1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

JENNIFER VANDERSTOK, et al.,

Plaintiffs,

v.

MERRICK GARLAND, in his official

capacity as Attorney General of the United

States; et al.,

Defendants.

Civil Action

No. 4:22-cv-00691-O

AMENDED PETITION FOR JUDICIAL REVIEW OF AGENCY ACTION

AND REQUEST FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

Plaintiffs Jennifer VanDerStok; Michael G. Andren; Tactical Machining,

LLC; and Firearms Policy Coalition, Inc., file this Petition for Judicial Review of

Agency Action and Request for Declaratory and Injunctive Relief against

Defendants Merrick Garland, Attorney General of the United States, in his official

capacity; the United States Department of Justice; Steven Dettelbach, Director of the

Bureau of Alcohol, Tobacco, Firearms and Explosives, in his official capacity; and

the Bureau of Alcohol, Tobacco, Firearms and Explosives and state the following:

INTRODUCTION

1. The Executive Branch is not Congress. Congress maintains “All

legislative Powers,” U.S. CONST. ART. I, § 1, and the president and his subordinate

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agencies may neither enact nor legislatively “interpret” statutes to advance desired

outcomes not provided for in a law as passed by Congress.

2. Despite this fundamental tenet of separation of powers, President Biden

has both expressed and advanced his intentions to expand federal firearm regulations

regardless of whether Congress concurs, in contravention of the constitutional limits

on Executive authority.

1

3. This lawsuit challenges, inter alia, the authority of the Department of

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

(“ATF,” collectively “Agencies”) to regulate items that are not firearms as if they

were, and the Agencies’ failure to follow the rulemaking requirements of the

Administrative Procedure Act (“APA”).

4. The Final Rule not only greatly departs from the Proposed Rule, but

misconstrues the Gun Control Act (“GCA”), 18 U.S.C. § 921 et seq.; ignores the

congressional intent conveyed by the tex of the GCA; and defies long-standing

agency interpretation by redefining what constitutes a “firearm” and, in particular,

what constitutes the “frame or receiver” of a “weapon.”

1 THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/speechesremarks/2021/04/08/remarks-by-president-biden-on-gun-violence-prevention/ (last visited Aug.

10, 2022) (“I asked the Attorney General and his team to identify for me immediate, concrete

actions I could [] take now without having to go through the Congress.”).

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5. The GCA defines “firearm” as “(A) any weapon (including a starter

gun) which will or is designed to or may readily be converted to expel a projectile

by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any

firearm muffler or firearm silencer; or (D) any destructive device. Such term does

not include an antique firearm.” 18 U.S.C. § 921(a)(3).

6. The central dispute in this case is whether the coverage of “any

weapon” that may be “readily converted to expel a projectile by the action of an

explosive” and the separate coverage of “the frame or receiver of any such weapon”

allows the expansion of coverage for anything that is not already a “weapon” but

could be “readily converted” into a frame or receiver of an eventual weapon to

qualify as a “firearm.” The Agencies claim that it is a natural extension of

congressional intent to apply the readily converted language of subsection (A) to

subsection (B), even though such language is notably lacking in subsection (B).

Definition of “Frame or Receiver” and Identification of Firearms (“Final Rule”),

87 Fed. Reg. 24,652, 24,667 (Apr. 26, 2022).

2 And yet Congress is presumed to

include and exclude language knowingly and intentionally, and by omitting the

“readily converted” from subsection (B) regarding frames and receivers, it must be

presumed that Congress did not confer such expanded authority on the Agencies.

2 The Final Rule is available at:

https://www.federalregister.gov/documents/2022/04/26/2022-08026/definition-of-frame-orreceiver-and-identification-of-firearms

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And, more importantly, that is how such language would have more naturally been

understood by legislators and the public when it was adopted. In the context of a

statute imposing criminal liability, fundamental principles of statutory interpretation

and the equally fundamental due process and separation of powers concerns driving

the rule of lenity forbid the Agencies’ efforts to broaden the reach of the definition

of “firearm.”

7. The Final Rule defies the plain language of the GCA and longstanding

agency interpretation suggesting that the items at issue here, sometimes colloquially

referred to as receiver blanks, unfinished frames or receivers, or 80% frames or

receivers, are not firearms.3

8. “Frame or receiver” is not independently defined in the GCA but refers

to the “frame or receiver” of a weapon as defined in 18 U.S.C. § 921(a)(3)(A).

Through this rulemaking, however, the Agencies are attempting to create a broad,

sweeping definition by including items that are not yet the “frames or receivers” of

such weapons and by including “frame or receiver kits.”

9. Additionally, by treating non-frames and non-receivers as if they were

actual frames and receivers of a weapon, the Agencies have expanded the reach of a

3

See Are “80%” or “unfinished” receivers illegal?, ATF,

https://www.atf.gov/firearms/qa/are-%E2%80%9C80%E2%80%9D-or-

%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last visited Aug. 10, 2022) (“ATF has

long held that items such as receiver blanks, ‘castings’ or ‘machined bodies’ in which the firecontrol cavity area is completely solid and un-machined have not reached the ‘stage of

manufacture’ which would result in the classification of a firearm according to the GCA.”). 

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criminal statute to cover “weapon parts kits” within the definition of a “firearm”

under 18 U.S.C. § 921(a)(3)(A), even though such kits do not meet the

congressionally defined term and do not actually contain a frame or receiver of a

weapon.

10. Congress never understood itself to be adopting language permitting

every actual or potential part of a firearm be regulated as a firearm itself through the

GCA.

4 Congress also did not give the Agencies the authority to regulate the broad

array of materials that may, at some point in the future, be manufactured into

firearms by private individuals. Individuals that are not otherwise prohibited from

possessing firearms in the United States are free to personally manufacture

firearms—there is no federal law that allows the Executive Branch to regulate or

prohibit that practice.

11. The Agencies’ Final Rule defies the APA, other federal statutes, and

the United States Constitution. Accordingly, the declaratory, injunctive, and other

relief Plaintiffs request is necessary to prevent the implementation and enforcement

of this unconstitutional, illegal regulation that will directly impact the current and

4

“Under the present definition of ‘firearm,’ any part or parts of such a weapon are included.

It has been found that it is impractical to have controls over each small part of a firearm. Thus, the

revised definition substitutes only the major parts of the firearm; that is, frame or receiver for the

words ‘any part or parts.’” Fed. 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) (internal quotations omitted) (quoting

S. Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2200).

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longstanding personal and business practices of Plaintiffs and many other similarly

situated individuals and businesses.

PARTIES

12. Plaintiff Jennifer VanDerStok is a United States citizen who lives in

Mineral Wells, Texas. Ms. VanDerStok owns at least one firearm—used for lawful

purposes, including but not limited to self-defense—that she purchased from Federal

Firearms Licensee (“FFL”) in accordance with federal law. Ms. VanDerStok does

not currently own a firearm that she has manufactured herself using materials that

Defendants do not currently classify as firearms, but Ms. VanDerStok wishes to

manufacture a firearm using these products in the future and would do so but for the

Agencies’ new attempt to treat those items as firearms in and of themselves. Ms.

VanDerStok is a member of Plaintiff Firearms Policy Coalition, Inc. (“FPC”).

13. Plaintiff Michael G. Andren is a United States citizen who lives in

Springtown, Texas. Mr. Andren owns at least one firearm that he purchased from an

FFL in accordance with federal law. Mr. Andren also owns a firearm—used for

lawful purposes, including but not limited to self-defense—that he manufactured

himself using materials that Defendants do not currently classify as firearms. Mr.

Andren wishes to and would continue to manufacture firearms using these products

but for the Agencies’ new attempt to treat those items as firearms in and of

themselves. Mr. Andren is a member of Plaintiff FPC.

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14. Plaintiff Tactical Machining, LLC is a producer and retailer of the items

the Agencies seek to regulate under the Final Rule. Tactical Machining is a

corporation in good standing registered and located in Deland, Florida. Tactical

Machining has had several sales direct to customers in this district. Tactical

Machining currently sells items that Defendants do not currently treat as firearms

under the GCA—items that Tactical Machining submitted to the ATF for

classification and that the ATF did not classify as firearms. Should Defendants

succeed in amending the GCA via the Final Rule, Tactical Machining would be

prohibited from continuing the direct sale of those items to consumers and would be

required to serialize all newly regulated items and kits, including already existing

products. These new requirements will negatively impact Tactical Machining and

will likely put Tactical Machining out of business, a point that the ATF anticipates

and acknowledges in the Final Rule. Final Rule, at 24,723. At minimum, these new

requirements will cost Tactical Machining a significant amount of monetary

expenditure, including changes in business model, changes in product offerings, and

a loss of customers. The ATF specifically notes that “there are 41 FFL and 43 nonFFL manufacturers that will be affected by the rule[,]” which includes Tactical

Machining.5 Further, the “ATF estimates the majority of affected entities are small

5 ATF, REGULATORY IMPACT ANALYSIS AND FINAL REGULATORY FLEXIBILITY ANALYSIS 32

(2022), https://www.atf.gov/file/165811/download. 

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entities that would experience a range of costs, the largest cost being the dissolution

of the entire business[,]”

6 which again includes Tactical Machining. Tactical

Machining is a member of Plaintiff FPC.

15. Plaintiff Firearms Policy Coalition, Inc. is a nonprofit organization

incorporated under the laws of Delaware with its principal place of business in Las

Vegas, Nevada. FPC’s purposes include defending and promoting the People’s

rights—especially but not limited to First and Second Amendment rights—and

advancing individual liberty and restoring freedom. FPC serves its members and the

public through legislative advocacy, grassroots advocacy, litigation and legal efforts,

research, education, outreach, and other programs. FPC represents its members and

supporters—who include gun owners, individuals who wish to acquire firearms and

ammunition, individuals who wish to manufacture their own personal use firearms,

licensed firearm retailers, shooting ranges, trainers and educators, and others—and

brings this action on behalf of itself, its members, supporters who possess all the

indicia of membership, and similarly situated members of the public. Plaintiff FPC

submitted comments on the Proposed Rule.7

16. Defendant Merrick Garland is the United States Attorney General. As

the Attorney General, Defendant Garland leads the Department of Justice. The

6

Id. at 124. 

7 FPC, COMMENT ON ATF’S PROPOSED RULE (Aug. 19, 2021), https://bit.ly/3zxj9RR.

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Department of Justice oversees the Bureau of Alcohol, Tobacco, Firearms and

Explosives—the agency that Congress has charged with enforcing the Gun Control

Act, the National Firearms Act, and other federal laws. Attorney General Garland is

sued in his official capacity.

17. Defendant United States Department of Justice is a federal agency

located at 950 Pennsylvania Avenue, NW, Washington, D.C., 20530.

18. Defendant Steve Dettelbach is the Director of the Bureau of Alcohol,

Tobacco, Firearms and Explosives. The Bureau of Alcohol, Tobacco, Firearms and

Explosives is charged by Congress with enforcing the Gun Control Act, the National

Firearms Act, and other federal laws. Director Dettelbach is sued in his official

capacity.

19. Defendant Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) is a federal agency located at 99 New York Avenue, NE, Washington, D.C.,

20226.

JURISDICTION AND VENUE

20. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because

Plaintiffs’ claims arise under federal law.

21. This Court has jurisdiction pursuant to 5 U.S.C. § 701, et seq., because

Plaintiffs’ claims arise under the Administrative Procedure Act.

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22. This Court has jurisdiction to grant the declaratory relief sought,

pursuant to 28 U.S.C. § 2201, and additional relief pursuant to 28 U.S.C. § 2202.

23. Venue is proper in this jurisdiction pursuant to 28 U.S.C.

§ 1391(e)(1)(B) and (C) because Plaintiffs Andren and VanDerStok reside in this

district; Plaintiff Tactical Machining has engaged in several business transactions in

this district; and Plaintiff FPC has members that reside in this district, which include

Plaintiffs Andren, VanDerStok, and Tactical Machining.

STATEMENT OF FACTS

I. Historical Background

24. When reviewing a regulation of “Arms,” whatever the context, it is

important to start by recognizing that the “People” have a right to keep and bear

arms, and that any regulation burdening that right must be measured against

historical practices and understandings. “[I]t has always been widely understood that

the Second Amendment . . . codified a pre-existing right.” N.Y. State Rifle & Pistol

Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2127 (2022) (internal quotation and citation

omitted). As relevant to this case, that pre-existing right and historical practice long

encompassed the practice of gunsmithing—the production of firearms by private

individuals. The rulemaking challenged here would make such historical practice

nearly impossible for those individuals. Congress certainly did not legislate an

express ban on such a practice, and basic principles of constitutional avoidance

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counsel against allowing an agency to imply such a likely unconstitutional ban from

far more limited statutory language.

25. That technology and manufacturing have evolved since the Founding

does not alter the fundamental constitutional backdrop. “Just asthe First Amendment

protects modern forms of communications, . . . the Second Amendment extends,

prima facie, to all instruments that constitute bearable arms, even those that were not

in existence at the time of the founding.” District of Columbia v. Heller, 554 U.S.

570, 582 (2008); see Bruen, 142 S. Ct. at 2132 (“Thus, even though the Second

Amendment’s definition of ‘arms’ is fixed according to its historical understanding,

that general definition covers modern instruments that facilitate armed selfdefense.”) (citing Caetano v. Massachusetts, 577 U.S. 411, 411–12 (2016) (per

curiam)).

26. Importantly, “[t]he Second Amendment’s text makes no distinction

between the different methods of acquiring the firearms that Americans have a right

to keep and bear. The text shows no preference for purchasing a firearm built by

another individual over building one’s own firearm. After all, it would not be much

of a right if one unnecessarily had to pay others to exercise it[.]”8

8

Joseph G.S. Greenlee, The American Tradition of Self-Made Arms, 54 ST. MARY’S L.J., at

9 (Apr. 11, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3960566.

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27. The concept of manufacturing a firearm at home is not novel—personal

manufacturing of firearms has occurred since long before the Founding of our

Nation. In fact, “[p]rivately made firearms have been in existence since the first

ignition system was developed close to 500 years ago, in the 1400s.” 9 During

colonial times, American citizens manufactured and repaired arms—a valued skill

that signified America’s independence and self-reliance.10 “Despite the emergence

of armories, mass production, and the innovation of prominent manufacturers, the

role of the individual never went away and still exists today.”11 Accordingly, The

relevant history of arms in this country reflects a long and celebrated tradition of

gunsmithing by private individuals, for their own benefit as well as for the benefit

of their fellow citizens and the government.

28. In light of the historically favorable view of gunsmithing, “[r]egulations

on self-built arms are not longstanding. In fact, there were no restrictions on the

manufacture of arms for personal use in America during the seventeenth, eighteenth,

or nineteenth centuries. All such restrictions have been enacted within the last

9

Stop Gun Violence: Ghost Guns, Hearing before the Subcomm. on the Constitution, Comm.

on the Judiciary (“Stop Gun Violence”), 117th Cong. 4 (2021) (statement of Ashley Hlebinsky,

Curator Emerita & Senior Firearms Scholar, Cody Firearms Museum, President, The Gun Code,

LLC),

https://www.judiciary.senate.gov/imo/media/doc/Ashley%20Hlebinsky%20Written%20Testimo

ny%20Final.pdf.

10 The American Tradition of Self-Made Arms, at 2.

11 Stop Gun Violence, at 6.

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decade.” 12 Efforts to restrict that practice thus run headlong into the Second

Amendment, and efforts to do so through Executive Branch expansion of a more

limited congressional enactment are particularly suspect.

II. Legal Background

A. National Firearms Act and Gun Control Act

29. In 1934, Congress enacted the National Firearms Act (“NFA”), 26

U.S.C. § 5801 et seq., and “imposed a tax on the making and transfer of firearms

defined by the Act, as well as a special (occupational) tax on persons and entities

engaged in the business of importing, manufacturing, and dealing in NFA

firearms.”13 “Firearms subject to the 1934 Act included [short barreled] shotguns

and rifles . . ., certain firearms described as ‘any other weapons,’ machine guns, and

firearm mufflers and silencers.”14

30. Congress then passed the GCA in 1968, which “amended the NFA

definitions of ‘firearm’ by adding ‘destructive devices’ and expanding the definition

of ‘machine gun.’”

15

31. As Congress defined it in the GCA, and as it has stood since 1968,

“[t]he term ‘firearm’ means (A) any weapon (including a starter gun) which will or

12 The American Tradition of Self-Made Arms, at 40 (emphasis added).

13 National Firearms Act, ATF, https://www.atf.gov/rules-and-regulations/national-firearmsact (last visited Aug. 10, 2022).

14 Id.

15

 Id.

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is designed to or may readily be converted to expel a projectile by the action of an

explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or

firearm silencer; or (D) any destructive device. Such term does not include an

antique firearm.” 18 U.S.C. § 921(a)(3). Congress did not independently define the

terms “frame or receiver” contained in subsection (B) of that overall definition.

32. Under federal law, it is “unlawful . . . for any person . . . except a

licensed importer, licensed manufacturer, or licensed dealer to engage in the

business of importing, manufacturing, or dealing in firearms, or in the course of such

business to ship, transport, or receive any firearm in interstate or foreign

commerce[.]” 18 U.S.C. § 922(a)(1)(A). “The term ‘engaged in the business’

means . . . as applied to a manufacturer of firearms, a person who devotes time,

attention, and labor to manufacturing firearms as a regular course of trade or business

with the principal objective of livelihood and profit through the sale or distribution

of the firearms manufactured.” 18 U.S.C. § 921(a)(21). “The term ‘to predominately

earn a profit’ means that the intent underlying the sale or disposition of firearms is

predominately one of obtaining pecuniary gain, as opposed to other intents, such as

improving or liquidating a personal firearms collection.” 18 U.S.C. § 921(a)(22).

33. Violations of the NFA and GCA can carry criminal penalties, including

fines and up to five year’s imprisonment. 18 U.S.C. § 924(a)(1)(D)

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(“[W]hoever . . . willfully violates any other provision of this chapter, shall be fined

under this title, imprisoned not more than five years, or both.”).

B. Congress’s Delegation to the ATF

34. The Attorney General has the authority to enforce the GCA and NFA,

but lacks the authority to fill gaps or legislate. See 26 U.S.C. § 7801(a)(2)(A) (“The

administration and enforcement of the following provisions of this title shall be

performed by or under the supervision of the Attorney General[.]”); 26 U.S.C.

§ 7805(a) (“[T]he Secretary shall prescribe all needful rules and regulations for the

enforcement of this title[.]”).

35. “Congress also authorized the Attorney General to prescribe ‘rules and

regulations as are necessary to carry out the provisions’ of Chapter 44 of Title 18 of

the Gun Control Act.” Gun Owners of Am. v. Garland, 19 F.4th 890, 897 (6th Cir.

2021) (quoting 18 U.S.C. § 926(a)).

36. “The Attorney General has directed the Director of the Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF) to administer, enforce, and

exercise the functions and powers of the Attorney General with respect to” both the

GCA and NFA. Id.; see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,527

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(Dec. 26, 2018) (“The Department agrees that regulatory agencies may not

promulgate rules that conflict with statutes.”).16

37. According to the ATF, “[a]mong ATF’s responsibilities is the

classification of firearms[.]” Fed. Defs.’ Mot. to Dismiss, California v. ATF, No.

3:20-cv-06761, 2020 WL 9849685, ECF No. 29, at 12 (N.D. Cal. Nov. 30, 2020).

17

C. The ATF’s Prior Classifications

38. The ATF maintains guides and images to convey and illustrate its

treatment and classification of certain firearms and non-firearms.

39. The ATF has had the same answer to this question for decades. “Are

‘80%’ or ‘unfinished’ receivers illegal?”:

Receiver blanks that do not meet the definition of a “firearm” are not

subject to regulation under the Gun Control Act (GCA). ATF has long

held that items such as receiver blanks, “castings,” or “machined

bodies” in which the fire-control cavity is completely solid and unmachined have not reached the “stage of manufacture” which would

result in the classification of a firearm according to the GCA.18

This response was available on the ATF’s website at the time of filing this Petition.

“Classification letters from the late 1970s through the 1990s repeatedly sought to

determine whether the ‘manufacturing process’ was sufficiently complete in order

16 The Bump-Stock-Type Devices rule is available at:

https://www.federalregister.gov/documents/2018/12/26/2018-27763/bump-stock-type-devices

17 All court filings refer to the ECF pagination.

18 Are “80%” or “unfinished” receivers illegal?, ATF, https://www.atf.gov/firearms/qa/are-

%E2%80%9C80%E2%80%9D-or-%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last

visited Aug. 10, 2022).

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to be deemed a firearm.” Fed. Defs.’ Mot. for Summ. J., Syracuse v. ATF, No. 1:20-

cv-06885, 2021 WL 23326, ECF No. 98, at 16 (S.D.N.Y. Jan. 29, 2021). The ATF

supplemented this answer with photos19 for clarification:

40. ATF also answered the question of whether there are “restrictions on

who can purchase receiver blanks[,]” stating, “[t]he Gun Control Act (GCA) does

not impose restrictions on receiver blanks that do not meet the definition of a

19 Id. (retrieved on Aug. 10, 2022).

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‘firearm.’”20 This response was available on the ATF’s website at the time of filing

this Petition.

D. Campaign Statements, Announcement, and Rulemaking Process

41. Before President Biden took office, one of his campaign pillars was an

amorphous plan to combat “gun violence.” This plan included “stop[ping] the

proliferation of these so-called ‘ghost guns’ by passing legislation requiring that

purchasers of gun kits or [a] 3D printing code pass a federal background check.”21

42. Once elected, President Biden “urged Congress to swiftly pass gun

control laws[.]”22 When Congress did not act to the Biden Administration’s liking,

President Biden instead called upon the Agencies to dramatically expand their

interpretation of the congressionally defined term “firearm” in order to accomplish

the legislative agenda Congress itself declined to adopt.

43. On April 11, 2022, President Biden declared that he had “instructed the

Attorney General to write a regulation that would rein in the proliferation of ‘ghost

guns’ because [he] was having trouble getting it passed in the Congress[.]”23

20 Are there restrictions on who can purchase receiver blanks?, ATF,

https://www.atf.gov/firearms/qa/are-there-restrictions-who-can-purchase-receiver-blanks (last

visited Aug. 10, 2022).

21 The Biden Plan to End Our Gun Violence Epidemic, BIDEN-HARRIS DEMOCRATS,

https://joebiden.com/gunsafety/ (last visited Aug. 10, 2022).

22 Biden Considers executive actions on guns, calls on Congress to pass weapons ban,

REUTERS (Mar. 23, 2021), https://www.reuters.com/article/usa-guns-idINKBN2BG0A5.

23 Biden announces new rulesfor‘ghost guns,’ introduces ATF director nominee,CBS NEWS,

at 2:51 (Apr. 11, 2022), https://www.cbsnews.com/video/biden-ghost-guns-atf-directornominee/#x.

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44. On May 21, 2021, the Department of Justice published a Proposed Rule

directly in line with the Administration’s public stance and statements. Definition of

“Frame or Receiver” and Identification of Firearms (“Proposed Rule”), 86 Fed.

Reg. 27,720 (proposed May 21, 2021).

24

45. The Biden Administration has sought to end run Congress and place

restrictions on the ability of peaceable Americans to acquire materials to selfmanufacture firearms. The Final Rule requires rigorous compliance with a labyrinth

of rules should a privately manufactured firearm ever come into the hands of a

licensed dealer. This will naturally cause licensed dealers to turn away privately

manufactured guns for repairs to avoid tangling with the complicated regulatory

scheme, thus disincentivizing Americans to take part in the pastime of selfmanufacturing guns. And this Administration will put numerous companies that

produce these newly-regulated items and kits out of business—despite those

companies’ specific reliance on the Agencies’ longstanding application of federal

law.

46. The newly proposed regulation, inspired by the Biden Administration’s

promises, takes stances that defy statutory construction and long-standing agency

interpretation.

24 The Proposed Rule is available at:

https://www.federalregister.gov/documents/2021/05/21/2021-10058/definition-of-frame-orreceiver-and-identification-of-firearms

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III. The Agencies’ Unlawful Redefinition of “Firearm”

A. Unlawful Definition of Frames or Receivers

47. Statutorily, as it has stood since Congress enacted the GCA in 1968,

“[t]he term ‘firearm’ means (A) any weapon (including a starter gun) which will or

is designed to or may readily be converted to expel a projectile by the action of an

explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or

firearm silencer; or (D) any destructive device. Such term does not include an

antique firearm.” 18 U.S.C. § 921(a)(3).

48. The Agencies’ prior regulation defines a “frame or receiver” as “[t]hat

part of a firearm which provides housing for the hammer, bolt or breechblock, and

firing mechanism, and which is usually threaded at its forward portion to receive the

barrel.” 27 C.F.R. § 478.11. This definition was established by an agency rulemaking

in 1978. Title and Definition Changes, 43 Fed. Reg. 13,531, 13,537 (Mar. 31, 1978).

49. Just nine days after President Biden was sworn into office, the ATF

recognized in a court filing that “pursuant to the . . . statutory definition, a device is

a firearm if it is either: (1) a frame or receiver or (2) a device that is designed to or

can readily be converted into a device that expels a projectile. Importantly, the

‘designed to’ and ‘readily be converted’ language are only present in the first clause

of the statutory definition.” Fed. Defs.’ Mot. for Summ. J., Syracuse, at 14 (quoting

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

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50. The ATF not only acknowledged, but affirmatively argued that even a

nearly complete frame or receiver that can be “readily converted” into a frame or

receiver was not a firearm under the GCA, nor was it an accurate statutory reading

of the GCA to take express language from 18 U.S.C. § 921(a)(3)(A) and add it to 18

U.S.C. § 921(a)(3)(B) when Congress had not done so. Id.

51. Despite the clear distinction in the statute that “readily converted” is

sequestered to one section of the statutory definition, the Final Rule did precisely

what the ATF claimed was inaccurate—it imported “readily converted” into 18

U.S.C. § 921(a)(3)(B). Final Rule, at 24,739 (“The terms ‘frame’ and ‘receiver’ shall

include a partially complete, disassembled, or nonfunctional frame or receiver,

including a frame or receiver parts kit, that is designed to or may readily be

completed, assembled, restored, or otherwise converted to function as a frame or

receiver[.]”).

52. The Agencies newly define “readily” itself as: “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.”

Id. at 24,735. Trailing behind the term “readily” in the Final Rule are eight

amorphous factors that the ATF will “balance” to determine whether an object that

is itself neither a weapon nor a frame or receiver of a weapon can nonetheless be

“readily converted” into a firearm. Id. These factors include time, ease, expertise,

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equipment required, parts availability, expense, scope, and feasibility. Id. The Final

Rule does not give any indication as to the weight assigned to each factor, giving the

ATF near complete discretion on all classifications moving forward.

53. The Agencies’ new interpretation of the GCA defies canons ofstatutory

interpretation. Congress has the power to insert “readily converted” within the

subsection addressing “the frame or receiver of any such weapon” in the GCA and

chose not to. Importing such an extension where Congress has not itself done so

violates any number of statutory construction canons, not the least of which is the

clear statement rule. See Clear-Statement Rule, BLACK’SLAW DICTIONARY (11th ed.

2019) (“[A] doctrine requiring the legal drafter to use clarity of expression before

some effect will follow[.]”); Fed. Defs.’ Mot. for Summ. J., Syracuse, at 34 (quoting

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

Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in disparate inclusion or exclusion.”) (internal quotation

marks and alteration omitted)).

54. The Agencies’ newly proposed definition also defies long-standing

agency precedent. In litigation documents filed just a few days after President Biden

was sworn in, the ATF declared it “applies a standard under which unfinished frames

or receivers that have not yet reached a critical stage of manufacturing—devices that

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are not designed to expel a projectile and still require many steps, tools, and expertise

to be converted into such a device—are not firearms within the meaning of the

GCA.” Fed. Defs.’ Mot. for Summ. J., Syracuse, at 11 (emphasis added).

55. “An unmachined frame or receiver is not ‘designed’ to expel a

projectile, because its purpose is not to expel a projectile. Rather, its purpose is to be

incorporated into something else that is designed to expel a projectile. Holding

otherwise would mean that every part of a gun is designed to expel a projectile and,

therefore, would be deemed a firearm under the GCA.” Id. at 31. Notably, the ATF

recognized this would contravene the purpose of the GCA. Id. at 34 (“Under the

present definition of ‘firearm,’ any part or parts of such a weapon are included. It

has been found that it is impractical to have controls over each small part of a

firearm. Thus, the revised definition substitutes only the major parts of the firearm;

that is, frame or receiver for the words ‘any part or parts.’”) (internal quotations

omitted) (quoting S. Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N.

2112, 2200).

56. “The object that is designed to expel a projectile is a gun—not its

trigger, its hammer, the grip, front sight, or the frame. It is the combination of all

these things into one that results in an object that is designed to expel a projectile.

[The party’s] argument that unmachined frames and receivers are firearms because

they are ‘designed to’ expel a projectile should therefore be rejected.” Id. at 32.

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57. The ATF referenced some its own classification letters, including one

letter that states: “[T]he devices at issue still required both machining to become

finished frames/receivers and assembly with other parts to become operable

firearms. . . . [T]his process is not one whereby an unmachined frame can ‘readily’

be converted into a device that expels a projectile.” Id. at 36.

58. “Congress knew how to regulate devices based upon what was

‘intended’ to be done with them. . . . 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.” Id. at 34.

59. Under the Final Rule, the items in the photograph below25 labeled “not

a firearm” are now firearms because “the terms ‘frame’ and ‘receiver’ include a

partially complete frame or receiver ‘that is designed to, or may readily be

completed, assembled, restored, or otherwise converted’ to accept the parts it is

intended to house or hold.” Final Rule, at 24,685.

25 Are “80%” or “unfinished” receivers illegal?, ATF, https://www.atf.gov/firearms/qa/are-

%E2%80%9C80%E2%80%9D-or-%E2%80%9Cunfinished%E2%80%9D-receivers-illegal (last

visited Aug. 10, 2022).

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60. Additionally, the Agencies can exert broad discretion in determining

what exactly constitutes a “frame or receiver.” The Final Rule declares, under the

definition of “frame,” “receiver,” and “variant,” that “[t]he following are

nonexclusive examples that illustrate the above definitions.” Final Rule, at 24,735

(emphasis added); see id. at 24,739 (“[T]his section, the terms ‘frame’ and ‘receiver’

shall include the specific part of a complete weapon, including variants thereof,

determined (classified) by the Director to be defined as a firearm frame or receiver

prior to April 26, 2022.”) (emphasis added).

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61. The Final Rule also provides near complete discretion to the ATF’s

Director to consider not just the item being classified, but also to consider outside

information, whether provided with the item or not, to “determine” if it is a frame or

receiver. Id. at 24,739 (“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 to the

purchaser or recipient of the item or kit.”). In this way, the Final Rule also seeks to

regulate a “frame or receiver parts kit” as a frame or receiver itself. In other words,

under the Final Rule, a link to a YouTube video on a retailer or producer’s website

may have the effect of converting an unregulated item into a regulated frame or

receiver.

62. The Final Rule goes so far as to “[e]xpressly exclude[] from the

definition of ‘frame or receiver’ unformed blocks of metal, liquid polymers, and

other raw materials” because the ATF’s new classification is so expansive and

departs so markedly from its previous classifications that they are not obviously

excluded without explicit mention. Id. at 24,700. But such exclusions are entirely

arbitrary, cannot be supported by the definitions the ATF otherwise seeks to apply,

and thus illustrate why such regulatory redefinitions are overbroad and incorrect.

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63. The Final Rule’s redefinition of “firearm,” specifically as to frames and

receivers is not consistent with the statutory definition because the Final Rule

includes items that do not meet the statutory definition of frame or receiver under

the regulatory definition, thus broadening the ATF’s reach without congressional

mandate or approval. See 18 U.S.C. § 921(a)(3).

B. Unlawfully Designating Weapons Parts Kits as “Firearms”

64. In addition to improperly expanding the terms “frame” and “receiver”,

the Final Rule unlawfully treats parts kits as “firearms.” Initially, the Proposed Rule

sought to add “a sentence at the end of the definition of ‘firearm’ in [27 C.F.R.

§ 478.11] providing that ‘[t]he term shall include a weapon parts kit that is designed

to or may readily be assembled, completed, converted, or restored to expel a

projectile by the action of an explosive.’” Proposed Rule, at 27,726 (emphasis

added).

65. In the Final Rule, the Agencies contravened their prior position and

stated, “the language of section 921(a)(3)(A) should be read to include weapon parts

kits and aggregations of weapon parts that . . . may or may not be designed to expel

a projectile by the action of an explosive in their present form or configuration, but

may readily be converted to do so.” Final Rule, at 24,684 (emphasis added).

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66. The Final Rule included in the definition of firearm “a weapon parts kit

that is designed to or may be readily completed, assembled, restored, or otherwise

converted to expel a projectile by the action of an explosive.” Id. at 24,735.

67. The Agencies’ newly crafted regulatory definition that includes a

collection of parts within the definition of a firearm defies long-standing agency

precedent—explicitly argued in litigation in California v. ATF.

68. In California v. ATF, the ATF declared in its motion to dismiss a

contrary message to what it purports now, that it is required to regulate weapon parts

kits:

As 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. Congress has

determined that “firearms” are subject to regulation under the GCA,

and that anything that is not a firearm is largely excluded from federal

regulation. This leaves a State like California free to enact its own

regulations of firearm parts (as it has done), but does not permit ATF

to extend federal regulation beyond the limits imposed by Congress.

Fed. Defs.’ Mot. to Dismiss, California, at 10‒11. In other words, Congress chose

to regulate complete weapons, or a single component of an incomplete weapon.

69. The ATF goes on, stating, “Congress has chosen to exclude firearm

parts from the scope of the GCA, including parts that could be assembled with a

homemade receiver and frame to make a firearm. Congress has also chosen to permit

the home manufacture of unserialized firearms for personal use.” Id. at 20.

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70. Congress granted the ATF the limited authority to regulate complete

weapons (including those that may be readily converted into complete weapons) and

the actual complete or functional receiver of a such weapon, but not items that may

someday become a frame or receiver or even the individual parts of a weapon.

71. In fact, “[t]here is nothing novel about the use of unregulated firearm

parts to manufacture firearms for personal use; that possibility (whether by lawful

makers or by prohibited persons) has been evident since Congress’s 1968 decision

to exclude firearms parts from the GCA.” Id. at 21 n.10.

72. The Agencies now regulate weapon parts kits in contradiction with

clear statutory language and the Agencies’ own long-standing precedent and

understanding of the original public meaning of such language. Furthermore,

Plaintiffs, and millions of other individuals, have relied on the original public

meaning of such language, as confirmed by the ATF’s long-standing precedent, to

establish and pursue their personal and business practices. Such a shift would

detrimentally impact Plaintiffs and the population writ large.

IV. The Agencies’ Further APA Violations

73. “Between May 21 and August 19, 2021, ATF received over 290,000

comments on the proposed rule, Definition of ‘Frame or Receiver’ and Identification

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of Firearms.”26 DOJ published the Final Rule in the Federal Register on April 26,

2022. The Final Rule violates numerous provisions of the APA beyond just the

Agencies’ redefinition of congressionally established terms.

A. The Definition of “Complete Weapon” is in Excess of the Agencies’

Authority

74. The Agencies newly define a 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 (emphasis added). By

including unassembled weapons in the definition of “complete weapon” the ATF

has created tremendous enforcement uncertainty.

75. This definition is problematic considering the interchangeability of

certain gun parts. For example, “law-abiding gun owners who legally own both AR

rifles and pistols could be charged with a felony if they store their firearms

unassembled.” Id. at 24,700. This is because an AR rifle and an AR pistol could

theoretically create a new combination—an AR rifle lower and a pistol upper (with

a barrel of less than 16 inches), when combined, create a short-barrel rifle. This

matters because that individual would possess a “complete weapon” that is an NFA

regulated item and cannot be lawfully owned without a federally issued tax stamp.

Mere possession of the unregulated AR pistol upper in conjunction with an AR rifle

26 Comments on Proposed Rule 2021R-05, ATF, https://www.atf.gov/rules-andregulations/definition-frame-or-receiver/submit-comment (last visited Aug. 10, 2022).

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lower could now qualify as a felony under the Agencies’ definition of “complete

weapon.” 

76. The Final Rule does not sufficiently respond to this dramatic expansion

of federal regulation, intentional or not—violation of which bears potential felony

charges, prison time, and the forfeiture of an individual’s right to possess a firearm

under federal law.

77. The Agencies fail to adequately address this concern and merely state

the definition is needed for other purposes. See id. at 24,700 (“Firearms

manufacturing is a continuum from raw material to a functional item, and the term

‘complete weapon’ is needed to explain when the frame or receiver of a weapon in

the process of being manufactured must be identified and recorded as required by

the regulations.”). The ATF does not explain how the current regulatory system is

insufficient in thisregard, nor doesthe ATF have the authority to regulate the various

firearm parts that will be caught up in this definition.

B. The Final Rule is Not a Logical Outgrowth of the Proposed Rule

78. The Proposed Rule sought to combine frame or receiver into a less

technical single definition, defined as “[a] part of a firearm that, when the complete

weapon is assembled, is visible from the exterior and provides housing or a structure

designed to hold or integrate one or more fire control components, even if pins or

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other attachments are required to connect those components to the housing or

structure.” Proposed Rule, at 27,741.

79. The Final Rule significantly departed from the Proposed Rule and

defines “frame” and “receiver” as distinct terms accompanied by nearly six pages of

diagrams and examples. Final Rule, at 24,735‒41. The Final Rule omitted four

diagrams from the Proposed Rule and added five new diagrams. Compare Proposed

Rule, at 27,742‒46 with Final Rule, at 24,735‒41.

80. The new, sweeping definition and diagrams associate a “frame” with

handguns, a “receiver” with rifles or shotguns, and adds the term “variant,” which

means “a weapon utilizing a similar frame or receiver design irrespective of new or

different model designations or configurations, characteristics, features,

components, accessories, or attachments.” Final Rule, at 24,735.

27

27

“(1) The term ‘frame’ means 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 (i.e., sear or equivalent),

even if pins or other attachments are required to connect such component to the housing or

structure. (2) The term ‘receiver’ means 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 (i.e., bolt, breechblock,

or equivalent), even if pins or other attachments are required to connect such component to the

housing or structure. (3) The terms ‘variant’ and ‘variants thereof’ mean a weapon utilizing a

similar frame or receiver design irrespective of new or different model designations or

configurations, characteristics, features, components, accessories, or attachments. For example, an

AK-type firearm with a short stock and a pistol grip is a pistol variant of an AK-type rifle, an ARtype firearm with a short stock and a pistol grip is a pistol variant of an AR-type rifle, and a

revolving cylinder shotgun is a shotgun variant of a revolver.” Final Rule, at 24,735.

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81. The definitions are followed by “nonexclusive examples that illustrate

the above definitions[,]” and sub-definitions of what constitutes a “frame or

receiver.” Id. at 24,735, 24,739‒41.

82. Another significant change is that the Proposed rule sought to require a

“manufacturer, importer, or maker of a firearm” identify “a complete weapon or

complete muffler or silencer device no later than seven days following the date of

completion of the active manufacturing process . . . or prior to disposition,

whichever is sooner,” Proposed Rule, at 27,752, but the Final Rule replaces seven

days with “no later than close of the next business day,” Final Rule, at 24,748. The

Agencies did not provide any opportunity for comment on this significant change.

83. Additional definitions were added to the Final Rule without being

proposed in the Proposed Rule. For example, the definition of multi-piece frame or

receiver was added to the Final Rule under sections 478.92(a)(iii) and 479.102(a)(3)

without being proposed in the Proposed Rule. See Final Rule, at 24,741, 24,747.

84. Additionally, under section 478.92(a)(4)(iii)(D), the requirements for

privately made firearms marked by non-licensees was added without being

proposed. See id. at 24,743.

85. Although mentioned in the Proposed Rule, the Final Rule, for the first

time, defines the term “primordial.” See Proposed Rule, at 27,729 (“Although this

addition is intended to capture when an item becomes a frame or receiver that is

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regulated irrespective of the type of technology used to complete the assembly,

frame or receiver molds that can accept metal or polymer, unformed blocks of metal,

and other articles only in a primordial state would not—without more—be

considered a ‘partially complete’ frame or receiver.”).

86. The Final Rule states, “[a]s used in thisrule, the term ‘primordial’ refers

to an item, such as an unmachined block of metal, liquid polymer, or other raw

material that isin its original natural form or at an early stage of development without

substantial processing.” Final Rule, at 24,663 n.49 (citing Primordial, Oxford

English Dictionary,

https://www.oed.com/view/Entry/151373?redirectedFrom=primordial#eid (“[T]hat

[which] constitutes the origin or starting point from which something else is derived

or developed.”)).

87. In addition to definitional issues, the Proposed Rule and Final Rule omit

sources that the agency presumably relied on for preparing both rules. The public

did not have the opportunity to review those sources or provide comment. For

example, regarding personally manufactured firearms, while the ATF claims that

they are involved in crimes and difficult to trace, the assertion was unsupported by

any cited evidence in the Proposed Rule and the ATF declined to make available the

evidence on which it purportedly relied for review, notice, and comment.

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88. The Final Rule included a significant amount of new and additional

sources that were not provided to the public for review and comment. See, e.g., Final

Rule, at 24,657‒58 (citing nearly two pages of DOJ Office of Public Affairs “OPA”

sources not mentioned in the Proposed Rule; 57 new DOJ/OPA sources are cited

throughout the entire Final Rule for the first time).

89. No opportunity for additional comment was made available here on

these new, critical elements of the Final Rule.

C. The Agencies’ Failure to Adequately Explain and Failure to

Consider

90. The Final Rule fails to adequately explain why the ATF will now treat

inoperable frames or receivers or inoperable frame or receiver kits as firearms, when

they were previously not treated as such. Id. at 24,727‒28. The Final Rule (and

indeed the Proposed Rule) includes “inoperable” without any explanation or

justification.

91. Despite suggesting that the ruling is “not intended to alter any prior

determinations” on what is a “frame or receiver,” id. at 24,662, the ATF appears to

be changing its mind on at least one firearm right on the face of the Final Rule—the

Beretta AR-70.

92. The Final Rule makes factually incorrect claims about split frame

firearms. “[T]he concept of a ‘split receiver’ was nowhere near new. In fact, selfloading firearms invited, or even required, ‘split’ components as early as their

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introduction. These firearms were incredibly common, undisputedly in common

lawful use, and thus very unlikely to have gone unnoticed by the ATF and its

predecessor.”

28

93. The ATF has long held that the upper receiver was the “firearm” and

that the lower receiver and other parts were not themselves firearms. Yet now, the

ATF is amending the regulation to declare that, for some firearms, such as AR-style

rifles, the lower receiver is the “frame or receiver.”

94. The “ATF and its precursors were patently aware of striker-fired,

selfloading firearms that were so tremendously popular they, in large part, led to the

adoption of the very law the ATF purports to be interpreting. Many of the popular

imported firearms targeted by the [GCA], which the ATF enforced, meet the exact

factors the ATF here claims it could not have known about.”

29

95. “In addition to this, hundreds of thousands of American made strikerfired pistols were flooding the market by 1968. To suggest that these firearms were

so rare in what the ATF terms ‘civilian use’ compared to revolvers and break-open

shotguns, despite their popularity literally preceding the very law the ATF is

presently interpreting, is implausible, to say the least.”

30

28 FPC,COMMENT ON ATF’S PROPOSED RULE 12‒13 (Aug. 19, 2021), https://bit.ly/3zxj9RR.

29 Id.

30 Id.

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V. The Agencies’ Violation of the First Amendment

96. The Final Rule violates the First Amendment because it includes

content- and speaker-based restrictions on speech by a government agency.

97. The Final Rule, when discussing partially complete, disassembled, or

nonfunctional frames or receivers, 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 to the purchaser or recipient of the item or

kit.

Final Rule, at 24,739 (emphasis added). The Final Rule provides the following

example of the implementation of this regulation:

Example 1 to paragraph (c)—Frame or receiver: A frame or receiver

parts kit containing a partially complete or disassembled billet or blank

of a frame or receiver that is sold, distributed, or possessed with a

compatible jig or template is a frame or receiver, as a person with

online instructions and common hand tools may readily complete or

assemble the frame or receiver parts to function as a frame or receiver.

Id. (emphasis added).

98. Under the Final Rule section discussing voluntary classification of

firearms, the Final Rule states:

Each request for classification of a partially complete, disassembled, or

nonfunctional item or kit must contain any associated templates, jigs,

molds, equipment, or tools that are made available by the seller or

distributor of the item or kit to the purchaser or recipient of the item or

kit, and any instructions, guides, or marketing materials if they will be

made available by the seller or distributor with the item or kit.

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Id. at 24,749 (emphasis added).

A. The Final Rule Burdens and Chills Protected Speech.

99. Instructions, guides, and marketing materials are protected speech.

100. The Final Rule seeks to allow the ATF to assess the content of the

instructions, guides, or marketing materials to determine if a product—accompanied

by such protected speech—is a firearm. This equates to content-based restrictions of

protected speech. See Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 509 (D.C.

Cir. 2016) (“[T]o know whether to apply [the regulation], the FEC must ‘examine

the content’ of the PAG’s website or Facebook page and ask whether the title

supports or opposes the candidate. . . . That is content-based discrimination pure and

simple.”) (quoting McCullen v. Coakley, 573 U.S. 464, 479 (2014)).

101. “The [Supreme] Court has recognized that the ‘distinction between

laws burdening and laws banning speech is but a matter of degree’ and [] the

‘Government’s content-based burdens must satisfy the same rigorous scrutiny as its

content-based bans.’” Sorrell v. IMS Health Inc., 564 U.S. 552, 565‒66 (2011)

(quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000)).

102. Based on Defendants’ application of the Final Rule, a product such as

one of Plaintiff Tactical Machining’s “80% Lower” may not be classified as a

“firearm” under the GCA when sold on its own, but may be classified as a “firearm”

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if sold with instructions on how to manufacture the item into the “frame or receiver”

of a “firearm.”

103. That is a clear prohibition on the content of Tactical Machining’s

speech. Moreover, that same item may not be classified as a “firearm” if not sold

with instructions, but if those same instructions are merely made available on

Tactical Machining’s website, the item may be classified as a “firearm”—another

clear prohibition on the content of Tactical Machining’s speech. Additionally,

because the Final Rule targets both the seller and distributor, a reseller of the same

products may be liable for unlawfully selling a “firearm” if the producer of the

product posts instructions on the producer’s website, even without the reseller’s

knowledge. See Final Rule, at 24,749.

104. The only way the ATF can determine if an item is a “firearm” is by

looking at the content of instructions, guides, or marketing materials. The ATF is

not concerned if the marketing materials encourage customers to purchase more of

their products; the ATF is concerned if it informs customers how to build a

“firearm.”

B. The Final Rule Targets Specific Speakers.

105. The ATF’s Final Rule also restricts the type of speaker. Sorrell, 564

U.S. at 564 (“The law on its face burdens disfavored speech by disfavored

speakers.”); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994) (“[S]peakerCase 4:22-cv-00691-O Document 93 Filed 10/05/22 Page 39 of 58 PageID 1215
40

based laws demand strict scrutiny when they reflect the Government’s preference

for the substance of what the favored speakers have to say (or aversion to what the

disfavored speakers have to say).”).

106. The only time instructions, guides, and marketing materials are

analyzed for the purposes of determining if a product is a “firearm” are when a seller

or distributor sells them in conjunction with their product. Final Rule, at 24,749

(“Each request for classification . . . must contain . . . any instructions, guides, or

marketing materials if they will be made available by the seller or distributor with

the item or kit.”).31

107. Therefore, sellers and distributors are specifically being silenced, thus

discouraging the longstanding practice of self-manufacturing firearms. See 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (“The First Amendment

directs us to be especially skeptical of regulations that seek to keep people in the

dark for what the government perceives to be their own good.”). 

31 Individuals rarely seek classification letters, and if they do, it’s for patent

purposes.

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CLAIMS FOR RELIEF

COUNT I

VIOLATION OF THE APA

5 U.S.C. § 706

(Exceeds the ATF’s Statutory Jurisdiction and Authority)

96. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

97. Under 5 U.S.C. § 706(2)(c), “[t]he reviewing court shall . . . hold

unlawful and set aside agency action, findings, and conclusions found to be . . . in

excess of statutory jurisdiction, authority, or limitations, or short of statutory

right[.]”

98. If the agency’s regulation is not consistent with a statutory definition

established by Congress, the agency has gone outside the bounds of its authority

since it derives its authority from Congress. See Peyton v. Reynolds Assocs., 955

F.2d 247, 251 (4th Cir. 1992) (“If a regulation reflects an administrative

interpretation which is inconsistent with the plain language of the statute under

which it is promulgated, we do not defer to the agency’s interpretation.”). And even

were there some ambiguity in the legislative language, such ambiguity would be

resolved in a manner that narrowed, rather than expanded, the relevant statutes,

consistent with clear statement principles, the constitutional avoidance doctrine, and

the rule of lenity. The agency would not have discretion to expand any such terms

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to criminalize further behavior and would not receive deference of any such

interpretive efforts.

99. “Agencies have only those powers given to them by Congress, and

enabling legislation is generally not an open book to which the agency may add

pages and change the plot line.” West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022)

(quotations and citation omitted).

100. The Final Rule purports to establish a regulation to “guide” the ATF’s

administration of the NFA and GCA, but instead regulates new items Congress

explicitly left out of the definition of “firearm,” and would grant the Agencies new,

additional authority in excess of that proposed, considered, debated, or passed by

Congress.

101. The Agencies are attempting to regulate weapon parts Congress

explicitly left out of the statute and impose felony charges for violations thereof. See

18 U.S.C. § 924(a)(1)(D) (“[W]hoever . . . willfully violates any other provision of

this chapter, shall be fined under this title, imprisoned not more than five years, or

both.”).

102. The Final Rule exceeds the ATF’s congressionally mandated

jurisdiction and authority.

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COUNT II

VIOLATION OF THE APA

5 U.S.C. § 706

(Fails to Observe Procedures Required by Law)

103. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

104. Under 5 U.S.C. § 706(2)(D), “[t]he reviewing court shall . . . hold

unlawful and set aside any action, findings, and conclusions found to be . . . without

observance of procedure required by law[.]”

105. The APA’s rulemaking requirements include a mandate for federal

agencies to provide the public with a meaningful opportunity to comment on the

elements of a rule and the materialsthat form the basisfor the rule. See, e.g., 5 U.S.C.

§ 553(c); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1404 (9th Cir. 1995)

(“The purpose of the notice and comment requirement is to provide for meaningful

public participation in the rule-making process.”).

Final Rule Not a Logical Outgrowth of Proposed Rule

106. As part of the rulemaking process, the Agencies made significant

changes to the Final Rule that do not logically grow out of the Proposed Rule.

107. An agency is prohibited by the APA from adopting a final rule that

contains significant changes unless supplemental notice and opportunity to comment

is provided. See 5 U.S.C. § 706; see also Mid Continent Nail Corp. v. United States,

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846 F.3d 1364, 1374 (Fed. Cir. 2017) (applying “logical outgrowth” doctrine to

vacate final rule that significantly deviated from proposed rule without notice).

108. The Final Rule provides separate and distinct definitions for “frame,”

“receiver,” and “variant” that were not proposed in the Proposed Rule and were not

provided for comment.

109. The Proposed Rule defined a frame or receiver as “[a] part of a firearm

that, when the complete weapon is assembled, is visible from the exterior and

provides housing or a structure designed to hold or integrate one or more fire control

components, even if pins or other attachments are required to connect those

components to the housing or structure.” Proposed Rule, at 27,741. Following the

definition is just over a dozen illustrations. Id. at 27,742‒46.

110. The Final Rule omitted four diagrams from the Proposed Rule and

added five new diagrams. Compare Proposed Rule, at 27,742‒46, with Final Rule,

at 24,735‒41.

111. The Final Rule significantly altered the time allowed for the

identification of a firearm, down from 7 days to the next business day. Compare

Proposed Rule, at 27,752, with Final Rule, at 24,748.

Lack Notice and Comment on Critical Elements of the Final Rule

112. As part of the rulemaking process, the agencies relied on new

information and made significant changes to the Final Rule that were not available

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for public comment. See United States v. Nova Scotia Food Prods. Corp., 568 F.2d

240, 251 (2d Cir. 1977) (“If the failure to notify interested persons of the scientific

research upon which the agency was relying actually prevented the presentation of

relevant comment, the agency may be held not to have considered all ‘the relevant

factors.’”); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir.

2008) (“It would appear to be a fairly obvious proposition that studies upon which

an agency relies in promulgating a rule must be made available during the

rulemaking in order to afford interested persons meaningful notice and an

opportunity for comment.”).

113. For example, the Final Rule added 57 DOJ Office of Public Affairs

sources, among others, that were not present in the Proposed Rule or offered for

comment.

114. The Final Rule added definitions and/or regulations for several terms,

including but not limited to a multi-piece frame or receiver, privately made firearms

marked by licensees, and primordial, all without being proposed in the Proposed

Rule or offered for comment. These definitions also cannot be said to have logically

outgrown from the Proposed Rule.

115. The Agencies included voluminous new sources in the Final Rule that

were not provided for public review nor comment in the Proposed Rule.

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COUNT III

VIOLATION OF THE APA

5 U.S.C. § 706

(Arbitrary, Capricious, and Not in Accordance with Law)

116. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

117. Under 5 U.S.C. § 706(2)(A), “[t]he reviewing court shall . . . hold

unlawful and set aside agency action, findings, and conclusions found to

be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law[.]”

Failure to Adequately Explain Change in Position

118. “It is established administrative law that if the agency fails to

acknowledge a change [in its position] and adequately explain it, the changed

position will be afforded no deference in litigation under either Chevron . . . or

Auer[.]” United Student Aid Funds, Inc. v. Devos, 237 F. Supp. 3d 1, 6 (D.D.C. 2017)

(internal quotation marks and citations omitted).

119. The Final Rule drastically departs from the Agencies’ longstanding

treatment of firearms and non-firearms.

120. The Final Rule abandons the Agencies’ treatment of non-firearm

objects that was stated on the ATF’s official website, applied in numerous

classification letters, and that the ATF argued in support of in active litigation—a

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position that individuals and corporations have relied on to structure their personal

and business practices.

121. The Agencies have failed to adequately reconcile their statements in

California v. ATF and Syracuse v. ATF with their Final Rule, including, but not

limited to, the Agencies’ treatment of “readily convertible.”

122. The Agencies include new regulation of certain firearms, including but

not limited to AR-style firearms and striker-fired handguns, in the Final Rule without

adequate explanation, given the Agencies knew of both split receivers and strikerfired handguns at the time of their prior rulemaking defining firearms, which were

already popular and widely used.

123. The Agencies fail to adequately explain why the ATF will now treat

inoperable frames or receivers or inoperable frame or receiver kits as firearms.

Failure to Consider Important Aspects of the Problem and Relevant Comments

and/or Sources

124. The APA requires federal agencies, including Defendants, to (a) give

general notice of proposed rulemaking in the Federal Register and thereafter (b)

“give interested persons an opportunity to participate in the rule making through

submission of written data, views, or arguments.” 5 U.S.C. § 553(c).

125. The House and Senate reports regarding this provision state that “the

agency must analyze and consider all relevant matter presented.” S. Rep. No. 752,

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796 Cong., 1st Sess. 15 (Nov. 19, 1945); H. Rep. No. 1980, 79th Cong., 1st Sess. 25

(May 3,1946).

126. “[Public] participation . . . in the rule-making process is essential in

order to permit administrative agencies to inform themselves[.]” Report submitted

by Pat McCarran, Chairman, U.S. Senate Committee on the Judiciary,

Administrative Procedure Act, Legislative History 1944-46, 79th Cong. (July 26,

1946).

127. “[I]t is ‘arbitrary or capricious’ for an agency not to take into account

all relevant factors in making its determination.” Hanly v. Mitchell, 460 F.2d 640,

648 (2d Cir. 1972).

128. Courts have recognized the importance of the public comment process,

which is designed to prevent a person from being required to resort to, or be

adversely affected by, significant rulemaking without having the opportunity to

participate in that rulemaking. See Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 630

(5th Cir. 2001); Ober v. EPA, 84 F.3d 304, 312‒15 (9th Cir. 1996); Idaho Farm

Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401‒06 (9th Cir. 1995).

129. The Final Rule fails to adequately address a number of comments the

Agencies received on the Proposed Rule within the Final Rule. For example, the

Final Rule fails to adequately consider the implications of its “complete weapon”

definition. See Final Rule, at 24,700 (“[T]he Department disagrees . . . that the

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application of the definition of ‘firearm’ to unassembled weapons creates

enforcement uncertainty.”). Most importantly, failsto consider the fact that both split

receivers and striker-fired pistols were in existence in 1968, thus Congress could not

have intended for the ATF to regulate what it chose to ignore.

130. There are a variety of other examples of such failure, including, but not

limited to these instances of the Agencies’ failure to consider relevant comments and

sources.

COUNT IV

VIOLATION OF THE U.S. CONSTITUTION

U.S. CONST. ART.I

(Separation of Powers & The Delegation Doctrine)

131. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

132. Article I, Section 1 of the U.S. Constitution provides: “All legislative

Powers herein granted shall be vested in a Congress of the United States.”

133. Article I, Section 3 of the U.S. Constitution directs that the President

“shall take Care that the Laws be faithfully executed[.]”

134. A “fundamental precept” of “another strand of [] separation-of-powers

jurisprudence, the delegation doctrine,” “is that the lawmaking function belongs to

Congress, U.S. CONST. ART. I, § 1, and may not be conveyed to another branch or

entity.” Loving v. United States, 517 U.S. 748, 758 (1996).

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135. “Even before the birth of this country, separation of powers was known

to be a defense against tyranny,” and “it remains a basic principle of our

constitutional scheme that one branch of the Government may not intrude upon the

central prerogatives of another.” Id. at 756‒57.

136. When the ATF redefined the definition of “firearm,” it did so without

congressional authority, thus violating the separation of powers.

137. “[B]oth separation of powers principles and a practical understanding

of legislative intent make us reluctant to read into ambiguous statutory text the

delegation claimed to be lurking there.” West Virginia v. EPA, 142 S. Ct. 2587, 2609

(2022). “A decision of such magnitude and consequence rests with Congress itself,

or an agency acting pursuant to a clear delegation from that representative body.”

Id. at 2616 (emphasis added).

138. Congress may not “abdicate or [] transfer to others the essential

legislative functions with which it is thus vested.” A.L.A. Schecter Poultry Corp. v.

United States, 295 U.S. 495, 529 (1935).

139. Neither the president nor his subordinates, therefore, may exercise,

Congress’ legislative power to declare entirely “what circumstances . . . should be

forbidden” by law. Panama Refining Co. v. Ryan, 293 U.S. 388, 418‒19 (1935).

140. A violation of the Constitution is always a violation of the APA. See 5

U.S.C. § 706(2)(B).

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141. The Final Rule is not merely a regulatory change that allows the

Agencies to enforce the NFA and GCA. The Final Rule would give the Agencies

new power over new items that are not contemplated nor regulated under federal

law. This rulemaking constitutes an executive branch agency making new law,

bearing potential criminal penalties, in violation of the Delegation Doctrine as

established by the structure of the U.S. Constitution and elucidated by the U.S.

Supreme Court.

COUNT V

VIOLATION OF THE U.S. CONSTITUTION

U.S. CONST. ART.II

(The Take Care Clause)

142. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

143. Article I, Section 1 of the U.S. Constitution provides: “All legislative

Powers herein granted shall be vested in a Congress of the United States.”

144. Article I, Section 7, Clauses 2 and 3 of the U.S. Constitution require

that “Every Bill” shall be passed by both the House of Representatives and the

Senate and signed by the President “before it [may] become a Law.”

145. Article II, Section 3 of the U.S. Constitution directs that the President

“shall take Care that the Laws be faithfully executed[.]”

146. A violation of the Constitution is always a violation of the APA. See 5

U.S.C. § 706(2)(B).

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147. “In the framework of our Constitution, the President’s power to see that

the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).

148. The Executive Branch cannot create new policies to be enforced with

the force of federal law in the guise of enforcing a congressional enactment. Id. at

587–88 (“The President’s order does not direct that a congressional policy be

executed in a manner prescribed by Congress—it directs that a presidential policy

be executed in a manner prescribed by the President.”); see Kendall v. U.S. ex rel.

Stokes, 37 U.S. (12 Pet.) 524, 613 (1838) (rejecting the notion that “the obligation

imposed on the President to see the laws faithfully executed, implies a power to

forbid their execution”).

149. “The Supreme Court has also invoked the Take Care Clause as the

textual source of the President’s duty to abide by and enforce the laws enacted by

Congress—that is, as the instantiation of the President’s duty to respect legislative

supremacy and not to act contra legem.” Jack Goldsmith & John F. Manning, The

Protean Take Care Clause, 164 U. PA. L. REV. 1835, 1848 (2016).

150. “Separate opinions by members of the Youngstown majority expressed

a like sentiment about the Take Care Clause—that it obliges the President to respect

the means and ends of statutory policy power specified by Congress. In his famous

concurrence, Justice Jackson wrote that the clause confers on the President ‘a

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governmental authority that reaches so far as there is law,’ thereby

‘signify[ing] . . . that ours is a government of laws, not of men, and that we submit

ourselves to rulers only if under rules.’” Id. at 1849‒50.

151. “To similar effect, Justice Frankfurter quoted Justice Holmes for the

proposition that ‘[t]he duty of the President to see that the laws be executed is a duty

that does not go beyond the laws or require him to achieve more than Congress sees

fit to leave within his power.’ Likewise, in Justice Douglas’s words, any authority

conferred by the clause ‘starts and ends with the laws Congress has enacted.’” Id. at

1850.

152. The Final Rule is not a faithful execution of congressionally enacted

law. Instead, it is an executive created law offered under the guise of enforcing the

NFA and GCA. The Final Rule violates the prohibition on the Executive of making

law and violates the president’s duty to ensure the laws are faithfully executed.

COUNT VI

VIOLATION OF THE U.S. CONSTITUTION

U.S. CONST. AMEND. V

(Void for Vagueness)

153. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

154. A person of ordinary intelligence could not determine from the statute

or the rule itself whether various objects were regulated. See Kolender v. Lawson,

461 U.S. 352, 357 (1983) (“[T]he void-for-vagueness doctrine requires that a penal

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statute 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.”).

155. The indeterminacy of the various tests gives the Agencies virtually

unlimited and unpredictable discretion. See, e.g., Final Rule at 24,735 (listing eight

un-ranked factors to determine what “readily” means); id. at 24,735‒41 (listing six

pages of non-exclusive illustrations of what constitutes a “frame,” “receiver,” or

“variants thereof”); id. at 24,739 (empower the Director to 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 to the purchaser or recipient of

the item or kit,” when classifying items).

156. Even long-standing agency classification letters are subject to change,

thus adding to the obscurity. See Fed. Defs.’ Mot. for Summ. J., Syracuse, at 40

(“The Record contains classification letters dating back to the 1970s. These

classification letters make plain that the ATF has consistently adopted a standard

whereby the degree of machining to the frame or receiver determined whether that

device constituted a firearm.”).

157. The Final Rule is unduly vague and violates the void for vagueness

doctrine.

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COUNT VII

VIOLATION OF THE U.S. CONSTITUION

U.S. Const. Amend. I

(Free Speech)

158. Plaintiffs incorporate the preceding paragraphs by reference as if fully

set forth herein.

159. Under the First Amendment, “Congress shall make no

law . . . abridging the freedom of speech[.]” U.S. Const. Amend. I.

160. The Supreme Court “has held that the creation and dissemination of

information are speech within the meaning of the First Amendment.” Sorrell v. IMS

Health Inc., 564 U.S. 552, 571 (2011); see Bartnicki v. Vopper, 532 U.S. 514, 527

(2001) (“If 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 quotations and citations omitted).

161. The Final Rule specifically targets instructions, guides, and marketing

materials sold by a seller or distributor of firearms parts. Instructions, guides, and

marketing materials constitute commercial speech, which is protected by the First

Amendment. See Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995)

(“[I]nformation on beer labels constitutes commercial speech.”); cf. Green v. Dep’t

of Justice, 329 F. Supp. 3d 68, 89 (D.C. Cir. 2019) determining that plaintiffs must

allege that “the rulemaking process results in censorship through ‘suppressing

disfavored speech or disliked speakers,’” or “that the rulemaking defendants are

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‘passing judgment on the content of speech’” to carry a First Amendment claim)

(cleaned up) (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

759 (1988) and Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002)).

162. Content-based restrictions on speech, found in the Final Rule, require a

strict scrutiny analysis that Defendants cannot overcome. Sorrell, 564 U.S. at 565

“[The law] is designed to impose a specific, content-based burden on protected

expression. It follows that heightened judicial scrutiny is warranted.”); id. at 566

(“The First Amendment requires heightened scrutiny whenever the government

creates ‘a regulation of speech because of disagreement with the message it

conveys.’”) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

163. The Final Rule also regulates speech based on speaker, not just content,

which requires a strict-scrutiny analysis that Defendants likewise cannot overcome.

See Turner Broad. Sys., Inc., 512 U.S. at 658 (“[S]peaker-based laws demand strict

scrutiny when they reflect the Government’s preference for the substance of what

the favored speakers have to say (or aversion to what the disfavored speakers have

to say).”).

164. The Final Rule impermissibly places government restriction on who the

speaker is and what the speaker can say, thus violating the First Amendment.

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PRAYER FOR RELIEF

Plaintiffs request the following relief from this Honorable Court:

1. Holding unlawful and setting aside the Final Rule;

2. Issuing preliminary and permanent injunctive relief enjoining

Defendants from enforcing or implementing the Final Rule;

3. Postponing the effective date of the Final Rule;

4. Awarding Plaintiffs the costs of this action and reasonable attorney’s

fees; and

5. Awarding Plaintiffs such other relief as is just and appropriate.

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

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

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

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MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80227

Telephone: (303) 292-2021

Telecopy: (877) 349-7074

kschiraldi@mslegal.org

eerhardt@mslegal.org

*Admitted pro hac vice

Attorneys for Plaintiffs

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