UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

Plaintiffs,

v.

BLACKHAWK MANUFACTURING 

GROUP INC., et al., 

Intervenor-Plaintiffs, 

v. 

MERRICK GARLAND, et al.,

Defendants.

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

MEMORANDUM OPINION & ORDER ON PARTIES’ CROSS-MOTIONS FOR 

SUMMARY JUDGMENT & MOTIONS TO INTERVENE

Before the Court are Plaintiffs Jennifer VanDerStok, Michael G. Andren, Tactical 

Machining, LLC, and Firearms Policy Coalition, Inc.’s (“Original Plaintiffs”) Motion for 

Summary Judgment (ECF No. 140), Brief (ECF No. 141), and Appendix in support (ECF No. 

142), filed December 23, 2022; Intervenor-Plaintiff BlackHawk Manufacturing Group Inc. d/b/a 

80 Percent Arms’ Motion for Summary Judgment (ECF No. 144), Brief (ECF No. 145), and 

Appendix in support (ECF No. 146), filed December 23, 2022; Intervenor-Plaintiffs Defense 

Distributed and The Second Amendment Foundation, Inc.’s Motion for Summary Judgment (ECF 

No. 165) and Brief in support (ECF No. 166), filed January 12, 2023; Defendants’ Combined 

Opposition to Original Plaintiffs’ and Intervenor-Plaintiffs’ Motions for Summary Judgment and 

Cross-Motion for Summary Judgement (ECF No. 180), Brief (ECF No. 181), and Appendix in 

Support (ECF No. 182), filed February 13, 2023; Original Plaintiffs’ Reply Brief in Support of 

Their Motion for Summary Judgment and Response to Defendants’ Cross-Motion for Summary 

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Judgment (ECF No. 191), filed March 6, 2023; Intervenor-Plaintiff BlackHawk Manufacturing 

Group Inc.’s Reply Brief and Opposition to Defendants’ Cross-Motion for Summary Judgment 

(ECF No. 192), filed March 6, 2023; Intervenor-Plaintiffs Defense Distributed and The Second 

Amendment Foundation, Inc.’s Summary Judgment Response/Reply Brief (ECF No. 193), filed 

March 6, 2023; and Defendants’ Reply Brief (ECF No. 204) and Appendix (ECF No. 205) in 

support of their Motion for Summary Judgment, filed April 19, 2023. Also before the Court is the 

Amici Curiae Brief of Gun Owners for Safety and Individual Co-Amici in Support of Defendants’ 

Opposition to Original Plaintiffs’ and Intervenor-Plaintiffs’ Motions for Summary Judgment and 

in Support of Defendants’ Cross-Motion for Summary Judgment (ECF No. 187), filed February 

23, 2023. Also before the Court are Defendants’ Supplemental Brief Regarding Rule 65(a)(2) 

Consolidation and Plaintiffs’ Count I (ECF No. 132), filed December 5, 2022; Original Plaintiffs’ 

Brief (ECF No. 133), filed December 5, 2022; and Intervenor-Plaintiff BlackHawk Manufacturing 

Group Inc.’s Brief (ECF No. 134), filed December 5, 2022. 

On January 18, 2023, the Court deferred ruling on putative intervenors’ motions to 

intervene until summary judgment briefing concluded. See Order, ECF No. 172. Now ripe for 

review are Not An LLC d/b/a JSD Supply’s Motion to Intervene (ECF No. 149) and Brief in 

support (ECF No. 150), filed January 5, 2023; Defendants’ Opposition (ECF No. 207), filed April 

27, 2023; Original Plaintiffs’ Opposition (ECF No. 212), filed May 10, 2023; and JSD Supply’s 

Reply (ECF No. 213), filed May 11, 2023. Also before the Court are Polymer80’s Motion to 

Intervene (ECF No. 157), Brief (ECF No. 158), and Appendix (ECF No. 159) in support; filed 

January 9, 2023; Defendants’ Opposition (ECF No. 206), filed April 27, 2023; Original Plaintiffs’ 

Opposition (ECF No. 212), filed May 10, 2023; and Polymer80’s Reply (ECF No. 214), filed May 

11, 2023. 

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Also pending are Original Plaintiffs’ unopposed Motion for Leave to Provide Supplemental 

Authority to Their Motion for Summary Judgment and Response to Defendants’ Cross-Motion for 

Summary Judgment (ECF No. 197), filed March 24, 2023, which the Court GRANTS for good 

cause shown; and JSD Supply’s proposed Motion for Injunction (ECF No. 151) and Brief in 

support (ECF No. 152), filed January 5, 2023, and Defendants’ Notice Regarding the Same (ECF 

No. 156), filed January 9, 2023, which the Court DENIES as prematurely filed.

Having considered the briefing and applicable law, the Court GRANTS JSD Supply’s and 

Polymer80’s motions to intervene on permissive grounds. For the reasons that follow, the Court 

GRANTS Plaintiffs’ and Intervenors’ motions for summary judgment, DENIES Defendants’ 

cross-motion for summary judgment, and VACATES the Final Rule. 

I. INTRODUCTION 

This case presents the question of whether the federal government may lawfully regulate 

partially manufactured firearm components, related firearm products, and other tools and materials 

in keeping with the Gun Control Act of 1968. Because the Court concludes that the government 

cannot regulate those items without violating federal law, the Court holds that the government’s 

recently enacted Final Rule, Definition of “Frame or Receiver” and Identification of Firearms, 87 

Fed. Reg. 24,652 (codified at 27 C.F.R. pts. 447, 478, and 479), is unlawful agency action taken 

in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.

II. STATUTORY & REGULATORY BACKGROUND

In 1934, Congress enacted the National Firearms Act (“NFA”) to authorize federal taxation 

and regulation of certain firearms such as machineguns, short-barreled shotguns, and shortbarreled rifles. National Firearms Act of 1934, ch. 757, Pub. L. 73-474, 48 Stat. 1236, 1236. A few 

years later, Congress enacted the Federal Firearms Act (“FFA”), which more broadly defined 

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“firearm” and thereby authorized federal regulation of “any weapon . . . designed to expel a 

projectile or projectiles by the action of an explosive. . . or any part of such weapon.” Federal 

Firearms Act of 1938, ch. 850, Pub. L. No. 75-785, 52 Stat. 1250, 1250 (1938) (repealed 1968). 

Thirty years later, Congress enacted the Gun Control Act of 1968 (“GCA”), which 

superseded the FFA’s regulation of firearms in interstate commerce. The GCA requires 

manufacturers and dealers of firearms to have a federal firearms license.1 18 U.S.C. §§ 921, et seq. 

Dealers must also conduct background checks before transferring firearms to someone without a 

license, and they must keep records of firearm transfers. Id. §§ 922(t), 923(g)(1)(A). 

The GCA also redefines “firearm” more narrowly than the earlier statute it superseded, 

defining the term 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.” Id. § 921(a)(3). But “[s]uch term does not include an antique firearm.” Id. Notably, 

the GCA departs from the FFA’s prior definition of “firearm” by restricting federal authority 

over “any part” of a firearm to only the “frame or receiver” of such firearm.

Congress delegated authority to administer and enforce the GCA to the Attorney General 

by authorizing him to “prescribe only such rules and regulations as are necessary to carry out the 

provisions of this chapter.” Id. § 926(a). The Attorney General, in turn, delegated that authority to 

the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). 28 C.F.R. 

§ 0.130(a). Those who violate the federal firearms laws are subject to potential fines and

imprisonment. 18 U.S.C. § 924(a). 

1 A manufacturer or dealer authorized to transfer firearms under the Gun Control Act is known as a Federal 

Firearms Licensee (“FFL”). 

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In 1978, ATF promulgated a rule interpreting the phrase “frame or receiver,” which the 

GCA does not define. The rule defined the “frame or receiver” of a firearm 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.” Title and Definition 

Changes, 43 Fed. Reg. 13,531, 13,537 (Mar. 31, 1978). That definition remained in place until last 

year. 

In April 2022, ATF published the Final Rule changing, among other things, the 1978 

definition of “frame or receiver.” See Definition of “Frame or Receiver” and Identification of 

Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022) (codified at 27 C.F.R. pts. 447, 478, and 479 

(2022)).2 ATF split the phrase into two parts, assigning the term “frame” to handguns and the term 

“receiver” to any firearm other than a handgun, such as rifles and shotguns. See 27 C.F.R. 

§ 478.12(a)(1), (a)(2). ATF then defined the terms “frame” and “receiver” along the same lines as 

the 1978 rule, though with updated, more precise technical terminology.3

But ATF did not stop there. Rather than merely updating the terminology, ATF decided to 

regulate partial frames and receivers. Under the new Final Rule, “[t]he terms ‘frame’ and 

‘receiver’ shall include a partially complete, disassembled, or nonfunctional frame or receiver, 

2 The Final Rule took effect on August 24, 2022, in the midst of the parties’ initial briefing. See 27 C.F.R. 

pts. 447, 478, and 479 (2022).

3 Here are the two definitions, in full:

(1) The term “frame” means the part of a handgun, or variants thereof, that provides 

housing or a structure for the component (i.e., sear or equivalent) designed to hold back 

the hammer, striker, bolt, or similar primary energized component prior to initiation of 

the firing sequence, even if pins or other attachments are required to connect such 

component (i.e., sear or equivalent) 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.

27 C.F.R. § 478.12(a).

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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.” Id. § 478.12(c). But “[t]he 

terms shall not include a forging, casting, printing, extrusion, unmachined body, or similar article 

that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished 

component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw 

material).” Id.

Further, the Final Rule permits the ATF Director to consider extrinsic factors when 

determining if an object is a frame or receiver. Specifically, “[w]hen 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 [or otherwise made available 

to the purchaser or recipient of] the item or kit.” Id. The Final Rule also amends ATF’s definition 

of “firearm” to include weapon parts kits that are “designed to or may readily be completed, 

assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” 

Id. § 478.11 (definition of “firearm”).

III. PARTIES & PROCEDURAL BACKGROUND

Individual Plaintiffs Jennifer VanDerStok and Michael Andren are Texas residents who 

own firearm components that they intend to manufacture into firearms for personal, lawful use.4

They claim that the Final Rule prohibits them from directly purchasing products online that they 

want to use to manufacture their own firearms.5 Now, to purchase these products in compliance 

with the Final Rule, Individual Plaintiffs would have to route their purchases of the regulated 

products through an FFL and incur associated transfer fees ($30 in Individual Plaintiffs’ case), 

plus additional time and expense. 

4 VanDerStok Decl. 1, ECF No. 16-2; Andren Decl. 1, ECF No. 16-3.

5 VanDerStok Decl. 2, ECF No. 16-2; Andren Decl. 2, ECF No. 16-3.

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Tactical Machining, LLC manufactures and sells items that are subject to regulation under 

the Final Rule.6 Over 90% of Tactical Machining’s business consists of selling items that 

individuals can use to manufacture frames and receivers and to build functioning firearms.7 

The Firearms Policy Coalition, Inc. (“FPC”) is a non-profit organization dedicated to 

promoting the constitutional rights of American citizens through public education and legislative 

and legal advocacy.8 In support of its educational and advocacy efforts, FPC owns and uses several 

firearm parts and products that are subject to the Final Rule.9 FPC has hundreds of thousands of 

members, donors, and supporters nationwide, many of whom are plaintiffs in this lawsuit.10

Individuals and organizations become FPC members by making a donation via the non-profit 

corporation’s website.11 FPC seeks to bring this lawsuit on behalf of itself and its members.12

Shortly before the Final Rule took effect in August 2022, Original Plaintiffs sued the U.S. 

Attorney General, the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (“ATF”), and the ATF Director over the legality of the Final Rule.13 Days later, the 

Original Plaintiffs sought preliminary injunctive relief, which the Court granted on grounds that 

they were likely to succeed on their claim that ATF exceeded its statutory authority in issuing the 

Final Rule.14 

BlackHawk Manufacturing Group, Inc. is a manufacturer and retailer that sells products 

newly subject to ATF’s Final Rule, with most of its revenue earned through sales of those 

6 Peters Decl. 1, ECF No. 16-1.

7

Id. at 2.

8 See generally Combs Decl., ECF No. 62-4. 

9

Id. ¶¶ 9–10. 

10 Id. ¶¶ 6–7. Individual Plaintiffs, Tactical Machining, LLC, BlackHawk Manufacturing Group, Inc. d/b/a 

80 Percent Arms, and Defense Distributed are members of FPC. Id.

11 Id. ¶ 8. 

12 Orig. Pls.’ Reply 5, ECF No. 191. 

13 See generally Compl., ECF No. 1. 

14 Orig. Pls.’ Mot. for Prelim. Inj., ECF No. 15; Mem. Opinion, ECF No. 56. 

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products.15 Defense Distributed is a private defense contractor that primarily manufactures and 

deals products now subject to the Final Rule.16 Defense Distributed is also a member of its cointervenor, the Second Amendment Foundation (“SAF”), a non-profit organization that promotes 

and defends constitutional rights through educational and legal efforts.17 Like FPC, SAF brings 

this suit on behalf of itself and its members.18 The Court subsequently allowed these parties to 

intervene in the suit and granted BlackHawk and Defense Distributed their preliminary injunctions

on the same grounds as the Original Plaintiffs.

19

In the weeks after BlackHawk, Defense Distributed, and SAF were permitted to join the 

lawsuit, and after summary judgment briefing had begun, movants Not An LLC d/b/a JSD Supply 

and Polymer80, Inc. filed their pending motions to intervene.20 JSD Supply is a manufacturer and 

distributor that earns most of its revenue through sales of products now subject to the Final Rule.21

Likewise, Polymer80, Inc. is a designer, manufacturer, and distributor of firearms and non-firearm 

products.22 Through letters issued by ATF since the Final Rule’s enactment, Polymer80 learned 

that some of its products are considered subject to the Final Rule and, if not afforded relief, that 

its “corporate existence” is at stake.23

Plaintiffs and Intervenor-Plaintiffs claim the Final Rule violates several of the 

Administrative Procedure Act’s (“APA”) substantive and procedural requirements and various 

15 Lifschitz Decl. 6–8, ECF No. 62-5 ¶¶ 8, 11, 13. 

16 See generally Defense Distributed Compl., ECF No. 143. 

17 Id. ¶¶ 11–12. 

18 Id.

19 Mem. Opinions, ECF Nos. 118, 188. 

20 JSD Supply Mot. to Intervene, ECF No. 149; Polymer80 Mot. to Intervene, ECF No. 157. 

21 JSD Supply Br. 4–5, ECF No. 150. 

22 Polymer80 Br. 1–3, ECF No. 158. 

23 See generally id.; id. at 4. 

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constitutional guarantees.24 Though some raise unique claims, all contend that the Final Rule was 

issued in excess of the agency’s statutory authority and the Court preliminarily agreed.25 Earlier in 

the proceedings, the Court considered consolidating its hearing on the parties’ motions for 

preliminary injunction with a trial on the merits under Federal Rule of Civil Procedure 65(a)(2).26

After review of the parties’ responsive briefing, however, the Court did not consolidate and now 

considers Plaintiffs’ and Intervenor-Plaintiffs’ claims at the summary judgment stage.

Thus, based on the Court’s prior decisions in this case, Defendants are preliminarily 

enjoined from enforcing the Final Rule against Individual Plaintiffs VanDerStok and Andren; and, 

with limited exception, Tactical Machining, BlackHawk, and Defense Distributed and the 

companies’ customers. Now ripe for the Court’s review are the parties’ cross-motions for summary 

judgment on all statutory and constitutional claims, as well as JSD Supply’s and Polymer80’s 

motions to intervene. In part A below, the Court will resolve the motions to intervene before 

turning to the parties’ cross-motions for summary judgment in part B. 

24 Orig. Pls.’ Am. Compl., ECF No. 93 (claiming Final Rule: Exceeds Statutory Authority (Count I), 

Violates APA’s Notice and Comment Requirement (Count II), Violates APA’s Ban on Arbitrary and 

Capricious Conduct (Count III), Violates Nondelegation Principles (Count IV), Violates Take Care Clause 

(Count V), Violates Due Process (Count VI), Violates the First Amendment (Count VII)); see also 

BlackHawk’s Compl., ECF No. 99 (claiming Final Rule: Exceeds Statutory Authority (Count I), Violates 

Separation of Powers (Count II), is Unconstitutionally Vague (Count III), is Arbitrary and Capricious 

(Count IV), Violates the APA’s Procedural Requirements (Count V), Violates the Nondelegation Doctrine 

(VI), is Contrary to Constitutional Right, Power, Privilege, or Immunity (VII), Violates the Commerce 

Clause (VIII), Unlawfully Chills First Amendment Speech (IX), Constitutes an Unconstitutional Taking 

Without Just Compensation (Count X)); see also Defense Distributed, et al.’s Compl., ECF No. 143 

(claiming Final Rule: Exceeds Statutory Authority (Count I), Violates the APA’s Procedural Requirements 

(Counts II and IV), Violates Delegation Principles (Count III), Violates the Second Amendment (Count 

V), Violates Due Process (Count VI)); see also JSD Supply’s Mem. 10, ECF No. 150 (expressing intent to 

adopt Plaintiffs’ claims and legal theories in full); see also Polymer80’s Mem. 6–7, ECF No. 158 

(expressing intent to adopt the current plaintiffs’ pending claims in full but to assert several additional 

claims).

25 Mem. Opinion, ECF No. 56. 

26 See Orders, ECF Nos. 33, 107.

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IV. DISCUSSION

A.

1. Legal Standard27

Federal Rule of Civil Procedure 24(b) vests a district court with considerable discretion to 

permit permissive intervention in a lawsuit, provided (1) the movant’s intervention is timely, 

(2) the movant “has a claim or defense that shares with the main action a common question of law 

or fact,” and (3) intervention will not “unduly delay or prejudice the adjudication of the original 

parties’ rights.” FED. R. CIV. P. 24(b)(1)(B), (b)(3); United States v. City of New Orleans, 540 F. 

App’x 380, 380–81 (5th Cir. 2013). With respect to the first element of “timeliness,” courts are to 

consider four distinct factors: 

(1) the length of time between the would-be intervenor’s learning of his interest

and his petition to intervene;

(2) the extent of prejudice to existing parties from allowing late intervention; 

(3) the extent of prejudice to the would-be intervenor if the petition is denied; and

(4) any unusual circumstances [weighing in favor of or against intervention]. 

In re Lease Oil Antitrust Litig., 570 F.3d 244, 247–48 (5th Cir. 2009) (quoting Stallworth v. 

Monsanto Co., 558 F.2d 257 (5th Cir. 1977)). Like permissive intervention itself, any 

determination of timeliness is committed to the court’s discretion. Id. at 248. 

Finally, in addition to the three permissive elements above, courts may also consider factors

such as “whether the intervenors’ interests are adequately represented by other parties” and 

whether the intervenors “will significantly contribute to full development of the underlying factual 

issues in the suit.” New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co. (“NOPSI”), 732 F.2d 

27 Original Plaintiffs and Defendants (the “opponents” for purposes of the following intervention analysis 

only) contest the propriety of allowing additional intervenors to join the lawsuit by either intervention as of 

right or permissive intervention. Because the Court concludes that permissive intervention under Rule 24(b) 

is appropriate in this case, it does not reach the merits of intervention as of right under Rule 24(a)(2). FED.

R. CIV. P. 24. 

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452, 472 (5th Cir. 1984) (citations omitted).

2. Analysis

The Court begins with timeliness, which requires consideration of four factors. In re Lease 

Oil Antitrust Litig., 570 F.3d at 247. With respect to the first factor, opponents of intervention 

argue that JSD Supply and Polymer80’s interventions are untimely because they “waited five 

months after the commencement of this action to seek intervention”28 and that they were 

presumably aware of the other “multiple competing lawsuits challenging the Final Rule filed 

before [it] took effect on August 24, 2022.”

29 In other words, they waited too long. But these 

arguments fail because the relevant inquiry for timeliness is how soon the movant intervened in 

the instant lawsuit after learning its interest was at risk, which may or may not occur when the 

complaint is filed. Id. at 248. Moreover, a movant’s decision to forego intervention in another case 

is irrelevant to the issue of timeliness in the instant case. See id. (“The first timeliness factor is 

‘[t]he length of time during which the would-be intervenor actually knew or reasonably should 

have known of his interest in the case before he petitioned for leave to intervene.”) (emphasis 

added). Thus, “[t]he timeliness clock runs either from the time the applicant knew or reasonably 

should have known of his interest [in the instant litigation] or from the time he became aware that 

his interest would no longer be protected by the existing parties to the lawsuit.” Edwards v. City 

of Houston, 78 F.3d 983, 1000 (5th Cir. 1996) (emphasis added) (citation omitted). Either way, 

there “are no absolute measures of timeliness,” id., and any assessment of this factor is wholly 

committed to the court’s discretion. In re Lease Oil Antitrust Litig., 570 F.3d at 248. 

28 Defs.’ Opp. to JSD Supply 3, ECF No. 207; Defs.’ Opp. to Polymer80 5, ECF No. 206. 

29 Orig. Pls.’ Opp. 6–7, ECF No. 212. 

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Here, the Original Plaintiffs commenced this suit and moved for injunctive relief in early 

August 2022, shortly before the Final Rule took effect.30 Among those was Firearms Policy 

Coalition, a nonprofit organization that sought to protect the interests of its entire member base

—of which JSD Supply is a part.31 On October 1, 2022, the Court concluded that FPC had not 

demonstrated its associational right to seek injunctive relief on its members’ behalf.32 At that 

point, JSD Supply recognized its interests would no longer be protected via its membership in 

FPC and, within three months, it moved to intervene.33 Days later, on January 9, 2023, 

Polymer80 similarly moved to intervene.34 Polymer80 says it sought to intervene only 13 days 

after ATF issued letters identifying Polymer80’s products as violative of the Final Rule.35 And 

while the Court will not consider evidence “outside the administrative record” in deciding the 

merits of an APA claim, the Court is not aware of any rule that prohibits it from considering 

extrinsic evidence for purposes of timeliness of intervention.

36 Under these circumstances, the 

Court is of the view that neither movant waited too long between the time it learned of its 

interests in the suit and its motion to intervene. 

Next, the Court considers “the extent of prejudice to existing parties from allowing late 

intervention.” In re Lease Oil Antitrust Litig., 570 F.3d at 247. The opponents claim permitting 

intervention will prejudice the existing parties by delaying ultimate resolution of the case.37 But 

here the proper inquiry is the extent to which the existing parties were prejudiced by the 

30 ECF Nos. 1, 15. 

31 Vinroe Decl. ¶ 3, ECF No. 213-1. 

32 Mem. Opinion 15, ECF No. 89. 

33 JSD Supply’s Mot., ECF No. 151. 

34 Polymer80’s Mot., ECF No. 157. 

35 Id. at 2–6. 

36 Orig. Pls.’ Opp. 7, ECF No. 212. 

37 Defs.’ Opp. to JSD Supply 3, 7, ECF No. 207; Defs.’ Opp. to Polymer80 5–6, 9–10, ECF No. 206 (noting 

Polymer80 asserts ten causes of action separate from those of the existing plaintiffs); Original Pls.’ Opp. 8, 

ECF No. 212. 

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intervenors’ delay in seeking to intervene, not how the existing parties may be inconvenienced 

after the intervenors have successfully joined. Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 

1994); Adam Joseph Res. v. CNA Metals Ltd., 919 F.3d 856, 865 (5th Cir. 2019). Delay of 

proceedings, on its own, is not equivalent to prejudice. And the opponents to intervention have 

offered no explanation about how a purported delay of proceedings would be prejudicial. Instead, 

the opponents have claimed prejudice due to the resulting inconvenience associated with the 

intervenors’ subsequent participation in the lawsuit. That is not enough. “Any potential prejudice 

caused by the intervention itself is irrelevant, because it would have occurred regardless of whether 

the intervention was timely.” In re Lease Oil Antitrust Litig., 570 F.3d at 248 (emphasis added)

(citation omitted). Moreover, as permitted by Rule 54, the Court finds no just reason it should 

delay entry of summary judgment on the existing parties’ pending claims, which the intervenors 

have expressly agreed to adopt.38 FED. R. CIV. P. 54(b). Thus, any prejudice that delayed 

proceedings might cause the parties (though doubtful) is cured by this Court’s resolution and entry 

of judgment now as to those shared claims. 

Third, the Court considers the “extent of prejudice to the would-be intervenor if the petition 

is denied.” In re Lease Oil Antitrust Litig., 570 F.3d at 247–48. Denying intervention would 

prejudice the would-be intervenors by delaying a favorable judgment, without which their 

declining revenues would be prolonged, potentially forcing their dissolution.39 Polymer80 

38 JSD Supply’s Mem. 10, ECF No. 150 (expressing intent to adopt Plaintiffs’ claims and legal theories in 

full); Polymer80’s Mem. 6–7, ECF No. 158 (expressing intent to adopt Plaintiffs’ summary judgment 

briefing in full and to assert additional distinct claims). To the extent Polymer80 wishes to seek summary 

judgment on its alternate claims, it may do so. That Defendants may be required to litigate the additional 

claims is irrelevant, because they would be required to do so whether Polymer80 brought those claims in 

this case or a separate case. 

39 Kelley Decl. ¶¶ 13–14, Polymer80 App. 6, ECF No. 159 (noting the “profound economic harm” that 

Polymer80 has experienced following the Final Rule’s effective date); Vinroe Supp. Decl. ¶ 3, ECF No. 

213-1 (noting JSD Supply’s revenues have dropped by more than 73% since the Final Rule’s effective 

date). 

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concedes it would not be prejudiced if denied intervention in this case, provided its separate lawsuit 

and preliminary injunction in that case is not dismissed.

40 This conditional concession undoubtedly 

minimizes its claims of prejudice in the instant suit. But because the “most important 

consideration” in determining intervention is the prejudice to the parties opposing intervention—

and the Court finds that none exists—this concession is of little weight in the Court’s decision. 

Rotstain v. Mendez, 986 F.3d 931, 938 (5th Cir. 2021). 

Fourth, the Court finds no “unusual circumstances” that weigh heavily for or against 

intervention. In re Lease Oil Antitrust Litig., 570 F.3d at 248. Defendants contend that permitting 

Polymer80’s intervention in this case while the company’s independent and duplicative suit is 

pending would violate the rule against claim-splitting.41 That rule permits—but does not require—

a court to dismiss a second complaint that “alleg[es] the same cause of action as a prior, pending, 

related action.” Friends of the Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 362 (5th 

Cir. 1996) (authorizing courts to dismiss a second complaint whether it is duplicative of a 

previously filed and still active suit). The claim-splitting rule is permissive, however, and does not 

require the Court to take any action at all. Id. In any event, if the rule were applied here, the 

appropriate course would be to dismiss Polymer80’s independent suit, which it filed after 

attempting its initial intervention here. 

Nor are the other permissible timeliness factors—“whether the intervenors’ interests are 

adequately represented by other parties” and whether the intervenors “will significantly contribute 

to full development of the underlying factual issues in the suit”—particularly compelling. NOPSI, 

732 F.2d at 472. Defendants argue intervention will not “significantly contribute to the full 

40 Polymer80’s Reply 6, ECF No. 214. After it sought intervention and learned resolution of that motion 

would be deferred for several months, Polymer80 filed an independent lawsuit before this Court. See 

Polymer80, Inc. v. Garland, Civil Action No. 4:23-cv-00029-O (N.D. Tex. Jan. 9, 2023).

41 Defs.’ Opp. to Polymer80 3–4, 9, ECF No. 206. 

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development of the underlying factual issues” because the existing parties have already “fully 

developed and briefed their claims,” and intervenors therefore cannot meaningfully contribute.42

Elsewhere, however, Defendants point out that Polymer80 raises ten distinct causes of action, all 

of which presumably require further development.43 In response, Polymer80 says its status as “the 

industry leader in the design, manufacture, and distribution of the products that ATF” seeks to 

regulate will significantly contribute to the factual development of the underlying issues in dispute 

but offers no more than that bare assertion.44 For its part, JSD Supply offers no rebuttal to 

Defendants. Thus, on the briefing before it, the Court finds that this factor is, at best, neutral for 

purposes of intervention or weighs slightly against intervention. But given that the other factors 

favor intervenors, the Court does not find this sufficient to bar intervention. 

Finally, the opponents also argue that JSD Supply and Polymer80 have other means of 

asserting their interests.45 Indeed, Polymer80 has a separate suit currently pending before this 

Court.46 But whether an intervenor has other adequate means of protecting its interests is not a 

dispositive or necessary factor for the Court’s decision to grant permissive intervention. Though 

the Court could require the parties to initiate or maintain their own lawsuits, the purpose of Rule 

24 and the principle of judicial efficiency counsel against that course of action. See United States 

v. Tex. E. Transmission Corp., 923 F.2d 410, 412 (5th Cir. 1991) (noting Rule 24’s goals of

achieving “judicial economies of scale by resolving related issues in a single lawsuit” while 

preventing the single lawsuit “from becoming fruitlessly complex or unending”) (cleaned up). 

Allowing intervention preserves judicial resources by preventing multiple parallel proceedings 

42 Defs.’ Opp. to Polymer80 9, ECF No. 206; Defs.’ Opp. to JSD Supply 7, ECF No. 207. 

43 Defs.’ Opp. to Polymer80 6 n.3, ECF No. 206. 

44 Polymer80’s Reply 8, ECF No. 214. 

45 Defs.’ Opp. to JSD Supply 6–7, ECF No. 207; Defs.’ Opp. to Polymer80 9–10, ECF No. 206; Original 

Pls.’ Opp. 5–6, ECF No. 212. 

46 Polymer80, Inc. v. Garland, Civil Action No. 4:23-cv-00029-O (N.D. Tex. Jan. 9, 2023).

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from running concurrently in multiple courts or before multiple jurists when this Court is already 

well-acquainted with the parties’ respective claims. Nor is there a need to divide lawsuits where, 

as here, the would-be intervenors largely agree to adopt the claims and briefing schedule already 

before the Court, which reduces the complexity of the case. 

* * * *

In sum, the Court holds that all requisite elements for permissive intervention—timeliness, 

shared causes of action, and prejudice—weigh in favor of allowing the intervenors to join the 

lawsuit. For these reasons, the Court GRANTS JSD Supply’s and Polymer80’s motions to 

intervene on permissive grounds. Because JSD Supply and Polymer80 have agreed to adopt the 

current Plaintiffs’ summary judgment briefing with respect to their shared claims, and because 

those express intentions inform the Court’s discretionary decision to permit intervention here, the 

intervenors are barred from separately moving for summary judgment or filing supplemental 

briefing on any of the existing claims. However, Polymer80 may move for summary judgment on 

its unique claims to the extent those claims are not mooted by the Court’s decision today.

B.

1. Legal Standards

Disputes arising under the APA are commonly resolved on summary judgment, where

district courts sit as an appellate tribunal to decide legal questions on the basis of the administrative 

record. See Amin v. Mayorkas, 24 F.4th 383, 391 (5th Cir. 2022). Summary judgment is proper 

where the Court finds that there are no genuine disputes of material fact and the movant is entitled 

to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–

23 (1986). Upon review of agency action, district courts apply the APA, which requires the 

reviewing court to “hold unlawful and set aside agency action” that the court finds to be “(A) 

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arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary 

to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right; [and] (D) without observance of procedure 

required by law.” 5 U.S.C. § 706(2). 

Among other procedural requirements, the APA requires agencies to provide “legislative” 

rules (i.e., substantive regulations) for public notice and comment, id. § 553(b), and to ensure that 

the final version of such a rule is a “logical outgrowth” of the agency’s initial regulatory proposal.

Huawei Techs. USA, Inc. v. FCC, 2 F.4th 421, 447 (5th Cir. 2021). The APA’s arbitrary and 

capricious standard requires that agency action be both “reasonable and reasonably explained,” 

FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021), meaning agencies must not 

“rel[y] on factors which Congress has not intended it to consider” or “entirely fail[] to consider an 

important aspect of the problem” when issuing regulations. Motor Vehicle Mfrs. Ass’n of U.S., Inc. 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Once a court determines the contested agency action falls short of the APA’s substantive 

or procedural requirements, the reviewing court “shall” set aside the unlawful agency action. 5 

U.S.C. § 706(2); Data Mktg. P’ship, LP v. United States Dep’t of Labor, 45 F.4th 846, 859 (5th 

Cir. 2022).

2. Article III Standing

As a preliminary defense, Defendants argue that some of the plaintiffs, the Individual

Plaintiffs and the non-profit organizations, are not entitled to entry of summary judgment because 

they lack standing to challenge the Final Rule. Because “standing is not dispensed in gross,” the 

general rule is that each plaintiff must demonstrate a personal stake in the outcome of the case or 

controversy at bar. Town of Chester v. Laroe Ests., Inc., 137 S. Ct. 1645, 1650 (2017). This means 

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each plaintiff to a case “must demonstrate standing for each claim he seeks to press and for each 

form of relief that is sought.” Id. (cleaned up). When there are multiple plaintiffs or intervenors to 

a lawsuit that request the same form of relief, however, only “one plaintiff must have standing to 

seek each form of relief requested.” Id. at 1651 (emphasis added). 

Here, among other requested forms of relief, all plaintiffs and intervenors—including those 

litigants whose standing is not in question—ask this Court to declare unlawful and set aside the 

Final Rule.

47 Accordingly, the Court could address the legality of the Final Rule regardless of 

whether the Individual Plaintiffs and the non-profit organizations have standing. Nevertheless, 

because these parties will not be entitled to unique forms of relief (e.g., party-specific injunctive 

relief or attorneys’ fees) without independently demonstrating standing, the Court addresses the 

individuals’ and the organizations’ standing before turning the merits of their claims.48

To establish Article III standing, a plaintiff must show it has suffered (1) an injury-in-fact 

(2) that is fairly traceable to the defendants’ conduct, and (3) is likely to be redressed by a favorable

judicial decision. Id. at 1650. As the parties invoking federal jurisdiction, plaintiffs bear the burden 

of proving each element of standing. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992).

i. Individual Plaintiffs

First, Defendants argue that Individual Plaintiffs VanDerStok and Andren cannot 

demonstrate standing because “the only purported injury they plausibly invoke—a $30 transfer fee 

that certain FFLs purportedly would charge them to facilitate a firearm purchase—is not fairly 

47 Orig. Pls.’ Am. Compl. 57, ECF No. 93 (seeking vacatur, injunctive relief, attorneys’ fees and costs, etc.); 

BlackHawk’s Compl. 33, ECF No. 99 (same); Defense Distributed, et al.’s Compl. 27, ECF No. 143 (same); 

JSD Supply’s Proposed Compl. 29–30, ECF No. 149-2 (same); Polymer80’s Proposed Compl. 43–44, App. 

101–02, ECF No. 159 (same).

48 To be entitled to attorneys’ fees, a plaintiff must independently establish standing and prevail on the 

merits of an underlying claim. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 

(1998) (“An interest in attorney’s fees is insufficient to create an Article III case or controversy where none 

exists on the merits of the underlying claim.”) (cleaned up) (emphasis added).

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traceable to the Rule.”49 Defendants contend that an FFL’s independent decision to charge 

Individual Plaintiffs a transfer fee to facilitate purchase of newly regulated products bears no causal 

relationship to the Final Rule, and is therefore not fairly traceable to Defendants’ conduct.

50 But 

Defendants are wrong on this point. 

While the Supreme Court has declined to endorse theories of standing “that rest on 

speculation about the decisions of independent actors,” where a plaintiff can make a showing of 

de facto causality, standing’s traceability element is satisfied. Dep’t of Com. v. New York, 139 S. 

Ct. 2551, 2566 (2019) (emphasis added). Here, Individual Plaintiffs’ theory of standing is not 

speculative. Instead, it relies “on the predictable effect of Government action on the decisions of 

third parties.” Id. Individual Plaintiffs have confirmed that the FFLs they would use to facilitate 

their purchases will in fact charge a transfer fee.51 And it is highly predictable that FFLs would

charge for this service, particularly when faced with the prospect of an influx of customers who 

need to make purchases of certain products through an FFL as a result of a recent government 

mandate. Absent the requirements of the Final Rule, the Individual Plaintiffs would not purchase 

the regulated products through an FFL and would therefore not incur an associated transfer fee. 

This is sufficient to show de facto causality. Thus, the Court is satisfied that Individual Plaintiffs’ 

purported injury is fairly traceable to Defendants’ actions.

Even if the FFLs’ independent decision to charge a transfer fee broke the chain of 

causation, Individual Plaintiffs have an alternative basis for standing that Defendants largely 

ignore. In a footnote, Defendants dismiss Individual Plaintiffs’ other alleged injury—the threat of 

criminal prosecution should they violate the Rule—as simply “not credible.”52 They say the risk 

49 Defs.’ Reply 2, ECF No. 204; Defs.’ Cross-Mot. 11–12, ECF No. 181.

50 Defs.’ Reply 2–3, ECF No. 204. 

51 VanDerStok Decl. ¶¶ 2–6, ECF No. 62-1; Andren Decl. ¶¶ 2–6, ECF No. 62-2. 

52 Defs.’ Reply 2 n.3, ECF No. 204.

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of criminal prosecution is not a cognizable injury because the costs Individual Plaintiffs would 

have to incur to avoid criminal liability “are merely de minimis.”53

Here, however, Defendants conflate the injury analysis required for Article III standing 

with the irreparable harm analysis required for a preliminary injunction.54 It is true that, for 

purposes of injunctive relief, a plaintiff must allege an irreparable injury that is more than merely 

de minimis. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012). 

But Defendants offer no authority for the proposition that a plaintiff’s alleged injury must pass a 

certain threshold to be cognizable for purposes of Article III. Nor is the Court aware of any such 

requirement. 

It is well established that a credible threat of government action, on its own, provides a 

plaintiff with a sufficient basis for bringing suit. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 

118, 128–29 (2007). This remains true even if a plaintiff takes steps to protect themselves from 

prosecution. As the Supreme Court has made clear, a “plaintiff's own action (or inaction) in failing 

to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate 

Article III jurisdiction.” Id. Thus, even if Individual Plaintiffs in this case ameliorated the threat of 

government enforcement by making their purchases through an FFL and paying the associated fee

(action), or by simply refraining from purchasing the regulated products they want to buy

53 Id. (““Plaintiffs do not face a ‘Hobson’s choice’ whether to comply with a regulation or risk criminal 

prosecution when the costs of compliance are merely de minimis.”). 

54 Plaintiffs respond that “[t]he Agencies provide no argument as to . . . how Individual Plaintiffs could 

suffer irreparable harm [as the Court previously held] and yet not have standing.” Pls.’ Reply 3, ECF No. 

191. But irreparable harm for purposes of injunctive relief and Article III injury-in-fact are not equivalents.

And Plaintiffs offer no authority indicating that a showing of irreparable harm for purposes of injunctive

relief automatically satisfies Article III’s injury-in-fact requirement. Moreover, many courts address these

issues separately, confirming that the analysis is distinct. See, e.g., Memphis A. Philip Randolph Inst. v.

Hargett, 978 F.3d 378 (6th Cir. 2020) (analyzing Article III standing and irreparable harm for purposes of

injunctive relief separately); East Bay Sanctuary v. Trump, 932 F.3d 742, 762 (9th Cir. 2018) (same); Geer’s

Ranch Café v. Guzman, 540 F. Supp. 3d 638 (N.D. Tex. 2021) (same) (O’Connor, J.).

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(inaction), they do not lose their right to challenge the Final Rule.55 Defendants offer no argument 

regarding the traceability or redressability of this alternative injury. Nor could they. Thus, the 

Court holds that Individual Plaintiffs’ threat of civil or criminal penalties is a cognizable injury 

under Article III and that, on this basis also, they have demonstrated standing to pursue their 

claims.

ii. Non-profit Organizations

Second, Defendants claim the organizations—Firearms Policy Coalition and the Second 

Amendment Foundation—have failed to demonstrate associational (or organizational) standing.

The associational standing doctrine permits a traditional membership organization “to invoke the 

court’s [injunctive or declaratory] remedial powers on behalf of its members.” Warth v. Seldin, 

422 U.S. 490, 515 (1975). To do so, the organization must satisfy a three-prong test showing that 

“(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks 

to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the 

relief requested requires the participation of individual members in the lawsuit.” Students for Fair 

Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, --- S.Ct. ---, 2023 

WL 4239254, at *8 (U.S. June 29, 2023) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 

U.S. 333, 343 (1977)). 

Defendants do not meaningfully contend that FPC and SAF cannot satisfy the three-prong 

Hunt test.56 Instead, they challenge the non-profits’ statuses as “traditional membership 

55 For the same reasons, Defendants’ argument that FPC cannot establish Article III standing in its own 

right fails. See Defs.’ Reply 3 n.4. As FPC avers, it owns and uses products now subject to the Final Rule 

and, though a corporate entity, will suffer the same financial injury as Individual Plaintiffs if required to 

comply and the same threat of prosecution for non-compliance. Orig. Pls.’ Br. 50, ECF No. 141; Combs 

Decl. ¶¶ 9–11, ECF No 62-4. 

56 Defs.’ Br. 13, ECF No. 181; Defs.’ Reply 3–4, ECF No. 204. Defendants simply point to the Court’s 

earlier conclusion that, at the preliminary injunction stage, FPC did not carry its burden to demonstrate 

associational standing. Defs.’ Br. 13, ECF No. 181 (citing Mem. Opinion 12–15, ECF No. 89). 

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organizations” arguing that, because they cannot satisfy this threshold requirement, they cannot 

establish associational standing. Defendants contend that, under Fifth Circuit precedent, an 

organization can only prove itself a “traditional membership organization” if it provides evidence 

that its members both fund and control the organization’s activities. By contrast, FPC and SAF 

contend that they are traditional membership organizations because they have members nationwide 

who, by donating to their organizations, have “joined voluntarily to support [the non-profits’] 

mission[s].”57 Students for Fair Admissions, Inc. v. University of Texas at Austin, 37 F.4th 1078, 

1084 (5th Cir. 2022). Under the Supreme Court’s recent decision in Students for Fair Admissions, 

Inc. v. President and Fellows of Harvard College, that is all the evidence that is required. 2023 

WL 4239254, at *9. “Where, as here, an organization has identified members and represents them 

in good faith, [the Supreme Court’s decisions] do not require further scrutiny into how the 

organization operates.” Id. at 9. 

As Defendants concede, the Court has already recognized that SAF satisfies the Hunt test.58

Based on its summary judgment briefing, so does FPC. First, several of FPC’s members—

Individual Plaintiffs, Tactical Machining, and BlackHawk, who are all parties to this suit—have 

standing to sue in their own right. Second, FPC’s organizational purpose to advocate for their 

members’ individual liberties, separation of powers, and limited government are clearly germane 

to this suit challenging Defendants’ asserted authority to regulate the manufacture of personal 

firearms.

59 Third, because FPC seeks equitable remedies of declaratory relief and vacatur of the 

Final Rule, there is no need for FPC’s individual members to participate in the lawsuit. 

57 Orig. Pls.’ Reply 8, ECF No. 191; Combs Decl. ¶ 8, ECF No. 62-4 (describing the voluntary and missiondriven membership base of FPC); Defense Distributed, et al.’s Reply 2, ECF No. 193; Gottlieb Decl. ¶ 2, 

ECF No. 166-2 (describing SAF’s national membership base). 

58 Order 5, ECF No. 137. 

59 See generally Combs Decl., ECF No. 62-4; Orig. Pls.’ Br. 49, ECF No. 144. 

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* * * *

In sum, the Court holds that Individual Plaintiffs and FPC—in its own right—have 

standing to pursue their claims for relief. Furthermore, FPC and SAF have demonstrated 

associational standing and may pursue relief on their members’ behalf. Because Defendants do 

not contest the standing of Tactical Machining, BlackHawk, or Defense Distributed, these 

parties are similarly entitled to pursue their respective claims for relief. 

3. Statutory Claims

The Original Plaintiffs and Intervenors (collectively “Plaintiffs” going forward) attack the

Final Rule on a host of statutory and constitutional grounds. However, there exists an ordinary rule 

“that a federal court should not decide federal constitutional questions where a dispositive 

nonconstitutional ground is available.” Hagans v. Lavine, 415 U.S. 528, 547 (1974); see also New 

York City Transit Auth. v. Beazer, 440 U.S. 568, 582 (1979) (“If there is one doctrine more deeply 

rooted than any other in the process of constitutional adjudication, it is that we ought not to pass 

on questions of constitutionality . . . unless such adjudication is unavoidable. Before deciding the 

constitutional question, it was incumbent on [the lower] courts to consider whether the statutory 

grounds might be dispositive.”) (cleaned up). Thus, “if a case raises both statutory and 

constitutional questions, the inquiry should focus initially on the statutory question[s]. . . . If the 

lower court finds that statutory ground dispositive, resolution of the constitutional issue will be 

obviated.” Jordan v. City of Greenwood, Miss., 711 F.2d 667, 669 (5th Cir. 1983). Because the 

Court concludes that the ATF has clearly and without question acted in excess of its statutory 

authority, and that this claim is dispositive, the Court declines to address the constitutional 

questions presented. 

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The Court begins with Plaintiffs’ shared claim that, in attempting to regulate products that 

are not yet a “frame or receiver,” and therefore not a “firearm” for purposes of the Gun Control 

Act, the ATF has acted in excess of its statutory jurisdiction. 5 U.S.C. § 706(2)(C). As they argued 

at the preliminary injunction stage, Plaintiffs maintain that the Final Rule exceeds ATF’s statutory 

authority in two primary ways. First, they argue that the Final Rule expands ATF’s authority over 

parts that may be “readily converted” into frames or receivers, when Congress limited ATF’s 

authority to “frames or receivers” as such. Second, they argue that the Final Rule unlawfully treats 

component parts of a weapon in the aggregate (i.e., a weapon parts kit) as the equivalent of a 

firearm.60 The Court agrees with Plaintiffs.

Basic principles of statutory interpretation decide this case. “In statutory interpretation 

disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and 

structure of the law itself.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). 

“Statutory language ‘cannot be construed in a vacuum. It is a fundamental canon of statutory 

construction that the words of a statute must be read in their context and with a view to their place 

in the overall statutory scheme.’” Sturgeon v. Frost, 577 U.S. 424, 438 (2016) (quoting Roberts v. 

Sea-Land Services, Inc., 556 U.S. 93, 101 (2012)). If the disputed statutory language is 

unambiguous, as it is here, “the sole function of the courts is to enforce [the law] according to its 

terms.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (cleaned up). The Court 

60 Orig. Pls.’ Supp. Br. Regarding Count I, ECF No. 133; see also Defense Distributed, et al.’s Br. in Support 

of Mot. for Summ. J., ECF No. 166 (joining and adopting Original Plaintiffs’ Counts and summary 

judgment briefing on behalf of Defense Distributed and Second Amendment Foundation). BlackHawk 

offers additional arguments in support of its claim that the agency has exceeded its statutory authority, some 

of which are closely related to the arguments before the Court and other that are novel. See generally 

BlackHawk’s Supp. Br. Regarding Count I 7–10, ECF No. 134 (e.g., arguing that the Final Rules 

requirement that FFLs retain records indefinitely exceeds the agency’s statutory authority). But because 

Plaintiffs’ primary arguments in support of their shared Counts I are dispositive, the Court need not consider

each of the alternative grounds for reaching the same result. 

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begins with “the assumption that the words were meant to express their ordinary meaning.” United 

States v. Kaluza, 780 F.3d 647, 659 (5th Cir. 2015) (quoting Bouchikhi v. Holder, 676 F.3d 173, 

177 (5th Cir. 2012)). If a statute “includes an explicit definition,” however, the Court “must follow 

that definition, even if it varies from a term’s ordinary meaning.” Digit. Realty Tr., Inc. v. Somers, 

138 S. Ct. 767, 776 (2018) (cleaned up). 

i. Parts that may become receivers are not receivers. 

Congress carefully defined its terms in the Gun Control Act. The primary definition of 

“firearm” in the GCA contains three parts: “any weapon (including a starter gun) which [1] will or 

[2] is designed to or [3] may readily be converted to expel a projectile by the action of an 

explosive.” 18 U.S.C. § 921(a)(3)(A). Under this primary definition, a firearm is first and foremost 

a weapon. Underscoring that point, Congress explicitly named starter guns in the definition 

because starter guns are not obviously weapons. Then, because weapon parts also are not 

“weapons,” Congress created a secondary definition covering specific weapon parts: “the frame 

or receiver of any such weapon.” Id. § 921(a)(3)(B).61 Notably, Congress did not cover all weapon 

parts—only frames and receivers. And only the frames and receivers “of any such weapon” that 

Congress described in its primary definition.

Because Congress did not define “frame or receiver,” the words receive their ordinary 

meaning. See 18 U.S.C § 921 (defining other terms); Kaluza, 780 F.3d at 659. Contrary to 

Defendants’ assertion, in an interpretive dispute over a statutory term’s meaning, the Court does 

not simply “leav[e] the precise definition of that term to the discretion and expertise of ATF.”62

61 The Gun Control Act defines “firearm” in full 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.” Id. § 921(a)(3).

62 Defs.’ Supp. Br. Regarding Count I 9, ECF No. 132 (citing no supporting authority for the proposition 

that agency’s definition of an unambiguous statutory term controls). 

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Nor is the Court bound by the agency’s definition of an unambiguous statutory term, even if the 

ATF has “long provided regulations defining . . . ‘frame or receiver.’”63

Plaintiffs do not take issue with ATF’s 1978 definition of “frame or receiver.” This is

because, as Defendants themselves acknowledge, ATF’s prior regulatory definitions have been

“consistent with common and technical dictionary definitions.”64 Statutory construction entails 

“follow[ing] the plain and unambiguous meaning of the statutory language, [and] interpreting 

undefined terms according to their ordinary and natural meaning and the overall policies and 

objectives of the statute. In determining the ordinary meaning of terms, dictionaries are often a 

principal source.” NPR Invs., L.L.C. ex rel. Roach v. United States, 740 F.3d 998, 1007 (5th Cir. 

2014) (cleaned up). Near the time of the GCA’s enactment in 1968, Webster’s Dictionary defined 

“frame” as “the basic unit of a handgun which serves as a mounting for the barrel and operating 

parts of the arm” and “receiver” as “the metal frame in which the action of a firearm is fitted and 

which the breech end of the barrel is attached.” Webster’s Third International Dictionary 902, 

1894 (1971).65 ATF’s prior regulatory definition, which defined “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,” tracks that common 

definition.66 Title and Definition Changes, 43 Fed. Reg. at 13,537.

63 Defs.’ Supp. Br. Regarding Count I 6–7, ECF No. 132. Even if the phrase “frame or receiver” was 

ambiguous, the Court would not defer to ATF’s interpretation under Chevron because Defendants have not 

invoked the doctrine in this case, because the statute in question imposes criminal penalties, and because 

the Final Rule is a reversal of the ATF’s prior interpretive position. Cargill v. Garland, 57 F.4th 447, 464–

68 (5th Cir. 2023); Defs.’ Opp. to Pls.’ Mot. for Prelim. Inj. 17–18, ECF No. 41.

64 Defs.’ Supp. Br. Regarding Count I 9, ECF No. 132 (emphasis added).

65 See also John Olson, Olson’s Encyclopedia of Small Arms 72 (1985) (defining a receiver as “the part of 

a gun that takes the charge from the magazine and holds it until it is seated in the breech. Specifically, the 

metal part of a gun that houses the breech action and firing mechanism”). 

66 ATF’s 1968 definition of “frame or receiver” was identical. Commerce in Firearms and Ammunition, 33 

Fed. Reg. 18,555, 18,558 (Dec. 14, 1968). 

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But the Final Rule’s amended definition of “frame or receiver” does not accord with the 

ordinary meaning of those terms and is therefore in conflict with the plain statutory language. 

Departing from the common understanding of “frame or receiver,” Defendants now assert ATF’s

authority to regulate “partially complete, disassembled, or nonfunctional frame[s] or receiver[s]” 

that are “designed to or may readily be completed, assembled, restored, or otherwise be converted 

to function as a frame or receiver.” 27 C.F.R. § 478.12(c). The parts must be “clearly identifiable 

as an unfinished component part of a weapon.” Id. In deciding whether something is a partially 

complete frame or receiver, ATF may consider other materials such as molds, instructions, and 

marketing materials “that are sold, distributed, or possessed with the item.” Id.

As this Court has previously discussed, the definition of “firearm” in the Gun Control Act 

does not cover all firearm parts. It covers specifically “the frame or receiver of any such weapon” 

that Congress defined as a firearm. 18 U.S.C. § 921(a)(3)(B). And that which may become or may 

be converted to a functional receiver is not itself a receiver. Congress could have included firearm 

parts that “may readily be converted” to frames or receivers, as it did with “weapons” that “may 

readily be converted” to fire a projectile. Id. § 921(a)(3)(A), (a)(4)(B). But it omitted that language 

when talking about frames and receivers. “[W]hen 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 the disparate inclusion or exclusion.” Collins v. 

Yellen, 141 S. Ct. 1761, 1782 (2021) (citation and internal quotation marks omitted). Likewise, 

when Congress uses a phrase in one part of a definition and excludes that phrase from another part 

of the very same definition, courts should give effect to Congress’s deliberate exclusion.

Congress excluded other adjectives that ATF adds to its definition. Specifically, the Final 

Rule covers “disassembled” and “nonfunctional” frames and receivers. 27 C.F.R. § 478.12(c). 

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Congress’s definition does not. Again, compare the language in Congress’s primary definition of 

“firearm” to its secondary definition covering frames and receivers. The primary definition of 

“firearm” includes any “weapon” that “is designed to” fire a projectile. 18 U.S.C. § 921(a)(3)(A). 

That language covers disassembled, nonfunctional, and antique firearms because they are 

“designed” to fire projectiles even if they are practically unable to do so. But Congress wanted to 

exclude antiques, so it explicitly said the “term does not include an antique firearm,” once again 

demonstrating awareness of the scope of the language it chose. Id. § 921(a)(3). In contrast, 

Congress did not choose to cover firearm parts that are “designed” to be frames or receivers—that 

is, incomplete, nonfunctional frames or receivers. “That omission is telling,” particularly when 

Congress used the more expansive terminology in the same definition. Collins, 141 S. Ct. at 1782.

In sum, ATF’s new definition of “frame or receiver” in 27 C.F.R. § 478.12(c) is facially unlawful

given its conflict with the ordinary meaning of those terms as read within their immediate statutory 

context. Sturgeon, 577 U.S. at 438 (cleaned up). 

The Court’s earlier acknowledgement that ATF does indeed have discretion to decide 

“whether a particular component is a frame or receiver” based upon that component’s “degree of 

completeness” does not alter this analysis.67 Relying on the Court’s acknowledgement, Defendants 

claim that is all the Final Rule purports to do: “provide[] more specific guidance about the criteria 

ATF uses in making th[e] determination” whether a component is a frame or receiver.68 But that 

is not all the regulation does. Rather, the Final Rule sets outs the criteria ATF will use to determine 

whether a component “may readily be . . . converted to function” as a frame or receiver. 27 C.F.R. 

§ 478.12(c) (emphasis added). As the Court previously explained, the issue in this case is whether 

ATF may properly regulate a component as a “frame or receiver” even after ATF determines that 

67 Mem. Opinion 10, ECF No. 56.

68 Defs.’ Supp. Br. Regarding Count I 10, ECF No. 132. 

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the component in question is not a frame or receiver.69 It may not. Logic dictates that a part cannot 

be both not yet a receiver and receiver at the same time. Defendants’ reliance on that logical 

contradiction is fatal to their argument.

Predictably, Defendants disagree with the Court’s interpretation of how the regulation 

operates and argue that “the Final Rule’s amended definition treats a component as a frame or 

receiver only when ATF has determined that the component is a frame or receiver.”70 Again, a 

plain reading of the Final Rule’s text belies this objection.71 A part that has yet to be completed or 

converted to function as frame or receiver is not a frame or receiver. ATF’s declaration that a 

component is a “frame or receiver” does not make it so if, at the time of evaluation, the component 

does not yet accord with the ordinary public meaning of those terms.

Thus, the Court’s prior acknowledgment that “[a]n incomplete receiver may still be a 

receiver within the meaning of the statute, depending on the degree of completeness” is not a 

contradiction.72 To be a receiver “within the meaning of the statute” requires that the particular 

component possess all the attributes of a receiver as commonly understood (i.e., the component 

must “provide[] housing for the hammer, bolt or breechblock, and firing mechanism, and which is 

usually threaded at its forward portion to receive the barrel”) at the point of evaluation, not 

“readily” in the near term. 

Nevertheless, Defendants continue to press their case with reference to historical agency 

action. Defendants offer several classification letters in which ATF previously determined that a 

particular component was (or was not) a “firearm” for purposes of the GCA based on the item’s 

69 Id.

70 Id.

71 Nor do Defendants invoke Auer deference here.

72 Mem. Opinion 10, ECF No. 56 (emphasis added). 

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stage of manufacture.

73 They contend that this historical practice proves that ATF does, in fact, 

hold statutory authority to regulate firearm components that may “readily” become a frame or 

receiver.74 But historical practice does not dictate the interpretation of unambiguous statutory 

terms. The ordinary public meaning of those terms does. If these administrative records show, as 

Defendants contend, that ATF has previously regulated components that are not yet frames or 

receivers but could readily be converted into such items, then the historical practice does nothing 

more than confirm that the agency has, perhaps in multiple specific instances over several decades, 

exceeded the lawful bounds of its statutory jurisdiction.75 That the agency may have historically

acted ultra vires does not convince the Court it should be permitted to continue the practice. 

Finally, Defendants argue that the Final Rule’s redefinition of the “frame or receiver” is 

appropriate because it better achieves the goals Congress intended to accomplish in enacting the 

federal firearms laws.76 They warn that “[u]nder any other approach, persons could easily 

circumvent the requirements of the GCA and NFA by producing or purchasing almost-complete 

[purported] frames or receivers that could easily be altered to produce a functional frame or 

receiver.”77 But “the best evidence of Congress’s intent is the statutory text.” NFIB v. Sebelius, 

567 U.S. 519, 544 (2012). And the text of 18 U.S.C. § 921(a)(3), read in context, indicates that 

when Congress sought to regulate parts of weapons, it did so meticulously. Vague countervailing 

assertions about Congress’s purpose in enacting the federal firearms laws do not override this 

analysis. 

73 See Defs.’ Supp. Br. Regarding Count I 7–10, ECF No. 132.

74 See id.

75 Id. at 8 (“Under the previous definition, then, ATF regularly applied the definition of ‘frame or receiver’ 

to some unfinished or incomplete frames or receivers if they had reached a sufficiently advanced stage of 

the manufacturing process that they could be readily converted to a functional state.”). 

76 Id. at 11.

77 Id.

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ii. A weapon parts kit is not a firearm. 

The Gun Control Act defines a “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). The Final Rule amends that definition, adding that the term “firearm” “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.” 27 C.F.R. § 478.11 

(definition of “firearm”). But that language conflicts with the statute’s definition of “firearm.”

As this Court previously concluded, ATF has no general authority to regulate weapon 

parts.78 When Congress enacted the GCA, it replaced the FFA that authorized regulation of “any 

part or parts of” a firearm. Federal Firearms Act of 1938, Ch. 850, Pub. L. No. 75-785, 52 Stat. 

1250, 1250 (1938) (repealed 1968). In proposing the new regulation, Defendants even 

acknowledged as much.79 Instead, under the GCA, the only firearm parts that fall under ATF’s 

purview are “the frame or receiver of any such weapon” that Congress defined as a firearm. 18 

U.S.C. § 921(a)(3)(B). But the Final Rule goes further by regulating weapon parts kits (that is, 

“aggregations of weapon parts”)80 that are “designed to or may readily be completed, assembled, 

restored, or otherwise converted to expel a projectile by the action of an explosive.” 27 C.F.R. 

§ 478.11. 

78 Mem. Opinion, ECF No. 56.

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

27,720, 27,720 (May 21, 2021) (“Congress recognized that regulation of all firearm parts was impractical. 

Senator Dodd explained that ‘[t]he present definition of this term includes “any part or parts” of a firearm. 

It has been impractical to treat each small part of a firearm as if it were a weapon. The revised definition 

substitutes the words “frame or receiver” for the words “any part or parts.”’”). 

80 Defs.’ Resp. to Mot. for Prelim. Inj. 13, ECF No. 41.

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The GCA covers “any weapon” that is “designed to” or “may readily be converted to” fire 

a projectile. 18 U.S.C. § 921(a)(3)(A) (emphasis added). And Defendants contend that weapon 

parts kits satisfy this definition because they are clearly “‘designed to’ fire a projectile” and are 

sold to customers “for the sole purpose of assembling the kits into functional weapons capable of 

firing a projectile.”

81 They say “[a] weapon parts kit is nothing more than a disassembled, currently 

nonfunctional weapon incapable of firing a projectile in its present form, but that is designed and

intended to be assembled or completed to do so.”82 But Congress’s definition 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. To read § 921(a)(3)(A) as authorizing ATF to 

regulate any aggregation of weapon parts that may readily be converted into a weapon would 

render § 921(a)(3)(B)’s carveout for “frame[s] or receiver[s]” superfluous. Accepting Defendants’ 

interpretation would be to read the statute as authorizing regulation of (A) weapon parts generally, 

and (B) two specific weapon parts. SEC v. Hallam, 42 F.4th 316, 337 (5th Cir. 2022) (noting courts 

should be “hesitant to adopt an interpretation of a congressional enactment which renders 

superfluous another portion of that same law”) (citation omitted). This despite Congress’s 

purposeful change in the law between the FFA and the GCA, which limited agency authority to 

regulation of only frames and receivers. “When Congress acts to amend a statute, [courts] presume 

it intends its amendment to have real and substantial effect.” Id. (quoting Intel Corp. Inv. Pol’y 

Comm. v. Sulyma, 140 S. Ct. 768, 779 (2020)). 

The statutory context repeatedly confirms that Congress intentionally chose not to regulate 

“weapon” parts generally. As further evidence, look to § 921(a)(4)(C), which does allow for the 

regulation of “parts,” but only parts of “destructive devices”—one of the four statutory sub81 Defs.’ Supp. Br. Regarding Count I 13, ECF No. 132. 

82 Id. at 14. 

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definitions of “firearm.” Id. § 921(a)(3)(D). The term “destructive device” is defined as “any 

explosive, incendiary, or poison gas,” such as a bomb, grenade, mine, or similar device. Id.

§ 921(a)(4)(A). The definition of “destructive device” also includes “any type of weapon” that 

“may be readily converted to, expel a projectile by the action of an explosive or other propellant, 

and which has any barrel with a bore of more than one-half inch in diameter.” Id. § 921(a)(4)(B). 

For example, suppose a manufacturer tried to sell a parts kit to make a homemade grenade. ATF 

could regulate that parts kit because it can regulate “any combination of parts either designed or 

intended for use in converting any device into” a grenade, from which a grenade “may be readily 

assembled.” Id. § 921(a)(4)(C). Likewise for bombs, rockets, missiles, and other destructive 

devices. But commonly sold firearms such as 9mm pistols or .223 rifles do not fall under the 

specialized definition of “destructive devices,” so weapon parts kits for those firearms cannot be 

properly regulated as components of “destructive devices.” Id. § 921(a)(4).

In sum, the Gun Control Act’s precise wording demands precise application. Congress 

could have described a firearm as “any combination of parts” that would produce a weapon that 

could fire a projectile. It used that language elsewhere in the definition. Id. § 921(a)(4)(C). 

Congress could have described a firearm as any part “designed” to be part of a weapon. It used 

that language, too. Id. § 921(a)(3)(A), (a)(4)(C). Congress could have described a firearm as a set 

of parts that “may be readily assembled” into a weapon, as it did for “destructive device.” Id. 

§ 921(a)(4)(C). Congress could have written all those things, and the very definition of “firearm” 

demonstrates that Congress knew the words that would accomplish those ends.83 But Congress did 

83 Congress’s definition of “machinegun” elsewhere in the U.S. Code is a great example of a definition that 

would fit the kind of rule ATF has in mind:

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be 

readily restored to shoot, automatically more than one shot, without manual reloading, by 

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not regulate firearm parts as such, let alone aggregations of parts that are “designed to or may 

readily be completed, assembled, restored, or otherwise converted to expel a projectile by the 

action of an explosive.” 27 C.F.R. § 478.11. Accordingly, the Final Rule’s attempt to regulate 

weapon parts kits lacks statutory support.

As the Court has previously discussed, Defendants’ arguments that the Final Rule’s 

regulation of weapon parts kits is consistent with existing judicial interpretations of the Gun 

Control Act are unavailing.

84 Defendants’ cited cases demonstrate that courts understand the 

constraints of the Gun Control Act’s definitions. The only Fifth Circuit case Defendants cite held 

that a disassembled shotgun was still a “firearm” under the Gun Control Act’s definition. See 

United States v. Ryles, 988 F.2d 13, 16 (5th Cir. 1993). There, the government argued the shotgun 

“was only ‘disassembled’ in that the barrel was removed from the stock and that it could have been 

assembled in thirty seconds or less.” Id. But the Fifth Circuit only agreed after surveying other 

cases in which courts held that inoperable weapons were still firearms “so long as those weapons 

‘at the time of the offense did not appear clearly inoperable.’” Id. No weapon parts kit would pass 

that test, and Defendants do not claim they would.85

a single function of the trigger. The term shall also include the frame or receiver of any 

such weapon, any part designed and intended solely and exclusively, or combination of 

parts designed and intended, for use in converting a weapon into a machinegun, and any 

combination of parts from which a machinegun can be assembled if such parts are in the 

possession or under the control of a person.

26 U.S.C. § 5845(b) (emphases added); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 

448 n.3 (2006) (“Our more natural reading is confirmed by the use of the word ‘contract’ elsewhere in the 

United States Code . . . .”).

84 See Defs.’ Supp. Br. Regarding Count I 13; Defs.’ Resp. to Mot. for Prelim. Inj. 20–21, ECF No. 41.

85 The best case in support of Defendants is United States v. Wick, 697 F. App’x 507 (9th Cir. 2017), in 

which the Ninth Circuit upheld a conviction for unlicensed firearm dealing based on evidence that the 

defendant had sold a “complete Uzi parts kits that could ‘readily be converted to expel a projectile by the 

action of an explosive,’ thus meeting the statute’s definition of a firearm.” Id. at 508 (quoting 18 U.S.C. 

§ 921(a)(3)(A)). But Wick is outside this circuit, nonprecedential, and contains no analysis of the statutory 

text. 

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In sum, there is a legal distinction between a weapon parts kit, which may be an aggregation 

of partially manufactured parts not subject to the agency’s regulatory authority, and a “weapon” 

which “may readily be completed [or] assembled . . . to expel a projectile.” 18 U.S.C. 

§ 921(a)(3)(A). Defendants contend that drawing such a distinction will produce the absurd result 

whereby a person lawfully prohibited from possessing a firearm can obtain the necessary 

components and, given advances in technology, self-manufacture a firearm with relative ease and 

efficiency.86 Even if it is true that such an interpretation creates loopholes that as a policy matter 

should be avoided, it not the role of the judiciary to correct them. That is up to Congress. And until 

Congress enacts a different statute, the Court is bound to enforce the law as written.

* * * *

Because the Final Rule purports to regulate both firearm components that are not yet a 

“frame or receiver” and aggregations of weapon parts not otherwise subject to its statutory 

authority, the Court holds that the ATF has acted in excess of its statutory jurisdiction by 

promulgating it. 

4. Remedy

The proper remedy for a finding that an agency has exceeded its statutory jurisdiction is 

vacatur of the unlawful agency action. While Defendants claim the APA does not allow for such 

Defendants’ remaining cases are even less applicable. See United States v. Stewart, 451 F.3d 1071, 1073 

n.2 (9th Cir. 2006) (affirming the district court’s denial of an evidentiary hearing on whether probable cause 

supported a search warrant based on the defendant’s possession of weapon parts kits that could “readily be 

converted” into firearms), overruled on other grounds by Dist. of Columbia v. Heller, 554 U.S. 570, 594–

95 (2008); United States v. Annis, 446 F.3d 852, 857 (8th Cir. 2006) (affirming a sentence enhancement for 

possession of a firearm because the defendant had a disassembled rifle but “could easily ‘make the rifle 

operational in just a few seconds by putting the bolt in’”); United States v. Theodoropoulos, 866 F.2d 587, 

595 n.3 (3d Cir. 1989) (affirming a conviction for possession of an unregistered, disassembled machine 

pistol), overruled by United States v. Price, 76 F.3d 526 (3d Cir. 1996).

86 See Defs.’ Supp. Br. Regarding Count I 14, ECF No. 132; Defs.’ Resp. to Mot. for Prelim. Inj. 1–3, ECF 

No. 41. 

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a remedy, the Fifth Circuit says otherwise. Data Mktg. P’ship, LP v. United States Dep’t of Labor, 

45 F.4th 846, 859 (5th Cir. 2022) (permitting vacatur under 5 U.S.C. § 706(2)).

87 While in some 

cases the court may remand a rule or decision to the agency to cure procedural defects, the Fifth 

Circuit considers vacatur the “default rule” for agency action otherwise found to be unlawful. Id.

at 859–60; accord Franciscan All., Inc. v. Becerra, 47 F.4th 368, 374–75, 375 n.29 (5th Cir. 2022) 

(concluding that “[v]acatur is the only statutorily prescribed remedy for a successful APA 

challenge to a regulation”) (emphasis added). The D.C. Circuit agrees. United Steel v. Mine Safety 

& Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate 

unlawful agency action . . . . In rare cases, however, we do not vacate the action but instead remand 

for the agency to correct its errors.”). Whether remand-without-vacatur is the appropriate remedy

“turns on two factors: (1) the seriousness of the deficiencies of the action, that is, how likely it is 

the agency will be able to justify its decision on remand; and (2) the disruptive consequences of 

vacatur.” Id. (cleaned up).

Vacatur is appropriate given the Court’s conclusion that the ATF has exceeded its statutory 

authority. An illegitimate agency action is void ab initio and therefore cannot be remanded as there 

is nothing for the agency to justify. Defendants tacitly acknowledge this, noting that “if vacatur is 

authorized under the APA, it is not warranted here in the event that Plaintiffs succeed on the merits 

of any procedural claim, because the agency can likely correct any such error on remand.”88

87 Defendants argue that any Fifth Circuit precedent recognizing the permissibility of vacatur is not binding, 

because those decisions did not squarely address the issue of whether the APA authorizes such a remedy. 

Defs.’ Reply 52–53. As such, Defendants contend this Court may not be bound by a legal “assumption” of 

a Fifth Circuit panel. Ochoa-Salgado v. Garland, 5 F.4th 615, 619 (5th Cir. 2021). But even if this Court is 

not bound by the Circuit’s view that the APA permits vacatur, Defendants have not offered a compelling 

justification why this Court should depart from the mass of persuasive authority—developed over 

decades—that has assumed that vacatur is permissible. See Mila Sohoni, The Power to Vacate a Rule, 88 

Geo. Wash. L. Rev. 1121, 1178 n.270 (2020) (collecting cases from all Circuits). 

88 Defs.’ Reply 53, ECF No. 204 (emphasis added). 

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Moreover, vacating the unlawful assertion of the agency’s authority would be minimally disruptive 

because vacatur simply “establish[es] the status quo” that existed for decades prior to the agency’s 

issuance of the Final Rule last year. Texas v. United States, 40 F.4th 205, 220 (5th Cir. 2022). 

Defendants argue that any vacatur should only be applied to the parties before the Court 

while citing no binding authority in support.89 But such a remedy is more akin to an injunction that 

would prohibit the agencies from enforcing their unlawful Final Rule against only certain 

individuals. And indeed, “[t]here are meaningful differences between an injunction, which is a 

‘drastic and extraordinary remedy,’ and vacatur, which is ‘a less drastic remedy.’” Id. at 219 

(quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010)) (assuming the 

availability of vacatur under the APA)). “[A] vacatur does nothing but re-establish the status quo 

absent the unlawful agency action. Apart from the . . . statutory basis on which the court invalidated 

an agency action, vacatur neither compels nor restrains further agency decision-making.” Id. at 

220. Thus, the Court applies the default remedy and VACATES the Final Rule on grounds that 

the agency acted beyond the scope of its legitimate statutory authority in promulgating it. 

Finally, because vacatur provides Plaintiffs full relief, the Court will not address the 

parties’ remaining statutory claims, all of which raise procedural defects that might properly result

in remand of the Final Rule that the Court has already deemed vacated.

V. CONCLUSION

In sum, the Court GRANTS Original Plaintiffs’ unopposed Motion for Leave to Provide 

Supplemental Authority, and the Court DENIES JSD Supply’s proposed Motion for Injunction as 

prematurely filed. The Court GRANTS Intervenor-Plaintiffs JSD Supply’s and Polymer80’s 

Motions to Intervene. Further, for the reasons discussed, the Court GRANTS Plaintiffs’ and 

89 Defs.’ Reply 54–55, ECF No. 204. 

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Intervenor-Plaintiffs’ Motions for Summary Judgment, DENIES Defendants’ Cross-Motion, and 

VACATES the Final Rule. Separate final judgment shall issue as to the appropriate parties and 

claims. As discussed, Polymer80 may move for summary judgment on its unique claims to the 

extent those remaining claims are not mooted by this decision. 

SO ORDERED this 30th day of June, 2023. 

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