UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

DIVISION 80 LLC, 

 

Plaintiff, 

 

 

v. 

 

 

MERRICK GARLAND, Case No. 3:22-CV-00148

in his official capacity as 

Attorney General of the United States, 

 

UNITED STATES DEPARTMENT OF 

JUSTICE, 

 

GARY RESTAINO, 

in his official capacity as 

Acting Director of the Bureau of Alcohol,

Tobacco, Firearms, and Explosives,

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS, AND EXPLOSIVES,

 

Defendants. 

PLAINTIFF’S EMERGENCY MOTION

FOR A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................... iv

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

STATEMENT OF FACTS ....................................................................................3

I. ATF Has Long Stated That Unfinished Parts 

of a Firearm Are Not “Firearms” Under the 

Gun Control Act................................................................................3

II. The Biden Administration Announces 

That It “Will Not Wait for Congress to Act 

to Take Its Own Steps” on Gun Control ..........................................8

III. The Final Rule Will Completely Destroy

Division 80’s Business ................................................................... 13

ARGUMENT ...................................................................................................... 15

I. Division 80 is Likely to Succeed on the Merits ............................ 15

A. The Final Rule Exceeds Defendants’ Statutory 

Authority and Violates the Separation of Powers 

by Attempting to Rewrite Federal Statutes ....................... 16

1. The Final Rule’s Purported Definitions of 

the Terms “Frame or Receiver” and “Firearm”

Are Not Authorized by Statute ................................ 17

i. Current Law Already Defines the Terms

“Frame or Receiver” and “Firearm”................ 17

ii. The Final Rule Seeks to Drastically 

Expand ATF’s Regulatory Jurisdiction 

Through Its Purported Definition of a 

“Frame or Receiver”......................................... 18

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iii. The Final Rule Changes the Definition

of a “Firearm,” Which Currently Tracks 

the Four Statutory Categories of 

“Firearms,” by Adding a Fifth Category 

With No Basis in the Statutory Text.............. 23

2. The Final Rule Imposes Unlawful Regulations 

on “Privately Made Firearms”................................... 28

3. Defendants Are Not Entitled to Chevron

Deference Because the Final Rule Defines 

the Substantive Scope of Federal Crimes, 

Triggering the Rule of Lenity.................................... 30

B. The Final Rule is Unconstitutionally Vague

and Effectuates an Unconstitutional Delegation 

of Legislative Authority....................................................... 33

C. The Final Rule is Arbitrary, Capricious, and an 

Abuse of Discretion.............................................................. 37

1. The Final Rule is Internally Self-Contradictory...... 38

2. ATF Does Not Reasonably Explain its Departure 

From its Longstanding Prior Legal Position............ 44

3. ATF’s Stated Explanation for the Final Rule 

is a Pretext for Defendants’ True Goal of 

Unlawfully Expanding ATF’s Jurisdiction .............. 49

4. ATF Did Not Adequately Consider Alternative 

Regulatory Approaches.............................................. 51

D. The Final Rule Was Adopted Without Observance

of Procedure Required by Law ............................................ 54

II. Division 80 Will Suffer Irreparable Harm 

if an Injunction is Not Granted..................................................... 56

A. The Final Rule Will Put Division 80 Out of Business ....... 56

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B. ATF is Attempting to Enforce the Final Rule Prior to 

its Effective Date Through Cease-and-Desist Letters ....... 58

C. The Scope of Injunctive Relief Must Be Nationwide 

to Preserve the Status Quo and Allow Division 80 

to Continue Doing Business ................................................ 61

III. Temporary Relief Would Not Harm

Defendants or the Public ............................................................... 62

IV. The Court May Postpone the 

Final Rule’s Effective Date............................................................ 63

CONCLUSION................................................................................................... 64

INDEX OF EXHIBITS............................................................................Appendix

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TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States, 

295 U.S. 495 (1935) ........................................................................................ 37

AFL-CIO v. Donovan, 

757 F.2d 330 (D.C. Cir. 1985) ........................................................................ 55

Allentown Mack Sales & Serv., Inc. v. NLRB, 

522 U.S. 359 (1998) ........................................................................................ 37

Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 

875 F.2d 1174 (5th Cir. 1989) ........................................................................ 57

BST Holdings, LLC v. OSHA, 

17 F.4th 604 (5th Cir. 2021)........................................................................... 63

Business Roundtable v. SEC, 

647 F.3d 1144 (D.C. Cir. 2011) ...................................................................... 54

Carter v. Welles-Bowen Realty, Inc., 

736 F.3d 722 (6th Cir. 2013) .......................................................................... 31

Chamber of Commerce of U.S.A. v. U.S. Dep’t of Labor, 

885 F.3d 360 (5th Cir. 2018) .................................................................... 22, 46

City of Arlington v. FCC, 

668 F.3d 229 (5th Cir. 2012) .......................................................................... 35

City of Dallas v. Delta Air Lines, Inc., 

847 F.3d 279 (5th Cir. 2017) .......................................................................... 15

Corrosion Proof Fittings v. EPA, 

947 F.2d 1201 (5th Cir. 1991) .................................................................. 51, 53

Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 

600 F.2d 1184 (5th Cir. 1979)......................................................................... 16

Del. Dep’t of Natural Res. & Envtl. Control v. EPA, 

785 F.3d 1 (D.C. Cir. 2015) ...................................................................... 44, 54

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Dep’t of Commerce v. New York, 

139 S. Ct. 2551 (2019) .................................................................................... 49

DHS v. Regents of the Univ. of Cal., 

140 S. Ct. 1891 (2020) .................................................................................... 46

Encino Motorcars, LLC v. Navarro, 

579 U.S. 211 (2016) ........................................................................................ 22

Family Rehab., Inc. v. Azar, 

3:17-CV-3008, 2018 WL 3155911 (N.D. Tex. June 28, 2018)........................ 16

Farmers Union Cent. Exch., Inc. v. FERC, 

734 F.2d 1486 (D.C. Cir. 1984) ................................................................ 44, 54

FCC v. Fox Television Stations, Inc., 

567 U.S. 239 (2012) ........................................................................................ 33

FCC v. Prometheus Radio Project, 

141 S. Ct. 1150 (2021) .................................................................................... 38

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) .................................................................................. 21, 27

Green Valley Special Utility Dist. v. City of Schertz, 

969 F.3d 460 (5th Cir. 2020) .......................................................................... 62

Gulf Fishermens Ass’n v. Nat’l Marine Fisheries Serv., 

968 F.3d 454 (5th Cir. 2020) .......................................................................... 27

IHG Healthcare, Inc. v. Sebelius, 

CV H-09-3233, 2010 WL 11680368 (S.D. Tex. Apr. 1, 2010) ....................... 64

Jarkesy v. SEC, 

--- F.4th ----, No. 20-61007, 2022 WL 1563613 (5th Cir. 2022) .................... 37

Jiao v. Xu, 

28 F.4th 591 (5th Cir. 2022)........................................................................... 57

Leggett & Platt, Inc. v. NLRB, 

988 F.3d 487 (D.C. Cir. 2021) .................................................................. 47, 52

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Leocal v. Ashcroft, 

543 U.S. 1 (2004) ............................................................................................ 30

Miss. Power & Light Co. v. United Gas Pipe Line Co., 

760 F.2d 618 (5th Cir. 1985) .......................................................................... 15

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. 

State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .................................................................................... 38, 51

N.Y. Progress & Prot. PAC v. Walsh, 

733 F.3d 483 (2d Cir. 2013)............................................................................ 63

Nat’l Ass’n of Home Builders v. EPA, 

682 F.3d 1032 (D.C. Cir. 2012) ...................................................................... 54

Safety Nat’l Cas. Corp. v. DHS, 

CV H-05-2159, 2005 WL 8168878 (S.D. Tex. Dec. 9, 2005) ......................... 64

Sessions v. Dimaya, 

138 S. Ct. 1204 (2018) .............................................................................. 33, 36

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

989 F.3d 368 (5th Cir. 2021) .................................................................... 55, 56

Tex. Pipeline Ass’n v. FERC, 

661 F.3d 258 (5th Cir. 2011) .................................................................... 20, 35

Texas v. Biden, 

10 F.4th 538 (5th Cir. 2021)........................................................................... 51

Texas v. EPA, 

829 F.3d 405 (5th Cir. 2016) .......................................................................... 64

Texas v. Seatrain Int’l, S.A., 

518 F.2d 175 (5th Cir. 1975)........................................................................... 16

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015) .................................................................... 62, 63

Texas v. United States, 

95 F. Supp. 3d 965 (N.D. Tex. 2015).............................................................. 64

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United States v. Jimenez, 

191 F. Supp. 3d 1038 (N.D. Cal. 2016).......................................................... 52

United States v. Thompson/Center Arms Co.,

504 U.S. 505 (1992) ....................................................................................... 31

Util. Air Regulatory Grp. v. EPA (UARG), 

573 U.S. 302 (2014) .................................................................................. 21, 30

Wages & White Lion Investments, LLC v. FDA, 

16 F.4th 1130 (5th Cir. 2021)......................................................................... 38

Statutes

18 U.S.C. § 921................................................................................................... 17

18 U.S.C. § 921(a)(3)...................................................................................passim

18 U.S.C. § 921(a)(3)(B)....................................................................................... 1

18 U.S.C. § 922(g) .............................................................................................. 32

18 U.S.C. § 923(a) .............................................................................................. 31

18 U.S.C. § 923(i) ............................................................................................... 31

18 U.S.C. § 924(a)(1).......................................................................................... 32

18 U.S.C. § 930(a) .............................................................................................. 32

5 U.S.C. § 553(b)(3)............................................................................................ 54

5 U.S.C. § 705............................................................................................... 63, 64

5 U.S.C. § 706(2)(A) ........................................................................................... 38

5 U.S.C. § 706(2)(A)–(C) .................................................................................... 16

5 U.S.C. § 706(2)(B) ........................................................................................... 34

5 U.S.C. § 706(2)(D) ........................................................................................... 38

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Rules

27 C.F.R. § 478.11 .................................................................................. 17, 18, 23

27 C.F.R. § 479.11 .............................................................................................. 18

Definition of “Frame or Receiver” and 

Identification of Firearms, 

86 Fed. Reg. 27,720 (May 21, 2021)............................................. 10, 25, 26, 29

Definition of “Frame or Receiver” and 

Identification of Firearms, 

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

Other Authorities

AR-00: 0% Receiver, GHOST GUNNER, 

https://ghostgunner.net/zero-percent/ ........................................................... 48

Attorney General Garland’s Full Remarks on Gun Violence Prevention 

at the White House Rose Garden, U.S. DEP’T OF JUSTICE

(Apr. 8, 2021), http://www.justice.gov/opa/speech/attorneygeneral-garland-s-full-remarks-gun-violence-preventionwhite-house-rose-garden................................................................................ 10

FACT SHEET: Biden-Harris Administration Announces Initial 

Actions to Address the Gun Violence Public Health Epidemic, 

WHITE HOUSE (Apr. 7, 2021), https://www.whitehouse.gov/

briefing-room/statements-releases/2021/04/07/fact-sheetbiden-harris-administration-announces-initial-actions-toaddress-the-gun-violence-public-health-epidemic/ .......................................... 9

Fed. Defs.’ Mot. Dismiss, California v. ATF, 

No. 3:20-CV-06761 (N.D. Cal. Nov. 30, 2020), 

ECF No. 29, 2020 WL 9849685........................................................................ 7

Fed. Defs.’ Mot. for Summ. J., City of Syracuse v. ATF, 

1:20-CV-06885 (S.D.N.Y. Jan. 29, 2021), ECF No. 98.................................... 7

J.D. Tuccille, ATF’s New “Ghost Gun” Rules Are as Clear as Mud, 

REASON (Apr. 11, 2022), https://reason.com/2022/04/11/

atfs-new-ghost-gun-rules-are-as-clear-as-mud/ ....................................... 43, 56

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JSD Supply Legal Relief T-Shirt, JSD SUPPLY, 

https://jsdsupply.com/shop/jsd-supply-legal-relief-t-shirt/ 

(last visited May 17, 2022)............................................................................. 60

Laura Barron-Lopez, Democrats Exasperated With Biden on 

Gun Control, POLITICO (Apr. 8, 2022), https://www.politico.com/

news/2022/04/08/democrats-biden-gun-control-00024097 ........................... 12

Press Release, Everytown for Gun Safety, Breaking: ATF Issues 

First Reported Cease and Desist Order to an Online Ghost Gun 

Kits Seller (May 13, 2022), https://www.everytown.org/press/

breaking-atf-issues-first-reported-cease-and-desist-order-to-anonline-ghost-gun-kits-seller/........................................................................... 60

Remarks by President Biden Announcing Actions to Fight Gun Crime 

and His Nominee for ATF Director, Steve Dettelbach, WHITE HOUSE

(Apr. 11, 2022), https://www.whitehouse.gov/briefing-room/speechesremarks/2022/04/11/press-briefing-by-press-secretary-jen-psaki-april11-2022/........................................................................................................... 12

Remarks by President Biden at a Gun Violence Prevention Task Force 

Meeting, WHITE HOUSE (Feb. 3, 2022),https://www.whitehouse.gov/

briefing-room/speeches-remarks/2022/02/03/remarks-by-presidentbiden-at-a-gun-violence-prevention-task-force-meeting/ ............................. 11

Remarks by President Biden on Gun Violence Prevention, 

WHITE HOUSE (Apr. 8, 2021), https://www.whitehouse.gov/

briefing-room/speeches-remarks/2021/04/08/

remarks-by-president-biden-on-gun-violence-prevention/............................. 9

S. REP. No. 89-1866 (1966)................................................................................. 27

See Glenn Thrush, Dueling Messages Muddle Biden’s Agenda on Guns, 

N.Y. TIMES (Mar. 4, 2022), https://www.nytimes.com/2022/03/04/

us/politics/atf-biden-gun-reform.html ........................................................... 11

Stop Gun Violence: Ghost Guns: Hearing Before the Subcomm. on the 

Constitution, of the S. Comm. On the Judiciary, 117th Cong. 5 

(statement of Sen. Blumenthal), https://www.judiciary.senate.gov/

meetings/stop-gun-violence-ghost-guns ......................................................... 10

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Stop Gun Violence: Ghost Guns: Hearing Before the Subcomm. on the 

Constitution, of the S. Comm. on the Judiciary, 117th Cong. 5 

(testimony of Ashley Hlebinsky), available at

https://www.judiciary.senate.gov/imo/media/doc/

Ashley%20Hlebinsky%20Written%20Testimony%20Final.pdf..................... 1

The Biden Plan to End Our Gun Violence Epidemic, 

BIDEN-HARRIS DEMOCRATS, https://joebiden.com/gunsafety/ ........................ 8

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INTRODUCTION

The United States of America has a long tradition of individuals 

privately making their own firearms, which dates back to the American 

Revolution. “[G]un-making at home was essential to the Continental Army, 

and typically, it was more practical and efficient to assemble [a firearm from 

parts] rather than completely start from scratch.”1 Law-abiding individuals in 

this country have always been allowed to make their own firearms, even after 

the passage of the Gun Control Act of 1968.

The “frame or receiver” of a firearm is the component of the firearm that 

is subject to federal firearms regulations. See 18 U.S.C. § 921(a)(3)(B) (defining 

a “firearm” as including “the frame or receiver of any such weapon”). Today, 

many Americans who choose to make their own firearms do so using frame and 

receiver blanks, also known as “unfinished” or “incomplete” frames and 

receivers, which are raw materials that have undergone some, but not all, of 

the stages of manufacturing necessary to produce a complete, functioning 

firearm frame or receiver.

1 Stop Gun Violence: Ghost Guns: Hearing Before the Subcomm. on the 

Constitution, of the S. Comm. on the Judiciary, 117th Cong. 5 (testimony of 

Ashley Hlebinsky), available at https://www.judiciary.senate.gov/imo/media/

doc/Ashley%20Hlebinsky%20Written%20Testimony%20Final.pdf (Exhibit 1).

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ATF has long held that frame and receiver blanks do not meet the 

definition of a “frame or receiver” or “firearm” under federal law. In reliance 

on ATF’s longstanding position, an industry has emerged in the United States 

selling frame and receiver blanks. Plaintiff Division 80’s principal business is 

the distribution of frame and receiver blanks to lawful businesses that sell

these products to consumers.

President Biden campaigned on a promise to pass legislation to “crack 

down” on the sale of frame and receiver blanks. Though members of Congress 

have introduced such legislation, those attempts have been unsuccessful. 

Frustrated by the constitutional process of bicameralism and presentment, the

Biden Administration now seeks to accomplish its legislative agenda

unilaterally through an unlawful rulemaking. Exhibit 2.

ATF’s own analysis admits that the Final Rule will cause companies like 

Division 80 to “dissolv[e].” Exhibit 3 at 33.2 A nationwide preliminary 

injunction is necessary to preserve the status quo, protect individuals’ right to 

make a firearm for personal use, and prevent the destruction of Division 80, 

its suppliers, and its customers while this Court considers the Final Rule’s 

lawfulness. In light of the Final Rule’s effective date of August 24, 2022, 

Division 80 requests a preliminary injunction as soon as practicable.

2 Pincites for exhibits are to the page number of the PDF in ECF and not the 

document’s internal pagination.

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STATEMENT OF FACTS

I. ATF Has Long Stated That Unfinished Parts of a Firearm Are Not 

“Firearms” Under the Gun Control Act

ATF has long held, and told the public, that unfinished parts of a firearm

do not fall within its regulatory jurisdiction over “firearms.” Its website states:

Are “80%” or “unfinished” receivers illegal?

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

not subject to regulation under the Gun Control Act (GCA). ATF 

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

“machined bodies” in which the fire-control cavity area is 

completely solid and un-machined have not reached the “stage of 

manufacture” which would result in the classification of a firearm

according to the GCA.

Are there restrictions on who can purchase receiver 

blanks?

The Gun Control Act (GCA) does not impose restrictions on 

receiver blanks that do not meet the definition of a “firearm.” . . . .

What is ATF doing in regards to people making their own 

firearms?

An individual may generally make a firearm for personal use. . . . .

Does an individual need a license to make a firearm for 

personal use?

No, a license is not required to make a firearm solely for personal 

use. . . . . 

Exhibits 4, 5, 6, and 7.

ATF’s website includes photographs of receiver blanks that ATF has 

determined not to be firearms:

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Exhibit 4.

For the last several decades, ATF has issued written classification 

determinations to businesses stating that their frame and receiver blank 

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products are not firearms after its Firearms and Ammunition Technology 

Division reviewed product samples from industry. Manufacturers, distributors,

and retailers invested capital, created American jobs, and sold lawful products 

to customers based on their good-faith reliance on ATF’s written classification 

determinations. 

Division 80 has compiled as Exhibit 8 a selection of thirty-six classification 

determinations for frame and receiver blanks from the administrative records

submitted by ATF in California Rifle & Pistol Association Inc. v. ATF, No. 1:14-

CV-01211 (E.D. Cal.), and City of Syracuse v. ATF, 1:20-CV-06885 (S.D.N.Y.).

Some examples are reproduced below for illustrative purposes:

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As recently as November 2020 and January 2021, the Department of 

Justice and ATF defended these classification determinations in litigation 

against gun-control proponents:

Plaintiffs’ challenges to ATF’s classifications also seek to undercut 

the process under which, for decades, ATF has reviewed numerous 

items to determine if they should be classified as “firearms” under 

the GCA, bringing to bear the agency’s technical, scientific, 

mechanical, and legal expertise. Receivers for the AR-15, the most 

common rifle in America, have a space within them called the firecontrol cavity, which accommodates the firing components. The 

longstanding position of ATF is that, where a block of metal (or 

other material) that may someday be manufactured into a receiver 

bears no markings that delineate where the fire-control cavity is 

to be formed and has not yet been even partially formed, that item 

is not yet a receiver . . . .

Fed. Defs.’ Mot. Dismiss at 2, California v. ATF, No. 3:20-CV-06761 (N.D. Cal. 

Nov. 30, 2020), ECF No. 29 at 11, 2020 WL 9849685 (Exhibit 9).

The Record contains classification letters dating back to the 1970s. 

These classification letters make plain that ATF has consistently 

adopted a standard whereby the degree of machining to the frame 

or receiver determined whether the device constituted a 

firearm. . . .

. . . . Not one of the above-noted classification letters made 

reference to the amount of time that would be required to 

transform the given device into a fully functional frame or receiver. 

Further, these letters are only a few of the examples contained in 

the Record of ATF making determinations based on the degree of 

machining performed on the unfinished frame or receiver with no 

reference whatsoever to the time required to transform the device 

into a fully functional frame or receiver.

Fed. Defs.’ Mot. for Summ. J. at 30–32, City of Syracuse v. ATF, No. 1:20-CV06885 (S.D.N.Y. Jan. 29, 2021), ECF No. 98 at 40–42 (Exhibit 10).

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Other documents from the Department of Justice and ATF that reinforce 

ATF’s longstanding legal position—taken from ATF’s administrative record in 

City of Syracuse—are attached as exhibits. See Exhibit 11 (ATF Public Affairs 

Division talking points dated April 9, 2014); Exhibit 12 (ATF technical bulletins 

dated October 28, 2013, and November 1, 2013); Exhibit 13 (ATF Type Firearm 

Visual Reference Guide, undated); Exhibit 14 (article by Assistant United States 

Attorney Shawn Nelson dated November 2015). 

II. The Biden Administration Announces That It “Will Not Wait for 

Congress to Act to Take Its Own Steps” on Gun Control

President Biden campaigned on a promise to “[s]top ‘ghost guns,’” 

referring to firearms “assembl[ed] . . . on [one’s] own . . . by buying a kit of 

disassembled gun parts.”3 Specifically, he promised to “pass[] legislation” to 

“stop the proliferation of these so-called ‘ghost guns.’”

After President Biden took office, members of Congress proposed bills 

changing the way ATF classifies frame and receiver blanks not currently 

defined as firearms. None of those bills have become law. S. 1558, 117th Cong. 

(2021) (Untraceable Firearms Act of 2021, Exhibit 16); H.R. 1454, 117th Cong. 

(2021) (Ghost Guns Are Guns Act, Exhibit 17).

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

DEMOCRATS, https://joebiden.com/gunsafety/ (excerpt at Exhibit 15).

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Because the Biden Administration has not accomplished its legislative

goal through the constitutional process of bicameralism and presentment, it 

now unlawfully seeks to accomplish its goal through unilateral executive 

action.

On April 7, 2021, the Biden Administration announced that President 

Biden was “reiterating his call for Congress to pass legislation.”4 The 

announcement also stated that “this Administration will not wait for Congress 

to act to take its own steps” on gun control. The announcement instructed the 

United States Department of Justice to “within 30 days . . . issue a proposed rule 

to help stop the proliferation” of so-called “ghost guns.”

On April 8, 2021, President Biden, Vice President Harris, and Attorney 

General Garland held a press conference at White House Rose Garden. 

President Biden stated that he “asked the Attorney General and his team to 

identify for me immediate, concrete actions I could take now without having to 

go through the Congress.”5 Attorney General Garland stated in his remarks 

that “the proliferation of the so-called ghost guns” was caused by a “regulatory 

4 FACT SHEET: Biden-Harris Administration Announces Initial Actions to 

Address the Gun Violence Public Health Epidemic, WHITE HOUSE (Apr. 7, 2021), 

https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/07/

fact-sheet-biden-harris-administration-announces-initial-actions-to-addressthe-gun-violence-public-health-epidemic/ (Exhibit 18).

5 Remarks by President Biden on Gun Violence Prevention, WHITE HOUSE (Apr. 

8, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/

04/08/remarks-by-president-biden-on-gun-violence-prevention/ (Exhibit 19).

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loophole” or “gap,”6 even though the proliferation of such products was actually 

the direct result of ATF’s proper legal determination and carefully considered 

decision to issue classification determinations approving the unregulated sale 

of such products.

On May 7, 2021, Attorney General Garland published ATF proposed rule 

2021R–05. Definition of “Frame or Receiver” and Identification of Firearms, 86 

Fed. Reg. 27,720 (May 21, 2021) (Exhibit 21). 

On May 11, 2021, the U.S. Senate Committee on the Judiciary’s 

Subcommittee on the Constitution held a hearing on proposed legislation 

addressing so-called “ghost guns.” At the hearing, Senator Richard Blumenthal 

admitted that one reason he proposed the legislation was that “under federal 

law” frame and receiver blanks are not classified as firearms.7

During the ninety-day comment period for the proposed rule, the public

submitted approximately 290,000 comments on the proposed rule. 

In February 2022, President Biden and Attorney General Garland 

traveled to New York City for a meeting of the Gun Violence Prevention Task 

6 Attorney General Garland’s Full Remarks on Gun Violence Prevention at the 

White House Rose Garden, U.S. DEP’T OF JUSTICE (Apr. 8, 2021), http://

www.justice.gov/opa/speech/attorney-general-garland-s-full-remarks-gunviolence-prevention-white-house-rose-garden (Exhibit 20).

7 Stop Gun Violence: Ghost Guns: Hearing Before the Subcomm. on the 

Constitution, of the S. Comm. On the Judiciary, 117th Cong. 5 (statement of Sen. 

Blumenthal), https://www.judiciary.senate.gov/meetings/stop-gun-violenceghost-guns (stating at 22:19 that “they are guns, except under federal law”).

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Force. At that meeting, President Biden stated that “this spring, the Justice 

Department will issue a final rule to regulate these so-called ‘ghost guns.’”8

As the one-year anniversary of the Biden Administration’s press 

conference at the White House Rose Garden drew near, political pressure 

mounted on the Biden Administration to issue a final rule as soon as possible.

In March 2022, the New York Times reported that then-Acting ATF 

Director Marvin Richardson stated at an industry gathering that ATF was 

expected to announce its Final Rule by June 2022. A Department of Justice 

spokesperson said he “was simply reading from a White House budget office 

document,” but two White House officials told the New York Times that “Mr. 

Richardson had misspoken and that the rule would, in fact, be finished by early 

April.”9 Shortly thereafter, Mr. Richardson was removed from his position as 

Acting Director and replaced with the current Acting Director Gary Restaino.

On April 8, 2022, exactly one year after the President’s press conference 

at the White House Rose Garden, Politico reported that Senator Chris Murphy 

and more than 100 Democrat legislators sent a letter to President Biden on 

8 Remarks by President Biden at a Gun Violence Prevention Task Force 

Meeting, WHITE HOUSE (Feb. 3, 2022), https://www.whitehouse.gov/briefingroom/speeches-remarks/2022/02/03/remarks-by-president-biden-at-a-gunviolence-prevention-task-force-meeting/ (Exhibit 22).

9 See Glenn Thrush, Dueling Messages Muddle Biden’s Agenda on Guns, N.Y.

TIMES (Mar. 4, 2022), https://www.nytimes.com/2022/03/04/us/politics/atfbiden-gun-reform.html (Exhibit 23).

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March 25, 2022, “pressing Biden to take unilateral action on guns,” including 

“[f]inaliz[ing] a regulation to crack down on so-called ghost guns before 

Democrats potentially lose control of Congress.”10 The article noted that 

Democrats were “exasperated” at how much time it was taking for the Biden 

Administration to issue a final rule.

On April 11, 2022, President Biden announced at the White House Rose 

Garden that the Final Rule was complete. President Biden stated that a “year 

ago this week . . . I instructed the Attorney General to write a regulation that 

would rein in the proliferation of ghost guns because I was having trouble 

getting anything passed in the Congress.”11 He explained that the Final Rule’s 

purpose was to make it “illegal to manufacture” weapon parts kits and “[i]llegal 

for a licensed dealer to sell them” without complying with the same regulatory 

requirements governing the manufacture and sale of complete firearms.

The Final Rule was published on April 26, 2022. Definition of “Frame or 

Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022)

(Exhibit 2). It takes effect on August 24, 2022.

10 Laura Barron-Lopez, Democrats Exasperated With Biden on Gun Control, 

POLITICO (Apr. 8, 2022), https://www.politico.com/news/2022/04/08/democratsbiden-gun-control-00024097 (Exhibit 24).

11 Remarks by President Biden Announcing Actions to Fight Gun Crime and 

His Nominee for ATF Director, Steve Dettelbach, WHITE HOUSE (Apr. 11, 2022), 

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/04/11/

press-briefing-by-press-secretary-jen-psaki-april-11-2022/ (Exhibit 25).

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III. The Final Rule Will Completely Destroy Division 80’s Business

Division 80 is a Texas limited liability company with its headquarters in 

Galveston County, Texas. Exhibit 26 at ¶ 3. Its principal business is the 

distribution of frame and receiver blanks, jigs, and tools to build frames and 

receivers to businesses across the country that lawfully market the products to 

retail consumers who wish to exercise their Second Amendment rights by 

making their own firearms. Id. at ¶¶ 3, 5.

Division 80’s products are shipped from out of state to its headquarters. 

Id. at ¶¶ 3–4. Division 80 then ships them to customers that place orders. Id.

at ¶ 5. Most of Division 80’s customers are out of state. Id. at ¶ 6. Division 80 

operates without an ATF license because ATF’s longstanding position has been 

that frame and receiver blanks are unregulated materials. Id. at ¶ 7. 

Consistent with longstanding ATF policy, Division 80 is not required to have a 

federal firearms license to distribute its products, as they are not firearms.

By rewriting the definitions of “firearm” and “frame or receiver,” the 

Final Rule reverses ATF’s longstanding legal position and subjects currently 

unregulated frame and receiver blanks to the same regulatory requirements 

as fully functional firearms. The Final Rule also imposes extensive 

identification and recordkeeping requirements on privately made firearms and 

adds substantial burdens on citizens who exercise their right to make their 

own firearms. 

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If the Final Rule takes effect, it will destroy Division 80’s business. Id.

at ¶¶ 9–14. ATF’s own Regulatory Impact Analysis and Final Regulatory 

Flexibility Analysis acknowledges that it is “unlikely that a significant number 

of non-FFLs [i.e., Federal Firearms Licensees]” will continue to do business and 

non-FFLs will “end up dissolving their businesses.” Exhibit 3 at 33. 

“[E]mployees will lose their jobs” as a result of these businesses dissolving, 

causing “unemployment.” Id. at 43. In its cost-benefit analysis, ATF states that 

“[m]ost costs are attributed to non-FFL manufacturers and dealers dissolving 

because of the final rule.” Id. at 115. 

Under the Final Rule, it would be illegal for Division 80 to continue with 

its business of distributing frame and receiver blanks through mail shipment

across state lines without an FFL. Exhibit 26 at ¶ 12. Furthermore, the 

increased regulatory costs, bureaucratic red tape, and extensive recordkeeping 

requirements that the Final Rule imposes on frame and receiver blanks and 

privately made firearms would wipe out consumer demand for frame and 

receiver blanks. Id. at ¶ 9–10. Finally, with the decrease in consumer demand, 

Division 80’s suppliers would be forced out of business, meaning that Division 

80 would no longer have products to sell. Id. at ¶ 11. 

The Biden Administration’s political rhetoric makes it clear that it seeks

to wipe out the industry for frame and receiver blanks and thereby significantly 

limit the ability of citizens to make their own firearms. The Final Rule is certain 

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to accomplish that goal. Division 80 therefore asks for preliminary injunctive 

relief on a nationwide basis prior to the Final Rule’s effective date of August 24, 

2022, to preserve the status quo, which will allow it to continue engaging in the

lawful, interstate purchase and sale of frame and receiver blanks while the 

Court adjudicates the Final Rule’s lawfulness.

ARGUMENT

Because the Final Rule is unlawful and would destroy Division 80’s

business, Division 80 seeks a preliminary injunction to “preserve the status 

quo and thus prevent irreparable harm until the respective rights of the parties 

can be ascertained.” City of Dallas v. Delta Air Lines, Inc., 847 F.3d 279, 285 

(5th Cir. 2017). Courts look to four factors in deciding whether to grant

preliminary injunctive relief: “(1) a substantial likelihood of success on the 

merits; (2) a substantial threat of irreparable injury; (3) the threatened injury 

to the movant outweighs the threatened harm to the party sought to be 

enjoined; and (4) granting the injunctive relief will not disserve the public 

interest.” Id. The decision on whether to grant preliminary relief is left to the 

district court’s sound discretion. Miss. Power & Light Co. v. United Gas Pipe 

Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

I. Division 80 is Likely to Succeed on the Merits 

A movant “appealing to the conscience of the chancellor to maintain the 

status quo . . . is not required to prove to a moral certainty that his is the only 

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correct position.” Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975).

“As long as the court cannot say there is no likelihood of prevailing on the merits 

but finds the factor of substantial likelihood of success present to some degree, 

then the party seeking the injunction has met its burden.” Family Rehab., Inc. 

v. Azar, 3:17-CV-3008, 2018 WL 3155911, at *3 (N.D. Tex. June 28, 2018) (citing 

Productos Carnic, S.A. v. Cent. Amer. Beef & Seafood Trading Co., 621 F.2d 

683, 686 (5th Cir. 1980)). “A preliminary injunction may issue . . . despite the 

existence of a plausible defense, as long as the movant demonstrates a 

substantial likelihood of success.” Dallas Cowboys Cheerleaders, Inc. v. 

Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979).

A. The Final Rule Exceeds Defendants’ Statutory Authority

and Violates the Separation of Powers by Attempting to 

Rewrite Federal Statutes

The Final Rule’s purported definitions of “frame or receiver” and 

“firearm” are not authorized by statute. Nor are the Final Rule’s regulations of 

“privately made firearms.” For these reasons, the Court should “hold unlawful 

and set aside” the Final Rule on the ground that it attempts to rewrite federal 

statutes without congressional approval in violation of the separation of 

powers. 5 U.S.C. § 706(2)(A)–(C).

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1. The Final Rule’s Purported Definitions of the Terms

“Frame or Receiver” and “Firearm” Are Not 

Authorized by Statute

i. Current Law Already Defines the Terms “Frame 

or Receiver” and “Firearm”

The texts of several key statutory and regulatory provisions are 

reproduced below for the Court’s reference. 

18 U.S.C. § 921(a)(3) 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.”

27 C.F.R. § 478.11 defines a “firearm” in a manner that tracks the 

statutory definition almost verbatim: “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; the frame or receiver of any such weapon; any 

firearm muffler or firearm silencer; or any destructive device; but the term 

shall not include an antique firearm. In the case of a licensed collector, the 

term shall mean only curios and relics.”

18 U.S.C. § 921 does not define “frame or receiver.”

27 C.F.R. § 478.11 provides a one-sentence definition of a “firearm frame 

or receiver” as: “That part of a firearm which provides housing for the hammer, 

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bolt or breechblock, and firing mechanism, and which is usually threaded at 

its forward portion to receive the barrel.” 27 C.F.R. § 479.11 use identical 

language to define a “frame or receiver.”

ii. The Final Rule Seeks to Drastically Expand 

ATF’s Regulatory Jurisdiction Through Its 

Purported Definition of a “Frame or Receiver”

The Final Rule deletes the current one-sentence definition of a “firearm 

frame or receiver” in the federal regulations and replaces it with a new, 

unlawful definition that states in part:

Partially complete, disassembled, or nonfunctional frame or 

receiver. The terms “frame” or “receiver” shall include a partially 

complete, disassembled, or nonfunctional frame or receiver, 

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

readily be completed, assembled, restored, or otherwise converted 

to function as a frame or receiver, i.e., to house or provide a 

structure for the primary energized component of a handgun, 

breech blocking or sealing component of a projective weapon other 

than a handgun, or internal sound reduction component of a 

firearm muffler or firearm silencer, as the case may be. The 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). When issuing a 

classification, the Director may consider any associated templates, 

jigs, molds, equipment, tools, instructions, guides, or marketing 

materials that are sold, distributed, or possessed with the item or 

kit, or otherwise made available by the seller or distributor of the 

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

87 Fed. Reg. at 24,739.

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This definition has no basis in the statutory text. Recall that 18 U.S.C. 

§ 921(a)(3) defines a “firearm” as including “(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” and “(B) the frame or receiver of any 

such weapon.” The Final Rule takes a Frankenstein approach to the law and 

stitches together the word “readily” from subsection (A) with the words “frame 

or receiver” in subsection (B) to create the totally new concept of a “partially 

complete” frame or receiver, which encompasses items that may “readily” be

completed into a frame or receiver.

The Final Rule’s new definition of a “partially complete” frame or 

receiver is patently unlawful, as an item that has the potentiality of becoming 

a “frame or receiver” is by definition not an actual “frame or receiver.” By using 

vague weasel words such as “partially complete,” “readily be completed, 

assembled, restored, or otherwise converted,” and “clearly identifiable,” this 

definition of a “frame or receiver” unlawfully expands ATF’s regulatory 

jurisdiction to encompass raw materials that are not actually frames or 

receivers. Such items include frame and receiver blanks, forgings, castings, 

printings, extrusions, unmachined bodies, and other items that ATF has 

historically treated as unregulated materials, once they are “clearly 

identifiable” as an “unfinished component part of a weapon.”

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The absurd logic of the Final Rule’s abuse of the English language is that 

two-by-fours are a “house,” a potato is a “chip,” and a seed is an “apple.” That 

an item can “readily” be converted into another item or is “clearly identifiable

as an unfinished component part” of another item does not make it the 

equivalent of that item whose existence is only a potentiality and not an 

actuality. 18 U.S.C. § 921(a)(3) speaks of only a “frame or receiver,” and the 

Final Rule’s new definition of a “partially complete” frame or receiver is an 

unlawful attempt to increase ATF’s regulatory authority. See Tex. Pipeline 

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

manufacture statutory ambiguity with semantics to enlarge their 

congressionally mandated border.”).

Particularly absurd is the Final Rule’s contention that the availability of 

“templates, jigs, molds, equipment, tools, instructions, guides, or marketing 

materials” can change an item that is not a “frame or receiver” into a “frame 

or receiver.” Under the Final Rule’s tortured logic, a wooden log on its own

might not be a “baseball bat,” but that could change if someone uploaded a 

YouTube video explaining how to make a baseball bat from a log, especially if 

that YouTuber began to sell logs along with the tools needed to make a baseball 

bat. To reiterate: If item A can readily be made into item B, it is by definition 

not yet item B. The availability of instructions and tools for making item A into 

item B has no bearing on whether item A is in fact item B.

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The Final Rule is not a good-faith attempt to “clarify” what constitutes a 

“frame or receiver,” as the government claims, 87 Fed. Reg. at 24,652, but is 

instead an unlawful attempt by the Biden Administration to bring about a 

sweeping expansion of ATF’s regulatory jurisdiction over receiver blanks 

without congressional authorization. See Util. Air Regulatory Grp. v. EPA

(UARG), 573 U.S. 302, 324 (2014) (“EPA’s interpretation is also unreasonable 

because it would bring about an enormous and transformative expansion of 

EPA’s regulatory authority without clear congressional authorization.”); FDA 

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (“Congress 

could not have intended to delegate a decision of such economic and political 

significance to an agency in so cryptic a fashion.”).

ATF has long agreed with Division 80’s position that receiver blanks do 

not meet the definition of a “frame or receiver.” According to ATF’s website: 

“ATF has long held that items such as receiver blanks, ‘castings’ or ‘machined 

bodies’ in which the fire-control cavity area is completely solid and unmachined have not reached the ‘stage of manufacture’ which would result in 

the classification of a firearm according to the GCA.” Exhibit 4. ATF has 

affirmed this position in classification determinations issued to manufacturers 

after reviewing product samples, in litigation against gun-control proponents, 

and in its various publications. See supra, at 3–8; Exhibits 8–14.

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ATF admits that the Final Rule constitutes a repudiation of its 

longstanding legal position. As the Final Rule states:

Prior determinations by the Director that a partially complete, 

disassembled, or nonfunctional frame or receiver, including a parts 

kit, was not, or did not include, a “firearm frame or receiver” under 

§ 478.11, or “frame or receiver” under § 479.11, as those terms 

were defined prior to [the date of the Final Rule’s publication], 

shall not continue to be valid or authoritative after that date. Such 

determinations shall include those in which the Director 

determined that the item or parts kit had not yet reached a stage 

of manufacture to be, or include, a “firearm frame or receiver” 

under § 478.11, or “frame or receiver” under § 479.11, as those 

terms were defined prior to [the date of the Final Rule’s 

publication].

87 Fed. Reg. at 24,741.

The law has not changed since ATF issued its classification 

determinations on receiver blanks—only the Administration—and ATF’s 

repudiation of its prior legal position to drastically expand its regulatory 

jurisdiction exceeds Defendants’ statutory authority in violation of the 

separation of powers. See Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222

(2016) (quoting Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 

U.S. 967, 981 (2005)) (holding that an “‘[u]nexplained inconsistency’ in agency 

policy is ‘a reason for holding an interpretation to be an arbitrary and 

capricious change from agency practice’”); Chamber of Commerce of U.S.A. v. 

U.S. Dep’t of Labor, 885 F.3d 360, 380 (5th Cir. 2018) (“Moreover, that it took 

DOL forty years to ‘discovery’ its novel interpretation further highlights the 

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Rule’s unreasonableness. . . . DOL’s turnaround from its previous 

regulation . . . alone gives us reason to withhold approval or at least deference 

for the Rule.”).

iii. The Final Rule Changes the Definition of a 

“Firearm,” Which Currently Tracks the Four 

Statutory Categories of “Firearms,” by Adding a 

Fifth Category With No Basis in the Statutory 

Text

Recall that 18 U.S.C. § 921(a)(3) defines a “firearm” as including four 

categories of items: “(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.” 

27 C.F.R. § 478.11 defines a “firearm” in a manner that tracks the 

statutory definition almost verbatim: “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; the frame or receiver of any such weapon; any 

firearm muffler or firearm silencer; or any destructive device; but the term 

shall not include an antique firearm. In the case of a licensed collector, the 

term shall mean only curios and relics.”

The Final Rule amends 27 C.F.R. § 478.11 by adding the following new 

language to the definition of a “firearm”: 

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The term shall include a weapon parts kit that is designed to or 

may readily be completed, assembled, restored, or otherwise 

converted to expel a projectile by the action of an explosive. The 

term shall not include a weapon, including a weapon parts kit, in 

which the frame or receiver of such weapon is destroyed as 

described in the definition of “frame or receiver.”

87 Fed. Reg. at 24,735. This amendment takes an existing definition of a 

“firearm” that tracks almost verbatim the four statutory categories of 

“firearms” set forth by Congress in 18 U.S.C. § 921(a)(3) and adds a brand new 

fifth category that has no basis in the statutory text: parts kits. The change is 

not a mere clarification but is instead an aggressive attempt by ATF to expand 

its regulatory jurisdiction beyond what Congress authorized. The statute 

states that “any weapon . . . which . . . may readily be converted to expel a 

projectile by the action of an explosive” is a “ firearm.” The Final Rule goes 

beyond regulating “weapons” and states that a “parts kit” that “may readily be 

completed, assembled, [or] restored, . . . to expel a projectile by the action of an 

explosive” is a “firearm.”

Two features of this provision are particularly problematic. 

First, the provision is not limited to kits containing all the parts of a 

firearm. The Final Rule states that the “Department disagrees . . . that 

weapon parts kits must contain all component parts of the weapon to be 

‘readily’ converted to expel a projectile.” 87 Fed. Reg. at 24,685. ATF believes 

that if it is possible to obtain an “essential part missing from the 

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kit . . . efficiently, quickly, and easily,” the parts in the kit may still be a 

“firearm,” depending on ATF’s “case-by-case evaluation of each kit.” Id. Thus, 

the Final Rule covers more than disassembled firearms or complete parts kits. 

It unlawfully expands ATF’s jurisdiction to cover previously unregulated parts 

by defining as a “firearm” any combination of parts that (in ATF’s discretionary 

determination) may “readily” be made into a firearm by obtaining other parts.

Second, ATF reserves for itself not only the discretion to determine which 

combinations of parts short of a complete parts kit constitute a “firearm,” but 

also the discretion to aggregate numerous transactions over an undefined 

period of time. In footnote 45 of the Notice of Proposed Rulemaking, ATF states

that “persons who engage in the business of selling or distributing such weapon 

parts kits cannot avoid licensing, marking, recordkeeping, or excise taxation 

by selling or shipping the parts in more than one box or shipment to the same 

person, or by conspiring with another person to do so.” 86 Fed. Reg. 27,726 

n.45. ATF’s position is that companies selling or distributing individual parts

which could be used to assemble a firearm must keep records of which parts 

have been sold or distributed to each customer. The companies would then be 

required to analyze the amorphous (and ultimately impossible to answer) 

question of whether the totality of the parts sold or distributed to a particular 

customer, in a particular timeframe, collectively constitute a firearm (keeping 

in mind that the term “firearm” is not limited to complete collections of all 

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parts needed to make a firearm). This attempt to introduce a vague and 

incomprehensible temporal dimension to the definition of a “firearm” only

compounds the legal absurdity of the Final Rule. Even after commenters raised 

these concerns in response to the Notice of Proposed Rulemaking, ATF doubled 

down on its position in the Final Rule. 87 Fed. Reg. at 24,713.

The plain, unambiguous text of 18 U.S.C. § 921(a)(3) shows that

Congress recognized only four categories of firearms. By adding a fifth category 

with no basis in the statutory text—weapon parts kits, including those that 

lack a complete (or even incomplete) frame or receiver—the Final Rule goes 

beyond Congress’s statute and effectively rewrites federal law.

The legislative history cited in the Notice of Proposed Rulemaking shows 

that Congress specifically intended to exclude firearm parts from regulation

and sought to regulate only the “frame or receiver” of a firearm. Prior to the 

Gun Control Act of 1968, a firearm was defined as including “any part or parts” 

of a firearm. 86 Fed. Reg. at 27,720 (Exhibit 21). “During debate on the GCA 

and related bills introduced to address firearms trafficking, Congress 

recognized that regulation of all firearm parts was impractical.” Id. As Senator 

Dodd explained: “The 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.’” Id. (citing 111 Cong. Rec. 5527 (Mar. 

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22, 1965)). The Senate Committee Report for the Act similarly states:

Also excluded from the present definition of the term “firearm” is 

“any part or parts” of a firearm. Experience in the administration 

of the Federal Firearms Act has indicated that it is impractical to 

treat each small part as if it were a firearm. The revised definition 

substitutes the words “frame or receiver” for the words “any part 

or parts.” 

S. REP. NO. 89-1866, at 14 (1966) (excerpt at Exhibit 27).

ATF’s website recognizes this history in its interpretation of the Gun 

Control Act, stating:

Does the GCA control the sale of firearm parts?

No, except that frames or receivers are “firearms” as defined in the 

law and are subject to the same controls as complete firearms. . . . .

Exhibit 28.

As the foregoing confirms, the Final Rule unlawfully attempts to

regulate firearm parts that Congress intentionally exempted from regulation

by deleting the words “any part or parts.” See Brown & Williamson Tobacco 

Corp., 529 U.S. at 143 (holding unlawful a rule that “would contradict 

Congress’ clear intent” to exempt a class of products from an agency’s 

jurisdiction); Gulf Fishermens Ass’n v. Nat’l Marine Fisheries Serv., 968 F.3d 

454, 466 (5th Cir. 2020) (quoting UARG, 573 U.S. at 321) (“We will not defer 

to an agency interpretation that is ‘inconsistent with the design and structure 

of the statute as a whole.’”). The Final Rule’s definition of a “firearm” is not 

authorized by statute and violates the separation of powers.

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2. The Final Rule Imposes Unlawful Regulations on

“Privately Made Firearms”

The Final Rule creates a new term, “privately made firearm,” which it 

defines as a “firearm, including a frame or receiver, completed, assembled, or 

otherwise produced by a person other than a licensed manufacturer, and 

without a serial number placed by a licensed manufacturer at the time the 

firearm was produced.” 87 Fed. Reg. at 24,735.

The Final Rule then imposes onerous new regulations on transactions 

involving privately made firearms. It states that “licensees must legibly and 

conspicuously identify each privately made firearm or ‘PMF’ received or 

otherwise acquired (including from a personal collection) not later than the 

seventh day following the date of receipt or other acquisition, or before the date 

of disposition (including to a personal collection), whichever is sooner.” 87 Fed. 

Reg. at 24,742. It further states that “PMFs must be identified by placing, or 

causing to be placed . . . an individual serial number on the frame or receiver, 

which must not duplicate any serial number placed by the licensee on any other 

firearm.” Id. And it requires licensees to “identify . . . or cause another person

to so identify, each privately made firearm received or otherwise acquired 

(including from a personal collection) by the licensee” before the effective date 

of the Final Rule “within sixty (60) days from that date, or prior to the date of 

final disposition (including to a personal collection), whichever is sooner.” 87 

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Fed. Reg. at 24,743. The Supplementary Information in the Notice of Proposed 

Rulemaking notes that “PMFs currently in inventory that a licensee chooses 

not to mark may also be destroyed or voluntarily turned in to law enforcement 

within the 60-day period.” 86 Fed. Reg. at 27,732 (Exhibit 21).

These “identify, destroy, or surrender” requirements for privately made 

firearms exceed ATF’s statutory authority. Although the ordinary speaker of 

the English language would understand the phrase “privately made firearm” to 

refer to a functioning firearm that an individual personally assembled, the Final 

Rule’s definition of the term, when combined with its expansive new definition 

of a “frame or receiver,” classifies raw, unfinished receiver blanks as “privately 

made firearms.” This is because, under the Final Rule’s definition of a “frame or 

receiver,” receiver blanks are “frame[s] or receiver[s] . . . produced by a person 

other than a licensed manufacturer.” 87 Fed. Reg. at 24,735. The Final Rule 

therefore subjects unfinished receiver blanks to the same “identify, destroy, or 

surrender” requirements as fully assembled privately made firearms. Such a

convoluted scheme that abuses the English language is plainly unlawful.

The breathtaking nature of the Final Rule’s expansion of ATF’s 

jurisdiction bears repeating: Under the Final Rule, a receiver blank that is 

neither “privately made” nor a “firearm” will be transformed from its present 

classification as a piece of unregulated raw material into a “privately made 

firearm.” The consequence of this reclassification is that upstream and 

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downstream businesses in the supply chain for firearm parts, such as 

manufacturers and distributors of receiver blanks, will suddenly be transformed

into the legal equivalent of firearms dealers. The chaos and disruption to the 

entire firearms industry will be incalculable. Such a drastic expansion of ATF’s 

jurisdiction exceeds ATF’s statutory authority. See UARG, 573 U.S. at 324

(“EPA’s interpretation is also unreasonable because it would bring about an 

enormous and transformative expansion of EPA’s regulatory authority without 

clear congressional authorization.”).

3. Defendants Are Not Entitled to Chevron Deference 

Because the Final Rule Defines the Substantive Scope 

of Federal Crimes, Triggering the Rule of Lenity

A legal definition that affects the scope of criminal liability triggers the 

rule of lenity. In Leocal v. Ashcroft, the Supreme Court unanimously held that 

the rule of lenity applied in a civil case that turned on the definition of a “crime 

of violence” because that term has both civil and criminal applications. 543 U.S. 

1, 11 n.8 (2004) (“Although here we deal with § 16 in the deportation context, 

§ 16 is a criminal statute, and it has both criminal and noncriminal applications. 

Because we must interpret the statute consistently, whether we encounter its 

application in a criminal or noncriminal context, the rule of lenity applies.”).

In United States v. Thompson/Center Arms Co., the Court applied the 

rule of lenity to a tax statute in a civil setting because the statute had criminal 

applications and had to be interpreted consistently with its criminal 

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applications. 504 U.S. 505, 517–18 (1992) (plurality opinion); see also id. at 519 

(Scalia & Thomas, JJ., concurring in the judgment) (“I agree with the plurality 

that the application of the National Firearms Act (NFA) to Thompson/Center's 

pistol and conversion kit is sufficiently ambiguous to trigger the rule of lenity, 

leading to the conclusion that the kit is not covered.”). That case specifically 

involved the question of whether the sale of a pistol with a kit to convert it into

a rifle constituted the sale of a rifle, a factual scenario with obvious relevance 

to this case. Id. at 507.

Where the rule of lenity applies, Chevron deference is inappropriate. See 

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 729–36 (6th Cir. 2013)

(Sutton, J., concurring). The definitions of “firearm” and “frame or receiver”

(which is a sub-category of firearms) in the Final Rule have clear consequences 

for the substantive scope of federal crimes, triggering the rule of lenity and 

rendering Chevron deference inappropriate.

Federal law imposes strict criminal penalties for violating the licensing 

regime governing the importation and manufacture of “firearms.” 18 U.S.C. 

§ 923(a) states that “[n]o person shall engage in the business of importing,

manufacturing, or dealing in firearms . . . until he has filed an application with 

and received a license to do so from the Attorney General.” And 18 U.S.C. 

§ 923(i) requires licensed importers and licensed manufacturers to “identify by 

means of a serial number engraved or cast on the receiver or frame of the 

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weapon, in such manner as the Attorney General shall by regulations 

prescribe, each firearm imported or manufactured by such importer or 

manufacturer.” Under 18 U.S.C. § 924(a)(1), it is a crime to violate “any other 

provision of this chapter,” referring to Title 18, Chapter 44, of the United 

States Code, which contains section 923. 

The definition of a “firearm” also has criminal consequences for 

individual owners of items fitting within that definition. 18 U.S.C. § 922(g)

makes it a crime for various categories of individuals (prohibited possessors) 

“to ship or transport in interstate or foreign commerce, or possess in or 

affecting commerce, any firearm or ammunition; or to receive any firearm or 

ammunition which has been shipped or transported in interstate or foreign 

commerce.” And 18 U.S.C. § 930(a) makes it a crime to knowingly possess “a 

firearm . . . in a Federal facility.” 

Prior to the effective date of the Final Rule, the undersigned counsel 

could carry a receiver blank, jig, and mill into a federal courthouse as if they

were any other objects, but after the Final Rule’s effective date, counsel could 

be committing a crime punishable by up to one year in prison, depending on 

ATF’s construction of vague, ambiguous terms. See infra, at 33–37 (discussing 

the void-for-vagueness doctrine). Because the definitions of “frame or receiver” 

and “firearm” in the Final Rule have obvious criminal consequences, Chevron

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deference is inappropriate, and under Leocal and Thompson/Center Arms Co.,

any ambiguities should be resolved in accordance with the rule of lenity.

B. The Final Rule is Unconstitutionally Vague and Effectuates 

an Unconstitutional Delegation of Legislative Authority 

The Constitution’s guarantee of due process requires criminal 

prohibitions to be expressed in clear enough terms that “ordinary people” have 

“fair notice” of what conduct is proscribed. Sessions v. Dimaya, 138 S. Ct. 1204, 

1212 (2018). An agency policy that does not satisfy this requirement is void for 

vagueness. See FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012)

(holding that the FCC’s indecency standards were unconstitutionally vague).

The void-for-vagueness doctrine “guards against arbitrary or discriminatory 

law enforcement” by insisting on comprehensible standards to “govern the 

actions of police officers, prosecutors, juries, and judges.” Dimaya, 138 S. Ct. 

at 1212. “In that sense, the doctrine is a corollary of the separation of powers—

requiring that Congress, rather than the executive or judicial branch, define 

what conduct is sanctionable and what is not.” Id.

Given that the Final Rule affects the substantive scope of federal crimes, 

the void-for-vagueness doctrine applies. 87 Fed. Reg. at 24,713 (“The 

Department reiterates that title 18 of the U.S. Code includes Federal felony 

violations that can apply to circumstances involving the final rule’s 

requirements.”). Numerous provisions of the Final Rule are unconstitutionally 

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void for vagueness, rendering the Final Rule “contrary to constitutional right, 

power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). 

The Final Rule’s new definition of a partially complete “frame or 

receiver” contains three vague provisions: (1) an assessment of whether the 

item “may readily be completed, assembled, restored, or otherwise converted

to function as a frame or receiver”; (2) an assessment of whether the item has 

reached a “stage of manufacture where it is clearly identifiable as an 

unfinished component part of a weapon”; and (3) an open-ended inquiry into 

“any associated templates, jigs, molds, equipment, tools, instructions, guides, 

or marketing materials that are sold, distributed, or possessed with the item 

or kit, or otherwise made available by the seller or distributor of the item or 

kit to the purchaser or recipient of the item or kit.” 87 Fed. Reg. at 24,739.

The Final Rule creates a vague definition of “readily” as a “process, 

action, or physical state that is fairly or reasonably efficient, quick, and easy, 

but not necessarily the most efficient, speediest, or easiest process, action, or 

physical state.” 87 Fed. Reg. at 24,735; see also id. at 24,747. It then provides 

a non-exclusive list of eight unranked, unweighted factors that are “relevant” 

to defining the term “readily,” none of which is dispositive. Those factors are:

(a) Time, i.e., how long it takes to finish the process;

(b) Ease, i.e., how difficult it is to do so;

(c) Expertise, i.e., what knowledge and skills are required;

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(d) Equipment, i.e., what tools are required;

(e) Parts availability, i.e., whether additional parts are required, and 

how easily they can be obtained;

(f) Expense, i.e., how much it costs;

(g) Scope, i.e., the extent to which the subject of the process must be

changed to finish it; and

(h) Feasibility, i.e., whether the process would damage or destroy the 

subject of the process, or cause it to malfunction.

87 Fed. Reg. at 24,735; see also id. at 24,747. None of these eight terms are 

defined with further specificity. For instance, the Final Rule does not supply 

any metric for determining what assembly “[t]ime” satisfies the definition of 

“readily,” even though in other contexts, agencies have given specific 

timeframes to clarify statutory ambiguity. City of Arlington v. FCC, 668 F.3d 

229, 235–36 (5th Cir. 2012) (FCC rules setting hard deadlines to define “a 

reasonable period of time”). Rather than clarifying the statute, the Final Rule 

intentionally introduces vagueness into the law to expand its regulatory 

jurisdiction, creating confusion and uncertainty for businesses. See Tex. 

Pipeline Ass’n, 661 F.3d at 264 (“[A]gencies cannot manufacture statutory 

ambiguity with semantics to enlarge their congressionally mandated border.”).

The Final Rule’s new definition of a “firearm” as including 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” is also 

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unconstitutionally vague due to its reliance on the word “readily.” 87 Fed. Reg. 

at 24,735. And as discussed earlier, the government’s position that multiple 

transactions over an unspecified period of time that cumulatively include the 

components needed to make a “firearm”—with “firearm” defined as potentially

including a parts kit lacking all the parts needed to make a firearm—is vague 

and capacious. See supra, at 24–26; see also 87 Fed. Reg. at 24,713 (claiming 

that it is illegal to be “working with others or structuring transactions” to sell 

parts that, in the aggregate, are a “firearm”). The confusion and harm caused 

by this unconstitutionally vague and expansive definition of a “firearm” can 

already be seen in the cease-and-desist letters that ATF sent to two companies 

prior to the Final Rule’s effective date. See infra, at 58–61.

Through a Rube Goldberg process of defining statutory terms (“frame or 

receiver” and “firearm”) using a vague term (“readily”) that is itself defined 

using other vague terms (“fairly or reasonably efficient, quick, and easy, but 

not necessarily the most efficient, speediest, or easiest”) and an eight-factor 

balancing test (“time,” “ease,” etc.), the Final Rule effectively confers on the ATF 

Director unbounded discretion to determine which products currently classified 

as unregulated raw materials should be reclassified as regulated “frames or 

receivers” and “firearms.” This combination of vague terms and an eight-factor 

balancing test does not give the public fair notice of what conduct is lawful or 

unlawful, violating the void-for-vagueness doctrine. Dimaya, 138 S. Ct. at 1212.

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Furthermore, assuming arguendo that the Final Rule is authorized by 

the statutory scheme Congress created, Congress’s delegation of open-ended 

legislative authority to rewrite federal statutory definitions without an 

intelligible principle violates the nondelegation doctrine. See A.L.A. Schechter 

Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. 

Ryan, 293 U.S. 388 (1935); Jarkesy v. SEC, --- F.4th ----, No. 20-61007, 2022 

WL 1563613 (5th Cir. 2022). Compounding the constitutional problem, ATF’s 

exercise of its delegated authority to promulgate a vague Final Rule that 

effectively delegates to the ATF Director unbridled discretion to determine the 

scope of ATF’s jurisdiction constitutes an even more egregiously 

unconstitutional double delegation.

C. The Final Rule is Arbitrary, Capricious, and an Abuse of 

Discretion

Federal administrative agencies are required to engage in “reasoned 

decisionmaking.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 

374 (1998). This means that “[n]ot only must an agency’s decreed result be 

within the scope of its lawful authority, but the process by which it reaches 

that result must be logical and rational.” Id. The “agency must examine the 

relevant data and articulate a satisfactory explanation for its action including 

a ‘rational connection between the facts found and the choice made.’” Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

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43 (1983) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 

402, 416 (1971)). 

If the agency does not engage in reasoned decision making, then a court 

“shall hold unlawful and set aside” the agency action as “arbitrary, capricious,” 

or “an abuse of discretion,” 5 U.S.C. § 706(2)(A); see also Wages & White Lion 

Investments, LLC v. FDA, 16 F.4th 1130, 1136 (5th Cir. 2021) (noting arbitraryand-capricious review “has serious bite”). The Final Rule is arbitrary and 

capricious for the following reasons.

1. The Final Rule is Internally Self-Contradictory

“The APA’s arbitrary-and-capricious standard requires that agency 

action be reasonable and reasonably explained.” FCC v. Prometheus Radio 

Project, 141 S. Ct. 1150, 1158 (2021). Courts must ensure that “the agency has 

acted within a zone of reasonableness and, in particular, has reasonably 

considered the relevant issues and reasonably explained the decision.” Id.

The Final Rule’s definition of a partially complete “frame or receiver” is 

arbitrary and capricious because it is internally self-contradictory. It claims 

that a “frame or receiver” includes a partially complete frame or receiver “that 

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

converted to function as a frame or receiver.” 87 Fed. Reg. at 24,739. It also 

states that the ATF Director may, but is not required to, consider “associated 

templates, jigs, molds, equipment, tools, instructions, guides, or marketing 

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materials that are sold, distributed, or possessed with the item or kit, or 

otherwise made available by the seller or distributor of the item or kit to the 

purchaser or recipient of the item or kit.” Id.

Sensing the legal absurdity of defining a “frame or receiver” as including 

items that have the potentiality of becoming a “frame or receiver,” ATF sought 

to assure the public that it was not taking the unprecedented, lawless 

measures that it was, in fact, taking. One of the new features of the Final Rule 

that was not present in the Notice of Proposed Rulemaking is its inclusion of 

five hypothetical examples, purportedly designed to clarify its confusing 

definition of a partially complete frame or receiver. Unfortunately, these

examples only compound the confusion about what the Final Rule does. 

Example 1 states that a kit containing a partially complete frame or receiver 

“that is sold, distributed, or possessed with a compatible jig or template is a 

frame or receiver, as a person with online instructions and common hand tools 

may readily complete” it. 87 Fed. Reg. at 24,739 (emphasis added). Examples 

4 and 5 then state the following:

Example 4—Not a receiver: A billet or blank of an AR-15 variant 

receiver without critical interior areas having been indexed, 

machined, or formed that is not sold, distributed, or possessed with 

instructions, jigs, templates, equipment, or tools such that it may 

readily be completed is not a receiver.

Example 5—Not a receiver: A flat blank of an AK variant receiver 

without laser cuts or indexing that is not sold, distributed, or 

possessed with instructions, jigs, templates, equipment, or tools is 

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not a receiver, as a person cannot readily fold the flat to provide 

housing or a structure for the primary component designed to block 

or seal the breech prior to initiation of the firing sequence.

87 Fed. Reg. at 24,739. The difference between Example 1 and Examples 4 and 

5 is the absence of “instructions, jigs, templates, equipment, or tools” in 

Examples 4 and 5. The absence of such extrinsic materials is therefore outcome 

determinative. This is puzzling. Rather than focusing on the physical 

characteristics of the item itself to determine whether it is a “frame or 

receiver,” Examples 4 and 5 place dispositive weight on the absence of extrinsic 

materials, creating a safe harbor for items sold in the absence of such 

materials. This means that two identical pieces of metal will be classified 

differently depending on what other items are available to consumers.

By contrast, the availability of extrinsic materials is not controlling in 

the Final Rule’s definition of a partially complete frame or receiver, set forth

just paragraphs earlier. That definition looks at whether the item “is designed 

to or may readily be completed, assembled, restored, or otherwise converted to 

function as a frame or receiver.” 87 Fed. Reg. at 24,739. Under that inquiry, 

what matters is the overall ease of completion of the receiver blank and not the 

presence or absence of “instructions, jigs, templates, equipment, or tools,”

though the availability of such items “may” be considered.

The following hypothetical illustrates how Examples 4 and 5 contradict 

the Final Rule’s definition of a partially complete frame or receiver. Suppose a 

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non-FFL company is currently selling receiver blanks to consumers with 

instructions and tools for completing the blank into a receiver. Its business will 

no longer be lawful after the Final Rule takes effect. The company asks legal 

counsel: “Can I keep selling the same receiver blanks to individual consumers 

if I do not provide instructions and tools for completion?” 

Under Examples 4 and 5, the answer is “yes.” Examples 4 and 5 state 

that receiver blanks, without “instructions, jigs, templates, equipment, or 

tools,” are not frames or receivers, establishing a categorical safe harbor. (As a 

caveat, ATF’s response to public comments suggests that Examples 4 and 5 

were meant to be cabined to sales to manufacturers that planned to complete 

the receiver blanks, 87 Fed. Reg. at 24,678, even though Examples 4 and 5 

themselves contain no such limitation. Further adding to the confusion is the 

question of whether the safe harbor’s protections would be removed if one 

parent company created two companies, one providing receiver blanks and 

another providing instructions and tools. ATF’s response to public comments 

suggests that such conduct could be illegal “structuring” of transactions, 87 

Fed. Reg. at 24,713, even though the Final Rule’s text makes no reference to 

such a concept. And query what would happen if the two companies operated 

independently with no shared ownership or coordination.)

Under the Final Rule’s definition of a partially complete frame or 

receiver (preceding Examples 1, 4, and 5), the answer to whether the 

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hypothetical company could sell receiver blanks without instructions and tools 

is “no.” That definition focuses on whether an item can “readily” be made into 

a frame or receiver. Even if the company did not provide instructions and tools

for completing its receiver blanks, it is possible that purchasers of the receiver 

blanks could figure out on their own how to build a functioning receiver.

Because an individual could still “readily” complete the receiver blank without 

instructions or tools from the company, the receiver blank would fall within 

ATF’s definition of a partially complete frame or receiver. By contrast, 

Examples 4 and 5 compel the opposite conclusion, creating a categorical safe 

harbor for receiver blanks that are not combined with instructions and tools. 

(This raises another perplexing question: Could the same item be “not a 

receiver” when sold to a person ignorant about firearms and a “receiver” when 

sold to an experienced machinist who knows how to make a receiver?)

The above-mentioned hypothetical conversation between a company and 

its legal counsel has been playing out all across the country due to the Final 

Rule’s unclear and self-contradictory statements about how much weight 

should be given to “instructions, jigs, templates, equipment, or tools.” This 

confusion affects not only direct-to-consumer sales of receiver blanks, but also 

upstream and downstream businesses in the supply chain for firearm parts 

that are used to manufacture complete, functioning firearms. As a journalist 

recently explained:

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[I]ndustry experts aren’t sure what the rules mean. That 

uncertainty poses huge challenges for manufacturers, vendors, 

and anybody trying to establish what is and isn’t legal. 

“It looks like there is room still to sell 80 percent receivers, 

especially ones that have had determination letters,” [one industry 

member] told me over the phone. . . . .

. . .

But not everybody is convinced that the ATF rules leave an opening 

for the existing 80 percent receiver market to continue to operate. 

That’s because the agency dumps its old guidance with regard to 

unfinished components, creates untested new terminology, and 

leaves an awful lot to the interpretation of federal bureaucrats.

J.D. Tuccille, ATF’s New “Ghost Gun” Rules Are as Clear as Mud, REASON (Apr. 

11, 2022), https://reason.com/2022/04/11/atfs-new-ghost-gun-rules-are-as-clearas-mud/ (Exhibit 29).

The self-contradictory nature of the Final Rule is the result of ATF 

talking out both sides of its mouth. On the one hand, the Final Rule seeks to 

maximize ATF’s regulatory jurisdiction over receiver blanks through the 

intentional adoption of vague terminology in response to political pressure to 

regulate so-called “ghost guns.” See supra, at 8–12. On the other hand, ATF is 

aware of the chaos and confusion that will result from its displacement of 

longstanding precedents established over decades and seeks to convince the 

public that its actions are not as extreme as they really are. Through this 

doublespeak, ATF is smiling and saying, “nothing to see here, business as 

usual,” while stabbing industry and consumers in the back by repudiating its 

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longstanding legal position and prior classification determinations.

The result of the Final Rule’s internally self-contradictory definition of a 

“frame or receiver” is that industry has been left unable to determine whether 

a receiver blank sold without “instructions, jigs, templates, equipment, or 

tools” meets the definition of a regulated “frame or receiver.” Examples 4 and 

5 provide a categorical safe harbor exempting such products from regulation, 

but the language preceding those examples leads to the opposite conclusion. 

Such an incomprehensible, self-contradictory rule does not satisfy the 

requirement of reasoned decisionmaking and is arbitrary and capricious. See 

Del. Dep’t of Natural Res. & Envtl. Control v. EPA, 785 F.3d 1, 15 (D.C. Cir. 

2015) (holding that a final rule was arbitrary and capricious when EPA’s “later 

statements contradicted earlier responses”); Farmers Union Cent. Exch., Inc. 

v. FERC, 734 F.2d 1486, 1520 (D.C. Cir. 1984) (“Such self-contradictory, 

wandering logic does not constitute an adequate explanation . . . .”).

2. ATF Does Not Reasonably Explain its Departure From 

its Longstanding Prior Legal Position 

As discussed in the Statement of Facts, ATF’s longstanding legal 

position has been that receiver blanks do not meet the definition of a “firearm.” 

See supra, at 3–8. To quote ATF’s website, “ATF has long held that items such 

as receiver blanks, ‘castings’ or ‘machined bodies’ in which the fire-control 

cavity area is completely solid and un-machined have not reached the ‘stage of 

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manufacture’ which would result in the classification of a firearm according to 

the [Gun Control Act].” Exhibit 4. 

ATF reaffirmed this position over the course of decades in precedential

classification determinations issued to manufacturers after receiving product 

samples and conducting a rigorous scientific, technological, and legal analysis.

Exhibit 8 (containing thirty-six classification determinations by ATF 

determining that a receiver blank was not a “frame or receiver” or “firearm”).

ATF has in litigation against gun-control proponents defended its position that 

receiver blanks do not fall within its regulatory jurisdiction. See Exhibit 9

(motion to dismiss filed in California v. ATF dated Nov. 30, 2020); Exhibit 10

(summary-judgment motion filed in City of Syracuse v. ATF dated January 29, 

2021). And in numerous publications, the U.S. Department of Justice and ATF 

have reiterated ATF’s longstanding principles for determining whether a 

product is an unregulated receiver blank. See Exhibit 11 (ATF Public Affairs 

Division talking points dated April 9, 2014); Exhibit 12 (ATF technical bulletins 

dated October 28, 2013, and November 1, 2013); Exhibit 13 (ATF Type Firearm 

Visual Reference Guide, undated); Exhibit 14 (article by Assistant United States 

Attorney Shawn Nelson dated November 2015).

In the Final Rule, ATF abandons its longstanding legal position, defining 

frame and receiver blanks as “frames or receivers,” and thus, “firearms,” on 

the ground that they can “readily” be made into frames and receivers. ATF 

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acknowledges that the Final Rule departs from its prior legal position and 

expressly repudiates its prior classification determinations:

Prior determinations by the Director that a partially complete, 

disassembled, or nonfunctional frame or receiver, including a parts 

kit, was not, or did not include, a “firearm frame or receiver” under 

§ 478.11, or “frame or receiver” under § 479.11, as those terms 

were defined prior to [the date of the Final Rule’s publication], 

shall not continue to be valid or authoritative after that date. Such 

determinations shall include those in which the Director 

determined that the item or parts kit had not yet reached a stage 

of manufacture to be, or include, a “firearm frame or receiver” 

under § 478.11, or “frame or receiver” under § 479.11, as those 

terms were defined prior to [the date of the Final Rule’s 

publication].

87 Fed. Reg. at 24,741.

An agency’s departure from its prior, longstanding legal position is 

inherently suspect. See Chamber of Commerce of U.S.A., 885 F.3d at 380

(“Moreover, that it took DOL forty years to ‘discovery’ its novel interpretation 

further highlights the Rule’s unreasonableness. . . . DOL’s turnaround from its 

previous regulation . . . alone gives us reason to withhold approval or at least 

deference for the Rule.”). When an agency changes its position, it must provide 

a reasoned explanation for its departure from its prior position, especially 

when its prior position has engendered serious reliance interests. See DHS v. 

Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (holding that the DHS 

Secretary’s failure to address whether there was “legitimate reliance” on the 

DACA Memorandum was arbitrary and capricious). That explanation must be 

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thorough and reasonable to withstand judicial scrutiny. See Leggett & Platt, 

Inc. v. NLRB, 988 F.3d 487, 495 (D.C. Cir. 2021) (noting the “uncharacteristic 

brevity” of the NLRB’s explanation for its departure from its prior position and 

holding to “say this was an adequate explanation would gut that standard of 

all meaning”).

The reliance interests in this case are serious and profound. ATF’s prior 

legal position that frame and receiver blanks are not regulated products—as 

explained on its website, in its precedential classification determinations, in 

its litigation positions against gun-control proponents, and in various 

publications—has led to a burgeoning industry for frame and receiver blanks 

that enable consumers to privately and legally make their own firearms. 

Manufacturers, distributors, and retailers have invested capital, created 

American jobs, and lawfully sold products based on their good-faith reliance on 

ATF’s prior legal position. Cf. Exhibit 3 at 43 (noting in ATF’s regulatory 

analysis that “employees will lose their jobs” as a result of such businesses 

shutting down in response to the Final Rule, causing “unemployment”).

There have been no changes to the statutes ATF administers that would 

require ATF to repudiate its prior classification determinations. Indeed, 

attempts to advance such legislative changes have failed in Congress. See 

supra, at 8. Facing political pressure to deliver on a campaign promise of 

enacting gun-control measures, but unable to achieve support in Congress, the 

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Biden Administration has resorted to unlawfully rewriting federal law through 

rulemaking under the false pretense of “clarifying” the law. 87 Fed. Reg. at 

24,652.

In response to comments from the public arguing that the rule is an 

arbitrary and capricious departure from ATF’s prior position, ATF cited “ATF 

statistics,” “media reports,” and “studies” about crimes involving guns, as well 

as the existence of “better and cheaper technologies” that make it easier for 

individuals to privately make firearms, 87 Fed. Reg. at 24,689. While these 

may explain some of Defendants’ motivations for adopting the Final Rule, they 

offer no legal explanation for how the definition of a “frame or receiver” could 

possibly have changed so suddenly to effectuate a massive expansion of ATF’s 

regulatory jurisdiction without any legislation from Congress. 

The critical question that ATF fails to address is how an unregulated 

piece of metal can turn into a regulated “frame or receiver” merely because of 

the increased availability of tools for turning that piece of metal into a frame 

or receiver. Under Defendants’ legal logic, ATF could one day claim the power 

to regulate a solid, rectangular prism of raw aluminum as a “frame or receiver” 

depending on what tools were available. This issue is not merely hypothetical.

An Internet search for “0% receiver” reveals that several websites are already 

marketing such blocks of aluminum. See, e.g., AR-00: 0% Receiver, GHOST 

GUNNER, https://ghostgunner.net/zero-percent/. If the Final Rule is permitted 

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to stand, there will be no limiting legal principle to stop ATF from regulating 

solid, rectangular blocks of raw aluminum.

ATF has provided no reasonable explanation for why it is departing from 

its prior legal position and repudiating its classification determinations. ATF’s 

departure from its longstanding interpretation of federal law, which has 

engendered serious reliance interests, is arbitrary and capricious.

3. ATF’s Stated Explanation for the Final Rule is a 

Pretext for Defendants’ True Goal of Unlawfully 

Expanding ATF’s Jurisdiction

The Final Rule is entitled “Definition of ‘Frame or Receiver’ and 

Identification of Firearms.” It purports to “capture the full meaning of those 

terms” and provide “clarity” on the meaning of other terms. 87 Fed. Reg. at 

24,652. But as discussed earlier, the Final Rule creates vague and selfcontradictory new definitions that exceed ATF’s statutory authority, achieving 

the opposite of what ATF purportedly sought to accomplish. See supra, at 33–

44. ATF’s stated goals of capturing the full meaning of statutory terms and 

providing clarity to the law are pretexts for Defendants’ true goal of expanding 

ATF’s regulatory jurisdiction without congressional authorization.

It is a “settled proposition” that “in order to promote meaningful judicial 

review, an agency must ‘disclose the basis’ of its action.” Dep’t of Commerce v. 

New York, 139 S. Ct. 2551, 2573 (2019) (quoting Burlington Truck Lines, Inc. 

v. United States, 371 U.S. 156, 167–69 (1962)). If “the evidence tells a story 

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that does not match the explanation” given by the agency for its decision, then 

the agency’s action is arbitrary and capricious. Id. at 2575. Stated differently, 

when “an explanation for agency action” is “incongruent with what the record 

reveals about the agency’s priorities and decisionmaking process,” the agency 

has failed to satisfy the “reasoned explanation requirement of administrative 

law,” which “is meant to ensure that agencies offer genuine justifications for 

important decisions, reasons that can be scrutinized by courts and the 

interested public.” Id. at 2575–76. 

The evidence in the record, including the public statements of President 

Biden, shows that the true motivations for the Final Rule are not to capture 

the full meaning of statutory terms or provide clarity to the law, but to expand 

ATF’s regulatory jurisdiction without congressional approval to achieve 

President Biden’s campaign promise of imposing new regulations on so-called 

“ghost guns.” See supra, at 8–12 (noting the failure of legislation and President 

Biden’s statements about resorting to agency rulemaking to get around 

Congress). 

Defendants seek to bring under ATF’s authority products that legally 

fall outside the regulatory regime Congress created. The Final Rule is thus an

unconstitutional attempt by Defendants to rewrite federal law through 

unilateral executive action in violation of the separation of powers. Because 

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ATF offered pretextual explanations for the Final Rule that masked its true 

intentions, the Final Rule is arbitrary and capricious.

4. ATF Did Not Adequately Consider Alternative 

Regulatory Approaches

An agency must reasonably consider available regulatory alternatives 

when engaging in rulemaking. See State Farm Mut. Auto. Ins. Co., 463 U.S. at

51. An agency’s “failure to consider . . . regulatory alternatives . . . cannot be 

substantiated by conclusory statements that the [alternatives] would be 

insufficient.” Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1226 (5th Cir. 

1991). “Stating that a factor was considered . . . is not a substitute for 

considering it.” Texas v. Biden, 10 F.4th 538, 556 (5th Cir. 2021) (quoting Getty 

v. Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986)).

ATF did not sufficiently consider “[n]o change.” Exhibit 3 at 118. In its 

Regulatory Impact Analysis and Final Regulatory Flexibility Analysis, ATF 

states that this “alternative was considered and not implemented because the 

GCA requires that firearms be regulated,” and “[c]urrently, the majority of 

firearms fall outside the scope of the existing definition of receiver.” Id. at 119. 

The analysis goes on to claim that “[d]ue to recent court rulings on what 

constitutes a firearm, it would be difficult to prosecute criminal activity 

because the vast majority of legal firearms would no longer fit the definition of 

a firearm.” Id. The analysis provides no citations to any court rulings, but in 

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the Final Rule, ATF cites three district court opinions in which courts held that 

the current regulatory definition of a “firearm frame or receiver” is not 

sufficiently clear enough to warrant a criminal conviction of a defendant for 

possessing an AR-15 lower receiver. 87 Fed. Reg. at 24,691. One of the cases, 

United States v. Jimenez, 191 F. Supp. 3d 1038 (N.D. Cal. 2016), held that the 

statutory and regulatory definitions of a “receiver” were unconstitutionally 

vague.

It is incomprehensible why ATF would seek to cure an unconstitutionally 

vague definition of a “frame or receiver” by adding a multitude of new vague 

terms to the definition, such as “partially complete,” “readily,” and “clearly 

identifiable,” and allowing an open-ended inquiry into the availability of 

instructions and tools. If the Final Rule takes effect, there will likely be far 

more than three district court opinions holding the definition of a “frame or 

receiver” unconstitutionally vague. The “uncharacteristic brevity” of ATF’s 

single-paragraph analysis of the possibility of no change is arbitrary and 

capricious, and “[t]o say that this was an adequate explanation would gut that 

standard of all meaning.” Leggett & Platt, Inc., 988 F.3d at 495.

ATF also failed to adequately consider the possibility of grandfathering 

prior classification determinations. This compromise position would have 

allowed existing companies such as Division 80 to continue operations while 

the Final Rule’s application to new products was litigated in court. But ATF 

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rejected this reasonable proposal on the ground that it would be “problematic” 

to allow manufacturers to “continue to produce non-compliant frames or 

receivers.” Exhibit 3 at 120. That cursory analysis begs the question and 

assumes the validity of ATF’s legally dubious and unconstitutionally vague 

new definition of what constitutes a “frame or receiver.” 

Furthermore, ATF’s cost-benefit analysis of the possibility of 

grandfathering prior classification determinations is irrational and contradicts

other parts of ATF’s regulatory analysis. ATF claimed that grandfathering 

“has no costs and low benefits.” Id. Yet that same analysis states that it is 

“unlikely that a significant number of non-FFLs [such as Division 80]” will 

continue to do business under the Final Rule and non-FFLs will “end up 

dissolving their businesses.” Id. at 33. According to ATF, “employees will lose 

their jobs” as a result of these businesses dissolving, causing “unemployment.” 

Id. at 43. The benefit of grandfathering is the preservation of existing, 

longstanding reliance interests—interests that ATF itself recognized in 

quantifying the Final Rule’s costs—yet ATF’s inadequate analysis dismissed 

the option of grandfathering as having insignificant benefits.

In performing reasoned decisionmaking, an agency’s cost-benefit 

analysis “cannot” be “unreasonable.” Corrosion Proof Fittings v. EPA, 947 F.2d 

1201, 1218 (5th Cir. 1991). “When an agency decides to rely on a cost-benefit 

analysis as part of its rulemaking, a serious flaw undermining that analysis 

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can render the rule unreasonable.” Nat’l Ass’n of Home Builders v. EPA, 682 

F.3d 1032, 1040 (D.C. Cir. 2012); see also Business Roundtable v. SEC, 647 

F.3d 1144, 1149–56 (D.C. Cir. 2011) (identifying numerous flaws with the 

SEC’s cost-benefit analysis in holding a rule unlawful). 

By relying on a cost-benefit analysis that contradicts ATF’s own analysis 

of the Final Rule’s impacts on industry, ATF failed to engage in reasoned 

decisionmaking in its evaluation of the possibility of grandfathering. See Del. 

Dep’t of Natural Res. & Envtl. Control, 785 F.3d at 15 (holding that a final rule 

was arbitrary and capricious when EPA’s “later statements contradicted 

earlier responses”); Farmers Union Cent. Exch., Inc., 734 F.2d at 1520 (“Such 

self-contradictory, wandering logic does not constitute an adequate 

explanation . . . .”).

ATF’s inadequate consideration of regulatory alternatives was arbitrary

and capricious.

D. The Final Rule Was Adopted Without Observance of 

Procedure Required by Law 

In notice-and-comment rulemaking, an agency’s notice must contain 

“either the terms or substance of the proposed rule or a description of the 

subjects and issues involved.” 5 U.S.C. § 553(b)(3). If notice is inadequate, the 

“regulation must fall on procedural grounds, and the substantive validity of 

the change accordingly need not be examined.” AFL-CIO v. Donovan, 757 F.2d 

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330, 338 (D.C. Cir. 1985). When a “change between the proposed and final rule 

is important, the question for the court is whether the final rule is a ‘logical 

outgrowth’ of the rulemaking proceeding.” Id. (quoting United Steelworkers v. 

Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980)). If “the final rule deviates too 

sharply from the proposed rule, affected parties will be deprived of notice and 

an opportunity to respond to the proposal.” Id. The logical-outgrowth test’s 

“objective is fair notice,” and the question is whether interested parties 

“reasonably should have filed their comments on the subject during the noticeand-comment period.” Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety 

Comm’n, 989 F.3d 368, 381–82 (5th Cir. 2021).

The Final Rule contains important new provisions that were not present 

in the Notice of Proposed Rulemaking, and which the public did not have an 

opportunity to comment on. Specifically, the Final Rule now includes a list of 

five hypothetical examples of what does, and does not, count as a partially 

complete frame or receiver. As previously discussed, Examples 4 and 5 are at 

odds with the Final Rule’s definition of a partially complete frame or receiver, 

rendering the Final Rule incomprehensible and self-contradictory. See supra, 

at 38–44. The Final Rule’s definition of a partially complete frame or receiver

treats the absence of “instructions, jigs, templates, equipment, or tools” as nondispositive, whereas Examples 4 and 5 create a categorical safe harbor for 

frame and receiver blanks not combined with such accoutrements. The selfCase 3:22-cv-00148 Document 11 Filed on 06/06/22 in TXSD Page 66 of 80

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contradictory nature of the Final Rule has resulted in significant confusion 

among industry members and consumers about what conduct is allowed and 

what conduct is prohibited. See J.D. Tuccille, supra (Exhibit 29).

ATF did not provide the public with notice and an opportunity to 

comment on the five new hypothetical examples in the Final Rule. If it had 

done so, the public would have alerted ATF to the confusing, self-contradictory 

nature of the Final Rule’s new definition of a partially complete frame or 

receiver in the comment period. Faced with such an obviously problematic rule, 

ATF could have taken additional steps to refine the rule’s language. 

Instead, ATF rushed the Final Rule based on political pressure to 

complete it before the midterm elections and before the one-year anniversary 

of President Biden’s press conference at the White House Rose Garden. See 

supra, at 11–12. The public never had a chance to comment on the hypothetical 

examples, which were added only in the Final Rule. Tex. Ass’n of Mfrs., 989 

F.3d at 381–82. Because the Final Rule is not the logical outgrowth of the 

proposed rule, it must be set aside as unlawful.

II. Division 80 Will Suffer Irreparable Harm if an Injunction is Not 

Granted

A. The Final Rule Will Put Division 80 Out of Business 

The second factor in the preliminary-injunction analysis, irreparable 

harm, is met when a “potential economic loss is so great as to threaten the 

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existence of the movant’s business.” Atwood Turnkey Drilling, Inc. v. Petroleo 

Brasileiro, S.A., 875 F.2d 1174, 1179 (5th Cir. 1989); see also Jiao v. Xu, 28 

F.4th 591, 598 (5th Cir. 2022) (quoting Atwood Turnkey Drilling, 875 F.2d at 

1179).

Division 80’s principal business is the distribution of frame and receiver 

blanks, jigs, and tools to law-abiding businesses that market the products to 

customers who wish to exercise their Second Amendment rights by making

firearms. Exhibit 26 at ¶¶ 3, 5. If the Final Rule takes effect, Division 80 will 

suffer irreparable harm because it will be forced out of business.

The consumers for the products that Division 80 distributes are sensitive 

to issues of cost and convenience. Id. at ¶ 9. If frame and receiver blanks were 

treated the same as regulated firearms and privately made firearms were 

subject to the onerous regulations imposed by the Final Rule, the regulatory 

costs, bureaucratic red tape, and extensive recordkeeping requirements would 

cause a dramatic reduction in consumer demand for frame and receiver blanks, 

jigs, and tools. Id. The result of the Final Rule would be to largely wipe out 

consumer demand for Division 80’s products. Id. at ¶ 10.

That reduction in consumer demand would cause manufacturers of the 

products that Division 80 distributes to go out of business. Id. at ¶ 11. ATF’s

regulatory analysis admits that “it will be unlikely that a significant number 

of non-FFLs will opt to become FFLs,” and non-FFLs will instead “end up 

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dissolving their businesses.” Exhibit 3 at 33. These “companies going out of 

business will cause unemployment.” Id. at 43. As ATF acknowledges in its costbenefit analysis, “[m]ost costs are attributed to non-FFL manufacturers and 

dealers dissolving because of the final rule.” Id. at 115.

It follows logically that without consumer demand, manufacturers will 

cease operations. Exhibit 26 at ¶ 11. And without products to sell or customers 

to buy them, Division 80 will go out of business as well. Id. at ¶ 13. As ATF 

itself admits in its analysis, the Final Rule “will reduce the overall supply and 

demand” for parts kits with frame and receiver blanks. Exhibit 3 at 33. 

In addition, because Division 80 is not an FFL, its business of 

distributing frame and receiver blanks through the mail without a license 

would become illegal after the Final Rule takes effect. Exhibit 26 at ¶¶ 7–8, 11. 

In sum, if the Final Rule takes effect, Division 80’s business will be completely 

wiped out, causing irreparable harm.

B. ATF is Attempting to Enforce the Final Rule Prior to its 

Effective Date Through Cease-and-Desist Letters

In a brazen, self-serving attempt to build a paper trail to defend against 

the argument that the Final Rule repudiates ATF’s longstanding legal 

position, ATF has attempted to enforce the Final Rule prior to its effective date.

That enforcement began with a cease-and-desist letter sent to JSD Supply, 

signed May 10, 2022, premised on the Final Rule’s legal theory that a weapon 

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parts kit meets the definition of a firearm, even though the Final Rule does not 

take effect until August 24, 2022. Exhibit 30. Keenly aware that many would 

perceive ATF as enforcing the Final Rule prior to its effective date, ATF 

claimed in the letter that its new legal position “is and has been true 

notwithstanding the recently announced regulations and definitions under 

Final Rule 2021R-05F.” Id.

ATF would have the public believe that the Final Rule was an entirely 

unnecessary exercise in political theater, even though ATF previously took the 

opposite position in litigation against gun-control proponents, members of 

Congress and gun-control activists pleaded with President Biden to accelerate 

the rulemaking process, and President Biden admitted that the Final Rule was 

his strategy to circumvent Congress in an effort to fulfill his promise to “crack 

down” on “ghost guns.” See supra, at 8–12. Again, ATF is duplicitously smiling 

and saying, “nothing to see here, business as usual,” while stabbing industry 

and consumers in the back by repudiating its longstanding legal position and 

prior classification determinations. 

The cease-and-desist letter appears to have been the culmination of 

efforts in coordination with the gun-control group Everytown for Gun Safety, 

which quickly claimed credit for drawing ATF’s attention to JSD Supply in a 

press release that described the letter as the “First Reported Cease and Desist 

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Order to an Online Ghost Gun Kits Seller.”12 As a result of the letter, JSD 

Supply placed a message on its website stating: “For the immediate 

future . . . we have to suspend sales temporarily. We’re working on getting 

absolute clarification from the ATF . . . .”13

After unsuccessful attempts to seek clarification, JSD Supply filed suit

against ATF on May 19, 2022, in the Western District of Pennsylvania, seeking 

a preliminary injunction on the ground that the cease-and-desist letter was an 

unlawful attempt to enforce the Final Rule prior to its effective date. Exhibit 

33. Just three hours after Judge Stickman scheduled an emergency hearing on

May 25, 2022, ATF sent JSD Supply a letter that rescinded the cease-anddesist letter, but simultaneously doubled down on ATF’s legal position

notwithstanding the rescission. Exhibit 33 at 3, 9. JSD Supply’s reply in 

support of its preliminary-injunction motion rightly excoriates ATF for 

opportunistically attempting to moot the case once it feared an unfavorable 

outcome while nonetheless continuing to threaten JSD Supply with the 

possibility of a future enforcement action. Exhibit 34. The reply also reveals 

12 Press Release, Everytown for Gun Safety, Breaking: ATF Issues First 

Reported Cease and Desist Order to an Online Ghost Gun Kits Seller (May 13, 

2022), https://www.everytown.org/press/breaking-atf-issues-first-reportedcease-and-desist-order-to-an-online-ghost-gun-kits-seller/ (Exhibit 31).

13 JSD Supply Legal Relief T-Shirt, JSD SUPPLY, https://jsdsupply.com/shop/

jsd-supply-legal-relief-t-shirt/ (last visited May 17, 2022) (Exhibit 32).

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that on May 18, 2022, ATF sent a similar cease-and-desist letter to another 

business, KM Tactical, demonstrating that the threat of premature 

enforcement of the Final Rule remains a valid and ongoing concern for 

industry. Id. at 2, 13–15. The issue of mootness is now pending before the court.

As the foregoing demonstrates, the Biden Administration and guncontrol groups have succeeded in politicizing ATF, transforming it into an 

agency dedicated to enacting policies that the Administration could not achieve 

through legislation. Businesses that hired competent, respected legal counsel 

who worked hand-in-hand with ATF to ensure compliance are now being 

accused of committing crimes for selling products that, for decades, were 

treated by ATF as falling outside of its jurisdiction. Given the volatile and 

unpredictable nature of ATF’s conduct, there is a strong likelihood that ATF 

will attempt to shut down Division 80, its suppliers, or its customers prior to 

the effective date of the Final Rule, making it impossible for Division 80 to stay

in business.

C. The Scope of Injunctive Relief Must Be Nationwide to 

Preserve the Status Quo and Allow Division 80 to Continue 

Doing Business

An injunction on a nationwide level is necessary because Division 80

receives its inventory from out of state and most of its customers are out of 

state. Exhibit 26 at ¶¶ 4–6. An injunction applying to only Division 80 would 

not protect any manufacturers that supply the products that Division 80 sells 

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or any of Division 80’s customers. Without a nationwide injunction to preserve 

the status quo, Division 80 would have no products and no customers. Id. at 

¶¶ 9–11. As a result, Division 80 would be unable to continue its operations 

and would be forced out of business. See Green Valley Special Util. Dist. v. City 

of Schertz, 969 F.3d 460 (5th Cir. 2020) (en banc) (noting that when “crafting 

an injunction, district courts are guided by the Supreme Court’s instruction 

that the scope of injunctive relief is dictated by the extent of the violation 

established”); Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015)

(affirming the grant of a preliminary injunction when there was “a substantial 

likelihood that a geographically-limited injunction would be ineffective” at 

remedying the plaintiff’s injury). 

Because Division 80 cannot continue operations without a nationwide 

injunction, the issuance of nationwide relief is a necessary and essential 

remedy to preserve the status quo while this Court performs its Article III duty 

to decide this case.

III. Temporary Relief Would Not Harm Defendants or the Public

The third and fourth factors in deciding whether to grant a preliminary 

injunction—harm to the opposing party and the public interest—overlap when 

the government is the opposing party. Texas v. United States, 809 F.3d at 187 

& n.204 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).

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Defendants face no harm from temporary relief. The “public interest” is 

properly “served by maintaining our constitutional structure and maintaining

the liberty of individuals . . . .” BST Holdings, LLC v. OSHA, 17 F.4th 604, 618 

(5th Cir. 2021). Government officials have no legitimate interest in 

implementing an unlawful rule. See N.Y. Progress & Prot. PAC v. Walsh, 733 

F.3d 483, 488 (2d Cir. 2013) (recognizing that government officials “do[] not 

have an interest in the enforcement of an unconstitutional law”).

Even if Defendants had a legitimate interest in implementing the Final 

Rule, they, and the public, face no substantial prejudice from a delayed 

implementation. The government’s interest “can be effectively vindicated after 

a trial on the merits,” Texas v. United States, 809 F.3d at 187, whereas Division 

80’s interest cannot be, given that the Final Rule will destroy its business. 

IV. The Court May Postpone the Final Rule’s Effective Date

The Final Rule is scheduled to go into effect on August 24, 2022. If this 

Court requires additional time to conduct a preliminary-injunction hearing

and issue an opinion, it may, in the interim, postpone the Final Rule’s effective 

date. 

The Administrative Procedure Act empowers a “reviewing court” to 

“issue all necessary and appropriate process to postpone the effective date of 

an agency action or to preserve status or rights pending conclusion of the 

review proceedings.” 5 U.S.C. § 705. A stay of the effective date should issue 

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“to the extent necessary to prevent irreparable injury” and “[o]n such 

conditions as may be required.” Id.; see also Texas v. EPA, 829 F.3d 405, 435 

(5th Cir. 2016) (staying an EPA action pending review). 

When considering “whether to stay an agency action pending judicial 

review,” district courts apply the same test used for temporary restraining 

orders and preliminary injunctions. Texas v. United States, 95 F. Supp. 3d 965, 

973 (N.D. Tex. 2015); see also IHG Healthcare, Inc. v. Sebelius, CV H-09-3233, 

2010 WL 11680368, at *1 (S.D. Tex. Apr. 1, 2010); Safety Nat’l Cas. Corp. v. 

DHS, CV H-05-2159, 2005 WL 8168878, at *2 (S.D. Tex. Dec. 9, 2005). 

For the reasons explained herein, Division 80 has made the showing 

necessary for a stay of the Final Rule. The Administrative Procedure Act

empowers the Court to postpone the effective date as long as necessary “to 

preserve status or rights pending conclusion of the review proceedings.” 5 

U.S.C. § 705. As a result, the Court may postpone the Final Rule’s effective 

date pending the final resolution of this litigation or pending the resolution of 

this preliminary-injunction motion.

CONCLUSION

Division 80 respectfully requests that the Court enter a preliminary 

injunction preventing Defendants from implementing the Final Rule, or in the 

alternative, postpone the Final Rule’s effective date. 

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Division 80 also asks that the Court enjoin ATF from taking any 

enforcement actions, including the sending of cease-and-desist letters, 

premised on the legal theories in the Final Rule that (1) a weapon parts kit is 

a “firearm” or that (2) a partially complete, disassembled, or inoperable frame 

or receiver is a “frame or receiver.” 

Division 80 requests an in-person hearing as soon as practicable given

the Final Rule’s effective date of August 24, 2022, and ATF’s recent attempts

to enforce the Final Rule prior to its effective date. See Exhibits 30 and 34. 

Respectfully submitted,

Michael J. Sullivan

Massachusetts Bar No. 487210

Pro Hac Vice Pending

ASHCROFT LAW FIRM LLC

200 State Street, 7th Floor

Boston, MA 02109

Phone: (617) 573-9400

Fax: (703) 247-5446

Email: msullivan@ashcroftlawfirm.com

/s/ Cory R. Liu

Cory R. Liu

Attorney-in-Charge

Texas Bar No. 24098003

S.D. Texas Bar No. 3047640

ASHCROFT LAW FIRM LLC

919 Congress Ave., Ste. 1325

Austin, TX 78701

Phone: (512) 370-1800

Fax: (703) 247-5446

Email: cliu@ashcroftlawfirm.com

Counsel for Plaintiff Division 80 LLC

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INDEX OF EXHIBITS 

1. Testimony of Ashley Hlebinsky at the U.S. Senate Committee

on the Judiciary, Subcommittee on the Constitution (May 11,

2021)

2. Final Rule (Apr. 26, 2022)

3. Regulatory Impact Analysis and Final Regulatory Flexibility

Analysis

4. ATF Website – Are “80%” or “unfinished” receivers illegal?

5. ATF Website – Are there restrictions on who can purchase

receiver blanks?

6. ATF Website – What is ATF doing in regards to people

making their own firearms?

7. ATF Website – Does an individual need a license to make a

firearm for personal use?

8. Selection of ATF classification determination letters

9. ATF’s motion to dismiss in California v. ATF, No. 3:20-CV06761 (N.D. Cal. Nov. 30, 2020), ECF No. 29

10. ATF’s summary-judgment motion in City of Syracuse v. ATF,

No. 1:20-CV-06885 (S.D.N.Y. Jan. 29, 2021), ECF No. 98

11. ATF Public Affairs Division talking points (Apr. 9, 2014)

Source: City of Syracuse v. ATF, No. 1:20-CV-06885 (S.D.N.Y.), ECF

No. 60-5 at 15–21

12. ATF Technical Bulletins (Oct. 28, 2013, and Nov. 1, 2013)

Source: City of Syracuse v. ATF, No. 1:20-CV-06885 (S.D.N.Y.), ECF

No. 60-3 at 72–83

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13. ATF Type Firearm Visual Reference Guide (undated)

Source: City of Syracuse v. ATF, No. 1:20-CV-06885 (S.D.N.Y.), ECF

No. 60-3 at 84–89

14. Article by AUSA Shawn J. Nelson on “Unfinished Lower

Receivers” (Nov. 2015)

Source: City of Syracuse v. ATF, No. 1:20-CV-06885 (S.D.N.Y.), ECF

No. 60-4 at 96–100, ECF No. 60-5 at 1–2

15. Biden-Harris Democrats Website – “The Biden Plan to End

Our Gun Violence Epidemic”

16. Bill – Untraceable Firearms Act of 2021, S. 1558, 117th Cong.

(2021)

17. Bill – Ghost Guns Are Guns Act, H.R. 1454, 117th Cong. (2021)

18. Biden Administration Statement on Gun Violence (Apr. 7,

2021)

19. President Biden’s Remarks at the White House Rose Garden

(Apr. 8, 2021)

20. Attorney General Garland’s Remarks at the White House

Rose Garden (Apr. 8, 2021)

21. Notice of Proposed Rulemaking (May 21, 2021)

22. President Biden’s Remarks at a Gun Violence Prevention

Task Force Meeting (Feb. 3, 2022)

23. New York Times – “Dueling Messages Muddle Biden’s Agenda

on Guns” (Mar. 7, 2022)

24. Politico – “Democrats Exasperated with Biden on Gun

Control” (Apr. 8, 2022)

25. President Biden’s Remarks at the White House Rose Garden

(Apr. 11, 2022)

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26. Declaration of president of Division 80

27. Excerpt of Senate Committee Report for the Gun Control Act

of 1968

Source: City of Syracuse v. ATF, No. 1:20-CV-06885 (S.D.N.Y.), ECF

No. 60-3 at 60–62

28. ATF Website – Does the GCA control the sale of firearm

parts?

29. Reason – “ATF’s New ‘Ghost Gun’ Rules Are as Clear as Mud”

(Apr. 11, 2022)

30. ATF cease-and-desist letter to JSD Supply (May 9–10, 2022)

31. Everytown for Gun Safety press release (May 13, 2022)

32. JSD Supply website screenshot (visited May 17, 2022)

33. JSD Supply complaint in Not an LLC d/b/a JSD Supply v.

ATF, No. 2:22-CV-747 (W.D. Pa.), ECF No. 1

34. JSD Supply reply in support of preliminary injunction and

attached exhibits in Not an LLC d/b/a JSD Supply v. ATF, No.

2:22-CV-747 (W.D. Pa.), ECF Nos. 19-1, 19-2, 19-3, 19-4, and 19-5

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Certificate of Service 

I certify that a true and accurate copy of the foregoing document was 

filed electronically (via CM/ECF) on June 6, 2022. A true and accurate copy of 

the foregoing document was also sent to the following: 

daniel.riess@usdoj.gov 

/s/ Cory R. Liu

Cory R. Liu 

Certificate of Conference 

I certify that, on June 6, 2022, I conferred with Defendants’ counsel, who 

represented that Defendants oppose this motion. 

/s/ Cory R. Liu

Cory R. Liu 

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