IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

Plaintiffs,

v.

MERRICK GARLAND, in his official

capacity as Attorney General of the United States;

et al.,

Defendants.

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

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO

TRANSFER CASE, OR IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME

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TABLE OF CONTENTS

 Page

TABLE OF AUTHORITIES ..................................................................................... ii

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

ARGUMENT............................................................................................................. 2

I. This Case Should Not be Transferred to the Southern District of Texas

because the First-to-File Rule is Inapplicable to the Case at Hand ............... 3

A. The Parties are Distinct, Unrelated, and Plaintiffs have No Ties

to the Lawsuit in the Southern District of Texas ............................... 3

B. The Issues Between the Two Cases Are Sufficiently Distinct .......... 7

II. Defendants Are Not Entitled to an Extension of Time to Respond to

Plaintiffs’ Motion for Preliminary Injunction................................................ 10

CONCLUSION.......................................................................................................... 13

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TABLE OF AUTHORITIES

Case Page(s)

Cont’l Airlines, Inc. v. Am. Airlines, Inc.,

805 F. Supp. 1392 (S.D. Tex. 1992)....................................................................... 6–7

Division 80, LLC v. Garland,

No. 3:22-cv-00148 (S.D. Tex.)............................................................................... passim

Genentech, Inc. v. Eli Lilly & Co.,

998 F.2d 931 (Fed. Cir. 1993) ................................................................................ 3

In re Volkswagen of America, Inc.,

545 F.3d 304 (5th Cir. 2008).................................................................................. 7

Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 

342 U.S. 180 (1952) ............................................................................................... 3

LifeNet, Inc. v. U.S. HHS,

2022 WL 2959715 (E.D. Tex. July 26, 2022)........................................................ 3

Louisiana v. Biden,

538 F. Supp. 3d 649 (W.D. La. 2021) .................................................................... 9

Morehouse v. ATF,

No. 3:22-cv-00116 (D.N.D.) .................................................................................. passim

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

142 S. Ct. 2111 (2022) ........................................................................................... 11–12

Nat’l Health Fed’n v. Weinberger, 

518 F.2d 711 (7th Cir. 1975).................................................................................. 5

Save Power Ltd v. Syntek Fin. Corp.

121 F.3d 947 (5th Cir. 1997).................................................................................. 4

SIPCO, LLC v. Emerson Elec. Co.,

2016 WL 7743496 (E.D. Tex. July 1, 2016).......................................................... 3

Tex. Instruments, Inc. v. Micron Semiconductor, Inc.,

815 F. Supp. 994 (E.D. Tex. 1993)......................................................................... 3

West Gulf Maritime Ass’n v. ILA Deep Sea Local 24

751 F.2d 721 (5th Cir. 1985).................................................................................. 4

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Statutes

5 U.S.C. § 705............................................................................................................ 11, 13

28 U.S.C. §1404(a) .................................................................................................... 6, 7

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

Firearms Policy Coalition, Inc., through their undersigned counsel, file this Response in

Opposition to Defendants’ Motion to Transfer Case Pursuant to the First-to-File Rule, or in the

Alternative, for an Extension of Time, ECF No. 20,

1 and state the following in support of their

Opposition:

INTRODUCTION

On August 11, 2022, Plaintiffs filed this action against Defendants due to the specific

injuries Plaintiffs will suffer because of Defendants’ near-complete overhaul of the regulatory

landscape surrounding firearms in this country—down to the regulatory redefinition of the term

“firearm” itself. Defendants’ Final Rule is so broad, and will cause such expansive harm, that three

separate lawsuits have been filed, including this one, alleging various flaws with the Final Rule

and detailing the harms that will be suffered by differently situated individuals, companies, and

states should the Final Rule go into effect. See Notice of Related Cases, ECF No. 3.

Upon this Court setting a briefing schedule to resolve Plaintiffs’ Motion for Preliminary

Injunction, Defendants filed a motion seeking to transfer Plaintiffs’ case, which has been properly

brought in this District, to a forum non conveniens. Plaintiffs’ action, while challenging the same

Final Rule at issue in the District of North Dakota and the Southern District of Texas, addresses

distinct harm suffered by Plaintiffs here, was brought in this District due to Plaintiffs’ substantial

ties here, and offers unique arguments as to the flawed nature of Defendants’ Final Rule.

Defendants should not be allowed to force Plaintiffs into an inappropriate forum simply because

1 Unless otherwise specified, all ECF citations are to the electronically maintained docket

for the case before this Court.

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their Final Rule is so broad that it negatively impacts millions of Americans, companies, and states

across the nation—especially when Defendants have selectively invoked the First-to-File rule.

In the alternative, Defendants request this Court extend its established briefing schedule on

Plaintiffs’ Motion for Preliminary Injunction. Ironically, Defendants argue that “any purported

emergency is[] entirely of Plaintiffs’ own making,” ECF No. 20, at 5, when one of the predominate

reasons Plaintiffsfiled thislitigation is because of Defendants’ failure to timely respond to Plaintiff

Tactical Machining’s request for classification of an item under the Final Rule—which letter

Tactical Machining sent to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) on

April 12, 2022, the day after Defendants announced the Final Rule, ECF No. 16-1, ¶ 9, Ex. 2.

Moreover, Defendants’ argument is self-defeating. Defendants argue that this case is substantially

similar to Division 80, LLC v. Garland, where Defendants have already filed a Response to

Division 80’s Motion for Preliminary Injunction, but Defendants need more time to respond to

what they argue to be a substantially similar Motion here. ECF No. 20 (“And the preliminary

injunction motionsin both cases present very similar arguments.”).

2 In reality, Defendants’ request

will substantially harm Plaintiffs—and every day Plaintiffs are not protected from the overreach

and uncertainty resulting from the Final Rule is a day that Plaintiffs are irreparably harmed, which

may result in potential criminal liability and possibly even the end of Plaintiff Tactical

Machining’s business.

ARGUMENT

Plaintiffs’ challenge to Defendants’ Final Rule is properly situated in this Court, and

Defendants’ attempt to invoke the First-to-File rule in this case, and not in others, is based on

2 Defendants have also already filed a response to the Morehouse plaintiffs’ motion for

preliminary injunction. See Morehouse v. ATF, No. 3:22-cv-00116 (D.N.D.), ECF No. 43.

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distinguishable case law and a false equivalency between Plaintiffs’ suit and Division 80, LLC v.

Garland. Defendants’ argument is unpersuasive and should be summarily rejected. Moreover,

Defendants’ request for an extension of time is equally unpersuasive, especially in light of

Defendants’ own failure to respond to Plaintiff Tactical Machining, and should be equally denied.

I. This Case Should Not be Transferred to the Southern District of Texas because the

First-to-File Rule is Inapplicable to the Case at Hand

The First-to-File rule is a doctrine based on principles of comity. “The ‘first-to-file’ rule is

a generally recognized doctrine of federal comity which permits a district court to decline

jurisdiction over an action when a complaint involving the same parties and issues has already

been filed in another district.” Tex. Instruments, Inc. v. Micron Semiconductor, Inc., 815 F. Supp.

994, 997 (E.D. Tex. 1993) (emphasis added) (citing Kerotest Mfg. Co. v. C-O-Two Fire Equip.

Co., 342 U.S. 180 (1952)). “Exceptions, however, are not rare, and are made when justice or

expediency requires, as in any issue of choice of forum.” Genentech, Inc. v. Eli Lilly & Co., 998

F.2d 931, 937 (Fed. Cir. 1993); see SIPCO, LLC v. Emerson Elec. Co., No. 6:15-cv-907, 2016 WL

7743496, at *12 (E.D. Tex. July 1, 2016) (quoting Genetech); LifeNet, Inc. v. U.S. HHS, No. 6:22-

cv-162-JDK, 2022 WL 2959715, at *13 (E.D. Tex. July 26, 2022) (same).

A. The Parties are Distinct, Unrelated, and Plaintiffs have No Ties to the Lawsuit

in the Southern District of Texas

The First-to-File rule is most commonly applied when multiple substantially similar parties

have filed lawsuits against one another, or the same party has filed multiple lawsuits against the

same defendant, in different district courts in the United States. In fact, it is so commonly applied

in cases of that character that every case Defendants cite, except a single (out of Circuit) case from

1975, falls into one of those categories. Moreover, those cases also all involve private parties that

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are already involved in cases in the competing districts or have substantial ties to those districts or

the existing parties.

For example, West Gulf Maritime Association v. ILA Deep Sea Local 24, which is cited by

Defendants, involves a dispute between a labor union (“ILA”) and an employers’ association

(“West Gulf”). 751 F.2d 721, 722 (5th Cir. 1985). There, ILA filed suit in the Southern District of

New York against West Gulf. Id. West Gulf tried to transfer the case to Texas, but the court denied

the motion because the court “ruled that it had jurisdiction of West Gulf.” Id. at 723–24. And yet,

while the transfer motion was pending, West Gulf filed the cited action in the Southern District of

Texas against ILA. Id. at 724. Four days after the Southern District of New York denied West

Gulf’s motion to transfer, West Gulf filed a motion for preliminary injunction in the Southern

District of Texas, which the court granted. Id. at 724. On appeal, the Fifth Circuit applied the Firstto-File rule to vacate the Texas preliminary injunction because the same parties and “the same

issues” were properly before the Southern District of New York, thus comity dictated the Texas

court not intrude upon the New York court. Id. at 730, 732.

Save Power Limited v. Syntek Finance Corporation is also heavily cited by Defendants but

is equally distinguishable. 121 F.3d 947 (5th Cir. 1997). In Save Power, the district court denied

Save Power’s motion to transfer the case to “a different judge in the same division before whom a

previously filed, related action is pending.” Id. at 948. While Syntek was not a party to the

previously filed case, Syntek filed a motion for leave to intervene in that case, which it voluntarily

withdrew prior to any opposition from Save Power or order from the court. Id. at 951. Accordingly,

the Fifth Circuit invoked the First-to-File rule in finding that the district court abused its discretion

in denying Save Power’s motion to transfer to a different judge in the same district. Id. at 952.

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Nearly every case Defendants cite follows this completely distinguishable pattern. The

only case seemingly relevant on its face, National Health Federation v. Weinberger, Defendants

read from a thousand-foot view, categorizing it as a similar case because “[t]wo sets of plaintiffs

filed suit against the same government defendant challenging the issuance of two FDA

regulations.” ECF No. 20, at 3 (citing Nat’l Health Fed’n v. Weinberger, 518 F.2d 711 (7th Cir.

1975)). Upon closer inspection, however, “[a]nother factor convince[d] [the court] that

discretionary dismissal [was] equitable.” Nat’l Health Fed’n, 518 F.2d at 714.

In National Health Federation, two suits were brought against the FDA—one in the

Southern District of New York (filed first) and the other in the Northern District of Illinois (filed

second). Id. Importantly, “[c]omparison of the complaint [in Illinois] with the one filed in New

York makes it clear that the issues raised in both complaints are identical[.]” Id. at 713 (emphasis

added).

In dismissing the second suit, the court also considered the fact that the Federation plaintiff

had “no particular ties to the Northern District of Illinois[.]” Id. at 714. Although one individual

plaintiff, a member and president of one of the Federation plaintiff’s chapters, “resides within the

District, it is undisputed that the Federation [plaintiff] maintains a chapter within the confines of

the Sothern District of New York.” Id. The court also considered the fact that counsel for plaintiffs

knew of the Southern District of New York lawsuit and “thissuit could have been as easily brought

in the Southern District of New York[.]” Id.

Here, Plaintiffs have no ties to the lawsuit in the Southern District of Texas, nor have

Defendants asserted that Plaintiffs have such ties. While both lawsuits are based on the same Final

Rule, the similarities end there. Division 80 is merely a distributor of items that are newly regulated

under the Final Rule. ECF No. 20-1, ¶ 6. Tactical Machining, on the other hand, is a producer and

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retailer of the items at issue, has sales in this District, has submitted numerous items to the ATF

for specific classification, has received non-firearm classifications for every item it sells directly

to consumers, and specifically requested the ATF re-classify one of those previously classified

non-firearms on April 12, 2022, the day after Defendants announced their Final Rule—to which

the ATF still hasn’t responded. Declaration of Darren Peters, Sr. (“Peters Decl.”), ECF No. 16-1,

¶ 9‒10. Division 80 has never asked the ATF for a classification letter regarding its products,

because it does not produce anything.

Moreover, there are no individual plaintiffs in Division 80. See, ECF No. 20-1, ¶ 1. Here,

Plaintiff VanDerStok and Plaintiff Andren both reside in this District, both own items (or firearms

manufactured from those items) that would be newly regulated under the Final Rule, and both have

concrete plans to continue to purchase those items directly from retailers but for the Final Rule.

Declaration of Jennifer VanDerStok (“VanDerStok Decl.”), ECF No. 16-2, ¶ 7‒9; Declaration of

Michael G. Andren (“Andren Decl.”), ECF No. 16-3, ¶ 6‒9. The fact that the Defendants are the

same in both actions does not overcome the distinct nature of the parties in the two lawsuits and

the different ways the Final Rule will affect them as a result.

Additionally, while Plaintiffs’ counsel were aware of Division 80, Plaintiffs could not have

brought this case in the Southern District of Texas, therefore National Health Federation, as well

as any convenience factors that would weigh against Plaintiffs, are inapplicable. 28 U.S.C.

§1404(a) allowsfor transfer of venue “[f]or the convenience of parties and witnesses, in the interest

of justice” and notes, “a district court may transfer any civil action to any other district or division

where it might have been brought[.]” The Southern District of Texas, however, has found:

As an initial matter, it must be noted that ‘where it might have been brought’

language refers to the statutes and governing jurisdiction and venue in the federal

courts. . . . Thus, a court may not grant a section 1404(a) motion to transfer unless,

at the time the suit was filed, venue could have been properly laid in the proposed

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transferee court and that court could have exercised subject matter jurisdiction over

the action and personal jurisdiction over all the defendants.

Cont’l Airlines, Inc. v. Am. Airlines, Inc., 805 F. Supp. 1392, 1394 (S.D. Tex. 1992).

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 business transactions in this District; and Plaintiff FPC has members that reside in this District,

which include Plaintiffs Andren, VanDerStok, and Tactical Machining. Venue could not have been

properly laid in the transferee court. Plaintiffs VanDerStok and Andren would have been barred

from bringing suit in the Southern District of Texas. Moreover, it would be costly, inconvenient,

and unnecessary for Plaintiffs VanDerStok and Andren to drive nearly five and a half hours—over

300 miles3—to the courthouse in Galveston, Texas, when the Court in the Northern District of

Texas is better suited to vindicate Plaintiffs’ rights.

B. The Issues Between the Two Cases Are Sufficiently Distinct

In response, Defendants would likely attempt to argue that the issues presented in both

Division 80 and this case are substantially similar, and thus weigh in favor of their motion to

transfer. That argument is equally unappealing.

First and foremost, Defendants conspicuously omit any mention of Morehouse, LLC v.

Bureau of Alcohol, Tobacco, Firearms and Explosives, which was filed two months after Division

80 and challenges the same Final Rule. See ECF No. 3 (notice of related cases). And yet,

3 Even if convenience factors were considered, a “100-mile rule” exists to show hardship

and inconvenience on witnesses. See In re Volkswagen of America, Inc., 545 F.3d 304, 317 (5th

Cir. 2008) (“When the distance between an existing venue for trial of a matter and a proposed

venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases

in direct relationship to the additional distance to be traveled.”) (internal quotation and citation

omitted). Plaintiffs driving over 300 miles would certainly tip in favor of continuing the lawsuit in

the current venue.

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Defendants have made no attempt to transfer Morehouse to the Southern District of Texas.

Plaintiffs cannot ascertain why Defendants believe they would be prejudiced by this case

remaining in the Northern District of Texas, but not by Morehouse remaining in the District of

North Dakota. Or why Defendants do not believe that comity requires the Morehouse court to

defer to the Division 80 court, but does require this court to defer to the Division 80 court. In fact,

not only have Defendants omitted any mention of Morehouse in their motion and have not

attempted to transfer the Morehouse case, they have also not even attempted to stay that case. See

Docket, Morehouse v. ATF, No. 3:22-cv-00116 (D.N.D.). Even when deadlines in the two cases

almost conflicted, Defendants merely requested an extension in Morehouse: “Counsel for

Defendants have many substantial work commitments during the next two weeks, including

preparing for and traveling to a preliminary injunction hearing on August 9 in a parallel action

challenging this Rule, Division 80 v. Garland, No. 3:22-cv-00148 (S.D. Tex.), and taking a

deposition in the Division 80 action on August 2.” Defs.’ Mot. For Extension of Time, Morehouse,

ECF No. 15, ¶ 2 (emphasis added). Defendants admit the cases are “parallel” and yet did not

request a transfer—or even a stay—under the First-to-File rule in North Dakota.

Moreover, the nature of APA litigation means that when an agency promulgates a final rule

with significant regulatory changes, millions of Americans will be potentially impacted by the

same agency action. If Defendants’ argument is taken to its logical conclusion, every single

individual, corporation, or state would be prohibited from litigating in the venue most appropriate

to them if they were not the first party to file. If a pro se individual had challenged this Final Rule

in Alaska, Defendants’ position would mean that they could force every other individual,

corporation, and state to litigate their case in the District of Alaska. This is obviously untenable

and is certainly not common in APA litigation.

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In fact, Louisiana v. Biden specifically addresses the issue of overlap in the context of APA

suits. 538 F. Supp. 3d 649 (W.D. La. 2021). In Louisiana v. Biden, the court looked to the context

of two lawsuits, the first brought in Wyoming and the second brought in Louisiana, challenging

an Executive Order that “ordered the Secretary of the Interior to pause new oil and gas leases on

public lands or in offshore waters . . . .” Id. at 653. There, like here, the government moved to

transfer the Louisiana case under the First-to-File rule. But the court determined that while the two

cases made some of the same claims, “[o]nly the Wyoming suit makes claims under the

FLPMA . . . and under the NEPA,” and “[o]nly the Louisiana suit makes direct claims to attack

the constitutionality and validity of Section 208 of Executive Order 14008 and makes claims under

the OCSLA.” Id. at 656. “Where there is less than complete overlap (as the Government

Defendants concede), the determination is made on a case-by-case basis, based upon such factors

as the extent of overlap, the likelihood of conflict, and the interest of each forum in resolving the

suit.” Id. at 656–57. The court considered the distinct claims to determine that “the extent of

overlap is not great,” that the parties to the Louisiana suit had a substantial interest in having the

suit heard in their chosen forum, and that the plaintiffs alleged “a substantial financial interest” in

the lawsuit when the court denied the government’s motion to transfer the case. Id. at 657.

Viewed through those lenses, it is clear that Plaintiffs and Division 80 advance sufficiently

distinct claims and arguments. For example, Plaintiffs extensively address the negative impacts of

Defendants’ new definition of “complete weapon,” the Agencies’ failure to adequately explain

their change in position on striker-fired pistols and split-frame receivers, the uncertainty facing

purchasers that have to attempt to interpret the Final Rule or face criminal penalties, and Plaintiff

Firearms Policy Coalition’s comments on the Proposed Rule, as well as a Take Care Clause claim

and more—none of which appear in Division 80’s Complaint. Compare ECF No. 1, with ECF No.

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20-1. Because Division 80 does not have any individual plaintiffs, it is ill-equipped to advance any

claim or argument regarding the impact of the Final Rule on individuals such as Plaintiffs

VanDerStok and Andren. By contrast, Division 80 extensively addresses the definition of

“readily,” the definition of “privately made firearms,” and the Agencies’ failure to provide a

concise general statement of its basis and purpose, as well as advancing Commerce Clause and

Takings claims—none of which appear in Plaintiffs’ Petition for Judicial Review. See ECF No.

20-1, at 32–39. Moreover, as discussed above, Division 80 is merely a distributor of items

implicated by the final rule, while Plaintiff Tactical Machining is a producer and retailer of those

items, and has repeatedly undergone the classification process, while Division 80 has not. Division

80 is not equipped to address the problems with classification, and the uncertainty that the new

discretionary elements of classification pushes onto producers.

Plaintiffs readily admit that their case, Division 80, and Morehouse are all “related.” But

they are not so substantially related that comity requires this Court to defer to another court’s

adjudication. Especially when Defendants do not argue, or believe, that all courts are required to

follow to the First-to-File rule—just this one.

II. Defendants Are Not Entitled to an Extension of Time to Respond to Plaintiffs’

Motion for Preliminary Injunction

This Court should deny Defendants’ request for an extension of time to respond to

Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs filed their Motion and Brief in Support on

August 17, 2022. ECF Nos. 15, 16. Just hours later, “to expedite resolution of the motion,” this

Court sua sponte ordered expedited briefing. ECF No. 17. That order is well within the Court’s

discretion. See N.D. Tex. Civ. R. 83.1 (“[A] presiding judge may direct the parties to proceed in

any manner that the judge deems just and expeditious.”). Nevertheless, Defendants seek to extend

the deadline to file their response brief. ECF No. 20, at 4–5.

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Good cause exists for the Court’s expedited briefing schedule. As Defendants are aware,

the Final Rule goes into effect on August 24, 2022. Defendants have repeatedly declined Plaintiffs’

request for Defendants to voluntarily postpone the effective date of the Final Rule pursuant to 5

U.S.C. § 705. Worse, Plaintiff Tactical Machining submitted a classification request to the ATF

the day after the Final Rule was announced. Peters Decl., ECF No. 16-1, ¶ 9. Defendant ATF has

failed to respond to Plaintiff Tactical Machining for over three months. Id. at ¶ 10. Had the ATF

responded to Plaintiff Tactical Machining in a timely manner, Plaintiff Tactical Machining may

not have been forced to initiate this lawsuit against Defendants. It is ironic that Defendants invoke

inordinate delay to support their argument, when it is their inordinate delay in responding to

Plaintiff Tactical Machining that is a primary cause of this action.

As it stands, the expedited briefing schedule already concludes after the Final Rule is set

to take effect, subjecting Plaintiffs to the threat of irreparable harm. As addressed in Plaintiffs’

Brief in Support of Their Motion, Plaintiff Tactical Machining will suffer up to a 95% loss in its

business. Plaintiffs VanDerStok and Andren will be tossed into a regulatory nightmare, where they

cannot be certain what they can or cannot purchase based on Defendants’ confusing and vague

Final Rule. Any further extension may operate as a functional denial of Plaintiffs’ Motion,

depending on whether Plaintiffs can bear the effects of the Final Rule for the time it takes to resolve

the Motion.

Moreover, Defendants’ claim that Plaintiffs’ failure to file their Preliminary Injunction

sooner constitutes “unreasonable delay” negating the need for expedited consideration, ECF No.

20, at 5, is unpersuasive. On April 26, 2022, the Agencies published their Final Rule, consisting

of 394 pages upending over five decades of precedent. Then, in June, the Supreme Court issued

its opinion in New York State Rifle & Pistol Association, Inc., v. Bruen, 142 S. Ct. 2111 (2022),

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further changing the legal landscape related to firearms. Preparation to bring Plaintiffs’ case

involved parsing hundreds of pages of agency regulations as well as extensive legal research. Still,

Plaintiffs filed their Petition and Motion for Preliminary Injunction before the Final Rule goes into

effect.

In fact, on August 19, 2022—115 days after publishing the Final Rule, and just five days

before it is set to go into effect—the Agencies published a notice of Corrections to the Final Rule.

Definition of “Frame or Receiver” and Identification of Firearms; Corrections (“Corrections”),

(filed August 19, 2022).4 It is completely reasonable that Plaintiffs filed this case and their Motion

in August when the Agencies themselves are still reviewing and correcting their own errors,

corrections that affect definitions at issue in Plaintiffs’ Petition.

Defendants’ claim is further undermined by their actions in Division 80 and Morehouse. In

Morehouse, the government sought an extension of time to respond to plaintiff’s preliminary

injunction motion by August 24, precisely on the date the Final Rule is set to go into effect. See

Pl.’s Opp’n to Def.’s Mot. for Extension of Time, Morehouse, ECF No. 18, at 5. Similarly, in

Division 80, the government sought discovery on the plaintiff through August 17 or August 24—

again, the date the Final Rule is set to go into effect. See Pl.’s Opp’n to Defs.’ Mot. for Leave to

Conduct Disc., Division 80, ECF No. 33, at 3. Thus, even if Plaintiffs here had brought their case

weeks (or even months) earlier, it appears likely Defendants would have attempted to drag the

briefing period up to or beyond the Final Rule’s effective date.

In their Motion, Defendants allude to the fact that they have already responded to a similar

Motion for Preliminary Injunction in Division 80. See Resp. in Opp’n to Opposed Mot. for Prelim.

4 The Corrections to the Final Rule are available at https://www.federalregister.gov/publicinspection/2022-17741/definition-of-frame-or-receiver-and-identification-of-firearmscorrections.

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Inj., Division 80, ECF No. 16. They have similarly responded to the Motion for Permanent

Injunction in Morehouse. See Defs.’ Opp’n to Pls.’ Mot. for Prelim. and/or Permanent Inj.

Morehouse, ECF No. 43. Thus, by Defendants’ reckoning, a substantial portion of the work to

respond to Plaintiffs’ Motion in this case should already be done. Additionally, the Department of

Justice is a massive organization with thousands of attorneys. The “absences of key personnel

during the month of August, as well as the press of business and other litigation,” ECF No. 20, at

5, should not outweigh Plaintiffs’ need for timely relief to avoid potential criminal penalties

imposed by Defendants’ vague and convoluted Final Rule.

If Defendants truly believe they need more time than this Court has ordered to adequately

respond to Plaintiffs’ Motion for Preliminary Injunction, there are avenues available to them. For

instance, Defendants could voluntarily agree to Plaintiffs’ request to postpone the effective date of

the Final Rule pursuant to 5 U.S.C. § 705, which would obviate the need for the expedited briefing

schedule—and, potentially, the need for a preliminary injunction. 5 U.S.C. § 705 (“When an

agency finds that justice so requires, it may postpone the effective date of action taken by it,

pending judicial review.”).

CONCLUSION

Plaintiffs respectfully request that this Court deny Defendants’ Motion to Transfer Case

Pursuant to the First-to-File Rule, or in the Alternative, for an Extension of Time, ECF No. 20, in

its entirety.

Case 4:22-cv-00691-O Document 24 Filed 08/19/22 Page 17 of 19 PageID 354
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DATED this 19th day of August, 2022.

Respectfully submitted,

R. Brent Cooper (TX Bar No. 04783250)

COOPER & SCULLY, P.C.

900 Jackson Street, Suite 100

Dallas, TX 75202

Telephone: (214) 712-9500

Telecopy: (214) 712-9540

brent.cooper@cooperscully.com

/s/ Cody J. Wisniewski

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

FIREARMS POLICY COALITION

5550 Painted Mirage Road, Suite 320

Las Vegas, NV 89149

Telephone: (916) 378-5785

Telecopy: (916) 476-2392

cwi@fpchq.org

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

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

MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80227

Telephone: (303) 292-2021

Telecopy: (877) 349-7074

kschiraldi@mslegal.org

eerhardt@mslegal.org

*Admitted pro hac vice

Attorneys for Plaintiffs

Case 4:22-cv-00691-O Document 24 Filed 08/19/22 Page 18 of 19 PageID 355
15

CERTIFICATE OF SERVICE

I hereby certify that, on August 19, 2022, a true and correct copy of the foregoing document

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

/s/ Cody J. Wisniewski

Cody J. Wisniewski

FIREARMS POLICY COALITION

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