IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

Plaintiffs, 

v. 

MERRICK GARLAND, in his official 

capacity as Attorney General of the United States;

et al., 

Defendants. 

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

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR 

MOTION FOR PRELIMINARY INJUNCTION 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 1 of 21 PageID 684
i

TABLE OF CONTENTS

ARGUMENT............................................................................................................. 1

I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS ................. 1

A. The Amended Definition of “Frame or Receiver”............................. 1

B. The Changed Definition of “Firearm” ............................................... 5

C. The Major Questions Doctrine........................................................... 6

II. PLAINTIFFS WILL SUFFER IRREPARABLE INJURY IF

THIS INJUNCTION IS NOT GRANTED.................................................... 8

A. Plaintiffs Did Not “Delay” Seeking Relief From the Final Rule....... 8

B. Substantial Threat of Irreparable Injury............................................. 9

III. THE BALANCE OF EQUITIES WEIGHS IN FAVOR

OF PLAINTIFFS ........................................................................................... 13

IV. THIS COURT SHOULD ENTER A BROAD INJUNCTION ..................... 14

CONCLUSION.......................................................................................................... 15

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 2 of 21 PageID 685
ii

TABLE OF AUTHORITIES

Case Pages(s) 

Anderson v. Carter, 

802 F.3d 4 (D.C. Cir. 2015) .................................................................................... 4 

Biden v. Missouri, 

142 S. Ct. 647 (2022).............................................................................................. 8 

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 

140 S. Ct. 1891 (2020)............................................................................................ 4 

Encino Motorcars, LLC v. Navarro, 

579 U.S. 211 (2016) ............................................................................................... 4 

Syracuse v. ATF, No. 1:20-cv-06885, 

No. 1:20-cv-06885, 2021 WL 23326 (S.D.N.Y. 2021) .......................................... 2, 3 

Garden State Equal. v. Dow, 

79 A.3d 1036, 1041 (N.J. 2013) ............................................................................. 13 

Gordon v. Holder, 

721 F.3d 638 (D.C. Cir. 2013) ................................................................................ 13 

Grace v. District of Columbia, 

187 F. Supp. 3d 124 (D.D.C. 2016) ........................................................................ 13, 14 

Grayned v. City of Rockford, 

408 U.S. 104 (1972) ............................................................................................... 5 

Handley v. Chapman, 

587 F.3d 273 (5th Cir. 2009) .................................................................................. 4 

Hornbeck Offshore Servs., L.L.C. v. Salazar, 

696 F. Supp. 2d 627 (E.D. La. 2010)...................................................................... 14 

Lamie v. U.S. Trustee, 

540 U.S. 526 (2004) ............................................................................................... 3 

Lujan v. Defenders of Wildlife, 

504 U.S. 16 (1992) ................................................................................................. 13 

Maryland v. King, 

567 U.S. 1301 (2012) ............................................................................................. 13 

Morehouse Enters., LLC v. ATF, No. 3:22-cv-116, 

No. 3:22-cv-116, 2022 WL 3597299 (D.N.D. 2022) ............................................. 2, 9 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 3 of 21 PageID 686
iii

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

700 F.3d 185 (5th Cir. 2012) .................................................................................. 13 

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 

142 S. Ct. 2111 (2022)............................................................................................ 8, 13 

Texas v. United States, 

201 F. Supp. 3d 810 (N.D. Tex. 2016) ................................................................... 14 

Texas v. United States, 

No. 7:16-cv-00054, 2016 WL 7852331 (N.D. Tex. 2016) ..................................... 15 

Statutes

18 U.S.C. § 921(a)(3) ................................................................................................. 6 

18 U.S.C. § 921(a)(3)(A) ........................................................................................... 2, 3, 4, 5, 6 

18 U.S.C. § 921(a)(3)(B) ........................................................................................... 2, 4 

Regulations 

Definition of “Frame or Receiver” and Identification of Firearms; Corrections, 87 Fed. Reg.

51,249 (Aug. 19, 2022) .......................................................................................... 8 

Other Authorities

1968 U.S.C.C.A.N. 2112, 2208 ................................................................................. 6, 7 

Ghost Guns and the Deeply American Tradition of Gun Privacy, FEE STORIES ...... 14 

S. Rep. No. 90-1097 ................................................................................................... 6, 7 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 4 of 21 PageID 687
1 

Defendants’ arguments in favor of their new Final Rule not only fail as a matter of law, but 

are rife with contradiction. Defendants claim the change implemented by the Final Rule is merely

a “modernization,” hand-waving away the substantial, nation-wide impacts. But Defendants’ Final

Rule significantly redefines the term “firearm,” upon which all “firearm” regulation is based,

exceeding the mandate of the Gun Control Act (“GCA”), and causing cascading regulatory effects. 

And while Defendants now argue that the Final Rule is consistent with their congressionally

granted power, less than two years ago they argued the opposite. Plaintiffs based their personal

and business practices on the GCA and Defendants’ longstanding interpretation thereof, and the 

Final Rule’s extensive, unauthorized changes cause irreparable harm. Plaintiffs request a 

preliminary injunction that halts the implementation of an unlawful, sometimes unintelligible rule. 

To further expedite their relief, Plaintiffs waive their request for oral argument. See ECF No. 16. 

ARGUMENT

I. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS 

Plaintiffs are likely to succeed on the merits. Congress has not authorized Defendants to

regulate non-frames, non-receivers, “frame or receiver parts kits,” or “weapons parts kits.” If

Congress intended for Defendants to regulate items that may be “readily converted” into “frames

or receivers,” it would have said so—just as Congress did in relation to several other items in the

GCA. Besides being in excess of authority, Defendants’ attempt to expand their regulatory power 

is arbitrary, capricious, impermissibly vague, and is an insufficiently explained departure from

prior practice and the Proposed Rule. Defendants’ arguments to the contrary ignore cannons of 

statutory interpretation, the history of its own application of the GCA, the history of reliance on 

the prior interpretations, and the actual arguments before this Court. 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 5 of 21 PageID 688
2

A. The Amended Definition of “Frame or Receiver”

Defendants make a tellingly terse argument that their regulatory redefinition of “frame or 

receiver” is consistent with the text of the GCA, and in so doing, reach entirely the wrong 

conclusion. Defendants claim that the existence of language in one part of a statute, § 921(a)(3)(A), 

and in other statutes, validates the agency’s grafting that language into a different part of the 

statute, § 921(a)(3)(B). ECF No. 41 at 18. But Defendants fail to explain why—since Congress 

has repeatedly used the term “readily [] converted” in other areas—it did not use that term in 

relation to a “frame or receiver.” Well-established cannons of statutory construction provide an

answer: Congress intentionally omitted the term “readily” or the concept of “readily converted”

from its authorization to regulate a “frame or receiver.” See Fed. Defs.’ Mot. for Summ. J., 

Syracuse v. ATF, No. 1:20-cv-06885, 2021 WL 23326, ECF No. 98 at 34 (quoting Allison Engine 

Co., Inc. v. U.S. ex rel. Saunders, 553 U.S. 662, 671 (2008) (“When Congress includes particular 

language in one section of a statute but omits it in another section of the same Act, it is generally 

presumed that Congress acts intentionally....”) (internal quotation marks and alteration omitted)).

In support, Defendants attempt to invoke the Morehouse decision, ECF No. 41 at 18, but 

that court confronted the argument that the Final Rule had created a “regulatory glob,” not an 

“identical” argument to Plaintiffs’ here.1 Morehouse Enters., LLC v. ATF, No. 3:22-cv-116, 2022 

WL 3597299, at *6 (D.N.D. Aug. 23, 2022). In addressing the definitions at issue, the Morehouse

court did not address cannons of statutory interpretation, let alone those Plaintiffs rely upon here

or that Defendants have relied upon in litigation under the old rule. 

1 Similarly, contrary to Defendants’ representation, when the Morehouse court observed that

“firearm” is broader than a fully operational weapon, it was addressing weapons parts kits, not

“frame or receiver” and so not rejecting an “identical” argument to one made here. See ECF No.

41 at 18–19; Morehouse Enters, 2022 WL 3597299, at *5.

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 6 of 21 PageID 689
3

Ironically, Defendants dismiss Plaintiffs’ analysis of the GCA, arguing that “Plaintiffs

essentially seek to insert a new adjective modifying ‘frame or receiver’ into the statute.” ECF No. 

41, at 17. Yet Defendants’ Final Rule quite literarily modifies the term “frame or receiver” by

inserting the “designed to or may be readily converted” language that Congress had omitted. 

After giving short shrift to the text and structure of the GCA, Defendants quickly turn to 

the intent of the GCA, claiming their new Final Rule is needed “to accomplish what Congress 

intended the statutes to do.” ECF No. 41 at 17. But arguments about congressional intent cannot 

alter the actual text of a statute or provide license for an agency to do what it claims Congress 

meant to do. See Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“The starting point in discerning 

congressional intent is the existing statutory text . . . and not the predecessor statutes.”).

Defendants’ attempt to distinguish their admissions in Syracuse is equally ineffective. 

Defendants claim their prior statements about the inability to regulate a “frame or receiver” rested 

on a prior rule and should therefore be irrelevant. ECF No. 41 at 19. In Syracuse, however,

Defendants argued that they specifically lacked the authority to regulate the items they seek to 

regulate here. Fed. Defs.’ Mot. for Summ. J., Syracuse v. ATF, No. 1:20-cv-06885, 2021 WL 

23326, ECF No. 98 at *14 (S.D.N.Y. Jan. 29, 2021) (“Importantly, the ‘designed to’ and ‘readily 

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

§ 921(a)(3)(A).”). Congress did not expand Defendants’ authority between that prior filing and 

this one. Defendants should be held to their prior admissions of the correct application of “frame 

or receiver.”2

2 Defendants claim the Final Rule “reflects the best statutory interpretation[,]” and thus Chevron

deference is inapplicable. ECF No. 41 at 26‒27. Plaintiffs agree that Chevron does not apply, but 

Defendants’ reasoning is erroneous. Defendants’ “best statutory interpretation” argument is 

refuted by their own argument from last year. Additionally, Defendants’ explanation for reading 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 7 of 21 PageID 690
4

Even if Defendants had authority to effectively rewrite and expand the GCA, however, the 

Final Rule would still be unlawful because it is arbitrary and capricious, dismisses decades of 

reliance interests, and is impossibly vague. For example, Defendants relegate discussion of four 

decades of classification letters to a footnote. See ECF No. 41, at 19 n.7. Yet, “[w]hen an agency 

changes course, . . . it must be cognizant that longstanding policies may have engendered serious 

reliance interests that must be taken into account. . . . It would be arbitrary and capricious to ignore 

such matters.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 

(2020) (internal citations and quotations omitted); see Encino Motorcars, LLC v. Navarro, 579 

U.S. 211, 224 (2016).

Defendants further attempt to dodge reliance interests, arguing that “‘a policy change must 

only meet three requirements: The new policy must be permissible under the statute; there must 

be good reasons for it; and the agency must believe that the new policy is better . . . .’” ECF No. 

41 at 34 (quoting Handley v. Chapman, 587 F.3d 273, 282 (5th Cir. 2009)). The first requirement 

is not satisfied, extinguishing Defendants’ argument. Congress did not give Defendants authority 

to regulate “readily convertible” frames or receivers. Nor, as further explained below, did it allow

Defendants to regulate every part of a firearm.

Next, Defendants’ explanation of the Final Rule illustrations highlights, among other 

things, the impossibly vague nature of the Final Rule. For example, Defendants insist that items 

illustrated in Plaintiffs’ Brief, ECF No. 16 at 18, labeled “not a firearm” are “not considered to be 

a ‘frame or receiver’ unless they are sold with jigs, templates, equipment, tools or other products 

the term “readily” from 18 U.S.C. § 921(a)(3)(A) into (B) is that “‘readily’ is a widely used word 

and concept...” ECF No. 41 at 27. If it’s such a “widely used word and concept” Congress should 

have had no trouble including it. “Courts ‘assume that Congress means what it says in a statute[.]’” 

Anderson v. Carter, 802 F.3d 4, 9 (D.C. Cir. 2015) (citation omitted).

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 8 of 21 PageID 691
5

or components that would make the receiver blank readily convertible to a functional frame or 

receiver.” ECF No. 41 at 19. This statement makes it appear that the Final Rule does not alter the 

regulation of unfinished frames or receivers, but only what they can be sold with. This position is 

not readily apparent from the Final Rule. Defendants’ litigation-proffered interpretation suggests

that they mean to regulate jigs, templates, or other tools, which could not meet the definition of 

“firearm.” These ambiguities are fatal to the Final Rule. See Grayned v. City of Rockford, 408 U.S. 

104, 108 (1972) (“It is a basic principle of due process that an enactment is void for vagueness if 

its prohibitions are not clearly defined. . . . [L]aws give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited, so that he may act accordingly.”).

B. The Changed Definition of “Firearm”

Defendants’ backhanded attempt to regulate items that are less than a “frame or receiver” 

or other non-firearm parts when they are grouped into a “weapons part kit,” likewise exceeds the 

GCA. Defendants spend most of their argument on the incontrovertible fact that a weapon need 

not be assembled to be readily converted to expel a projectile. ECF No. 41 at 20–21. Plaintiffs

have not argued otherwise. The point, however, is that just as Defendants’ new definition of “frame 

or receiver” exceeds the bounds of § 921(a)(3)(B), the new definition of “weapons part kit” 

exceeds § 921(a)(3)(A). Defendants now seek to also regulate a parts kit that can be “readily 

completed, assembled, [or] restored.” Final Rule, at 24,735.

Defendants’ underlying effort to expand what can be regulated is revealed in their claim 

that “there is no statutory basis for concluding that in order to be a ‘firearm’ under § 921(a)(3)(A), 

a weapon parts kit must be a ‘firearm’ under § 921(a)(3)(B).” ECF No. 41 at 22.3 This statement 

3 Firearm is “(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

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 9 of 21 PageID 692
6

is an oversimplification and diversion, for two reasons. First, and most simply, without a frame or 

receiver within the weapon parts kit, a weapon parts kit cannot be regulated. A weapon parts kit 

that does not include a frame or receiver cannot be readily “converted to expel a projectile by the 

action of an explosive.” 18 U.S.C. § 921(a)(3)(A). The frame or receiver is the core component 

that allows a weapon to fire a projectile. 

Second, Defendants fail to address the fact that Congress explicitly refused to regulate

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

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

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

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

words ‘any part or parts.’”) (emphasis added). The plain meaning of the statute as well as clear 

congressional statements refute Defendants’ arguments.

C. The Major Questions Doctrine

Defendants use the possibility of compliance in an attempt to emasculate the major 

questions doctrine (and proportionally increase their authority), stating, “manufacturers and sellers

. . . could continue to sell any and all products...by obtaining a federal firearms license.” ECF No. 

41 at 23‒24. Even with a mechanism for compliance, however, Defendants are seeking to regulate 

an industry that supports the centuries-old practice of self-manufacturing firearms.4

such weapon; (C) any firearm muffler or...silencer; or (D) any destructive device.” 18 U.S.C. §

921(a)(3).

4 “Privately made firearms have been in existence since the first ignition system . . . in the 1400s.”

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

Judiciary, 117th Cong. 4 (2021) (statement of Ashley Hlebinsky, Curator Emerita & Senior

Firearms Scholar, Cody Firearms Museum, President, The Gun Code, LLC),

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

ny%20Final.pdf.

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 10 of 21 PageID 693
7

Defendants claim that the Final Rule is not as severe as “a complete reorganization of 

American energy infrastructure,” “changing the terms of 80% of American residential leases,” or 

“regulating the entire tobacco industry.” See ECF No. 41 at 14. The primary objective of the Final 

Rule, however, literally seeks to redefine the term upon which the entire related regulatory 

framework is based. Changing the definition of firearm changes the entire regulatory structure.

Defendants contend that Plaintiffs failed to address whether Defendants’ reading of the 

statute was novel, thus illuminating whether the major questions doctrine was violated. ECF No. 

41 at 24. But as with other major questions problems, Defendants treat the regulatory definition of 

“frame or receiver” as a small crack in the door and use that crack to pry their way into expansive 

regulation.

Next, Defendants claim “the definition of what is and is not a ‘firearm’ or ‘frame or 

receiver’ is squarely within the expertise of ATF” while chastising Plaintiffs for not citing 

proposed legislation that supports the notion that Congress has considered and rejected certain 

regulatory definitions. ECF No. 41 at 25. As cited in both the Petition for Judicial Review, ECF 

No. 1 at 5, 24, and the Preliminary Injunction, ECF No. 16 at 3, 15, 22, 23, the 1968 definition of 

firearm superseded the previous definition where “any part or parts of such a weapon [were] 

included. It [was] [] found that it [was] impractical to have controls over each small part of a 

firearm.’”5 S. Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2200. There is 

no clearer congressional action than narrowing a statute and providing explicit reason for doing 

5 Even if the Final Rule did not raise a Major Questions Doctrine issue, it would still violation

the Delegation Doctrine and the Take Care Clause. ECF No. 1, ¶¶ 131‒152.

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 11 of 21 PageID 694
8

so.6 Plaintiffs have sufficiently established a likelihood of success on the merits.

II. PLAINTIFFS WILL CONTINUE TO SUFFER IRREPARABLE INJURY IF A

PRELIMINARY INJUNCTION IS NOT GRANTED

A. Plaintiffs Did Not “Delay” Seeking Relief From the Final Rule.

That Plaintiffs sought clarification from the ATF before launching a federal lawsuit is not

a disqualifying delay. The ATF announced the Final Rule on April 11, 2022. The very next day,

Plaintiff Tactical Machining sent a letter to the ATF requesting a classification letter clarifying

Tactical Machining’s product would still not be considered a “frame or receiver” under the Final

Rule. See Declaration of Darren Peters, Sr. (“Peters Decl.”), ECF No. 16-1, ¶ 9, Ex. 2. As of the

filing of Plaintiffs’ Motion, and indeed this Reply, the ATF had not responded to Tactical

Machining. Peters Decl., ECF No. 16-1, ¶ 10; Supplemental Declaration of Darren Peters, Sr.

(“Peters’ Supp. Decl.”), ¶ 10 (filed herewith). Had the ATF responded in a timely manner, Tactical

Machining may not have been forced to initiate this lawsuit.

The Agencies published their Final Rule on April 26, 2022. The Final Rule consists of

nearly 400 pages, differs significantly from the Proposed Rule, and upends decades of precedent.

Then, in June, the Supreme Court issued its opinion in New York State Rifle & Pistol Association,

Inc. v. Bruen, 142 S. Ct. 2111 (2022), further changing the legal landscape related to firearms. And

even after Plaintiffs filed their lawsuit—and just five days before the Final Rule went into effect—

the Agencies published a notice of Corrections to the Final Rule. Definition of “Frame or

Receiver” and Identification of Firearms; Corrections, 87 Fed. Reg. 51,249 (Aug. 19, 2022).7 The

6 Defendants’ citation to Biden v. Missouri, 142 S. Ct. 647 (2022), ECF No. 41 at 25, is inapposite.

Missouri involved hospitals that received federal funding based on conditions set by a federal

agency.

7 The corrections are available at: https://www.federalregister.gov/documents/2022/08/22/2022-

17741/definition-of-frame-or-receiver-and-identification-of-firearms-corrections.

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 12 of 21 PageID 695
9

agency itself making corrections to its own Final Rule just days before it went into effect defeats

any argument that action on the Rule should have been taken sooner.8 Any burden of delay should

rest solely on Defendants’ failure to respond and failure to clarify the vague Final Rule.

B. Substantial Threat of Irreparable Injury

Defendants are severely mistaken that their Final Rule imposes only “modest and ordinary

compliance costs” and thus Tactical Machining will not be irreparably harmed. ECF No. 41 at 41.

Defendants claim Tactical Machining can simply become a Federal Firearms Licensee (“FFL”)

and avoid any real harm. ECF No. 41 at 40. But Tactical Machining is already an FFL. Peters’

Supp. Decl. ¶ 3. And yet, in the week that the Final Rule has been in effect, Tactical Machining

sought to comply and has already suffered irreparable injury—and will continue to do so due to

regulatory uncertainty unless this Court enjoins enforcement of the Final Rule.

Production and sale of the items at issue here, marketed by Tactical Machining under the

colloquial label of “80% Lowers,” is 91.54% of Tactical Machining’s business. Peters’ Decl., ECF

No. 16-1, ¶ 11. Insofar as Tactical Machining believed that business was prohibited, because of

the noted lack of communication from the ATF, it amounted to a near complete loss of Tactical

Machining’s entire operation. Tactical Machining lost approximately $47,435.37 this past week

because of the impact of the Final Rule—despite the fact that Tactical Machining continued to sell

serialized receivers that must be purchased through an FFL. Peters’ Supp. Decl. ¶ 4–5. In fact, to

keep customers’ business and preserve brand loyalty, on August 25, 2022, Tactical Machining

8 The Agencies claim that Division 80 and Morehouse show that Plaintiffs here could have sought

relief sooner but ignore the fact that the Agencies themselves delayed both of those cases. See Pls.’

Resp. to Mot. to Transfer, ECF No. 24 at 16. Consequently, both the Division 80 and Morehouse

court issued orders on the respective preliminary injunction motions on August 23, 2022, after

Plaintiffs filed their Petition and Motion. Division 80, ECF No. 74; Morehouse, ECF No. 85.

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 13 of 21 PageID 696
10

discounted its complete AR-style receivers and is currently selling them at a loss, further damaging

the company. Peters’ Supp. Decl. ¶ 5.

As of August 30, based on email communications from the ATF and positions taken by

Defendants in court, Tactical Machining resumed sales of those items colloquially marketed as

“80% Lowers.” Peters’ Supp. Decl. ¶ 6. Tactical Machining does not sell those items with any jigs,

templates, tools, or instructions, per Defendants’ statements. Peters’ Supp. Decl. ¶ 6. Although

Tactical Machining has resumed sales, it remains irreparably injured by the Final Rule.

First, the Final Rule prevents Tactical Machining from selling any jigs with their products.

Prior to the announcement of the Final Rule, Tactical Machining sold jigs. Peters’ Supp. Decl. ¶ 8.

When the Final Rule was announced in April, Tactical Machining ceased the sale of jigs and

resubmitted an item previously classified as not a firearm for reclassification—which the ATF has

failed to respond to even now. Peters’ Supp. Decl. ¶ 8, 10. This alone has irreparably injured

Tactical Machining. Prior to the Rule going into effect, when Tactical Machining was out of stock

of jigs the sales of its “80% Lowers” would drastically drop—anywhere from 20%‒50%

depending on the length that jigs were not available. Peters’ Supp. Decl. ¶ 9. There is no reason to

assume that sales will not be impacted now when Tactical Machining is prohibited from selling

jigs with its products. Due to the lack of clarity in the Final Rule, Tactical Machining is not sure

that it can sell jigs at all, regardless of whether they are sold packed with its “80% Lowers,” in the

same transaction as those products, or even in separate transactions. Peters’ Supp. Decl. ¶ 9.

Second, even though Defendants have indicated in emails and in court filings, including

their Response Brief, that the items at issue are not considered “firearms” as long as they are not

sold with “jigs, templates, equipment, tools, or other products or components that would make the

receiver blank readily convertible to a functional frame or receiver,” ECF No. 41 at 19 (citations

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 14 of 21 PageID 697
11

omitted), this entirely misses the lack of clarity and unconstitutional vagueness inherent in the

Final Rule. In addition to resubmitting an item for reclassification in April, Tactical Machining

has called the ATF three separate times since the Final Rule’s effective date. Peters’ Supp. Decl.

¶ 10. Each time, the individual answering the phone stated someone would call back within 24

hours—no one ever did. Peters’ Supp. Decl. ¶ 10. The only point of contact who has provided

Tactical Machining with any direct information is a local ATF special agent. Peters’ Supp. Decl.

¶ 10. The ATF agent indicated that, based on his understanding and ATF training, Tactical

Machining’s products, sold without a jig, instructions, or template, are not “firearms” under the

Final Rule. Peters’ Supp. Decl. ¶ 10. And yet, “without any official guidance Tactical Machining

does not know what to do to remain in compliance and fears the ATF may take some enforcement

action against Tactical Machining for violating something that the ATF has so far refused to

authoritatively define.” Peters’ Supp. Decl. ¶ 10.

Third, the uncertainty in the market due to the Final Rule has resulted in a chilling effect.

Even with resumed sales, a significant number of Tactical Machining’s customers believe that the

direct sale and purchase of the items at issue, without any accompanying jigs, templates,

equipment, or tools, is still prohibited. Peters’ Supp. Decl. ¶ 11. This has been evidenced by the

litany of calls Tactical Machining has received from customers asking whether Tactical

Machining’s “80% Lowers” are illegal. Peters’ Supp. Decl. ¶ 11. These customers have expressed

fear that they may be raided by the ATF just for buying these products. Peters’ Supp. Decl. ¶ 11.

Tactical Machining does not believe it will ever bounce back to pre-Final Rule sales

numbers. Peters’ Supp. Decl. ¶ 12. The lack of certainty has also made it difficult for Tactical

Machining to do business with other, necessary vendors. For example, Tactical Machining is under

threat of being dropped by its current credit card processor because of the lack of certainty in the

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 15 of 21 PageID 698
12

Final Rule. Peters’ Supp. Decl. ¶ 13. Tactical Machining attempted to switch credit card

processors, for security and to decrease costs, but because of the Final Rule, that processor will

not underwrite Tactical Machining. Peters’ Supp. Decl. ¶ 13. Instead, Tactical Machining is in

talks with yet another credit card processor, which would increase their fees by 10% and would

impose more onerous compliance requirements. Peters’ Supp. Decl. ¶ 13.

Lastly, without massive changes to its business structure, Tactical Machining cannot shift

to solely selling complete, serialized frames and receivers to mitigate harm. Peters’ Supp. Decl. ¶

14. Among other issues, the machining required to manufacture complete frames and receivers is

significantly different than that of producing the items at issue in the Final Rule. Peters’ Supp.

Decl. ¶ 14. Moreover, manufacturing complete frames and receivers requires additional

compliance work and recording requirements that would change Tactical Machining’s business

practices and increase overhead. Peters’ Supp. Decl. ¶ 15. In fact, when Tactical Machining

attempted a temporary shift to this business practice upon the effective date of the Final Rule (by

focusing on serialized receivers), not only did sales not notably increase, but the compliance work

inundated staff, increasing their overall work nearly five-fold. Peters’ Supp. Decl. ¶ 15. Tactical

Machining estimates that if it were to continue on that course it would need at least two additional

staff to deal with the paperwork requirements and increase its prices. Peters’ Supp. Decl. ¶ 15.

Even then, Tactical Machining may not be able to operate at a profit and there is no guarantee that

Tactical Machining could keep its current customer base. Other companies have specifically

focused on serialized frames and receivers (or complete weapons) and have built customer bases

in those areas. There is no reason to assume that customers will shift to Tactical Machining for

those products. This harm is impossible to accurately project but is no less irreparable.

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 16 of 21 PageID 699
13

Moreover, the Individual Plaintiffs’ plans to purchase the items at issue here are not

speculative, as Defendants assert. Both have affirmed via declaration that they have concrete plans

to purchase the items newly regulated under the Final Rule. Declaration of Jennifer VanDerStok,

ECF No. 16-2, ¶ 7–9; Declaration of Michael Andren, ECF No. 16-3, ¶ 7–9. And Defendants’

reliance on Lujan’s requirement of a concrete plan is inapplicable here, where there is actual harm,

given Individual Plaintiffs are entirely prohibited from engaging in an act that they have engaged

in and would engage in again but for Defendants’ Final Rule. Cf. Lujan v. Defenders of Wildlife,

504 U.S. 555, 564 (1992) (“Where there is no actual harm, however, its imminence (though not its

precise extent) must be established.”); see also Nat’l Rifle Ass’n of Am., Inc. v. BATFE, 700 F.3d

185, 191–92 (5th Cir. 2012) abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n, Inc.

v. Bruen, 142 S. Ct. 2111 (2022) (“[B]y prohibiting FFLs from selling handguns to 18-to-20-yearolds, the laws caused those persons a concrete, particularized injury—i.e., the injury of not being

able to purchase handguns from FFLs.”).

III. THE BALANCE OF EQUITIES WEIGHS IN FAVOR OF PLAINTIFFS

Defendants claim that “if a State is enjoined by a court from effectuating statutes enacted

by representatives of its people, it suffers a form of irreparable injury.” ECF No. 41 at 43 (quoting

Maryland v. King, 567 U.S. 1301, 1302 (2012)). But Plaintiffs are not seeking to enjoin a statute.

Rather, they seek to enjoin enforcement of the extra-legal, unconstitutional Final Rule. And “if a

law is unconstitutional, how is the State harmed by not being able to enforce it?” Garden State

Equal. v. Dow, 79 A.3d 1036, 1041 (N.J. 2013). “[E]nforcement of an unconstitutional law is

always contrary to the public interest.” Grace v. District of Columbia, 187 F. Supp. 3d 124, 150

(D.D.C. 2016) (quoting Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)).

Defendants’ blanket appeal to “public safety,” ECF No. 41 at 43, also fails. The

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 17 of 21 PageID 700
14

government has an interest in promoting public safety, but it does not automatically follow that a

regulation enacted in the name of public safety will actually serve that interest, or that such

regulation is presumptively valid. See Hornbeck Offshore Servs., L.L.C. v. Salazar, 696 F. Supp.

2d 627, 637‒38 (E.D. La. 2010); Grace, 187 F. Supp. 3d at 148. Defendants contend that “[t]he

Rule will ‘increase public safety by, among other things, preventing prohibited persons from

acquiring firearms and allowing law enforcement to trace firearms involved in crime.’” ECF No.

41, at 43 (quoting 87 Fed. Reg. at 24,654). Defendants provide no additional data in support of

their contention. Other sources, however, show that the unregulated firearms targeted by the Final

Rule make up a small minority of weapons recovered in conjunction with criminal activity.9

Nevertheless, in the name of “public safety,” the Final Rule will affect myriad peaceable

Americans who own, produce, and sell items that are newly considered firearms.

Plaintiffs and other peaceable Americans will suffer real, irreparable harm if the Final Rule

is not enjoined. Individual Americans, including Plaintiffs VanDerStok and Andren, risk the

possibility of criminal penalties for purchasing items that have not historically been considered

firearms. Plaintiff Tactical Machining, and other producers and retailers, risk the destruction of

their businesses. These interests far outweigh any potential harm to the government.

IV. THIS COURT SHOULD ENTER A BROAD INJUNCTION

Defendants’ request for a narrowly tailored injunction is inconsistent with the nationwide

impact of the Final Rule. “[T]he scope of injunctive relief is dictated by the extent of the violation

established.” Texas v. U.S., 201 F. Supp. 3d 810, 836 (N.D. Tex. 2016), order clarified, 2016 WL

9 Ghost Guns and the Deeply American Tradition of Gun Privacy, FEE STORIES,

https://fee.org/articles/ghost-guns-and-the-deeply-american-tradition-of-gun-privacy/ (“In

Philadelphia, ghost guns accounted for 2.2 percent of confiscated guns in 2019, The Washington

Times reported. In Chicago, that percentage was 1.2 percent in 2020.”).

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 18 of 21 PageID 701
15 

7852331 (N.D. Tex. Oct. 18, 2016). The Final Rule affects millions of peaceable Americans and

businessowners in every state, all of whom are as vulnerable to irreparable harm under the Final

Rule as the Plaintiffs herein. If relief is not nationwide, “the Court risks a substantial likelihood 

that a geographically-limited injunction would be ineffective.” Texas v. U.S., No. 7:16-cv-00054, 

2016 WL 7852331, at *2 (N.D. Tex. Oct. 18, 2016). Therefore, “a nationwide injunction is

necessary because the alleged violation extends nationwide.” Id. An injunction in this matter, and

in all APA cases, can be entered to “preserve status or rights pending conclusion of the review

proceedings.” 5 U.S.C. § 705. Such a statutorily authorized injunction is not limited to the parties

before the Court, but instead enjoins general enforcement and implementation of the rule.

If, however, this Court limits relief to the parties before the Court, such relief should extend

to all members of Plaintiff Firearms Policy Coalition. See Order Denying Motion to Modify Stay

Order, at 1, Guedes v. BAFTE, 920 F.3d 1 (D.C. Cir.), judgment entered, 762 F. App’x 7 (D.C.

Cir. 2019) (clarifying that the entered stay “applies only to the named Appellants . . . including 

any current bona fide members of the named membership associations.”).

Finally, Plaintiffs have brought claims raising questions about the Agencies’ entire

rulemaking process. If the process under which the Final Rule was enacted violates the APA,

severing portions of the Rule is inadequate and the entire Rule must be enjoined and cannot be 

piecemeal redeemed by a severability clause as Defendants suggest. ECF No. 41 at 45. 

CONCLUSION

Plaintiffs respectfully request that this Court grant their Motion for Preliminary Injunction. 

DATED this 31st day of August, 2022. 

Respectfully submitted,

R. Brent Cooper (TX Bar No. 04783250) 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 19 of 21 PageID 702
16 

COOPER & SCULLY, P.C. 

900 Jackson Street, Suite 100 

Dallas, TX 75202 

Telephone: (214) 712-9500 

Telecopy: (214) 712-9540 

brent.cooper@cooperscully.com 

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

FIREARMS POLICY COALITION

5550 Painted Mirage Road, Suite 320 

Las Vegas, NV 89149 

Telephone: (916) 378-5785 

Telecopy: (916) 476-2392 

cwi@fpchq.org 

/s/ Kaitlyn D. Schiraldi 

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

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

MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80227 

Telephone: (303) 292-2021 

Telecopy: (877) 349-7074 

kschiraldi@mslegal.org 

eerhardt@mslegal.org 

*Admitted pro hac vice

Attorneys for Plaintiffs

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 20 of 21 PageID 703
17 

CERTIFICATE OF SERVICE

I hereby certify that, on August 31, 2022, a true and correct copy of the foregoing document 

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

 /s/ Kaitlyn D. Schiraldi 

Case 4:22-cv-00691-O Document 55 Filed 08/31/22 Page 21 of 21 PageID 704