of their claims that ATF’s new definitions are

inconsistent with the Gun Control Act.”). Applying an unlawful regulatory definition,

hypothetically or allegedly in mitigation of Plaintiffs’ harm, could, at this point, only be used

either on the assumption that Court’s prior holding is erroneous or to attempt to generate a basis

for reconsideration of the Preliminary Injunction Order. Defendants should not be permitted to

collaterally attack the Preliminary Injunction Order by doling out applications or interpretations

of the Final Rule in response to unfavorable rulings, a process which, as explained below, would

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not necessarily end with a single classification. Plaintiffs oppose Defendants’ request to apply

unlawful regulations, regulations that exceed their authority, to Tactical Machining’s products.

Second, while Defendants do not dwell on this possibility in their motion, if Defendants

determine that Tactical Machining’s product is a “firearm” under the unlawful Final Rule’s

redefinition of the Gun Control Act, Tactical Machining faces even more drastic, immediate, and

irreparable harm than it has already suffered. As explained in previous declarations, several

vendors and customers have already stopped doing business with Tactical Machining based on

the mere risk that Tactical Machining’s products may be classified as firearms under the Final

Rule or for other reasons related to the lack of certainty in the Final Rule. See Decl. of Darren

Peters, Sr. (“Peters Decl.”), ECF No. 16-1, ¶¶ 12–13 (shippers and processors have stopped or

threatened to stop doing business with Tactical Machining); Decl. of Nicholas Cherry (“Cherry

Decl.”) ECF No. 62-3, ¶¶ 11‒14 (anodizing vendor cannot lawfully provide service under Final

Rule). Further, even after the entry of the Preliminary Injunction protecting Tactical Machining

from Defendants’ ultra vires rule, demand for Tactical Machining’s products remains fatally

low. See Cherry Decl. ECF No. 62-3, ¶¶ 7–10 (sales remain unsustainably depressed following

entry of Preliminary Injunction); Supp. Decl. of Nicholas Cherry, ¶¶ 3–6 (filed herewith as

Exhibit 1) (Tactical Machining is suffering its first monthly operating loss in years and will go

out of business if such losses continue). Plaintiffs cannot submit a declaration based on a crystal

ball, but it is only logical that if Defendants determine that Tactical Machining’s product is a

“firearm,” all direct-to-customer sales of the product, which constitute over 90% of Tactical

Machining’s business, would—really must—stop. See Peters Decl. ECF 16-1, ¶¶ 5, 11 (over

90% of Tactical Machining’s business consists of products for the self-manufacture of frames or

receivers). Under this scenario, even with the Preliminary Injunction in place to prevent

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enforcement against Tactical Machining itself, Tactical Machining would be driven out of

business before this case could be resolved.

The evidence indicates that classification of Tactical Machining’s primary product

offering as a “firearm” would be the death knell of its business, but Defendants fail to address

this potential outcome. Defendants do not, for example, offer to stipulate to the extension of the

Preliminary Injunction to protect Tactical Machining’s customers and vendors as would be

needed to allow Tactical Machining to remain in business. Defendants are apparently unwilling

to stand behind their own presumption that they will (in the throes of litigation) find Tactical

Machining’s product is not a “firearm.” Rather, Defendants meagerly offer what this Court has

already ordered—that the unlawful Final Rule not be applied to Tactical Machining. Plaintiffs

therefore oppose Defendants’ request for permission to take an action that may destroy Tactical

Machining.

Third, even if Defendants classify Tactical Machining’s product as not a “firearm” under

the (unlawful) Final Rule, such classification would not have most of the benefits Defendants

posit. For example, Defendants assert that “Tactical Machining . . . acknowledges that a

classification of the product it submitted . . . would eliminate at least some of the harm that it

allegedly faces as a result of the Rule.” Defs.’ Mot. for Clarification, ECF No. 71 at 2 (citing

Supp. Decl. of Darren Peters Sr. (“Peters Supp. Decl.”), ECF No. 55-1, ¶ 10). The specific harm

referenced in the cited declaration refers to harm that would result from Tactical Machining no

longer being able to offer its product for sale. That harm, however, has already been addressed

by the Court’s Preliminary Injunction Order, which prevents the application of the unlawful

Final Rule to Tactical Machining.

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Defendants also err when they assert that if they find Tactical Machining’s product to not

be a “firearm” under the (unlawful) Final Rule, “the Parties’ dispute will be narrowed or

eliminated.” Defs.’ Mot. for Clarification, ECF No. 71 at 2. Not one of Plaintiffs’ claims for

relief would be mooted or appreciably “narrowed” should one current iteration of Tactical

Machining’s products, standing alone, be found to be not a “frame” or “receiver.” The Final Rule

will still exceed the ATF’s statutory jurisdiction and authority (Count I), the Final Rule would

still have violated procedural requirements (Count II), the Final Rule would still be arbitrary and

capricious (Count III), and the Final Rule would still violate provisions of the U.S. Constitution

(Counts IV‒VI). See Pet. for Judicial Review, ECF No. 1 at 38–52.

Further, in direct response to their perceived impact of the Final Rule, Tactical

Machining stopped selling jigs earlier this year. It was only after they stopped selling jigs that

they submitted their request for classification under the Final Rule. As a result, Defendants’

proffered classification letter presumably will not address the jig that Tactical Machining

previously sold. Peters Suppl. Decl., ECF No. 55-1, ¶ 8 (Tactical Machining stopped selling jigs

on April 11, 2022, when the Rule was announced); Peters Decl., ECF No. 16-1, Ex.2 (evidencing

Tactical Machining’s request for classification was submitted April 12, 2022, and noting that

Tactical Machining did not at that time offer or sell jigs or other templates, etc.). Yet sales of jigs

in combination with the products Tactical Machining colloquially sells as “80% Lowers”

bolstered sales, which practice Tactical Machining wishes, and has concrete plans, to resume.

Peters Suppl. Decl., ECF No. 55-1, ¶ 9 (prior to the rule, unavailability of jigs reduced sales of

80% Lowers); Cherry Decl., ECF No. 62-3, ¶¶ 15–17 (Tactical Machining has raw materials for

jigs and would produce and sell jigs but for the Final Rule). Thus, a new classification letter

limited to Tactical Machining’s product sold as an “80% Lower” will not appreciably narrow

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Tactical Machining’s concerns with the Final Rule—nor will it eliminate the harm suffered by all

Plaintiffs because of the Final Rule.

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Moreover, while classification of Tactical Machining’s product may, as Defendants

assert, provide an assurance to Tactical Machining’s out-of-state customers, that assurance is too

narrow and leaves too many questions unanswered to meaningfully mitigate Plaintiffs’ harm. On

the same day that Defendants filed their Motion for Clarification with this Court, they argued to

another court that “[t]here is no question that the Final Rule’s amended definition of ‘frame or

receiver’ was in part designed to address the widespread unregulated sales of so-called ‘80

percent receivers’ by sellers not federally licensed to sell firearms” who “‘are not running

background checks or maintaining transaction records.’” Joint Status Report, California v. ATF,

No. 3:20-cv-06761, 2020 WL 9849685, ECF No. 116, at 6–7 (N.D. Cal. Sept. 15, 2022) (quoting

Final Rule, 87 Fed. Reg. 24,652, at 24,663). How is a customer to reconcile Defendants’

statement that they unquestionably intend to regulate “80 percent receivers” with a potentially

litigation-driven finding that the Final Rule does not apply to one of Tactical Machining’s

products?

Likewise, Defendants have conspicuously avoided questions about whether or when a

seller needs to track separate orders to a single customer to see whether the separate parts

become a firearm.

2 Neither Tactical Machining nor its customers would know if their prior

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“A billet or blank of an AR-15 variant receiver . . . that is not sold, distributed, or possessed

with instructions, jigs, templates, equipment, or tools such that it may readily be completed is not

a receiver.” Definition of “Frame or Receiver” and Identification of Firearms (“Final Rule”), 87

Fed. Reg. 24,652, 24,739 (Apr. 26, 2022) (emphasis added).

2 Defendants have stated: “So long as the collection of parts is clearly identifiable as a collection

that may be completed or assembled as an instrument to expel live ammunition, that is sufficient

to constitute a ‘weapon,’ and therefore a ‘firearm,’ within the meaning of the GCA.” Defs.’ Opp.

to Pls.’ Emergency Mot. for Prelim. Inj., Division 80 LLC v. Garland, No. 3:22-cv-148, ECF No.

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sale/purchase or their possession of a jig means that the object can be “readily converted” to a

firearm. Thus, even if the single stand-alone Tactical Machining product itself is classified as not

a “firearm,” potential customers, including the Individual Plaintiffs, are justifiably concerned that

the purchase or possession of one of Tactical Machining’s products, in conjunction with other

tools or equipment the customer already owns, may expose them to criminal liability, including

fines, jail time, and the potential forfeiture of their right to possess firearms. See Suppl. Decl. of

Jennifer VanDerStok, ECF No. 62-1, ¶ 5; Suppl. Decl. of Michael G. Andren, ECF No. 62-2, ¶ 5.

Indeed, Defendants have admitted non-frames and non-receivers may transform into a “frame or

receiver” under the Final Rule when sold or possessed with a jig. Defs.’ Resp. to Pls.’ Request to

Expand Scope of Prelim. Inj., ECF No. 72 at 19 (“[A]s this Court has recognized, [] out-of-state

customers could face liability under 18 U.S.C. § 922(a)(3) unless they purchase items classified

as firearms under the Rule—such as certain unfinished receivers sold with jigs, a product

combination that Tactical Machining does not currently offer—through an in-state FFL.”).

Finally, as explained in Plaintiffs’ Motion to Expand the Preliminary Injunction, Plaintiff

Firearms Policy Coalition represents thousands of members, including other producers and

sellers of products similar to Tactical Machining. Pls.’ Mot. to Expand Prelim. Inj., ECF No. 63,

at 9–13. Their claims would not be resolved by Defendants’ proposal. Nor should the Court

encourage a “whack a mole” approach whereby new plaintiffs continually seek to join or

16 at 11–12 (S.D. Tex. Aug. 23, 2022); see also id. at 18 (“Just as the non-licensee owner of a

retail establishment may not evade the GCA requirements that attach to the sale of a ‘firearm’ by

disassembling a weapon designed to expel a projectile and placing the component parts into two

separate paper bags, or by charging the customer for the component parts in two separate backto-back transactions, an online or mail order establishment may not employ such measures to

circumvent the requirements of the law.”).

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intervene under the belief that Defendants may classify new parties’ products to avoid further

injunctions.

A simple decision tree reveals two outcomes to Defendants’ belated offer to classify

Tactical Machining’s product under Defendants’ (unlawful) Final Rule, and neither is worth

facilitating. Either Defendants will destroy Tactical Machining by eliminating demand for its

product and interfering with its vendors, or Defendants will attempt to nullify the effect of this

Court’s Preliminary Injunction Order while providing no ascertainable relief to Plaintiffs and

potentially opening the door for questions of mootness for the preliminary injunctive relief or

joinder of new plaintiffs. Meanwhile, Tactical Machining suffers decreased sales every day and

faces the complete loss of its business. See Supp. Decl. of Nicholas Cherry, ¶¶ 3–6 (filed

herewith as Exhibit 1) (Tactical Machining is suffering its first monthly operating loss in years

and will go out of business if such losses continue). Plaintiffs therefore object to Defendants’

belated attempt to apply the terms of their likely unlawful Final Rule and any delay of the

resolution of the Motion to Expand the Preliminary Injunction.

Defendants’ proposal is too little, too late.

DATED this 22nd day of September, 2022.

Respectfully submitted,

R. Brent Cooper (TX Bar No. 04783250)

Benjamin D. Passey (TX Bar No. 24125681)

COOPER & SCULLY, P.C.

900 Jackson Street, Suite 100

Dallas, Texas 75202

Telephone: (214) 712-9500

Telecopy: (214) 712-9540

brent.cooper@cooperscully.com

ben.passey@cooperscully.com

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

FIREARMS POLICY COALITION

5550 Painted Mirage Road, Suite 320

Las Vegas, NV 89149

Telephone: (916) 378-5785

Telecopy: (916) 476-2392

cwi@fpchq.org

/s/ Erin M. Erhardt

Kaitlyn D. Schiraldi* (TN Bar No. 039737)

Erin M. Erhardt* (CO Bar No. 49360)

MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80227

Telephone: (303) 292-2021

Telecopy: (877) 349-7074

kschiraldi@mslegal.org

eerhardt@mslegal.org

*Admitted pro hac vice

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that, on September 22, 2022, a true and correct copy of the foregoing 

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

/s/ Erin M. Erhardt

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