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; FIREARMS POLICY

COALITION, INC., a nonprofit corporation, 

Plaintiffs, 

and

BLACKHAWK MANUFACTURING GROUP,

INC.; 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-00691-O 

PLAINTIFFS’ COMBINED REPLY BRIEF IN SUPPORT OF THEIR 

MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’

CROSS-MOTION FOR SUMMARY JUDGMENT

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i 

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................................................................................... iii

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

STANDARD OF REVIEW........................................................................................... 2 

ARGUMENT ................................................................................................................. 3 

I. INDIVIDUAL PLAINTIFFS AND FIREARMS POLICY 

COALITION, INCLUDING ITS MEMBERS, ARE HARMED BY 

THE FINAL RULE AND HAVE STANDING TO CHALLENGE IT

........................................................................................................................ 3 

A. Individual Plaintiffs Have Standing ................................................... 3 

B. Firearms Policy Coalition Has Standing ............................................ 5 

II. THE FINAL RULE IS INCONSISTENT WITH THE GCA AND 

THE AGENCIES ARE NOT ENTITLED TO DEFERENCE ...................... 8 

A. The Final Rule is Inconsistent with the GCA .................................... 8 

B. The Agencies are Not Otherwise Entitled to Deference .................... 10 

1. The Agencies cannot bootstrap a “gap” into the GCA .......... 10 

2. The Agencies cannot use Skidmore to incorporate 

arbitrary and capricious standards into issues of 

statutory interpretation ........................................................... 11 

III. THE FINAL RULE IS PROCEDURALLY DEFECTIVE ........................... 14 

A. The Final Rule’s Deviation from the Proposed Rule Exceeds 

Logical Outgrowth ............................................................................. 14 

B. Position Changes in the Final Rule are Arbitrary and 

Capricious ............................................................................................. 21

IV. ELEMENTS OF THE RULE ARE UNCONSTITUTIONALLY 

VAGUE.......................................................................................................... 24 

A. The Definition of “Readily” is Unconstitutionally Vague ................. 25 

B. The Final Rule’s Definitions of “Firearm” and “Complete 

Weapon” Subject People of Ordinary Intelligence to Criminal 

Penalties ............................................................................................. 31 

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ii

V. THE RULE’S REGULATION OF SPEECH VIOLATES THE 

FIRST AMENDMENT.................................................................................. 36

A. Tactical Machining’s Self-Censorship is an “Injury” for 

Standing Purposes.............................................................................. 36

B. Other Plaintiffs’ Right to Information Satisfies their Standing 

Requirements ..................................................................................... 38

C. The Final Rule Implements Speaker-Based Restrictions on 

Non-Commercial, Protected Speech.................................................. 39

D. The Final Rule Impermissibly Restricts Specific Content................. 41

VI. THE TAKE CARE CLAUSE AND MAJOR QUESTIONS 

DOCTRINE ENSURE THE SEPARATION OF POWERS IS NOT 

JUST AN ABSTRACT PRINCIPLE ............................................................ 43

VII. VACATUR IS THE APPROPRIATE REMEDY......................................... 44

CONCLUSION.......................................................................................................... 50

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iii

Table of Authorities

Page

Cases

Adkins v. Vilsack,

252 F. Supp. 3d 588 (N.D. Tex. 2017) ................................................................... 2

Air Evac EMS, Inc. v. Texas Dept. of Ins., Div. of Workers’ Comp.,

851 F.3d 507 (5th Cir. 2017) .................................................................................. 5

Allison Engine Co., Inc. v. U.S. ex rel. Saunders,

553 U.S. 662 (2008) ............................................................................................... 9

Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp.,

810 F.3d 335 (5th Cir. 2016) .................................................................................. 16

Arcaca v. Cloud Books, Inc.,

478 U.S. 697 (1986) ............................................................................................... 42

Arizona v. Biden,

31 F.4th 469 (6th Cir. 2022) ................................................................................... 47, 48

Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd.,

627 F.3d 547 (5th Cir. 2010) .................................................................................. 6, 7

Ass’n of Priv. Sector Colls. & Univs. v. Duncan, 

681 F.3d 427 (D.C. Cir. 2012) ................................................................................ 20

Bartnicki v. Vopper,

532 U.S. 514 (2001) ............................................................................................... 37

Basiardanes v. City of Galveston,

682 F.2d 1203 (5th Cir. 1982) ................................................................................ 38

Baylor County Hosp. Dist. v. Price,

850 F.3d 257 (5th Cir. 2017) .................................................................................. 11, 12

Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853 (1982) ............................................................................................... 38

Bd. of Governors of Fed. Rsrv. Sys. v. Dimension Fin. Corp.,

474 U.S. 361 (1986) ............................................................................................... 46

Bd. of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) ............................................................................................... 40

Bennett v. Spear,

520 U.S. 154 (1997) ............................................................................................... 5

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Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc.,

448 F.3d 138 (2d Cir. 2006) ................................................................................... 7

Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60 (1983) ................................................................................................. 40

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ............................................................................................... 37

Brown v. Gardner,

513 U.S. 115 (1994) ............................................................................................... 10, 11

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023) ................................................................................... 2, 10, 49

Carlson v. Postal Reg. Comm’n,

938 F.3d 337 (D.C. Cir. 2019) ................................................................................ 10

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 

447 U.S. 557 (1980) ............................................................................................... 40

Chabad Lubavitch of Litchfield Cty., Inc. v. Borough of Litchfield

853 F. Supp. 2d 214 (D. Conn. 2012)..................................................................... 29 

Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 

768 F.3d 183 (2d Cir. 2014) ................................................................................... 29 

Chocolate Mfrs. Ass’n of U.S. v. Block,

755 F.2d 1098 (4th Cir. 1985) ................................................................................ 17

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) ............................................................................................... 3

Collins v. Yellen,

141 S. Ct. 1761 (2021)............................................................................................ 9

Competitive Enter. Inst. v. U.S. Dep’t of Transp.,

856 F.2d 1563 (D.C. Cir. 1988) .............................................................................. 38

Connally v. General Constr. Co.,

269 U.S. 385 (1926) ............................................................................................... 34

CSX Transp., Inc. v. Surface Transp. Bd.,

584 F.3d 1076 (D.C. Cir. 2009) .............................................................................. 20, 21

Dakota Access, LLC v. Standing Rock Sioux Tribe, 

142 S. Ct. 1187 (2022)............................................................................................ 48

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Data Mktg. P’ship, LP v. U.S. Dep’t of Lab.,

45 F.4th 846 (5th Cir. 2022) ................................................................................... 45, 47

Dep’t of Com. v. New York, 

139 S. Ct. 2551 (2019)............................................................................................ 5 

Driftless Area Land Conservancy v. Valcq,

16 F.4th 508 (7th Cir. 2021) ................................................................................... 49

ESI/Emp. Sols., L.P. v. City of Dallas, 

531 F. Supp. 3d 1181 (E.D. Tex. 2021).................................................................. 4

Fairchild v. Liberty Indep. Sch. Dist.,

597 F.3d 747 (5th Cir. 2010) .................................................................................. 25

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................................................................... 46

Fed. Commc’ns Comm’n v. Prometheus Radio Project,

141 S. Ct. 1150 (2021)............................................................................................ 21

Firearms Policy Coal., Inc. v. McCraw,

No. 4:21-cv-1245-P, 2022 WL 3656996 (N.D. Tex. Aug. 25, 2022) .................... 6, 8

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ............................................................................................... 44 

Friends of the Earth, Inc. v. Chevron Chemical Co.,

129 F.3d 826 (5th Cir. 1997) .................................................................................. 8

GBX Assocs., LLC v. United States,

No. 1:22-cv-401, 2022 WL 16923886 (N.D. Ohio Nov. 14, 2022) ....................... 46, 47

Getty v. Fed. Sav. & Loan Ins. Corp.,

805 F.2d 1050 (D.C. Cir. 1986) .............................................................................. 3

Glass v. Paxton,

900 F.3d 233 (5th Cir. 2018) .................................................................................. 36

Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................................................................................... 24, 26

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982) ............................................................................................... 13

Gulf Restoration Network v. U.S. Dep’t of Trans.,

452 F.3d 362 (5th Cir. 2006) .................................................................................. 12

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Handley v. Chapman,

587 F.3d 273 (5th Cir. 2009) .................................................................................. 21

Harmon v. Thornburgh,

878 F.2d 484 (D.C. Cir. 1989) ................................................................................ 47

Hays Cty. Guardian v. Supple,

969 F.2d 111 (5th Cir. 1992) .................................................................................. 41

Hill v. Colorado,

530 U.S. 703 (2000) ............................................................................................... 25

Huawei Techs. USA, Inc. v. FCC,

2 F.4th 421 (5th Cir. 2021) ..................................................................................... 15, 16 

Hunt v. Wash. St. Apple Adver. Comm’n,

432 U.S. 333 (1977) ............................................................................................... 6, 7

Innovator Enterprises, Inc. v. Jones,

28 F. Supp. 3d 14 (D.D.C. 2014) ............................................................................ 13

Johnson v. United States,

576 U.S. 591 (2015) ............................................................................................... 34

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)............................................................................................ 9

Kleindienst v. Mandel,

408 U.S. 753 (1972) ............................................................................................... 38

Kolender v. Lawson,

461 U.S. 352 (1983) ............................................................................................... 26

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

140 S. Ct. 2367 (2020)............................................................................................ 46

Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158 (2007) ............................................................................................... 16

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................................................................... 4

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ............................................................................................... 46, 47, 49

Magee v. City of S. Padre Island,

463 F. App’x 377 (5th Cir. 2012) ........................................................................... 24

Case 4:22-cv-00691-O Document 191 Filed 03/06/23 Page 7 of 63 PageID 3930
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McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................................................................... 29

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ................................................................................................. 21

N.Y. State Rifle & Pistol Ass’n v. Cuomo,

804 F.3d 242 (2d Cir. 2015) ................................................................................... 27

Nat’l Inst. of Family and Live Advocs. v. Becerra,

138 S. Ct. 2361 (2018)............................................................................................ 41

Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,

145 F.3d 1399 (D.C. Cir. 1998) .............................................................................. 47

Nat’l Rifle Ass’n of Am., Inc. v. BATFE,

700 F.3d 185 (5th Cir. 2012) .................................................................................. 6

Nat’l Shooting Sports Found., Inc. v. Jones,

716 F.3d 200 (D.C. Cir. 2013) ................................................................................ 12

Ne. Md. Waste Disposal Auth. v. EPA,

358 F.3d 936 (D.C. Cir. 2004) ................................................................................ 15

O’Reilly v. U.S. Army Corps of Eng’rs,

477 F.3d 225 (5th Cir. 2007) .................................................................................. 45

Pa. Family Inst., Inc. v. Black,

489 F.3d 156 (3d Cir. 2007) ................................................................................... 38

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ............................................................................................... 35

Phillips Petroleum Co. v. Johnson,

22 F.3d 616 (5th Cir. 1994) .................................................................................... 16

Prime Healthcare Serv.’s, Inc. v. Harris

216 F. Supp. 3d 1096 (S.D. Cal. 2016) .................................................................. 29 

R.R. Ricou & Sons Co. v. Fairbanks, Morse & Co.,

11 F.2d 103 (5th Cir. 1926) .................................................................................... 11

Reed v. Town of Gilbert,

135 S. Ct. 2218 (2015)............................................................................................ 42

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ............................................................................................... 38

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Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ............................................................................................... 41

Roark & Hardee LP v. City of Austin,

522 F.3d 533 (5th Cir. 2008) .................................................................................. 34, 35

Roberts v. United States,

No. 2:04-cr-295-PMD, 2007 WL 9754483 (D.S.C. Oct. 30, 2007) ....................... 27 

Sarre v. City of New Orleans, 

420 Fed. Appx. 371 (5th Cir. 2011) ....................................................................... 38

Sector Colls. & Univs. v. Duncan,

681 F.3d 427 (D.C. Cir. 2012) ................................................................................ 20

Sec’y of State of Md. v. Joseph H. Munson Co., Inc.,

467 U.S. 947 (1984) ............................................................................................... 37

Sierra Club v. Peterson,

185 F.3d 349 (5th Cir. 1999) .................................................................................. 3

Sig Sauer, Inc. v. Jones,

133 F. Supp. 3d 364 (D.N.H. 2015) ....................................................................... 13

Siwe v. Holder,

742 F.3d 603 (5th Cir. 2014) .................................................................................. 2

Small Refiner Lead Phase-Down Task Force v. EPA,

705 F.2d 506 (D.C. Cir. 1983) ................................................................................ 15, 16, 20 

Smith v. Goguen,

415 U.S. 566 (1974) ............................................................................................... 26

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................................................................... 37, 41, 42

Tribe v. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,

985 F.3d 1032 (D.C. Cir. 2021) .............................................................................. 48

Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin,

37 F.4th 1078 (5th Cir. 2022) ................................................................................. 8

Summit Petroleum Corp. v. EPA,

690 F.3d 733 (6th Cir. 2012) .................................................................................. 10

Syracuse v. ATF, 

No. 1:20-cv-06885, 2021 WL 23326 (S.D.N.Y. Jan. 29, 2021) ............................. 10, 22

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Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety Comm’n,

989 F.3d 368 (5th Cir. 2021) .................................................................................. 15

Tex. Pipeline Ass’n v. F.E.R.C.,

661 F.3d 258 (5th Cir. 2011) .................................................................................. 11

Texas v. Becerra,

577 F. Supp. 3d 527 (N.D. Tex. 2021) ................................................................... 12

Texas v. Biden,

20 F.4th 928 (5th Cir. 2021) ................................................................................... 45, 48

Texas v. EPA,

389 F. Supp. 3d 497 (S.D. Tex. 2019) .................................................................... 15

Texas v. United States,

40 F.4th 205 (5th Cir. 2022) ................................................................................... 3, 48

Thompson v. W. States Med. Ctr.,

535 U.S. 357 (2002) ............................................................................................... 42

Timpinaro v. S.E.C.,

2 F.3d 453 (D.C. Cir. 1993) .................................................................................... 29, 30

UAW v. Brock,

477 U.S. 274 (1986) ............................................................................................... 7

United Food & Com. Workers Union Local 751 v. Brown Grp., Inc.,

517 U.S. 544 (1996) ............................................................................................... 7

United States v. 16,179 Molso Italian .22 Caliber Winlee 

Derringer Convertible Starter Guns,

443 F.2d 463 (2d Cir. 1971) ................................................................................... 27, 28

United States v. Campbell,

427 F.2d 892 (5th Cir. 1970) .................................................................................. 27

United States v. Catanzaro,

368 F. Supp. 450 (D. Conn. 1973).......................................................................... 27

United States v. Clinical Leasing Serv., Inc.,

925 F.2d 120 (5th Cir. 1991) .................................................................................. 35

United States v. Drasen,

845 F.2d 731 (7th Cir. 1988) .................................................................................. 27, 28

United States v. Kelly,

276 F. App’x 261 (4th Cir. 2007) ........................................................................... 27

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United States v. M-K Specialties Model M-14 Machinegun,

424 F. Supp. 2d 862 (N.D. W. Va. 2006) ............................................................... 27

United States v. Quiroz,

449 F.2d 583 (9th Cir. 1971) .................................................................................. 28

United States v. Texas, 

40 F.4th 205 (5th Cir. 2022), cert granted, __ U.S. __ (2022) 

 (No. 22-58 linked with 22A17) .............................................................................. 46 

United States v. Ross,

948 F.3d 243 (5th Cir. 2020) .................................................................................. 31

United States v. TRW Rifle 7.62x55mm, One Model 14 Serial 593006,

447 F.3d 686 (9th Cir. 2009) .................................................................................. 28

United States v. Whalen,

337 F. Supp. 1012 (S.D.N.Y. 1972) ....................................................................... 27

United States v. Wick,

No. CR 15-30-M-DLC, 2016 WL 10612608 (D. Mont. Mar. 11, 2016) ............... 27

United States v. Wojcikiewicz,

403 F. App’x 483 (11th Cir. 2010) ......................................................................... 27

United Steel v. Mine Safety & Health Admin.,

925 F.3d 1279 (D.C. Cir. 2019) .............................................................................. 45

Util. Air Reg. Grp. v. EPA,

573 U.S. 302 (2014) ............................................................................................... 13

Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.,

455 U.S. 489 (1982) ............................................................................................... passim

Virgin Islands Tel. Corp. v. FCC,

444 F.3d 666 (D.C. Cir. 2006) ................................................................................ 45

Virginia v. Am. Booksellers Ass’n,

484 U.S. 383 (1988) ............................................................................................... 36

Warth v. Seldin,

422 U.S. 490 (1975) ............................................................................................... 6, 7

West Virginia v. EPA,

142 S. Ct. 2587 (2022)............................................................................................ 44

Winters v. New York,

333 U.S. 507 (1948) ............................................................................................... 25, 35

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Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................................................................... 43

STATUTES

5 U.S.C. § 703 ............................................................................................................ 45

5 U.S.C. § 706(2)(A).................................................................................................. 2, 21

5 U.S.C. § 706(2)(B)–(C) .......................................................................................... 2

18 U.S.C. § 921 .......................................................................................................... 22 

18 U.S.C. § 921(a)(3)(A) ........................................................................................... 22

18 U.S.C. § 921(a)(3)(B) ........................................................................................... 23

18 U.S.C. § 924(a)(1)(D) ........................................................................................... 31

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (11th ed. 2019) .............................................................. 45

H.G. Emery and K.G. Brewster, THE NEW CENTURY DICTIONARY OF 

THE ENGLISH LANGUAGE, Vol. 2 (1927) ................................................................. 45

How to Mill & Finish an 80% Lower, 

80 PERCENT ARMS (Nov. 3, 2022) .......................................................................... 40 

How to Request Variances, Exemptions, and Determinations, ATF ......................... 40

Johnathan F. Mitchell, The Writ-of-Erasure Fallacy, 

104 VA. L. REV. 933 (2018) ................................................................................... 45 

Memorandum from the Office of the Att’y Gen. to the Heads of Civil 

Litigating Components U.S. Attorneys, Litigation Guidelines for Cases 

Presenting the Possibility of Nationwide Injunctions 7 (Sept. 13, 2018) ............... 47 

Mila Sohoni, The Power to Vacate a Rule, 

88 GEO. WASH. L. REV. 1121 (2020) ...................................................................... 46, 47

Nicholas Bagley, Remedial Restraint in Administrative Law, 

117 COLUM. L. REV. 253 (2017) ............................................................................. 15 

Open Letter to All Federal Firearms Licensees, U.S. Dep’t of Justice & 

Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 27, 2022) .............. 33 

Open Letter to All Federal Firearms Licensees, U.S. Dep’t of Justice & 

Bureau of Alcohol, Tobacco, Firearms and Explosives (Dec. 27, 2022) ............... 33

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INTRODUCTION

The Department of Justice (“DOJ”) and the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (“ATF”) (collectively, “Agencies”) continue to provide unsubstantiated and inadequate 

rationalizations as to why the Final Rule should not fail judicial review. The Agencies’ repeated 

claim that the sky is falling, however, does not alter the facts and statutes. To begin, deference has 

no place in the case before this Court. The Agencies’ squinting at the statute to create ambiguity 

and manufacture authority to regulate non-firearm objects—against the explicit directive of 

Congress—violates basic principles of statutory interpretation. The deference afforded to agencies 

under the “arbitrary and capricious” standard is a lower threshold—presumably why the Agencies

beg for its application—and does not apply to misinterpretations of statutes and the Constitution. 

Additionally, the Agencies assemble a patchwork of language and claim that because 

Congress said it somewhere, sometime, ‘readily converted’ can apply wherever they would like. 

This disingenuous “interpretation” is not the sole infirmity of the Final Rule. The Final Rule was 

not a foreseeable or logical outgrowth of the Proposed Rule. The Proposed Rule’s definition of 

“frame or receiver” was mutilated, depriving commenters of the opportunity to provide feedback

and the Agencies the benefit of receiving that feedback. The product of the Agencies’ definitional 

labyrinth is a vagueness that clouds the Final Rule. Worse, the Final Rule subjects violators to 

criminal penalties despite its lack of clarity. The Final Rule also forces sellers and distributors to 

self-censor for fear of criminal prosecution now that the Agencies have seen fit to regulate First 

Amendment protected materials. 

For these reasons, in addition to the Agencies’ lack of authority to promulgate this 

regulation, the Final Rule should be vacated, and its enforcement enjoined; the Final Rule’s

unlawfulness cannot be untangled and remedied on remand.

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STANDARD OF REVIEW

The Agencies’ standard of review recitation is woefully inadequate. The Agencies act as 

though Plaintiffs only challenge the Final Rule as being arbitrary, capricious, or an abuse of 

discretion under 5 U.S.C. § 706(2)(A). Defs’ Br. in Opp to Pls.’ Mot. For Summ. J. & Cross-Mot.

(“Feds’ Br.” or “Agencies’ Brief”) at 9. By focusing on only this basis for review, the Agencies 

assert that the Court’s review of the Final Rule must be narrow and highly deferential, a court 

cannot second-guess an agency’s judgment, there is “less latitude in finding grounds for reversal,” 

and agency action must be upheld if the agency articulates a minimally rational relationship 

between the facts it found and the choice it made. Id. That simply is not the case.

As an initial matter, Plaintiffs challenge the Final Rule on multiple bases, including as 

being in excess of the Agencies’ statutory authority and contrary to constitutional right, power, 

and privilege under 5 U.S.C. § 706(2)(B) and (C). See ECF Nos. 16, 133 (Preliminary Injunction 

brief and Rule 65 Supplement); Pls.’ MSJ at 39–63. Courts generally review questions of statutory 

and constitutional interpretation de novo, not under a “highly deferential standard.” See Siwe v. 

Holder, 742 F.3d 603, 607 (5th Cir. 2014) (agency’s legal conclusion reviewed de novo unless 

agency is construing an ambiguous statute that it has the responsibility to administer); Adkins v. 

Vilsack, 252 F. Supp. 3d 588, 596–97 (N.D. Tex. 2017) (courts review legal questions de novo, 

but with an “appropriate level of deference” for interpretations of a statute or regulation). Because 

the GCA is not ambiguous as relevant here, the Court owes no deference to the Agencies. See

Cargill v. Garland, 57 F.4th 447, 464–65 (5th Cir. 2023) (en banc) (Chevron not applicable where 

government had not invoked it and the statute imposed criminal penalties).

Even where agency action is reviewed under an arbitrary and capricious standard, the 

review is not pro forma. The Fifth Circuit has recently stated that a court need not rely on an 

Case 4:22-cv-00691-O Document 191 Filed 03/06/23 Page 14 of 63 PageID 3937
3

agency’s assertion that it considered important aspects of the problem but rather “must make a 

searching and careful inquiry to determine if [the agency] actually did consider” them. Texas v. 

United States, 40 F.4th 205, 228 (5th Cir. 2022) (determining agency had not shown adequate 

consideration of costs of new rule and reliance on old policy) (quoting Getty v. Fed. Sav. & Loan 

Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986)); Sierra Club v. Peterson, 185 F.3d 349, 368 (5th 

Cir. 1999) (“Overton Park added teeth to arbitrary and capricious review”) (citing Citizens to 

Preserve Overton Park v. Volpe, 401 U.S. 402, 415–16 (1971)).

ARGUMENT

I. INDIVIDUAL PLAINTIFFS AND FIREARMS POLICY COALITION, 

INCLUDING ITS MEMBERS, ARE HARMED BY THE FINAL RULE AND HAVE 

STANDING TO CHALLENGE IT

A. The Individual Plaintiffs Have Standing

The Agencies’ argument that Individual Plaintiffs lack standing is inconsistent with this 

Court’s prior findings and misapplies the traceability element of standing.

First, this Court has already found that Individual Plaintiffs established irreparable harm.

This Court noted Plaintiffs’ affidavit testimony that, but for the risk of criminal penalties, they 

would directly purchase items they perceive as being subject to the Final Rule. See ECF No. 89 at 

9 (citing Supp. Decl. of J. VanDerStok 1, ECF No. 62-1, ¶¶ 2–6; Supp. Decl. of M. Andren 1, ECF 

No. 62-2, ¶¶ 2–6). Because “the credible threat of a potential felony indictment” has effectively 

chilled Individual Plaintiffs’ behavior, they have “sufficiently demonstrated irreparable harm.” Id. 

at 11. The Agencies provide no argument as to why this prior finding was erroneous or how 

Individual Plaintiffs could suffer irreparable harm and yet not have standing. See 5 U.S.C. § 702 

(“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by 

agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). Nor 

can the Agencies claim they are not responsible for the expansion of criminal penalties to 

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previously lawful conduct—a practice that Individual Plaintiffs engaged in prior to the Final Rule 

is now unlawful under the Final Rule. Plaintiffs’ irreparable harm demonstrates their standing.

Additionally, this Court previously found that to purchase items newly regulated due to the 

Final Rule, Individual Plaintiffs would be required to route their transaction through a Federal 

Firearms Licensee (“FFL”) and incur a $30 transfer free, plus additional time and expense. ECF 

No. 89 at 7–8. While this Court found these costs insufficient to establish irreparable harm, they

demonstrate harm nonetheless and provide standing. See ESI/Emp. Sols., L.P. v. City of Dallas, 

531 F. Supp. 3d 1181, 1188 (E.D. Tex. 2021) (overruling objections to declarations providing cost 

estimates where relief sought was nonmonetary and increased costs established de minimis harm 

for standing purposes). There is no dispute that these expenditures would be unrecoverable against 

the Agencies should Plaintiffs prevail. Again, the Agencies do not argue or provide authority to 

the contrary.

The Agencies’ main argument seems to be that because the FFL transfer fees are not 

federally mandated, they are not traceable to the Agencies. The Agencies assert that the fees are 

“the independent action of some third party.” Feds’ Br. at 28–29. This argument stems from a 

sound bite in Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992), and does not withstand analysis.

For example, in Department of Commerce v. New York, the Supreme Court held that third party 

action will not defeat standing when the “theory of standing . . . does not rest on mere speculation

about the decision of third parties; [but] relies instead on the predictable effect of Government 

action on the decisions of third parties.” 139 S. Ct. 2551, 2565–66 (2019) (emphasis added).

Indeed, even in Lujan, the Court held that a plaintiff would need only “adduce facts showing” the 

third-party choices that “will be made.” 504 U.S. at 562. Here, Individual Plaintiffs did not 

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speculate, but contacted an FFL. See Supp. Decl. of J. VanDerStok, ECF No. 62-1, ¶¶ 2–6; Supp. 

Decl. of M. Andren, ECF No. 62-2, ¶¶ 2–6.

Further, actions by third parties do not prevent traceability, as “Article III ‘requires no more 

that de facto causality.’” Dep’t of Com., 139 S. Ct. at 2566. Tracing an injury to the conduct of a 

defendant for purposes of Article III does not require meeting a legal standard of proximate cause. 

See Air Evac EMS, Inc. v. Tex. Dept. of Ins., Div. of Workers’ Comp., 851 F.3d 507, 514 (5th Cir. 

2017). Thus, harm by a defendant need not be “the very last step in the chain of causation” to be 

traceable to the defendant. Bennett v. Spear, 520 U.S. 154, 168‒69 (1997). Here, the harms that 

Individual Plaintiffs would suffer are directly traceable to the Agencies.

B. Firearms Policy Coalition Has Standing

As to Firearms Policy Coalition (“FPC”), the Agencies do not challenge that FPC has 

standing in its own right. As already addressed in Plaintiffs’ Motion, FPC itself has suffered a legal 

wrong and is adversely affected by the Final Rule because it owns NFOs1 that it uses to advance 

its organizational purposes including education, especially in testimony during public hearings on 

legislation and regulations about the definition of a “firearm.” See Pls.’ MSJ at 50; Combs Decl. 

¶¶ 9–11, ECF No. 62-4. Among other issues, because NFOs are now treated as firearms, FPC 

cannot directly purchase these items, would be required to pay a similar transfer fee as Individual 

Plaintiffs, would be subject to heightened corporate compliance requirements for storage and 

transportation, and is prevented bringing NFOs into many places, even though they do not meet 

the statutory definition of “firearm.” This injury satisfies Article III.

1 The items discussed herein are colloquially referred to as “blanks,” or “partially-manufactured,” 

“80%” or “unfinished” frames or receivers. These monikers bear no legal significance. Plaintiffs 

refer to them as non-firearm objects (“NFOs”).

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In addition, FPC has associational standing to bring this suit. See Warth v. Seldin, 422 U.S. 

490, 511 (1975) (“Even in the absence of injury to itself, an association may have standing solely 

as the representative of its members.”). Associational standing allows membership organizations 

to challenge a law’s constitutionality if:

[1] its members would otherwise have standing to sue in their own right; [2] the 

interests it seeks to protect are germane to the organization’s purpose; and [3] 

neither the claim asserted nor the relief requested requires the participation of 

individual members in the lawsuit.

Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010) 

(citing Hunt v. Wash. St Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)); see Nat’l Rifle Ass’n 

of Am., Inc. v. BATFE, 700 F.3d 185, 191–92 (5th Cir. 2012) (finding NRA had associational 

standing on behalf its members). This District has already determined that FPC has met this test in 

a similar context. See Firearms Policy Coal., Inc. v. McCraw, No. 4:21-cv-1245-P, 2022 WL 

3656996, at *2 (N.D. Tex. Aug. 25, 2022) (“FPC has standing to challenge the laws that prohibit 

its members from carrying a handgun for self-defense outside the home.”).

Here, FPC’s individual members, including VanDerStok and Andren, have standing to sue 

in their own right. Moreover, FPC’s corporate members, including Tactical Machining and 

Intervenor-Plaintiff Blackhawk Manufacturing, have standing to sue in their own right. 

Accordingly, the first associational standing prong it met. 

As to the second, this lawsuit is directly germane to FPC’s purpose, which is to “advocate 

for individual liberties, restore freedom, and defend important rights—especially, but not limited 

to, those protected under the First, Second, Fifth, and Fourteenth Amendments to the United States 

Constitution.” Combs Decl. ¶ 4, ECF No. 62-4. In fact, several of the claims here are directly 

relevant to FPC’s purpose to “fight for the people, liberty, and freedom . . . focused on the right to 

keep and bear arms and adjacent issues including freedom of speech, due process . . . separation 

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of powers . . . and limited government.” Pls’. MSJ. at 49 (citations omitted). Moreover, the 

“germaneness requirement is ‘undemanding’ and requires ‘mere pertinence’ between the litigation 

at issue and the organization’s purpose.” Ass’n of Am. Physicians & Surgeons, Inc., 627 F.3d at 

550 n.2 (citing Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 

148 (2d Cir. 2006)). Here, that modest requirement is met.

Lastly, the relief Plaintiffs request does not require individual participation by FPC’s 

members. At its base, the third prong is “prudential” and “focuses importantly ‘on matters of 

administrative convenience and efficiency.’” Id. at 551 (quoting United Food & Com. Workers 

Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555 (1996)). In Association of American 

Physicians & Surgeons, the Fifth Circuit reasoned that, like here, while an association’s action for 

damages running solely to its members would be barred, equitable claims of relief were not, and 

“both the claims and relief appear to support judicially efficient management if associational 

standing is granted.” Id. at 553. 

This follows the Supreme Court’s reasoning in Warth, where it stated: “[S]o long as the 

nature of the claim and of the relief sought does not make the individual participation of each 

injured party indispensable to proper resolution of the cause, the association may be an appropriate 

representative of its members entitled to invoke the court’s jurisdiction.” 422 U.S. at 511; see Hunt, 

432 U.S. at 342 (citing the same); UAW v. Brock, 477 U.S. 274, 282 (1986) (citing the same). As 

framed in Plaintiffs’ Amended Petition and Plaintiffs’ Motion, FPC seeks declaratory and 

injunctive relief against the Agencies and the Final Rule regarding the rights of its members, under

the APA and the Constitution, and not individual damages. Given Plaintiffs’ requested equitable 

relief, FPC meets this prudential standing requirement.

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The Agencies’ arguments regarding the indicia of members tests in Friends of the Earth, 

Inc. v. Chevron Chemical Co. and Students for Fair Admissions, Inc. v. University of Texas at 

Austin are not relevant here. Those cases addressed whether the organizations actually had 

members—something that has never been a question here. See Friends of the Earth, 129 F.3d 826, 

827, 829 (5th Cir. 1997); Students for Fair Admissions, 37 F.4th 1078, 1084–85 (5th Cir. 2022). 

FPC is a traditional membership organization and has detailed how individuals become members. 

See Combs Decl. ¶ 8, ECF No. 62-4. The Agencies do not contest this point as to FPC in the

Agencies’ Brief. Accordingly, FPC meets the prongs of the associational standing test and has 

standing to sue on behalf of its members, as it did in McCraw.

II. THE FINAL RULE IS INCONSISTENT WITH THE GCA AND THE AGENCIES 

ARE NOT ENTITLED TO DEFERENCE

The Agencies’ interpretation of the GCA is neither correct nor persuasive. While invoking 

arguments for deference due to the “line-drawing” allegedly required by and the “technical nature” 

of the GCA, the Agencies simultaneously argue that no deference is needed because the Final Rule 

offers the “best interpretation of the statutory term ‘frame or receiver’” and of the GCA more 

broadly. Feds’ Br. at 57–63. Yet, as this Court already held, as demonstrated in Plaintiffs’ prior 

briefing, as this Court already held, and as further elaborated in Plaintiffs’ Rule 65 Supplemental 

Brief, the Final Rule’s inclusion of “partially complete, disassembled or nonfunctional” frames or 

receivers and its “weapons parts kit” insertion, at a minimum, are inconsistent with the GCA. See 

ECF Nos. 16, 56, 89, 133, 141. Moreover, the Agencies are not entitled deference.

A. The Final Rule is Inconsistent with the GCA

This Court has already held that the “Final Rule’s redefinition of ‘frame or receiver’ 

conflicts with the [GCA’s] plain meaning.” ECF No. 56 at 8; see ECF No. 133-1 (comparison of 

statutory language and regulation). Specifically, the Rule’s addition of “partially complete, 

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disassembled, or nonfunctional” frames or receivers goes beyond the GCA by regulating things

that may become receivers as receivers. Id. In doing so, the Agencies inappropriately

commandeered language Congress had used elsewhere but chose not to use when regarding

firearm frames or receivers. Id.; see Collins v. Yellen, 141 S. Ct. 1761, 1782 (2021); Allison Engine 

Co., Inc. v. U.S. ex rel. Saunders, 553 U.S. 662, 671 (2008).

Similarly, this Court found that the Final Rule expanded the definition of “firearm” beyond 

that permitted in the GCA by adding a sentence addressing “weapon parts kit[s].” ECF No. 56 at 

12. This Court held that the Agencies had inappropriately purported to grant themselves authority, 

by copying phrases “from various places in the statute, [and] cobbling them together to form the 

ATF’s own definition of ‘firearm,’” which exceeded the boundaries of the GCA. Id. This Court 

observed that, in enacting the GCA, Congress chose to regulate only certain parts—the frame or 

receiver—and that the definition of firearm “does not cover weapon parts, or aggregations of 

weapon parts, regardless of whether the parts may be readily assembled into something that may 

fire a projectile.” Id. at 12–13. This Court concluded that “precise wording demands precise 

application.” Id. at 13.

These regulations, including the regulation of jigs, tools, and other items that will never be 

part of a firearm, incorporate terms where Congress excluded them, ignore the plain and 

understood meaning of “frame” and “receiver,” regulate where the Agencies previously

recognized they were precluded from regulating, and disregard the legislative history of the GCA.

See ECF No. 16 at 23‒30; ECF No. 56 at 6–10; ECF No. 133 at 8–25, 28–31. In short, using 

standard principles of statutory construction focused on text, structure, and history, not only is the 

Final Rule not the best interpretation of the GCA, but it is also inconsistent with the plain meaning 

of the GCA. See Collins, 141 S. Ct. at 1782; Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); Fed. 

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Defs.’ Mot. for Summ. J., Syracuse v. ATF, No. 1:20-cv-06885, 2021 WL 23326, ECF No. 98 at 

34 (S.D.N.Y. Jan. 29, 2021).

B. The Agencies are not Otherwise Entitled to Deference

1. The Agencies cannot bootstrap a “gap” into the GCA

While purporting not to invoke Chevron and not directly arguing that the GCA is 

ambiguous, the Agencies argue that Congress left a “gap” for them to fill. Feds’ Br. at 57–60.

As demonstrated above, no such “gap” exists; nor would Chevron deference be applicable 

in any event. See Cargill, 57 F.4th at 465 (declining to apply Chevron where statute was not 

ambiguous, agencies did not invoke Chevron, statute at issue imposed criminal penalties, and 

agency’s interpretive position was inconsistent with prior interpretation). The Agencies’ argument

that the GCA is incomplete and should be left to their “technical expertise” relies not on the text 

of the GCA, but rather on the Agencies’ prior position that a frame or receiver is determined by its 

stage of manufacture. Id. at 58. The Agencies cannot bootstrap their prior interpretation of the 

statute to create ambiguity where none existed in the first place. Moreover, the longevity of an 

agency’s interpretation “is no antidote to clear inconsistency with a statute[.]’” Carlson v. Postal 

Reg. Comm’n, 938 F.3d 337, 349 (D.C. Cir. 2019) (quoting Brown v. Gardner, 513 U.S. 115, 122 

(1994)). “[A]n agency may not insulate itself from correction merely because it has not been 

corrected soon enough, for a longstanding error is still an error.” Summit Petroleum Corp. v. EPA, 

690 F.3d 733, 746 (6th Cir. 2012) (emphasis added).

The Agencies claim that the GCA does not “delineate[] when a frame or receiver is 

created,” that “common” dictionary definitions do not answer this question, and therefore the 

“ATF must use its technical expertise to draw the line somewhere.” Feds’ Br. at 57. Essentially,

the Agencies’ argument is that whenever Congress regulates an item, Congress also implicitly

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leaves it to agencies to determine whether and to what degree potential precursors to or elements 

of the item may be regulated. The Agencies, however, supply no caselaw or other reasoning as to 

why this is an appropriate approach to statutes. Nor do they provide any limitation that would 

preclude this argument from being made as to every item regulated under the United States Code.

Thankfully, common statutory principles rebut the Agencies’ arguments. See Tex. Pipeline 

Ass’n v. FERC, 661 F.3d 258, 264 (5th Cir. 2011) (“[A]gencies cannot manufacture statutory 

ambiguity with semantics to enlarge their congressionally mandated border. ‘Ambiguity is a 

creature not of definitional possibilities but of statutory context.’”) (quoting Brown v. Gardner, 

513 U.S. 115, 118 (1994); see R.R. Ricou & Sons Co. v. Fairbanks, Morse & Co., 11 F.2d 103, 

104 (5th Cir. 1926) (“common usage” of terms “describe structures so far completed as to be 

capable of being used,” “a qualifying adjective . . . was not needed to indicate the absence of an 

intention to give that statute the effect of” applying before then).

2. The Agencies cannot use Skidmore to incorporate arbitrary and 

capricious standards into issues of statutory interpretation

Seemingly unhappy with the outcome of any prospective Chevron analysis, the Agencies 

implicitly argue for the application of arbitrary and capricious standards to the entirety of this case, 

including their statutory interpretation, and ask for deference on other bases, none of which are 

warranted.

First, “arbitrary and capricious” type deference cannot be applied to statutory 

interpretation. The Agencies place their “best interpretation” argument after their arbitrary and 

capricious argument, interweaving suggestions of arbitrary and capricious analysis into their 

statutory interpretation. Feds’ Br. at 57–60. This line of argument seems to be inspired by Baylor 

County Hospital District. Feds’ Br. at 62 (citing Baylor Cty. Hosp. Dist. v. Price, 850 F.3d 257, 

262 (5th Cir. 2017)). There, the Fifth Circuit referred to the “‘distinct but potentially overlapping’

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relationship between the arbitrary and capricious standard of review and Skidmore deference.”

Baylor Cty. Hosp. 850 F.3d at 262 (internal citation omitted). The Baylor County Hospital Court

assumed that the arbitrary and capricious standard applied as the more stringent standard before 

that court, rather than a specific Medicare standard not applicable here. Id. at 261 (requiring the 

agency’s finding, “if supported by substantial evidence,” to be conclusive). The GCA, however, 

places no thumb on the Agencies’ side of the scale. 

The Agencies claim that defining frame or receiver requires “technical expertise to draw 

the line somewhere,” and then cite cases to the effect that “courts are generally unwilling to review

line-drawing by the agency” unless the lines “are patently unreasonable.” Feds’ Br. at 57–58. Each

of the cases cited by the Agencies proceeded under an arbitrary and capricious analysis. See Texas 

v. Becerra, 577 F. Supp. 3d 527, 551 (N.D. Tex. 2021) (enjoining HHS COVID vaccine and mask 

mandates, making line-drawing statement in context of arbitrary and capricious analysis); Nat’l 

Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 214‒15 (D.C. Cir. 2013) (making linedrawing statement in context of evaluating whether agencies’ selection of entities to receive 

demand letter was arbitrary); Gulf Restoration Network v. U.S. Dep’t of Trans., 452 F.3d 362, 370 

n.15 (5th Cir. 2006) (applying line drawing statement in the context of an arbitrary and capricious 

review of consideration of cumulative effects and what is “foreseeable”). These cases do not 

establish that the Agencies may, as they seek to do here, reduce a court’s diligence or duty when 

interpreting a statute merely by claiming that statutory interpretation is an instance of drawing 

lines as to the limit of the Agencies’ authority.

Second, the Agencies cite cases mentioning their “expertise in classifying firearms,”

suggesting the Court should defer to such expertise. Feds’ Br. at 59. In the first case, the court

found that only Skidmore deference could apply to a classification letter and then rejected the

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classification of the item at issue as a silencer, proving that whatever “expertise” the Agencies may 

have, it is neither absolute nor determinative. See Innovator Enters., Inc. v. Jones, 28 F. Supp. 3d 

14, 24 (D.D.C. 2014) (holding ATF’s classification of item was arbitrary and capricious and 

“deeply flawed” for failure to provide adequate reasoning and failure to consider relevant data).

The second case likewise mentioned deference only in the context of an arbitrary and capricious 

review, deferring to ATF’s distinction between a muzzle brake and a silencer. Sig Sauer, Inc. v. 

Jones, 133 F. Supp. 3d 364, 370‒72 (D.N.H. 2015). These cases are consistent with this Court’s 

statement that ATF may be entitled to some deference when making a specific classification. See 

ECF No. 56 at 10. This case, however, is not about applying existing regulations to a single item, 

but about changing federal regulations entirely to sweep new categories of items into the Agencies’

purview. An arbitrary and capricious standard is not appropriate in this context.

Third, the Agencies resort to their concern that, without the Final Rule, it will be too easy 

to circumvent the purposes of the GCA. Feds’ Br. at 59. The Agencies’ repeated attempts to 

sensationalize this matter and claim chaos in the streets does not expand the statutory limits on 

their authority. The Agencies have no more expertise than courts in divining legislative purpose

and offer no authority for their supposition that courts should defer to new statutory interpretations 

that an Agency discovers half a century after the statute was enacted. Indeed, this Court has already 

rejected the Agencies’ articulation of the intent of the GCA as overly broad. ECF No. 56 at 11. In 

any event, perceived legislative purpose cannot overcome unambiguous statutory text. See Griffin 

v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (“There is, of course, no more persuasive 

evidence of the purpose of a statute than the words by which the legislature undertook to give 

expression to its wishes.”); Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 325 (2014) (“An agency has 

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no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory 

terms.”).

The Agencies’ interpretation of the GCA is due no deference.

III. THE FINAL RULE IS PROCEDURALLY DEFECTIVE

In addition to being inconsistent with the GCA and entitled no deference, the Final Rule is 

procedurally defective. First, the Proposed Rule did not provide adequate notice and opportunity 

to comment on what became the Final Rule; the extent and direction of change from what was 

noticed was not foreseeable. Second, the Agencies failed to adequately explain their reversal of 

position and failed to consider important aspects of the Final Rule, rendering their action arbitrary 

and capricious.

A. The Final Rule’s Deviation from the Proposed Rule Exceeds Logical 

Outgrowth

Contrary to the Agencies’ assertion, the Final Rule is not a logical outgrowth of the 

Proposed Rule. See Pls.’ MSJ at 23–30; contra Feds’ Br. at 31–43. The Agencies try to obscure 

this fact by pointing to specific, minute similarities between the two and by attempting to minimize 

their burden under the APA. Importantly, in the context of this claim, Plaintiffs do not assert that 

the Agencies cannot make these changes—that would be a distinct argument—but rather that, in 

making specific changes between the Proposed Rule and the Final Rule, the Agencies materially 

diverged from the former in a way that was unknowable to the reasonable commenter; thus the 

Agencies were required to notice those substantive alterations and allow for comment. The 

Agencies’ claim that enforcing the logical outgrowth requirement would in some way broadly and 

negatively impact their ability to issue federal regulations is nonsense. Congress established the 

Agencies’ ability to issue regulations and conditioned that ability on notice and comment.

Application of the law is not a negative feedback loop; it is the will of Congress. The Agencies’

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failure here constitutes a violation of the APA that warrants vacatur of the Final Rule. See Nicholas 

Bagley, Remedial Restraint in Administrative Law, 117 COLUM. L. REV. 253, 275 (2017) 

(“[N]early every logical-outgrowth violation leads to vacatur.”). The ultimate question on this 

issue is whether the Agencies provided adequate notice to the public to respond to the scope and 

issues in the Final Rule, and the answer simply, “No.”

The Agencies do not dispute that a final agency action must logically grow from the 

proposed action, so that any interested parties could reasonably anticipate (and therefore provide 

comment on) the changes. Feds’ Br. at 14; see Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety 

Comm’n, 989 F.3d 368, 381–82 (5th Cir. 2021); Huawei Techs. USA, Inc. v. FCC, 2 F.4th 421, 

447 (5th Cir. 2021) (“notice [of proposed rulemaking] must adequately frame the subjects for 

discussion such that [an] affected party should have anticipated the agency’s final course”); Ne. 

Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004). Instead, the Agencies claim 

they meet the duty imposed by the APA standard and lean heavily on a previously rejected and 

non-binding order denying a preliminary injunction in Morehouse Enterprises LLC. Feds’ Br. at 

31–33. The Agencies do not meet the APA’s requirements here.

The Final Rule does not have to identically follow the Proposed Rule, but the APA’s 

mandate is a question of fair notice. “[I]f if the final rule deviates too sharply from the proposal, 

affected parties will be deprived of notice and an opportunity to respond to the proposal.” Texas v. 

EPA, 389 F. Supp. 3d 497, 504 (S.D. Tex. 2019) (quoting Small Refiner Lead Phase-Down Task 

Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983)). This requirement seeks both to include the 

public in the rulemaking that will bind it and to provide the agency the benefits of obtaining 

informed input from as many sources as possible. Id. at 503–04 (“[T]he notice-and-comment 

requirements assist in the substantive formation of a rule by ensuring ‘that the broadest base of 

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information [is] provided to the agency by those most interested and perhaps best informed on the 

subject of the rulemaking at hand.’”) (quoting Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 

620 (5th Cir. 1994)). The test that the Agencies repeatedly bury is: “Whether a final rule is a 

‘logical outgrowth’ of a proposed rule will turn on whether the interested parties ‘should have 

anticipated’ the final rule from the proposed rule.” Id. (quoting Small Refiner Lead, 705 F.2d at 

549). “The object, in short, is one of fair notice.” Id. (quoting Long Island Care at Home, Ltd. v. 

Coke, 551 U.S. 158, 174 (2007)). The Agencies cannot satisfy this test here.

First, the Agencies’ attempt to support their argument through extensive usage of footnotes 

constitutes a waiver of those specific arguments. As the Agencies have previously recognized, 

“[a]rguments subordinated in a footnote are insufficiently addressed in the body of the brief, and 

thus are waived.” See Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 

F.3d 335, 339 n.4 (5th Cir. 2016) (internal quotation marks omitted); see Defs’ Resp. to Ps’ Req.

to Expand Scope of Preliminary Inj., ECF No. 72 at 18 (quoting the same).

Second, the Agencies’ argument that the “mere fact that the Rule chose to define ‘frame’ 

and ‘receiver’ separately, instead of using the combined term ‘frame or receiver,’ as in the Notice, 

represents a trivial distinction,” Feds’ Br. at 31–32, is misdirection. The ultimate question when 

determining if something is a logical outgrowth is whether the notice “adequately frame[s] the 

subjects for discussion such that the affected party should have anticipated the agency’s final 

course in light of the initial notice.” See Huawei Techs., 2 F.4th at 447. Here, the Agencies fail to 

address how an ordinary commenter would have been aware that the Final Rule would come to 

separately define “frame” and “receiver” based on different and specific components that were not 

addressed in the Proposed Rule. This applies to the Agencies’ alteration and surprise inclusion of 

several definitions in the Final Rule, as addressed in Plaintiffs’ Motion.

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The Proposed Rule focused on the “part of the firearm that . . . provides a housing or a 

structure designed to hold or integrate one or more fire control components[.]”2 Proposed Rule at 

27,741. But the Final Rule defines “frame” as “the part of a handgun, or variants thereof, that 

provides housing or a structure for the primary energized component designed to hold back the 

hammer, striker, bolt, or similar component prior to initiation of the firing sequence,” and 

“receiver” as ”the part of a rifle, shotgun, or projectile weapon other than a handgun, or variants 

thereof, that provides housing or a structure for the primary component designed to block or seal 

the breech prior to initiation of the firing sequence[.]” Final Rule, at 24,735. The Agencies fail to 

address how a reasonable commenter would have been able to anticipate this change as to 

appropriately comment on it for the Agencies to reap the benefits of those comments.

The Agencies credit comments as the basis for the Agencies’ change, arguing that proves 

notice was adequate. See Feds’ Br. at 32 n.6. But the Agencies cannot satisfy the APA’s notice 

burden by pointing to a selection of commenters as justification for the change between proposed 

and final agency action. See Chocolate Mfrs. Ass’n of U.S. v. Block, 755 F.2d 1098, 1104 (4th Cir. 

1985) (“An agency . . . does not have carte blanche to establish a rule contrary to its original 

proposal simply because it receives suggestions to alter it during the comment period.”). The 

Agencies have an independent duty to ensure that a reasonable commenter could foresee the 

change, not that a commenter prompted the change; commenters are not required to review other 

comments.

2 The Proposed Rule defines a “fire control component” as “a component necessary for the firearm 

to initiate, complete, or continue the firing sequence, including any of the following: Hammer, 

bolt, bolt carrier, breechblock, cylinder, trigger mechanism, firing pin, striker, or slide rails.”

Proposed Rule at 27,741.

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But more telling is that even the examples the Agencies provide to support their argument 

that “it was readily apparent to commenters that the final rule might adopt a [new] definition of 

‘frame or receiver,’” are substantially similar to the definition in the Proposed Rule, not the Final 

Rule. See Feds’ Br. at 32, 32 n.6. Moreover, not a single one cited by the Agencies sought to split 

the definition of “frame or receiver,” into separate definitions for “frame,” “receiver,” “variant,” 

and examples thereof. The question is not whether a commenter could have anticipated some

change to “frame or receiver,” but whether the Proposed Rule provided sufficient notice that a 

reasonable commenter could have anticipated the change and so have an opportunity to comment 

on that change. And, as fully addressed in Plaintiffs’ Motion, there could be untold downstream 

effects of separately defining “frame,” “receiver,” and “variant” that the Agencies are not aware 

of because of their failure—this thwarts the key purpose behind the APA’s requirements. See Pls.’ 

MSJ at 30.

Third, the Agencies skirt the issues with “variant” raised by Plaintiffs. Even though the 

Agencies never defined and barely used the term “variant” in the Proposed Rule, the Agencies 

claim “[i]t is not surprising that the Rule would clarify how the definitions of ‘frame’ and ‘receiver’ 

would apply to weapons utilizing similar designs[.]” Feds’ Br. at 35. Yet not only are there not

independent definitions of “frame” and “receiver” in the Proposed Rule, but the Proposed Rule 

only speaks about “variants” in reference to specific semiautomatic “variants” of machineguns—

not in reference to similarly designed semiautomatic firearms. Again, commenters were not given 

an opportunity to comment on the breadth or impact of “variant.” Proposed Rule at 27,729. 

Ironically, the Agencies note that, due to the change in definition between the Proposed 

Rule and Final Rule, the Agencies had to address variants in a completely new way, because “there 

was no need for the [Proposed Rule] to address variants of single unified (i.e., not split or 

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modular)” frame or receiver firearms. Feds’ Br. at 35 n.9. In other words, because of the material 

changes between the Proposed Rule and the Final Rule, the Agencies needed to establish and 

define a new term to address the different impact of the new Final Rule’s definitions. Even the 

Agencies did not anticipate that they would need to separately define this category of firearms.

Fourth, the Agencies miss the point in attempting to counter Plaintiffs’ arguments 

regarding the illustrative examples provided for the Final Rule’s definition. The point is not that 

the Agencies cannot use examples, nor that the Agencies cannot provide new examples in the Final 

Rule. Rather, the examples, and their shift in usage from the Proposed Rule to the Final Rule, 

demonstrate the drastic impact of the change in definitions. The breadth of the Final Rule’s “frame” 

and “receiver” definition expanded so much that the new definition captured six additional 

“examples” that were previously separately defined and regulated. See Pls.’ MSJ at 28. The 

Proposed Rule enumerated these six classes under “[s]plit or modular frame or receiver” based on 

prior specific determinations by the Director because they otherwise did not fall within the

proposed definition of “frame or receiver,” but under the Final Rule they do. Compare Final Rule,

at 24,735‒41 with Proposed Rule at 27,742‒46. The examples themselves are not at issue, but they 

demonstrate the change in impact between the Proposed and Final Rule.

Fifth, in terms of a “partially complete, disassembled, or nonfunctional frame or receiver,” 

the fact that the Proposed Rule used the language “any available instructions, guides, templates, 

jigs, equipment, tools, or marketing materials,” Proposed Rule at 27,746 (emphasis added), does 

not mean that a reasonable commenter would have anticipated an item’s classification could 

change based on anything that is “sold, distributed, or possessed with the item or kit,” Final Rule,

at 24,739 (emphasis added). See Feds’ Br. at 36. The Proposed Rule does not use the term 

“possessed” nor does it give any indication that the term “available” would extend beyond those 

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listed items being made available by the seller or distributor. In fact, the natural reading of the 

Proposed Rule’s reach appears later in the Final Rule’s expanded: “. . . or otherwise made available 

by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit.” Final 

Rule, at 24,739. It is telling that the Agencies continued to include that language in the definition, 

while also expanding the definition to cover things simply possessed alongside an NFO. No 

reasonable commenter could have anticipated such an expansion. Moreover, to the extent the 

Agencies argue that the logical outgrowth doctrine is more appropriately limited to instances where 

an agency alters the scope of its authority between a proposed and final rule, this is a prime 

example of such an issue and is fully briefed in the context of Plaintiffs’ challenge as to the 

Agencies’ lack of statutory authority to promulgate the Final Rule. See Feds’ Br. at 40; see also 

Pls’ Supp. Br. Under Rule 65(A)(2) Consolidation, ECF No. 133, at 10–13.

Lastly, the Agencies fail to adequately address the most obvious evidence presented by 

Plaintiffs. From the Proposed Rule to the Final Rule, a single definition with four subparts became 

a nearly ten-part definition covering terms and concepts never mentioned. Commenters could not 

have anticipated splitting “frame or receiver,” which had been conjunctively defined since 1968, 

into three parts with newly included examples. Compare Proposed Rule at 27,741–46 with Final 

Rule, at 24,735–41. There is also no way that commenters could have anticipated the Agencies 

would adopt entirely new terms and definitions. 

“Agency notice must describe the range of alternatives being considered with reasonable

specificity.” Small Refiner Lead, 705 F.2d at 549. Even if the Final Rule had “not amount[ed] to a

complete turnaround” from the Proposed Rule, it was still inadequate because it did not “indicate[]

that [the Agencies were] contemplating [the] particular change[.]” See CSX Transp., Inc. v. Surface

Transp. Bd., 584 F.3d 1076, 1081–82 (D.C. Cir. 2009); see also Ass’n of Priv. Sector Colls. &

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Univs. v. Duncan, 681 F.3d 427, 462 (D.C. Cir. 2012). Realistically, there was “no way that

commenters here could have anticipated which particular aspects of [the Agencies’] proposal were

open for consideration.” See CSX Transp., 584 F.3d at 1082 (cleaned up).

B. Position Changes in the Final Rule are Arbitrary and Capricious

The Agencies’ failure to explain their reversal and expansion of positions or to consider 

specific constitutional implications of the Final Rule render the Agencies’ decisions arbitrary and 

capricious. A reviewing court shall set aside agency action that is “arbitrary, capricious, . . . or 

otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A). The “arbitrary-and-capricious 

standard requires that agency action be [both] reasonable and reasonably explained.” Fed. 

Commc’ns Comm’n v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). An agency action 

is not reasonable if the agency “has relied on factors which Congress has not intended it to 

consider” or “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 43 (1983). 

“An agency action representing a policy change requires ‘a reasoned analysis of the change 

beyond that which may be required when an agency does not act in the first instance.’” Handley 

v. Chapman, 587 F.3d 273, 281 (5th Cir. 2009) (quoting State Farm, 463 U.S. at 42). Once again, 

however, the Agencies fail to adequately explain their change in policy from “we do not have legal 

authority to regulate non-firearms or parts under the GCA” to “we have legal authority to regulate 

non-firearms and parts under the GCA.” Instead, the Agencies point to statutes covering 

machineguns (which are irrelevant to this question) and ignore the underlying legal issue that they 

lack the authority to promulgate the Final Rule. Moreover, the Agencies expressly leave out 

important parts of the statue and definitions to make it seem like they might have the regulatory 

authority they expressly disavowed previously.

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The Agencies have failed to explain their change in position and policy as to the scope of 

their authority; that failure renders the change arbitrary. See Pls.’ MSJ at 34–36. In particular, the 

Agencies’ prior position was that they did not have the power to take language from one part of 

the GCA (“readily be converted”) and apply it to another part of the GCA, and that the GCA 

excludes treating NFOs as firearms. See Fed. Defs.’ Mot. for Summ. J., ECF No. 98 at 14, Syracuse

v. ATF, No. 1:20-cv-06885 (S.D.N.Y. Jan. 29, 2021) (“Importantly, the ‘designed to’ and ‘readily 

be converted’ language are only present in the first clause of the statutory definition. 18 U.S.C. § 

921(a)(3)(A). Therefore, an unfinished frame or receiver does not meet the statutory definition of 

‘firearm’simply because it is ‘designed to’ or ‘can readily be converted into’ a frame or receiver.”); 

id. at 29 (“The GCA Excludes Unmachined Frames or Receivers From the Statutory Definition of 

a Firearm”); id. at 33 (“That the statute contains a separate clause defining firearms to include 

weapons that ‘may readily be converted to’ expel a projectile makes clear that the phrase ‘designed 

to’ in the statute does not encompass items that are intended to become part of a gun only after 

being converted into something else.”); id. at 34 (“The absence of analogous language in Section 

921’s definition of ‘firearm,’ forecloses any argument that unfinished frames or receivers are 

firearms simply because they are parts that will later be assembled into firearms, or because they 

are intended to be incorporated into firearms.”). Similarly, the Agencies recently argued that “[a]s 

a statutory matter, Congress has legislatively defined a ‘firearm’ to be a weapon that may be readily 

converted to expel a projectile by the action of an explosive, or the frame or receiver of such 

weapon, but has explicitly excluded ‘firearms parts’ from that definition.” Fed. Defs.’ Mot. to 

Dismiss, ECF No. 29, at 10, California v. ATF, No. 3:20-cv-06761 (N.D. Cal. Nov. 30, 2020) 

(emphases added).

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Now the Agencies take a diametrically opposed position, arguing essentially that the 

existence of the language in surrounding statutory provisions supports rather than forbids the 

incorporation of language where Congress did not use it. Feds’ Br. at 47. Not only do the Agencies

continue to fail to explain their change, but they deny that they made any change at all, instead 

claiming they are adhering to a “longstanding fact-specific approach.” Feds’ Br. at 44. The 

Agencies try to frame their policy at a high level, arguing that the question has always been whether 

an item has reached a “critical stage of manufacture.” Feds’ Br. at 44, 46. But the Agencies are 

unquestionably regulating items under the Final Rule that they expressly argued they lacked 

authority to regulate just two years ago. Indeed, the Agencies are now regulating jigs, tools, and 

other items that will never be part of a firearm and that they had never before claimed the ability 

to regulate. The APA requires an explanation—an explanation the Agencies have failed to provide.

The Agencies also fail to explain how a weapons parts kit (without a frame or receiver) 

could be a firearm when the Agencies had previously considered that a kit could be a firearm only 

when: (1) the kit contained what was legally a frame or receiver (under 18 U.S.C. § 921(a)(3)(B)); 

or (2) was otherwise a machinegun. Final Rule, at 24,662 n. 44. The Agencies fail to explain a 

plethora of changes, resulting in arbitrary and capricious decision-making. 

As to the Agencies’ failure to consider important aspects of the problem, the question here, 

for example, is whether the Agencies even considered that their conduct might be a speaker- or 

content-based regulation of speech or whether the Final Rule informs people of ordinary 

intelligence what is proscribed; having failed to consider these issues violates the APA separate 

and apart from the underlying constitutional violations. The substance of the constitutional claims 

is addressed in the relevant sections below.

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The Agencies’ dismissive treatment of speech chilled by the Final Rule shows just how 

inadequately they considered, and still consider, important aspects of their actions. For example, 

the Agencies assert that they considered the First Amendment by responding to a comment about 

the impact of the Rule on works of expressive art that include random components, some of which 

may be components of a firearm. Feds’ Br. at 52 (citing Final Rule, at 24,675). That comment and 

response, however, bear no relation to Plaintiffs’ assertion that the Final Rule is a speaker-based, 

content-based regulation of the transmission of information. See infra Section V. The Agencies 

failed to consider this aspect of the problem of regulating instructions and marketing materials.

Nor do the Agencies’ explanations yet consider the impermissibly vague import of the 

“complete weapon” definition. The Agencies’ responded to comments addressing the potential 

vagueness of other terms, but not this one. Final Rule, at 24,678–79. Neither the Agencies’ 

definition of “complete weapon” nor their claim that it will only affect manufacturers is statutorily 

supported. Law enforcement officers, prosecutors, and courts across the country will be applying 

these regulations in settings well outside the regulation of marking weapons. And yet, the Agencies 

have entirely failed to consider that aspect of the problem.

IV. ELEMENTS OF THE RULE ARE UNCONSTITUTIONALLY VAGUE 

The Final Rule does not inform people of ordinary intelligence what is proscribed. “It is a 

basic principle of due process that an enactment is void for vagueness if its prohibitions are not 

clearly defined.” Magee v. City of South Padre Island, 463 F. App’x 377, 379 (5th Cir. 2012) 

(quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). It would seem, however, that 

the Agencies do not mean—nor intend—for their regulations to be clear, but only to “provide 

direction” which should not be subject to “inflexible” or “restrictive application” by courts. Feds.’

Br. at 21; Final Rule, at 24,652.

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“A statute can be impermissibly vague for either of two independent reasons. First, if it 

fails to provide people of ordinary intelligence a reasonable opportunity to understand what 

conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory 

enforcement.” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 761 (5th Cir. 2010) (quoting 

Hill v. Colorado, 530 U.S. 703, 732 (2000)). In a facial challenge, particularly a pre-enforcement 

facial challenge, “the principal inquiry is whether the law affords fair warning of what is 

proscribed.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 503 (1982). The

Final Rule is ripe for arbitrary, subjective enforcement; therefore, it is unconstitutionally vague.

A. The Definition of “Readily” is Unconstitutionally Vague

“Men of common intelligence cannot be required to guess at the meaning of [an] 

enactment.” Winters v. New York, 333 U.S. 507, 515 (1948). Yet guessing is exactly what is 

required under the Final Rule. The Final Rule departs from the statutory definition of firearm by 

adding a new subcategory: “The term shall include 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.” Final Rule, at 24,735. But it is unclear to a person of common intelligence 

when an item or kit is “readily . . . converted” into a “firearm”, whether or how “completed” is 

meant to differ from “assembled,” or if “otherwise converted” is meant to encompass more than 

the “converted” in the GCA.

The Final Rule purports to “define” the term “readily,” as it applies both to a “weapons 

part kit” and as it is used in the GCA’s definition of “firearm,” but the “definition” does not provide 

an objective, ascertainable standard that informs people of common intelligence of what is 

prohibited. Rather, the Final Rule defines “readily” as “[a] process, action, or physical state that is 

fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speediest, or 

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easiest process, action, or physical state.” Final Rule, at 24,735. The “definition” then lists eight 

subjective “factors relevant in making this determination [of the classification of firearm].” Id. 

Presumably, if a kit is faster or easier to convert, or if the converter has more expertise or parts 

available, the more likely the kit is to be classified as a firearm—but the Rule does not specify. 

The Rule provides no examples of how each factor might be applied, nor any benchmarks for when 

a factor might tip the scales to “firearm” classification. Indeed, the list of factors is not necessarily 

even exhaustive of what the Agencies might consider in their classification determination—the 

definition of “readily” merely states that relevant factors “include” the foregoing—not that the 

Agencies are limited to considering only those factors. Id. 

The nebulous and amorphous definition of “readily” lends itself to precisely the type of ad 

hoc and subjective interpretations the vagueness doctrine guards against. See Vill. of Hoffman 

Ests., 455 U.S. at 498 (quoting Grayned, 508 U.S. at 108–09) (“A vague law impermissibly 

delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and 

subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”). How 

much time or expense must be anticipated before it affects an item’s classification? Does the 

classification change if the item is in the hands of an expert welder with a machine shop in his 

garage, versus if it is in the hands of an attorney with no handyman skills living in an apartment? 

The Supreme Court has recognized “that the more important aspect of the vagueness doctrine ‘is 

not actual notice, but the other principal element of the doctrine—the requirement that a legislature 

establish minimal guidelines to govern law enforcement.’” Kolender v. Lawson, 461 U.S. 352, 358 

(1983) (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). The Final Rule provides no such 

guidelines for applying the definition of “readily.”

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The Agencies overstate, overgeneralize, and obfuscate important distinctions when they 

claim that most courts “to consider the question” have found that “readily converted” or “readily 

restored” are not unconstitutionally vague. Feds’ Br. at 71–72. As an initial matter, various of the 

cases the Agencies cited addressed the question of whether an item that was once a functional

machinegun (pursuant to the National Firearms Act (“NFA”)) could be “readily restored” to 

function as a machinegun, and often relied upon the previously functional nature of the item or 

other language in the “machinegun” definition not applicable here.3 Other cases made a similar 

inquiry under the NFA about whether a short barreled rifle or shotgun could be readily restored to 

its prior functional state or, under state law, whether a magazine could be readily restored, likely 

to its original and common capacity.

4 In one similar case the Agencies cite, addressing

disassembled short-barreled rifle kits, the court lamented the ambiguous nature of “readily 

restored” but found that other terms provided adequate notice. See United States v. Drasen, 845 

3 See United States v. Kelly, 276 F. App’x 261, 267 (4th Cir. 2007) (addressing previously 

functional military M-14s; addressing vagueness and two other claims in one sentence); United 

States v. M-K Specialties Model M-14 Machinegun, 424 F. Supp. 2d 862, 872 (N.D. W. Va. 2006) 

(addressing previously functional military M-14s), United States v. Wick, No. CR 15-30-M-DLC, 

2016 WL 10612608, at *3‒4 (D. Mont. Mar. 11, 2016) (addressing Uzi parts kits, finding challenge 

to “readily restored” precluded by Ninth Circuit precedent); United States v. Whalen, 337 F. Supp. 

1012, 1018‒19 (S.D.N.Y. 1972) (addressing war trophy machineguns); United States v. Campbell, 

427 F.2d 892, 893 (5th Cir. 1970) (addressing M-2 conversion kits as “combination of parts” that 

allowed weapon to operate as a machinegun and finding machinegun statute gave adequate notice).

4 See N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 266 (2d Cir. 2015) (addressing 

readily restored in the context of magazine capacity and relying on United States v. 16,179 Molso 

Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463, 464 (2d Cir. 1971) 

discussed below); United States v. Kent, 175 F.3d 870, 874 (11th Cir. 1999) (addressing readily 

restored in context of short-barrel rifle disassembled into two parts and considering use of “made” 

in definition); United States v. Catanzaro, 368 F. Supp. 450, 454 (D. Conn. 1973) (addressing 

readily restored in context of non-functioning sawed-off shotgun); United States v. Wojcikiewicz, 

403 F. App’x 483, 486 (11th Cir. 2010) (finding argument about short-barrel rifle waived in light 

of guilty plea); Roberts v. United States, No. 2:04-cr-295-PMD, 2007 WL 9754483, at *7 (D.S.C. 

Oct. 30, 2007) (addressing argument regarding AK 47 with pistol grip and bayonet mount under 

NFA “any other weapon” after entry of guilty plea and sentencing).

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F.2d 731 733–35 (7th Cir. 1988) (the court noted “[t]he statutory language ‘readily restored’ is 

somewhat ambiguous[,]” but relied on “make,” “rifle” and the previous version of the statute to 

hold that it provided adequate notice). Furthermore, many of these cases were in settings where 

the burden was on the claimant/defendant or provided no analysis of the vagueness question.

Finally, the cases that did involve “readily converted” under the GCA dealt with starter guns, the 

very items called out in the text of the GCA, causing the courts to find that the statute provided 

adequate notice.

5

Obviously, none of the cases cited by the Agencies reviewed their newly created phrase 

“readily completed, assembled, restored, or otherwise converted” or their newly created category 

of a “weapon parts kit.” Final Rule, at 24,735. Nor did any of the cases address the situation now 

swept within “weapon parts kit,” and “partially” complete frame or receiver, where a purchaser

would have to engage in machining or other operations to complete the manufacture an item before

then assembling parts. Moreover, precedent underlying one of the cases cited by the Agencies

turned to dictionary definitions of “readily.” See United States v. TRW Rifle 7.62x55mm, One

Model 14 Serial 593006, 447 F.3d 686, 689–90 (9th Cir. 2009) (applying dictionary definitions in 

context of readily restored machinegun). But “readily” under the Final Rule has a definition 

appended with a list of relative and subjective factors. Final Rule, at 24,735. Thus “readily 

completed, assembled, restored, or otherwise converted” is not the same as “readily converted” 

starter guns or “readily restored” functional items dealt with in the cases the Agencies rely upon.

The Agencies also claim that similar tests featuring non-exhaustive lists of factors have 

passed constitutional muster. But their cases in support are both out of circuit and readily 

5 See 16,179 Molso Italian Starter Guns, 443 F.2d at 464 (addressing starter guns in forfeiture 

context); United States v. Quiroz, 449 F.2d 583, 585 (9th Cir. 1971) (addressing starter gun).

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distinguishable. In Prime Healthcare Services, Inc. v. Harris, for example, the “enabling 

regulations supply definitions and guidelines for what the Attorney General shall and may consider 

in her review”—not bare factors with no indication of how they should be applied. 216 F. Supp. 

3d 1096, 1125 (S.D. Cal. 2016). Moreover, Prime Healthcare dealt with hospital acquisitions and 

specifically noted that “[t]he vagueness inquiry is less strict in the civil context.” Id. at 1124. 

Chabad Lubavitch of Litchfield Cty., Inc. v. Borough of Litchfield similarly dealt with a civil 

statute, this one related to the criteria for judging applications for construction in a historic district. 

853 F. Supp. 2d 214, 219 (D. Conn. 2012), aff’d in relevant part, vacated in part, remanded sub 

nom. Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183 

(2d Cir. 2014). While there was some room for discretion in enforcement, the underlying statute 

included guidance for contextualizing the discretionary factors, such that “those factors are 

sufficiently tied to objective aesthetic standards.” Id. at 235. By contrast, the Final Rule does not 

provide any objective standard for application of any of the listed factors, nor does it provide any 

guidance as to how the factors interact. See Timpinaro v. SEC, 2 F.3d 453, 460 (D.C. Cir. 1993), 

as amended on denial of reh’g (Nov. 9, 1993) (how each factor is applied “is a mystery so far as 

the current record is concerned. The uncertainty . . . is all the greater when these mysteries are 

considered in combination, according to some undisclosed system of relative weights.”). Providing 

numerous relative, subjective factors of unknown weight does not provide clarity. See McDonald 

v. City of Chicago, 561 U.S. 742, 975 (2010) (Scalia, J., concurring) (“The ability of 

omnidirectional guideposts to constrain is inversely proportional to their number.”).

Ironically, the Agencies cite to Village of Hoffman Estates for the proposition that “the 

statutory term ‘designed . . . for use’ calls for an inquiry into the product’s ‘objective features,’”

suggesting that a similar inquiry is appropriate for the term “readily.” Feds’ Br. at 72 (citing 455 

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U.S. at 500–01). The court in Village of Hoffman Estates noted that “objective features” refers to 

“features designed by the manufacturer.” 455 U.S. at 501 (“A business person of ordinary 

intelligence would understand that this term refers to the design of the manufacturer, not the intent 

of the retailer or customer.”). The eight factors the Final Rule lists as relevant, however, are neither 

tied to objective standards nor are they attached to objective features of the products themselves.

Instead, most of the factors—time, ease, expertise, parts availability, etc.—are dependent on 

subjective facts, such as the skills and resources of the person completing the item, not on objective 

criteria regarding the manufacturer or the item itself.

The Agencies’ attempt to distinguish Timpinaro is equally unpersuasive. The Agencies 

claim that, unlike the SEC in Timpinaro, they engaged with commenters’ vagueness concerns and 

provided “illustrative examples” of how certain items would be classified. Feds’ Br. at 74. The

examples, however, do not provide guidance on how the eight relevant factors would be applied. 

Final Rule, at 24,739. A few of the examples mention instructions, jigs, or tools, but they say 

nothing whatsoever about the time, ease, expertise, or expense involved. Id. They also say nothing 

about how the factors are weighed. Id. At best, the eight factor “readily” test in the Final Rule 

suffers from the same infirmities as the seven-part test at issue in Timpinaro, which the court 

instructed the SEC to “consider whether [the test] could be made more definite before it is 

subjected to scrutiny under the Due Process Clause.” 2 F.3d at 460.

The definition of “readily” in the Final Rule is hopelessly vague. It lists eight relevant, nonexhaustive factors to consider in identifying “firearms.” It provides no standards for applying those 

factors or how they interact, leaving people of common intelligence to wonder at what those factors 

mean and leaving law enforcement free to subjectively apply and weigh the factors at their 

discretion. Thus, the definition is unconstitutionally vague.

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B. The Final Rule’s Definitions of “Firearm” and “Complete Weapon” Subject 

People of Ordinary Intelligence to Criminal Penalties

The Final Rule’s definitions of “firearm” and “complete weapon” do not give fair notice 

of what conduct might subject an individual to criminal penalties. “The degree of vagueness that 

the Constitution tolerates—as well as the relative importance of fair notice and fair enactment—

depends in part on the nature of the enactment.” Vill. of Hoffman Ests., 455 U.S. at 498. “The Court 

has [] expressed greater tolerance of enactments with civil rather than criminal penalties because 

the consequences of imprecision are less severe.” Id. Conversely, statutes and regulations that 

threaten criminal penalties are held to a stricter standard. “The prohibition of vagueness in criminal 

statutes . . . is an essential of Fifth Amendment due process. . . . [T]he vagueness doctrine requires 

statutes define the criminal offense with sufficient definiteness that ordinary people can understand 

what conduct is prohibited . . . and in a manner that does not encourage arbitrary and 

discriminatory enforcement.” United States v. Ross, 948 F.3d 243, 246–47 (5th Cir. 2020) (internal 

quotation, citation, and brackets omitted). 

Violations of the NFA and GCA carry criminal penalties, including fines and prison time. 

18 U.S.C. § 924(a)(1)(D) (“[W]however . . . willfully violates any other provision of this chapter, 

shall be fined under this title, imprisoned not more than five years, or both.”); 26 U.S.C. § 5871

(“Any person who violates or fails to comply with any provision of this chapter shall, upon 

conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both.”). 

Plaintiffs have demonstrated that people—from lay members of the public to banks and credit card 

processors to sophisticated members of the firearms industry—do not understand what is covered 

by the Final Rule. Pls.’ MSJ at 42. The Final Rule has created a labyrinth of land mines that could 

result in criminal prosecution for those who cannot navigate its vagaries.

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First, the Final Rule defines “complete weapon” as “[a] firearm other than a muffler or 

silencer that contains all component parts necessary to function, whether or not assembled or 

operable.” Final Rule, at 24,747. The inclusion of unassembled weapons is troubling, because 

many gun parts are interchangeable. Indeed, the Agencies noted that commenters “asserted that 

law-abiding gun owners who legally own both AR rifles and pistols could be charged with a felony 

if they store their firearms unassembled.” Final Rule, at 24,700. Yet the Agencies failed to address 

this assertion; the Final Rule does not indicate whether such a combination, possessed together, 

constitutes a complete NFA-regulated rifle. See id. at 24,700–01. Thus, people of ordinary 

intelligence are left to guess—with the risk of felony charges if they guess wrong.

The Agencies claim that Plaintiffs’ concerns are unfounded because “complete weapon” is 

meant to address when in the manufacturing process items must be marked. Feds’ Br. at 76; see 

also Final Rule, at 74,000–01. But the Agencies’ explanation only makes “complete weapon” more 

vague. The definition of “complete weapon” is a “firearm . . . that contains all component parts 

necessary to function, whether or not assembled or operable.” Final Rule, at 24,747. It says nothing 

about the manufacturing process, nor whether one needsto be a manufacturer or merely a possessor 

of the requisite component parts. Moreover, contrary to the Agencies’ assertion that an individual 

only need worry if he or she actually assembles an NFA-regulated item, the plain language of the 

definition clearly contemplates possession of “all component parts” even if they are “not 

assembled.” Id. Thus, the Agencies’ assertion only adds to the vagueness of “complete weapon”; 

it does nothing to dispel the haze of vagueness.

Second, the definition of “firearm” is so expansive that the Agencies had to “expressly 

exclude[] from the definition of ‘frame or receiver’ forgings, castings, printings, extrusions, 

unmachined bodies, or similar articles that have not yet reached a stage of manufacture (e.g., 

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unformed blocks of metal, liquid polymers, or other raw materials) where they are clearly 

identifiable as an unfinished component part of a weapon.” Final Rule, at 24,698. Nowhere do the 

Agencies provide any guidance on when an item is “clearly identifiable” as something that may 

become part of a weapon, suggesting that is left to the discretion of enforcement agents. 

Other portions of the definition leave additional room for arbitrary enforcement. See, e.g., 

Final Rule, at 24,739 (“[T]he 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 ....”) (emphases added); id. at 24,735 (“Readily” is “[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 state.”).

The Agencies claim that Plaintiffs’ examples of “subjective confusion” hold little to no 

probative value. Feds’ Br. at 69. This claim is undermined by the fact that, in just over four months 

since the Final Rule went into effect, the Agencies have issued one set of corrections and two open 

letters6 “to assist the firearms industry and the public in understanding” whether certain “partially 

complete, disassembled, or nonfunctional” frames and receivers have “reached a stage of 

manufacture such that [they] ‘may readily be completed, assembled, restored, or otherwise 

converted’ to a functional [frame or receiver], and [are] therefore classified as a ‘frame or receiver’ 

or ‘firearm’ in accordance with the final rule.”7,8 If the Final Rule was not vague, these open letters 

6 The letters themselves, which were not before the Agencies when they issued the Final Rule, are 

not properly part of the administrative record for this case. The letters do, however, illustrate the 

Agencies’ own recognition of the vague nature of the Final Rule.

7 Open Letter to All Federal Firearms Licensees, U.S. Dep’t of Justice & Bureau of Alcohol, 

Tobacco, Firearms and Explosives (Sept. 27, 2022), https://www.atf.gov/firearms/docs/openletter/all-ffls-september-2022-impact-final-rule-2021-05f-partially-complete-ar/download 

8 Open Letter to All Federal Firearms Licensees, U.S. Dep’t of Justice & Bureau of Alcohol, 

Tobacco, Firearms and Explosives (Dec. 27, 2022), https://www.atf.gov/rules-andregulations/docs/open-letter/all-ffls-dec2022-open-letter-impact-final-rule-2021-05f/download

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would not be necessary. Yet the Agencies found they were necessary because neither people of 

ordinary intelligence nor sophisticated industry players (like the federal firearms licensees to 

whom the open letters are addressed) can understand the Final Rule on its face.

Moreover, the Final Rule regulates the mere possession of items in conjunction with NFOs. 

For instance, one of the Agencies’ examples of something that is “[n]ot a receiver” is “[a] billet or 

blank of an AR-15 variant receiver without critical interior areas having been indexed, machined, 

or formed that is not . . . possessed with instructions, jigs, templates, equipment, or tools such that 

it may readily be completed.” Final Rule, at 24,739 (emphases added). Thus, an individual who 

purchases something that is “[n]ot a receiver” may inadvertently and unknowingly subject himself 

to criminal penalties if he also happens to own a well-equipped tool bench.

The Agencies claim that they do not need to “delineate the exact actions” that would allow 

an individual to “avoid liability” under the Final Rule. Feds’ Br. at 70 (quoting Roark & Hardee 

LP v. City of Austin, 522 F.3d 533, 552 (5th Cir. 2008)). But giving fair notice of what is proscribed 

and outlining standards to guard against arbitrary enforcement are “essential of due process.” 

Johnson v. United States, 576 U.S. 591, 595 (2015) (quoting Connally v. Gen. Constr. Co., 269 

U.S. 385, 391 (1926)). The Final Rule’s definition of “firearm” does not meet these requirements. 

Instead, the definition contains lists of what enforcement agents “may consider”—leaving plenty 

of room for arbitrary decisions based on unenumerated and discretionary criteria. See, e.g., Final 

Rule, at 24,739 (listing what the Director “may consider” when issuing a classification of a 

“partially complete, disassembled, or nonfunctional frame or receiver); id. at 24,747 (“factors 

relevant” to a determination of ‘readily’ “include” eight non-exhaustive factors).

The Agencies’ reliance on voluntary classifications and the administrative process are 

similarly unavailing. Feds’ Br. at 76. The Agencies seek “deference in the vagueness analysis” 

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because those seeking clarity under the Final Rule can “resort to an administrative process,” in this 

case by seeking voluntary classification letters regarding whether a particular item is a “firearm.” 

Id. (quoting United States v. Clinical Leasing Serv., Inc., 925 F.2d 120, 122 (5th Cir. 1991)). Such 

deference is not appropriate here. It is true that “economic regulation is subject to a less strict 

vagueness.” Vill. of Hoffman Ests., 455 U.S. at 498. But the Final Rule is not merely an economic 

regulation—rather, it is a sweeping and novel application of the GCA that comes with the risk of 

criminal penalties. The vagueness analysis is stricter where criminal penalties are involved. 

Winters, 333 U.S. at 515 (“The standards of certainty in statutes punishing for offenses is higher 

than in those depending primarily upon civil sanction for enforcement. . . . There must be 

ascertainable standards of guilt.”); see also Roark, 522 F.3d at 552 (applying “the ‘relatively strict 

test’ required for criminal laws” even though “[t]he evidence reveals that the owners and operators 

regulated by the ordinance may clarify the meaning of its provisions by their own inquiry.”).

Additionally, deference for economic regulation stems from the premise that such 

regulations primarily affect businesses, “which face economic demands to plan behavior carefully” 

and “can be expected to consult relevant legislation in advance of action.” Vill. of Hoffman Ests., 

455 U.S. at 498. The impact of the Final Rule, however, affects industry members and less 

sophisticated laypeople alike. Compare Clinical Leasing Serv., 925 F.2d at 123 (holding that “a 

physician of ordinary means and intelligence would understand” federal registration provisions 

regarding the distribution of controlled substances) with Papachristou v. City of Jacksonville, 405 

U.S. 156, 162 (1972) (“The poor among us, the minorities, the average householder are not in 

business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would 

have no understanding of their meaning and impact if they had read them.”).

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It is easy to see how an otherwise law-abiding citizen of common intelligence could 

inadvertently run afoul of the Final Rule, perhaps by interpreting the Rule differently than the 

Agencies, or merely because he possesses items that transforms a NFO into a firearm. 

Consequently, the Agencies’ redefinition of “firearm” is unconstitutionally vague.

V. THE RULE’S REGULATION OF SPEECH VIOLATES THE FIRST 

AMENDMENT

Plaintiffs have standing to bring a First Amendment claim because Tactical Machining’s 

self-censorship constitutes injury-in-fact, and Individual Plaintiffs have a constitutionally 

protected right to acquire information through speech. Additionally, Supreme Court and Fifth 

Circuit precedent established the broad pool of qualified parties who can sue when First 

Amendment protected rights are on the chopping block. 

A. Tactical Machining’s Self-Censorship is an “Injury” for Standing Purposes

For standing purposes, fear of prosecution that results in self-censorship constitutes an 

injury. See Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988) (“[T]he alleged danger of 

this statute is, in large measure one of self-censorship; a harm that can be realized without an actual 

prosecution.”); Glass v. Paxton, 900 F.3d 233, 238 (5th Cir. 2018) (“[G]overnment action that 

chills protected speech without prohibiting it can give rise to a constitutionally cognizable injury.”) 

(internal quotations and citations omitted).

First, the Agencies’ claim that the Final Rule in no way “imposes any punishment or 

prejudice based upon any speech” is false. Feds’ Br. at 63. The Final Rule states: 

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....

Final Rule, at 24,739 (emphases added). In other words, when determining whether an item is a 

firearm, the Agencies consider speech. If such speech contributes to an item being a “firearm” 

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there are a host of business cost and operation consequences as well as potential criminal 

consequences for failure to comply with “firearm” regulations.

Second, Plaintiff Tactical Machining has self-censored for fear of instructions tipping its

NFOs over the edge into the “firearm” category, thus subjecting the NFO manufacturer to criminal 

penalties. See Suppl. Decl. of Darren Peters, Sr., ECF No. 55-1 at ¶ 6 (“[B]ased on email 

communications from a local ATF special agent and positions taken by the [Agencies] in court, 

Tactical Machining resumed sales of” NFOs. “Tactical Machining does not currently sell those 

items with any jigs, templates, tools, or instructions, per Defendants’ statements.”). Nor is it a 

hypothetical situation that the Agencies will evaluate First Amendment protected materials and 

enforce consequences. Instructions must—not “may”—be submitted to the Agencies. See Final 

Rule, at 24,743 (“Each request ... must contain . . . any instructions, guides, or marketing 

materials if they will be made available by the seller or distributor....”) (emphases added). 

Third, even without their own self-censorship Tactical Machining meets the standing 

requirements. The Supreme Court recognizes that “[l]itigants . . . are permitted to challenge a 

statute not because their own rights of free expression are violated, but because of a judicial 

prediction or assumption that the statute’s very existence may cause others not before the court to 

refrain from constitutionally protected speech9 or expression.” Broadrick v. Oklahoma, 413 U.S. 

601, 612 (1973). Specifically, the Supreme Court deemed a company had standing even though it 

did “not claim that its own First Amendment rights have been or will be infringed by the challenged 

statute[.]” Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955–56 (1984). 

9 Instructions are protected speech. “[T]he creation and dissemination of information are speech 

within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 

(2011); Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (“[I]f the acts of ‘disclosing’ and 

‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that 

category, as distinct from the category of expressive conduct.”) (internal quotation marks omitted).

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(“[W]hen there is a danger of chilling free speech, the concern that constitutional adjudication be 

avoided whenever possible may be outweighed by society’s interest in having the statute 

challenged.”). Whether due to its own self-censorship or on behalf of its clients, Tactical 

Machining has standing.

B. Other Plaintiffs’ Right to Information Satisfies their Standing Requirements

Limiting access to knowledge also constitutes a legally cognizable harm. “Free speech 

carries with it freedom to listen. ‘In a variety of contexts [the Supreme] Court has referred to a 

First Amendment right to receive information and ideas.’” Richmond Newspapers, Inc. v. Virginia, 

448 U.S. 555, 576 (1980) (quoting Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)). “This right 

is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the 

Constitution” and protects both the “sender’s First Amendment right to send them[,]” and “the 

right to receive ideas,” which “is a necessary predicate to the recipient’s meaningful exercise of 

his own rights of speech, press, and political freedom.” Bd. of Educ., Island Trees Union Free Sch. 

Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982). 

For Plaintiffs to successfully establish standing, they must “clearly establish the existence 

of a ‘willing speaker.’ In the absence of a willing speaker, ‘an Article III court must dismiss the 

action for lack of standing.’” Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 166 (3d Cir. 2007) 

(quoting Competitive Enter. Inst. v. U.S. Dep’t of Transp., 856 F.2d 1563, 1566 (D.C. Cir. 1988)); 

Basiardanes v. City of Galveston, 682 F.2d 1203, 1211 (5th Cir. 1982) (“Recipients of protected 

communication have standing only if there is a speaker who wishes to express himself or herself.”) 

(abrogation on other grounds recognized by Sarre v. City of New Orleans, 420 Fed. Appx. 371 

(5th Cir. 2011)). Such “willing speaker” is co-Plaintiff Tactical Machining, as well as the

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intervening manufacturers and FPC’s other corporate members. By depriving the other Plaintiffs 

of information, the Agencies provide them standing.

C. The Final Rule Implements Speaker-Based Restrictions on Non-Commercial, 

Protected Speech

The Final Rule blatantly spells out the speakers it is targeting, and the Agencies cannot 

hide under the cloak of “commercial speech.” First, the Agencies misconstrue what is a speakerbased restriction when they assert that “the Rule makes no distinctions among different types of 

speakers,” considering the speech “regardless of the identity of the seller.” Feds’ Br. at 65. Second, 

the government erroneously argues that the speech at issue here is commercial speech and is 

afforded less protection. Feds’ Br. at 64‒65.

The Final Rule is speaker based; it requires the “seller or distributor” of a NFO to submit 

First Amendment protected materials when those entities seek classification letters and it alters the 

legal status of an item based on the speech of a “seller or distributor,” thus chilling certain speakers’ 

rights based on their status. Final Rule, at 24,749. Not only does the Final Rule explicitly target

the speech of those parties, but any argument of broad applicability is unavailing. The Agencies 

supplied around 600 pages of classification letters in the administrative record dating from 2001‒

2017, and only 8 individuals, potentially inventors working on innovations for manufacture, asked 

for a firearm classification over the course of that 16-year timespan. See ATF000046‒000645. 

Even then, it’s unlikely individuals, if not inventors, will produce their own instructions which the 

Director could assess, but rather would supply instructions created by a seller or distributor. 

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Additionally, ATF markets its classification and determination letters10 to sellers and 

distributors, affirming Plaintiffs’ argument. See How to Request Variances, Exemptions, and 

Determinations, ATF, https://www.atf.gov/explosives/how-request-variances-exemptions-anddeterminations (last visited Mar. 6, 2023) (information concerning determination letters is nestled 

under “current licensees”). The Agencies are targeting certain speakers.

Nor is the targeted speech merely commercial. Instructions on how to assemble a firearm

or machine a component are not commercial speech. The Agencies claim11 the material at issue is 

“commercial speech[,]” Feds’ Br. at 64, yet offer no explanation as to why. The distinction is 

critical because “the degree of protection afforded by the First Amendment depends on whether 

the activity sought to be regulated constitutes commercial or non-commercial speech.” Bolger v. 

Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983). 

Commercial speech is defined as “expression solely related to the economic interests of the 

speaker and its audience[,]” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 

U.S. 557, 561 (1980), or “speech that proposes a commercial transaction[.]” Bd. of Trustees of 

State Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989). Here, even if instructions contain an 

advertisement for a company’s products, the speech retains its non-commercial status.12 See Hays 

10 “Classification” and “determination” are used interchangeably. How to Request Variances, 

Exemptions, and Determinations, ATF, https://www.atf.gov/explosives/how-request-variancesexemptions-and-determinations (last visited Mar. 6, 2023). 11 The Agencies’ attempt to apply Central Hudson’s four-part commercial speech test is unavailing 

since the regulated speech is not commercial speech. Feds’ Br. at 66; see Central Hudson, 447 

U.S. at 573 (“I do not agree, however, that the Court’s four-part test is the proper one to be applied 

when a State seeks to suppress information about a product in order to manipulate a private 

economic decision that the State cannot or has not regulated or outlawed directly.”) (Blackmun, 

J., concurring).

12 Although BlackHawk’s instructions, for example, link to their newest product, the instructions 

are still protected First Amendment material. How to Mill & Finish an 80% Lower, 80 PERCENT 

ARMS (Nov. 3, 2022), https://www.80percentarms.com/blog/how-to-finish-an-80-lower/.

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Cty. Guardian v. Supple, 969 F.2d 111, 120 (5th Cir. 1992) (advertisements were “inextricably 

linked to the newspaper’s non-commercial speech, making the whole paper non-commercial.”); 

Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (holding speech does not 

retain “commercial character when it is inextricably intertwined with” other speech).

In any event, even commercial speech cannot be unduly restricted. “Permissible restraints 

on commercial speech have been limited to measures designed to protect consumers from 

fraudulent, misleading, or coercive sales techniques.” Id. at 574 (Blackmun, J., concurring) 

(emphasis added). Such conduct is not at issue here. And even limits on commercial speech will

be evaluated for impermissible speaker-based restrictions. See Sorrell v. IMS Health Inc., 564 U.S. 

552, 563‒64 (2011) (finding a statute governing commercial goods to impermissibly restrict 

content and speakers); id. at 564 (“The statute thus disfavors marketing, that is, speech with a 

particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical 

manufacturers.”); see also Nat’l Inst. of Family and Live Advocs. v. Becerra, 138 S. Ct. 2361, 

2368, 2378 (2018) (finding a speaker-based restriction likely to violate the First Amendment that 

required pregnancy clinics inform patients about abortion options). Instructions and marketing 

materials, even for products disfavored by the Agencies, enjoy First Amendment protections.

D. The Final Rule Impermissibly Restricts Specific Content

The Agencies review First Amendment protected material to determine how “readily” a 

firearm can be assembled, thus also imposing a content-based restriction on speech. The Agencies 

admit they judge the content of a manufacturer’s instructions, stating, “[i]t is simply not the case 

that any component or components sold with instructions or marketing materials will be 

necessarily classified as a ‘frame or receiver’ . . .; rather, such materials are one factor in the 

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agency’s application of the ‘readily’ standard.” Feds’ Br. at 67. The Agencies evaluate whether 

the speech will make it “easier” to assemble, complete, or convert an item into a firearm.

The Agencies claim that even if this Court does find “that the Rule restricts or burdens 

speech in some way,” the Rule is content-neutral and serves the interest of assisting law 

enforcement. Feds’ Br. at 66. The Agencies attempt to bolster this argument by citing Arcaca v. 

Cloud Books, Inc., 478 U.S. 697, 707 (1986), for the notion that the Court “reject[ed] [a] First 

Amendment challenge to forced closure of a business that engaged in illegal activities and also 

sold books and other First Amendment protected speech[.]” Feds’ Br. at 66. 

The Agencies, however, are not looking at Tactical Machining’s protected First 

Amendment materials to judge the sufficiency of its memes or the cleverness of its marketing—

the Agencies aim to assess how “readily” a firearm can be assembled. This is a clear description

of a content-based regulation. “Content-based regulations ‘target speech based on its 

communicative content.’” Nat’l Inst. of Fam. and Life Advocs., 138 S. Ct. 2361, 2371 (2018)

(quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015)) (internal quotation and citation 

omitted). Additionally, “the ‘fear that people would make bad decisions if given truthful 

information’ cannot justify content-based burdens on speech.” Sorrell, 564 U.S. at 577 (quoting 

Thompson v. W. States Med. Ctr., 535 U.S. 357, 374 (2002)). 

Moreover, Cloud Books is distinguishable. The establishment in Cloud Books was illegally 

engaging in prostitution and selling First Amendment protected materials. Id. at 698. In the case 

before this Court, the alleged illegality of NFO manufacturers selling firearms turns, in part, on 

the dissemination of instructions. The prostitution charge in Cloud Books did not hinge on the 

content of the establishment’s books. 478 U.S. at 707. The bookstore was “free to sell the same 

materials at another location.” Id. at 706. Citing Cloud Books to hint that shutting down “illegal 

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activity” trumps the First Amendment is futile, and a close reading of the case reveals the opposite 

conclusion. The Agencies’ choice to make such an analogy reveals their judgment of NFO sellers.

VI. THE TAKE CARE CLAUSE AND MAJOR QUESTIONS DOCTRINE ENSURE 

THE SEPARATION OF POWERS IS NOT JUST AN ABSTRACT PRINCIPLE

The Take Care Clause guards against Executive Branch legislating, which is exactly the 

relief Plaintiffs seek, contra Feds’ Br. at 79, and failed bills are a graveyard of the authority the 

Agencies hoped for. 

The Agencies argue that “the Take Care Clause does not provide any basis for the relief 

Plaintiffs seek here[,]” because it would be disrespectful “by assuming judicial superintendence of 

the exercise of the Executive power that the Take Care Clause commits to the President and the 

delicate relationship between the Executive and Legislative coordinate branches.” Feds.’ Br. at 

79‒80. But the cases the Agencies cite in support are limited to those involving political questions

and are therefore inapposite here. Baker v. Carr, 396 U.S. 186, 217 (1962) (“Prominent on the 

surface of any case held to involve a political question. . . .) (emphasis added); Mississippi v. 

Johnson, 71 U.S. (4 Wall.) 475, 499 (1867) (“An attempt on the part of the judicial department of 

the government to enforce the performance of [purely executive and political] duties by the 

President might be justly characterized . . . as ‘an absurd and excessive extravagance.’”) (emphasis 

added). The scope of the Agencies’ authority is squarely within the province of the Court, not a 

political question.

Additionally, the Agencies claim the seminal Take Care Clause case cited by Plaintiffs, 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952), barely mentions the Take 

Care Clause and state that “[i]n that case, the Government could not, and did not, cite any statutory 

authority for the seizures at issue.” Feds’ Br. at 80. This case, however, is not so distinguishable

from Youngstown. Though the Agencies point to the GCA, this statute does not grant carte blanche

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authority to regulate non-firearm items, just as war powers did not grant President Truman 

unfettered authority.

Nor may the Agencies so cavalierly dismiss the recent years of failed litigation, which they 

characterize as “[p]ost-enactment legislative history[.]” Feds’ Br. at 80. Plaintiffs do not use failed 

bills as a statutory interpretation analysis, but to affirm the underlying principle of the major 

questions doctrine—great power does not lie in the shadows of statutes. The Supreme Court “has 

found it telling when Congress has considered and rejected bills authorizing something akin to the 

agency’s proposed course of action. . . . That [] may be a sign that an agency is attempting to work 

[a]round [circumvent, if that is not too ironic] the legislative process to resolve for itself a question 

of great political significance.” West Virginia v. EPA, 142 S. Ct. 2587, 2620‒21 (2022) (Gorsuch, 

J., concurring) (internal quotations and citations omitted); id. at 2626 (“[T]he Constitution does 

not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the 

people’s representatives.”) (Gorsuch, J., concurring).

The bills Plaintiffs identified all sought to address the regulation of NFOs, labeled “ghost 

guns,” originally by those who seek to manipulate public opinion. See Exhibit A (identifying every 

bill Plaintiffs cited and the language pertinent to the attempted regulation of “ghost guns”). 

Contrary to the Agencies’ position, subsequent failed legislation is directly relevant to the scope 

of a fifty-five-year-old statute—Congress knows exactly how to delegate power over the private 

manufacture of firearms. 

VII. VACATUR IS THE APPROPRIATE REMEDY

The Final Rule is unlawful and must be vacated. There are two typical remedies available 

for violations of the APA: remand and vacatur. Remand is only appropriate when an agency can 

fix the APA violations underlying its action through additional investigation or explanation. See

O’Reilly v. U.S. Army of Eng’rs, 477 F.3d 225, 238–39 (5th Cir. 2007) (citing Fla. Power & Light 

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Co. v. Lorion, 470 U.S. 729, 744 (1985)). On the other hand, when an agency action is unlawful, 

the “ordinary practice” is to vacate the action. See Data Mktg. P’ship, LP v. U.S. Dep’t of Lab., 45 

F.4th 846, 859–60 (5th Cir. 2022) (quoting United Steel v. Mine Safety & Health Admin., 925 F.3d 

1279, 1287 (D.C. Cir. 2019)). Indeed, “by default, remand with vacatur is the appropriate remedy.” 

Texas v. Biden, 20 F.4th 928, 1000 (5th Cir. 2021), as revised (Dec. 21, 2021), cert. granted, 142 

S. Ct. 093 (2022), and rev’d and remanded, 142 S. Ct. 2528 (2022). Here, the Agencies’ Final 

Rule is fatally flawed under the APA and the U.S. Constitution; therefore, it must be vacated. 

The Agencies’ argument that universal vacatur is not appropriate is unavailing. They 

attempt to create space between the definitions of “set aside” (the language used in the APA) and 

vacate (as used by courts as the remedy for APA violations that cannot be cured by remand). They 

claim that the “ordinary meaning” of “set aside” “is to disregard, not to nullify.” Feds’ Br. at 84. 

But other common language dictionaries define “set aside” as to “annul or quash (as to set aside a 

verdict)”). See H.G. Emery and K.G. Brewster, THE NEW CENTURY DICTIONARY OF THE ENGLISH 

LANGUAGE, Vol. 2, 1673 (1927); see also Virgin Islands Tel. Corp. v. FCC, 444 F.3d 666, 671 

(D.C. Cir. 2006) (“‘Set aside’ usually means ‘vacate.’”).13 Moreover, the Agencies’ position is at 

odds with Fifth Circuit precedent, which recognizes that the APA, specifically section 706, 

“empowers courts to ‘set aside’—i.e., formally nullify and revoke—an unlawful agency action.” 

Data Mktg., 45 F.4th at 859 (quoting Johnathan Mitchell, The Writ-of-Erasure Fallacy, 104 VA.

L. REV. 933, 950 (2018)) (emphasis added).

13 The Agencies further claim that vacatur is inappropriate because section 703 of the APA “does 

not speak of vacatur.” Feds’ Br. at 85. But section 703 allows for “any applicable form of legal 

action . . . in a court of competent jurisdiction.” 5 U.S.C. § 703 (emphasis added). Section 706(2) 

specifically provides that a “reviewing court shall . . . set aside agency” that violates the APA. And 

the preeminent legal dictionary informs that “set aside” means “vacate.” Set Aside, BLACK’S LAW 

DICTIONARY (11th ed. 2019).

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If a regulation is a final agency action, “it can of course be challenged under the APA by a 

person adversely affected—and the entire [program,] insofar as the content of that particular action 

is concerned, would thereby be affected.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890 n.2

(1990). Additionally, “it bears noting that, for over twenty years, numerous courts (including 

several Circuit Courts of Appeals) have vacated unlawful agency action in whole (and as against 

non-parties) under APA § 706(2).” GBX Assocs., LLC v. United States, No. 1:22-cv-401, 2022 

WL 16923886, at *7 (N.D. Ohio Nov. 14, 2022) (citing cases from the D.C. Circuit, the Ninth 

Circuit, and other jurisdictions).

While the Supreme Court has not yet confirmed whether the “set aside” language in section 

706(2) requires universal vacatur of regulations that violate the APA,14 it has endorsed, through 

affirmation of lower court decisions, the idea that universal vacatur is permissible under the APA. 

See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 161 (2000) (affirming 

Fourth Circuit’s vacatur of tobacco regulations); Bd. of Governors of Fed. Res. Sys. v. Dimension 

Fin. Corp., 474 U.S. 361, 365 (1986) (affirming Tenth Circuit’s set aside of certain Federal 

Reserve Bank Regulations); see also Little Sisters of the Poor Saints Peter & Paul Home v. 

Pennsylvania, 140 S. Ct. 2367, 2412 n.28 (2020) (Ginsburg, J., dissenting) (“The Administrative 

Procedure Act contemplates nationwide relief from invalid agency action.”).

Despite this precedent, the Department of Justice has for several years been leading the 

charge to reframe the debate surrounding vacatur. See Mila Sohoni, The Power to Vacate A Rule, 

88 GEO. WASH. L. REV. 1121, 1178 (2020) (“[T]his article evaluates a legal argument that has been 

largely, though not entirely, advanced by DOJ. . . . [I]t is pressing its view of the APA before 

14 The Supreme Court is set to decide that question this term. United States v. Texas, 40 F.4th 205

(5th Cir. 2022), cert granted, __ U.S. __ (2022) (No. 22-58 linked with 22A17). 

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federal courts around the country.”); id. at 1129 n.35 (collecting cases where DOJ has argued 

against universal vacatur). As stated, courts have long held that universal vacatur is permissible 

under the APA. Lujan, 497 U.S. at 890 n.2; GBX Assocs., 2022 WL 16923886, at *7; Nat’l Min. 

Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. 

Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“[W]hen a reviewing court determines that 

agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their 

application to the individual petitioners is proscribed.”).15

Nevertheless, in 2018, the Department of Justice issued guidance instructing its attorneys 

to argue that “Universal Vacatur Is Not Contemplated by the APA.” Memorandum from the Office 

of the Att’y Gen. to the Heads of Civil Litigating Components U.S. Attorneys on Litigation 

Guidelines for Cases Presenting the Possibility of Nationwide Injunctions 7 (Sept. 13, 2018).

16

The guidance stated, “Department litigators should, as appropriate, and where not inconsistent 

with circuit precedent, additionally argue that the APA’s text should not be read to displace the 

traditional equitable limitation of relief to the parties before the court.” Id. 

In this case the Agencies have advanced the recommended argument against universal 

vacatur to the letter, ECF 181, at 84–86—even though their argument is contradicted by Fifth 

Circuit precedent. See Data Mktg., 45 F.4th at 859. Notably, the Agencies do not cite to any Fifth 

Circuit precedent to support their argument. In fact, the only APA case cited in support, Arizona 

v. Biden, is an out of circuit concurrence, which is explicitly distinguished by a subsequent Fifth 

15 See also Mila Sohoni, The Power to Vacate a Rule, 88 GEO. WASH. L. REV. 1121, 1178 (2020) 

(“The assumption that universal vacatur is, at a minimum, authorized by the APA is a basic 

proposition shared by both sides of the debate . . . the disagreement between the two sides has been 

entirely over the question whether universal vacatur is required by the APA. Yet it is to that 

logically antecedent question—is universal vacatur even authorized?—that the debate has now, 

oddly, regressed.”).

16 https://www.justice.gov/opa/press-release/file/1093881/download

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Circuit decision. Compare Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, C.J., 

concurring) (granting stay of nationwide injunction pending appeal and asserting that universal 

vacatur “upset[s] the bedrock practice of case-by-case judgments with respect to the parties in each 

case”) with Texas v. United States, 40 F.4th 205, 229–30 (5th Cir. 2022) (explicitly “depart[ing] 

from the Sixth Circuit’s recent opinion in Arizona v. Biden[,]” and denying stay of universal 

vacatur of agency action pending appeal). The Fifth Circuit held it would adhere to its precedent, 

“[u]ntil there is a contrary ruling from the Supreme Court.” Texas v. United States, 40 F.4th at 230.

The Agencies’ contention that vacatur of the Final Rule would have immense disruptive 

consequences is similarly unpersuasive. Feds’ Br. at 87; see also Texas v. Biden, 20 F.4th at 1000 

(when determining “whether vacatur is appropriate” courts may consider “the disruptive 

consequences of vacatur”). First and foremost, the “effects” the Agencies warn of assumes the 

merit of their arguments. If this Court is considering the appropriate scope of relief, then the Court 

has already determined that the Agencies have failed to meet their burden, at least in part, and that 

some or all of the Final Rule is unlawful, unconstitutional, or both. The idea that there can be a 

negative impact from enjoining an illegal and/or unconstitutional agency action is nonsensical.

In any event, the Agencies claim that vacatur “would facilitate the further proliferation of 

untraceable weapons” which decreases public safety. Feds’ Br. at 87. But the Final Rule has been 

in effect for just six months and has been partially enjoined nearly that entire time. Further, courts 

act within their discretion even when vacatur causes severe disruption so long as they consider all 

relevant factors. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 

1053 (D.C. Cir. 2021), cert. denied sub nom. Dakota Access, LLC v. Standing Rock Sioux Tribe, 

142 S. Ct. 1187 (2022) (court acted within its discretion even though vacatur “would cause” 

“severe economic disruption”). Moreover, “it is not [the Court’s] job to determine our nation’s 

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public policy” but to “apply the law as Congress has written it.” Cargill v. Garland, 57 F.4th 447, 

472 (5th Cir. 2023). 

The Final Rule is procedurally deficient and must be vacated in its entirety. To the extent, 

however, that this Court finds that the Final Rule is not procedurally deficient and vacates only 

specific portions of the Final Rule, the government’s argument that vacatur will have immense 

disruptive consequences is further weakened.

Finally, the Agencies ask that, to the extent this Court vacates some or all of the Final Rule, 

it do so only with regard to the parties before the Court. Feds’ Br. at 89. But the Agencies do not 

point to any authority even suggesting that a statute or regulation may be vacated only as to a 

subset of the population—and for good reason. “Vacatur . . . retroactively undoes or expunges a 

past state action.” Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 522 (7th Cir. 2021), 

reh’g denied (Nov. 16, 2021). It “unwinds the challenged agency action” as if it no longer exists. 

Id; see also Lujan, 497 U.S. at 912 (Blackmun, J., dissenting) (“In some cases the ‘agency action’ 

will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is 

invalidated, not simply that the court forbids its application to a particular individual.”) (emphasis 

added). This is in contrast to an injunction, “which merely blocks enforcement” of a law or 

regulation but does not remove it from the books. Id. If, however, the Court were to entertain a 

“limited” vacatur (perhaps more properly considered an injunction), such relief, however 

denominated, should include all of the Plaintiffs, including FPC, FPC’s members, and Tactical 

Machining’s customers, all of which are properly represented before this Court. 

When a regulation is unlawful, however, the proper remedy is to vacate the regulation (or 

the offending portions), not to merely enjoin enforcement against certain parties. The Final Rule 

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is procedurally and constitutionally defective in ways that cannot be remedied on remand. 

Therefore, this Court should vacate the Final Rule and enjoin its enforcement. 

CONCLUSION

For the foregoing reasons and those stated in Plaintiffs’ Motion for Summary Judgment

and Supplemental Brief under Rule 65(A)(2) Consolidation, ECF Nos. 141, 133, Plaintiffs 

respectfully request that this Court vacate the Final Rule and/or enjoin its enforcement. 

DATED this 6th day of March 2023. 

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 

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 

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

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

MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80227 

Telephone: (303) 292-2021 

Telecopy: (877) 349-7074 

eerhardt@mslegal.org 

kschiraldi@mslegal.org 

*Admitted pro hac vice 

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

 I hereby certify that on this 6th day of March 2023, I electronically filed the foregoing 

using this Court’s CM/ECF system. 

I certify that all participants in this case are registered CM/ECF users and service will be 

accomplished by this Court’s CM/ECF system. 

/s/ Erin M. Erhardt 

Erin M. Erhardt

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