1

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’ RESPONSE TO ORDER DATED AUGUST 29, 2022 

Plaintiffs, beset by the Defendants’ Final Rule but also lacking access to the 

administrative record underlying their Administrative Procedure Act (“APA”) claims, 

respectfully oppose consolidation of a preliminary injunction hearing and a final merits hearing 

or trial on the merits.1 Rather, Plaintiffs request that this Court enter the preliminary injunction 

against Defendants and order expedited production of the administrative record and merits 

briefing. Plaintiffs need immediate relief,2 but they also need the full administrative record to 

adequately challenge Defendants’ illegal conduct. This conflict militates against consolidation 

under Federal Rule of Civil Procedure 65(a)(2). 

 

1

 In 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. See Redeemed Christian Church of God v. U.S. Citizenship and Immig. 

Servs., 441 F. Supp. 3d 684, 694 (S.D. Tex. 2018); Triplett v. Fed. Bureau of Prisons, 3:08-CV1252-K, 2009 WL 792799, at *7 (N.D. Tex. Mar. 24, 2009). For purposes of Rule 65(a)(2), then, 

Plaintiffs assume that a “trial on the merits” refers to a summary judgment hearing. 

2

 To the extent that it will aid in obtaining immediate relief, Plaintiffs withdraw their 

request for a hearing on their Motion for Preliminary Injunction. 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 1 of 7 PageID 677
2

Plaintiffs initiated this action by filing a Petition for Judicial Review of Agency Action, 

pursuant to the APA. See ECF No. 1. Plaintiffs assert that Defendants’ actions violate the APA, 5 

U.S.C. § 706, because the ATF exceeded its statutory jurisdiction and authority, ECF No. 1 ¶¶ 

96–102 (Count I); because the ATF failed to follow proper APA procedures for its rulemaking 

due to the changes between its proposed and final rule, id. ¶¶ 103–114 (Count II); and because 

the Final Rule is arbitrary, capricious, and not in accordance with law due to its unexplained 

change in position and failure to consider important aspects of the problem, id. ¶¶ 116–130 

(Count III). Plaintiffs also assert claims for violations of the United States Constitution. Id. ¶¶ 

131–157 (Counts IV–VI). 

On August 17, 2022, one week before the Final Rule was to take effect and having 

received no response from the ATF to Tactical Machining’s April 2022 request for determination 

of its products under the new Final Rule, Plaintiffs filed their Motion for Preliminary Injunction. 

See Mot. for Prelim. Inj., ECF No. 15; Pls.’ Br. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Br.”), 

ECF No. 16, at 36–37; Declaration of Darren Peters Sr., ECF No. 16-1, ¶ 9, Ex. 2 (Tactical 

Machining requested determination from ATF in April 2022, upon announcement of the Final 

Rule but had not received response). Plaintiffs’ brief explains the ambiguity and harms caused by 

the Final Rule, that various Tactical Machining vendors have stopped or threatened to stop doing 

business with them after the implementation of the Final Rule, and that Tactical Machining may 

be forced out of business if the Final Rule were implemented. See Pls.’ Br. at 33–37. As further 

explained in Plaintiffs’ Reply Brief to be filed today as well, Tactical Machining, which had 

already suffered harm when it quit selling jigs after the Final Rule was published, has suffered 

further loss of sales and a significant business disruption as consumers and vendors understand 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 2 of 7 PageID 678
3

the Final Rule to apply to Tactical Machining’s products and prohibits the direct sale and 

purchase of its products. 

While Plaintiffs seek expedited preliminary relief to mitigate their irreparable harm, 

judicial review of agency action pursuant to the APA depends upon the administrative record. 

The APA states that in determining whether a final agency action is “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law, contrary to constitutional right . . . 

in excess of statutory jurisdiction, authority or limitations, or . . . without observance of 

procedure required by law” the “court shall review the whole record or those parts of it cited by a 

party . . . .” 5 U.S.C. § 706 (emphasis added). Here, however, the ATF has yet to produce an 

administrative record, nor, given the nascent stage of the case, is there a deadline for them to do 

so. 

As some courts have put it, “[u]nder the APA, . . . ‘the function of the district court is to 

determine whether or not as a matter of law the evidence in the administrative record permitted 

the agency to make the decision it did.’” Redeemed Christian Church of God v. U.S. Citizenship 

and Immig. Servs., 441 F. Supp. 3d 684, 694 (S.D. Tex. 2018) (quoting Stuttering Found. of Am. 

v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)) (emphasis added). Further, a “court 

determining whether some agency action is arbitrary and capricious under the APA makes its 

decision on the basis of the ‘whole record.’” Hornbeck Offshore Servs. L.L.C. v Salazar, 696 F. 

Supp. 2d 627, 635 (E.D. La. 2010); see La Union del Pueblo Entero v. Fed. Emerg. Mgt. Agency, 141 F. Supp. 3d 681, 693 (S.D. Tex. 2015) (“The APA requires a court reviewing agency action 

to review the whole record or those parts of it cited by a party.”) (internal quotation and citation 

omitted). 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 3 of 7 PageID 679
4

Moreover, to the extent that the ATF opposes Plaintiffs’ Motion for Preliminary 

Injunction with any argument not ultimately supported in the administrative record, such 

material is not properly considered under the APA. See Hornbeck Offshore Servs, 696 F. Supp. 

2d at 635 (the administrative record is that “compiled by the agency in advance of litigation, not 

any record thereafter constructed in the reviewing court”) (quoting AT&T Info. Sys., Inc. v. Gen. 

Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987)); see also Guste v. Verity, 853 F.2d 322, 

327 n.8 (5th Cir. 1988) (“Agency action is to be upheld, if at all, on the basis of the record before 

the agency at the time it made its decision.”) (emphasis added). 

“In order for a court to resolve whether an agency’s decision is violative of the APA, the 

agency must prepare a reviewable administrative record for the court.” City of Dallas v. Hall, No. 3:07-cv-0060, 3:07-cv-0213, 2007 WL 3257188, at *4 (N.D. Tex. Oct. 29, 2007). For all 

these reasons, resolution of the merits of Plaintiffs’ APA claims is premature until an 

administrative record is prepared and reviewed. 

Further, while advancing a trial on the merits pursuant to Rule 65(a)(2) has occurred in 

some APA cases, those cases have circumstances not present here. In New Life Evangelistic 

Center, Inc. v. Sebelius, 672 F. Supp. 2d 61, 70 (D.D.C. 2009), for example, the defendant 

agency agreed not to immediately take the challenged action and to provide at least 30 days’ 

notice before implementing the action, preventing imminent harm from occurring and allowing 

time for production of the record. Other cases combining a preliminary injunction determination 

and an APA merits determination have likewise involved production of or stipulation to an 

administrative record, instances in which the agency action is challenged purely on procedural 

grounds, or some combination thereof. See Chamber of Com. of U.S. v. U.S. Dept. of Homeland 

Sec., 20-cv-07331, 2021 WL 4198518, at *1 (N.D. Cal. Sept. 15, 2021) (claim was for violation 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 4 of 7 PageID 680
5

of notice and comment procedures, parties stipulated to record of interim rule and materials cited 

therein); Bayaud Enter., Inc. v. U.S. Dep’t of Veteran’s Affairs, 17-cv-01903, 2019 WL 2428780, 

at *5 (D. Colo. June 10, 2019) (expediting submission of administrative record and merits briefs 

after denying temporary restraining order); N.B. v. United States, 552 F. Supp. 3d 387, 396 

(E.D.N.Y. 2021) (expediting merits determination because full record was already before the 

court). 

Just as importantly, at least one court has denied Rule 65(a)(2) consolidation where it 

would preclude petitioners’ review and the court’s consideration of the whole record. Rejecting 

intervenors’ request to consolidate preliminary and merits procedures, the court noted that 

“consolidation will prejudice the Petitioners in their ability to review the complete administrative 

record and develop all arguments and evidence supporting their petitions for review . . . .” 

Wyoming v. U.S. Dep’t of Int., 2:15-cv-041, 2015 WL 9463708, at *1 (D. Wyo. Dec. 17, 2015). 

In that case, as here, the preliminary injunction briefing did not present “any arguments based on 

a review of the administrative record because, at the time the [preliminary injunction] motions 

were filed, [the agency] had not lodged any portion of the administrative record.” Id. Of 

particular note, the court in that case denied consolidation, even though it had granted the 

preliminary injunction, finding it unlikely that “Congress has granted or delegated to the 

[agency] authority to regulate” the conduct at issue. Id. The court held that petitioners were still 

entitled “to present and develop” these or other challenges to the rule and that a review of the 

complete record was important to each of the merits issues before the court. Id at *2. In that case, 

just as here, the administrative record “may very well provide insight into [the agency’s] historic 

understanding of the scope of the agency’s regulatory jurisdiction . . . .” Id. Plaintiffs cannot 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 5 of 7 PageID 681
6

forego either immediate relief or access to the complete record appropriate for review under the 

APA. 

In response to this Court’s August 29, 2022 Order, and so that Plaintiffs might evaluate 

the potential harm from delaying resolution of a preliminary injunction, Plaintiffs asked 

Defendants’ counsel when the administrative record for this case would be prepared. 

Defendants’ counsel responded that it is impossible to say with any certainty when the record 

might be compiled, but the agency estimates that it will take at least another three weeks to 

compile the record and the record will be thousands of pages. For the reasons stated in Plaintiffs’ 

preliminary injunction briefing, delay of several more weeks will be disastrous, particularly for 

Tactical Machining. 

Plaintiffs therefore propose that this Court enter the preliminary injunction against 

Defendants, order the administrative record to be provided within one month, and order that 

summary judgment motions be filed no later than two months after the administrative record is 

lodged and finalized (or three months if the administrative record exceeds 10,000 pages). 

DATED this 31st day of August, 2022. 

Respectfully submitted, 

/s/ R. Brent Cooper 

R. Brent Cooper (TX Bar No. 04783250) 

Benjamin D. Passey (TX Bar No. 24125681) 

COOPER & SCULLY, P.C. 

900 Jackson Street, Suite 100 

Dallas, TX 75202 

Telephone: (214) 712-9500 

Telecopy: (214) 712-9540 

brent.cooper@cooperscully.com 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 6 of 7 PageID 682
7

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 

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 August 31, 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/ R. Brent Cooper R. Brent Cooper 

Case 4:22-cv-00691-O Document 54 Filed 08/31/22 Page 7 of 7 PageID 683