IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

BLAKE J. WATTERSON;

Plaintiff,

v.

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS AND EXPLOSIVES; 

STEVEN DETTELBACH, in his 

official capacity as Director of the 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives; 

UNITED STATES DEPARTMENT 

OF JUSTICE; 

MERRICK GARLAND, in his official 

capacity as Attorney General of the 

United States; 

UNITED STATES OF AMERICA, 

Defendants.

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Civil Action No. 4:23-cv-00080

PLAINTIFF’S MOTION FOR RELIEF UNDER 5 U.S.C. § 705 OR, 

ALTERNATIVELY, FOR A PRELIMINARY INJUNCTION 

 

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TABLE OF CONTENTS

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

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

FACTUAL BACKGROUND................................................................................................... 1

STANDARD FOR GRANTING THE MOTION.......................................................................... 3

ARGUMENT AND AUTHORITIES......................................................................................... 3

I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS............................................... 3

A. The Rule Violates the Second Amendment............................................. 3

B. The Rule Violates Article I and Constitutional Separation-ofPowers Principles ..................................................................................... 5

C. The Rule Exceeds the Department’s Statutory Authority ..................... 8

II. PLAINTIFF WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF 

PRELIMINARY RELIEF ......................................................................................... 10

III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WEIGH IN FAVOR 

OF GRANTING PRELIMINARY RELIEF................................................................... 11

IV. THE COURT SHOULD POSTPONE OR STAY THE RULE’S EFFECTIVE DATE 

OR, ALTERNATIVELY, ISSUE A PRELIMINARY INJUNCTION................................... 13

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

CERTIFICATE OF SERVICE .............................................................................................. 17

CERTIFICATE OF CONFERENCE ...................................................................................... 18

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TABLE OF AUTHORITIES

Cases:

BST Holdings, L.L.C. v. OSHA, 

17 F.4th 604 (5th Cir. 2021) ....................................................................... 10, 12

Caetano v. Massachusetts, 

577 U.S. 411 (2016)............................................................................................. 4

Cargill v. Garland, 

No. 20-51016, 2023 U.S. App. LEXIS 344 (5th Cir. Jan. 6, 2023) .................... 6

Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 

511 F.3d 535 (6th Cir. 2007)............................................................................... 3

Envtl. Defense Fund v. EPA, 

515 F. Supp. 3d 1135 (D. Mont. 2021).............................................................. 14

Ezell v. City of Chicago, 

651 F.3d 684 (7th Cir. 2011)....................................................................... 10, 12

Gonzales v. Oregon, 

546 U.S. 243 (2006)............................................................................................. 9

Gordon v. Holder, 

721 F.3d 638 (D.C. Cir. 2013) ........................................................................... 12

Gun Owners of Am. v. Garland, 

19 F.4th 890 (6th Cir. 2021) ........................................................................... 8, 9

Gundy v. United States, 

139 S. Ct. 2116 (2019)..................................................................................... 6, 7

Hardaway v. Nigrelli, 

No. 22-CV-771 (JLS), 2022 U.S. Dist. LEXIS 200813 

(W.D.N.Y. Nov. 3, 2022).............................................................................. 10, 13

Heller v. District of Columbia, 

670 F.3d 1244 (D.C. Cir. 2011) ........................................................................... 5

Indus. Union Dep’t, AFL-CIO v. API,

448 U.S. 607 (1980)............................................................................................. 6

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Jackson Women’s Health Org. v. Currier, 

760 F.3d 448 (5th Cir. 2014)............................................................................. 12

Jacksonville Port Auth. v. Adams, 

556 F.2d 52 (D.C. Cir. 1977) ............................................................................. 12

Jarkesy v. SEC, 

34 F.4th 446 (5th Cir. 2022) ........................................................................... 6, 8

Lakedreams v. Taylor, 

932 F.2d 1103 (5th Cir. 1991)......................................................................... 3, 8

Louisiana v. Biden, 

55 F.4th 1017 (5th Cir. 2022) ........................................................................... 12

Loving v. United States, 

517 U.S. 748 (1996)............................................................................................. 7

Miller v. Bonta, 

542 F. Supp. 3d 1009 (S.D. Cal. 2021)................................................................ 5

Montanans for Multiple Use v. Barbouletos, 

568 F.3d 225 (D.C. Cir. 2009) ........................................................................... 14

Murphy v. Guerrero, 

No. 1:14-CV-00026, 2016 U.S. Dist. LEXIS 135684 (D. N. Mar. I. Sept. 28, 

2016) .................................................................................................................... 5

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

142 S. Ct. 2111 (2022)..................................................................................... 4, 5

Nat’l Fed’n of Indep. Bus. v. OSHA, 

142 S. Ct. 661 (2022)......................................................................................... 14

Nken v. Holder, 

556 U.S. 418 (2009)............................................................................................. 3

Panama Ref. Co. v. Ryan, 

293 U.S. 388 (1935)............................................................................................. 6

Rigby v. Jennings, 

No. 21-1523 (MN), 2022 U.S. Dist. LEXIS 172375 (D. Del. Sept. 23, 2022)... 11

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Rocky Mt. Gun Owners, Nat’l Ass’n v. Bd. of Cty. Comm’rs, 

No. 1:22-cv-02113-CNS-MEH, 2022 U.S. Dist. LEXIS 156308 (D. Colo. Aug. 

30, 2022) ............................................................................................................ 12

State v. Biden, 

10 F.4th 538 (5th Cir. 2021) ............................................................................. 12

Texas v. Biden, 

No. 2:21-CV-067-Z, 2022 U.S. Dist. LEXIS 226330 

(N.D. Tex. Dec. 15, 2022) ............................................................................ 14, 15

Texas v. EPA, 

829 F.3d 405 (5th Cir. 2016)......................................................................... 3, 11

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015), aff’d 577 U.S. 1101 (2016) ................................ 15

Texas v. United States, 

86 F. Supp. 3d 591 (S.D. Tex. 2015) ................................................................. 15

Touby v. United States, 

500 U.S. 160 (1991)............................................................................................. 7

United States v. Davis, 

139 S. Ct. 2319 (2019)......................................................................................... 6

United States v. Grimaud, 

220 U.S. 506 (1911)............................................................................................. 7

United States v. Kuzma, 

967 F.3d 959 (9th Cir. 2020)............................................................................... 9

United States v. S. Ind. Gas & Elec. Co., 

No. IP99-1692-C-M/S, 2002 U.S. Dist. LEXIS 20936 (S.D. Ind. 2002) ........... 14

Util. Air Regulatory Grp. v. EPA, 

573 U.S. 302 (2014)........................................................................................... 10

Vanderstok v. BlackHawk Mfg. Grp., Inc., 

No. 4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 200315, at *15 (N.D. Tex. Nov. 3, 

2022) ................................................................................................................. 13

Vanderstok v. Garland, 

No. 4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 159459 

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(N.D. Tex. Sept. 2, 2022)............................................................................... 9, 11

Vanderstok v. Garland, 

No. 4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 180398 

(N.D. Tex. Oct. 1, 2022)..................................................................................... 11

Voting for Am., Inc. v. Andrade, 

488 F. App’x 890 (5th Cir. 2012) (per curiam) ................................................... 3

Weingarten Realty Inv’rs v. Miller, 

661 F.3d 904 (5th Cir. 2011)....................................................................... 3, 5, 8

West Virginia v. EPA, 

142 S. Ct. 2587 (2022)......................................................................................... 8

Statutes

18 U.S.C. § 921............................................................................................................... 9

18 U.S.C. § 922............................................................................................................... 2

18 U.S.C. § 926........................................................................................................... 7, 8

26 U.S.C. § 5845............................................................................................................. 9

26 U.S.C. § 5861............................................................................................................. 2

26 U.S.C. § 5871............................................................................................................. 2

26 U.S.C. § 5872............................................................................................................. 2

26 U.S.C. § 7801......................................................................................................... 7, 8

5 U.S.C. § 553......................................................................................................... 14, 15

5 U.S.C. § 705............................................................................................... 3, 13, 14, 15

5 U.S.C. § 801............................................................................................................... 14

Other Authorities:

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

L.J. 35, 78 (2023)................................................................................................. 5

Stephen P. Halbrook, FIREARMS LAW DESKBOOK, § 7:7 (Oct. 2022 Update) ............... 9

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Regulations:

Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 

88 Fed. Reg. 6,478 (Jan. 31, 2023)............................................................ passim

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INTRODUCTION

The defendants (collectively, the “Department”) have issued a final rule that 

rewrites federal statutes and transforms pistols with stabilizing braces into shortbarreled rifles that must be registered. This rule effectively turns millions of lawabiding citizens who possess unregistered pistols with stabilizing braces into 

criminals guilty of a felony. This rule is a direct violation of both the Second 

Amendment right to keep and bear arms and the structural limits in the U.S. 

Constitution that prohibit Congress from delegating its core legislative power. 

Moreover, the rule exceeds the Department’s statutory authority. 

If the rule’s effective date is not postponed or stayed, it will cause irreparable 

harm to Plaintiff Watterson by depriving him of his constitutional rights. Indeed, he

is already being deprived of his Second Amendment rights, because he currently 

cannot attach his stabilizing brace to his pistol or otherwise possess a pistol with a 

stabilizing brace for self-defense without risking a 10-year prison sentence. 

FACTUAL BACKGROUND

On January 31, 2023, the Department published the final rule regulating 

pistols with stabilizing braces. See Factoring Criteria for Firearms with Attached 

“Stabilizing Braces,” 88 Fed. Reg. 6,478 (Jan. 31, 2023) (the “Rule”). The Rule 

redefines “rifle” (and thus “short-barreled rifle”) in the National Firearms Act and 

Gun Control Act to include pistols with stabilizing braces. See id. at 6,480, 6,574-75.

This is contrary to the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ 

(“ATF’s”) previous acknowledgements that pistols with stabilizing braces are not 

short-barreled rifles because they are not intended to be fired from the shoulder. See 

Mot. Summ. J. Exs. 6-9. Accordingly, the Rule expressly states that it “overrul[es] 

ATF’s previous classification letters.” Rule, 88 Fed. Reg. at 6,480. 

The Rule thus has significant criminal consequences for the millions of lawabiding citizens who have purchased stabilizing braces or pistols with stabilizing 

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braces already attached. See id. at 6,573; Mot. Summ. J. Ex. 12 at MSJ_033. 

Possession of an unregistered short-barreled rifle is punishable by 10 years in prison 

and a $250,000 fine, and there are severe criminal penalties, including imprisonment, 

for non-compliance with statutory restrictions on their transfer and transportation. 

26 U.S.C. §§ 5861, 5871, 5872; 18 U.S.C. §§ 922(a)(1), (4), (b)(4); 3571; see Compl. at 

¶¶ 21-23, 27-29. According to the Rule, over a million persons unlawfully possess 

unregistered short-barreled rifles and are thereby guilty of a felony that carries a 10-

year sentence, including persons who relied on ATF’s previous classifications 

regarding specific braces. See Rule, 88 Fed. Reg. at 6,480-82, 6,563, 6,573.

The Rule provides compliance options that would allow persons who possessed 

an unregistered pistol equipped with a stabilizing brace on January 31, 2023, to 

comply with the statutory requirements (as modified by the Rule) and avoid 

prosecution. See id. at 6,480-81, 6,570-71; see Compl. at ¶¶ 84-93. But the Rule warns 

that anyone who transfers or “newly makes” a pistol with a stabilizing brace (such as 

by attaching a stabilizing brace to a pistol) on or after January 31, 2023, can be 

prosecuted. See Rule, 88 Fed. Reg. at 6,480-81; Mot. Summ. J. Ex. 15 at MSJ_041.

Along with millions of others, Watterson is injured by the Rule, because it 

infringes on his right to have a pistol equipped with a stabilizing brace for self-defense 

purposes. See Mot. Summ. J. Ex. 3 at ¶¶ 4-15, 25-27, 29-31. If he attaches his 

stabilizing brace to his pistol, he risks prosecution and a 10-year prison sentence for 

possessing an unregistered short-barreled rifle under the Rule—even though ATF 

previously acknowledged his specific stabilizing brace does not transform a pistol into 

a rifle. Id. at ¶¶ 18-26. To be able to lawfully attach his stabilizing brace under the 

Rule and thereby have a pistol with a stabilizing brace for self-defense, Watterson

would need to wait several months to a year for approval, pay a $200 tax, and comply 

with additional requirements. Id. at ¶ 27; see Rule, 88 Fed. Reg. at 6,558-59.

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STANDARD FOR GRANTING THE MOTION

When deciding whether to grant a motion under 5 U.S.C. § 705 or grant a 

preliminary injunction, courts apply a largely identical four-factor test. See Nken v. 

Holder, 556 U.S. 418, 434 (2009) (noting the “substantial overlap” between factors for 

a stay pending appeal and a preliminary injunction); Texas v. EPA, 829 F.3d 405, 

424-36 (5th Cir. 2016) (considering the four Nken factors when staying an agency’s 

action under 5 U.S.C. § 705); Voting for Am., Inc. v. Andrade, 488 F. App’x 890, 893 

(5th Cir. 2012) (per curiam) (describing stay and preliminary-injunction factors as 

being “virtually the same”). Courts consider: (1) whether the movant “has made a 

strong showing” of likely success “on the merits; (2) whether [he] will be irreparably 

injured absent” preliminary relief; (3) whether preliminary relief “will substantially 

injure the other parties interested in the proceeding; and (4) where the public interest 

lies.” Nken, 556 U.S. at 434 (quotation omitted). The final factors “merge” and are

considered together if “the Government is the opposing party.” Id. at 435. 

ARGUMENT AND AUTHORITIES

I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS. 

Watterson easily satisfies the first factor. He simply needs to show “a 

substantial likelihood of success” and “does not need to prove his case.” Lakedreams 

v. Taylor, 932 F.2d 1103, 1109 n.11 (5th Cir. 1991). And when, as here, there are 

“serious legal question[s] involved and the balance of equities heavily favors”

granting preliminary relief, the plaintiff need only “present a substantial case on the 

merits.” Weingarten Realty Inv’rs v. Miller, 661 F.3d 904, 910 (5th Cir. 2011) (stay); 

see Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 

543 (6th Cir. 2007) (preliminary injunction). Watterson has done so as explained 

below and in his Motion for Summary Judgment. See Mot. for Summ. J., ECF No. 6. 

A. The Rule Violates the Second Amendment. 

Watterson will likely succeed on his claim that the Rule—and the National 

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Firearms Act and Gun Control Act to the extent the Rule properly interprets those 

statutes—violates the Second Amendment. See id. at Part II. Pistols with stabilizing 

braces fall within the Second Amendment’s scope, because they are “modern 

instruments that facilitate armed self-defense.” N.Y. State Rifle & Pistol Ass’n v. 

Bruen, 142 S. Ct. 2111, 2132 (2022); Rule, 88 Fed. Reg. at 6,566 (recognizing that 

individuals can use pistols with stabilizing braces for “personal defense”); Mot. 

Summ. J. Ex. 3 at ¶¶ 4-15. Accordingly, “the Constitution presumptively protects” 

the uninfringed possession of pistols with stabilizing braces, and the Department has

the burden of “justifying [its] regulation by demonstrating that it is consistent with 

the Nation’s historical tradition of firearm regulation.” Bruen, 143 S. Ct. at 2130. 

The Department has failed to carry its burden of “affirmatively prov[ing]” that 

historical tradition permits the Rule’s (or the statutes’) infringement on law-abiding 

individuals’ right to make or possess pistols with stabilizing braces. Id. at 2127. 

Although the Department suggests the regulations are justified by historical 

prohibitions on dangerous and unusual weapons, Rule, 88 Fed. Reg. at 6,548, its own 

evidence demonstrates that pistols with stabilizing braces are in common use by lawabiding citizens for lawful purposes, id. at 6,573 (acknowledging that at least “1.4 

million firearm owners” have “pistols with ‘stabilizing braces’ attached”); 6,550

(noting that over 641,000 short-barreled rifles are lawfully registered); 6,565-66 

(acknowledging that pistols with stabilizing braces can be used for “personal defense” 

and could be helpful in controlling the population of feral hogs, which cause millions 

of dollars in damages annually). That is fatal to its arguments that the Rule’s 

restrictions are consistent with the Second Amendment. See Caetano v. 

Massachusetts, 577 U.S. 411, 420 (2016) (Alito J., concurring) (explaining weapons 

cannot be banned if they “are commonly possessed by law-abiding citizens for lawful 

purposes today” and concluding that 200,000 stun guns demonstrated common use).

The Rule’s restrictions on a person’s right to possess pistols with stabilizing 

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braces and right to attach braces to their pistols cannot be justified by history and 

tradition. Americans have enjoyed the right to make, modify, and possess guns for 

centuries, and national restrictions on most gun accessories are of recent vintage. See 

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

35, 78 (2023) (“[T]here were no restrictions on the manufacture of arms for personal 

use in America during the seventeenth, eighteenth, or nineteenth centuries.”); Miller 

v. Bonta, 542 F. Supp. 3d 1009, 1024 (S.D. Cal. 2021) (“Prior to the 1990’s, there was 

no national history of banning weapons because they were equipped with furniture 

like pistol grips, collapsible stocks, flash hiders, flare launchers, or barrel shrouds.”), 

vacated, No. 21-55608, 2022 U.S. App. LEXIS 21172, at *2 (9th Cir. Aug. 1, 2022) 

(vacating judgment in light of Bruen). And there is no historical analogue that 

justifies a registration requirement compelling law-abiding citizens to wait months 

to a year to possess a pistol with a stabilizing brace or that justifies a tax designed to 

discourage the exercise of Second Amendment rights, Mot. for Summ. J. Ex. 13 at 

MSJ_34; see Bruen, 142 S. Ct. at 2138 n.9 (indicating that “lengthy wait times in 

processing license applications or exorbitant fees” may impermissibly infringe on the 

right of law-abiding citizens to public carry); Heller v. District of Columbia, 670 F.3d 

1244, 1270, 1292 (D.C. Cir. 2011) (Kavanaugh, J, dissenting) (concluding a 

registration requirement for gun owners was not supported by history and tradition); 

Murphy v. Guerrero, No. 1:14-CV-00026, 2016 U.S. Dist. LEXIS 135684, at *34-37, 

79-83 (D. N. Mar. I. Sept. 28, 2016) (concluding a registration requirement with a 15-

day waiting period and a $1,000 tax was unconstitutional). Watterson will thus likely 

succeed on his Second Amendment claim or, at least, has presented a “substantial 

case” on this “serious legal question.” See Miller, 661 F.3d at 910.

B. The Rule Violates Article I and Constitutional Separation-ofPowers Principles. 

Watterson has likewise shown that he is likely to succeed, or at least presented 

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a substantial case, as to his claim that the Department lacked the constitutional 

authority to promulgate the Rule. See Mot. for Summ. J. Part III. 

The Constitution vests “[a]ll legislative Powers” in Congress, U.S. Const. art. 

I, § 1, and Congress cannot “abdicate” or “transfer” “the essential legislative functions 

with which it is thus vested,” Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935)

(quotation omitted). Although some delegations are constitutionally permissible 

under more recent Supreme Court precedent, Jarkesy v. SEC, 34 F.4th 446, 460-61 

(5th Cir. 2022), the prohibition on the transfer of “powers which are strictly and 

exclusively legislative” remains, Gundy v. United States, 139 S. Ct. 2116, 2123 (2019)

(plurality op.) (emphases added). Congress thus may not delegate essential or 

exclusively legislative power. See Panama Ref. Co., 293 U.S. at 421 (explaining that 

that Congress must itself “lay[] down policies and establish[] standards”); Indus. 

Union Dep’t, AFL-CIO v. API, 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring) 

(explaining that “critical policy decisions” are “the very essence of legislative 

authority” and “must be made by the elected representatives”). And the power to 

declare conduct a crime that is punishable by 10 years’ imprisonment must be such a 

core legislative power. See United States v. Davis, 139 S. Ct. 2319, 2323 (2019) (“Only 

the people’s elected representatives in Congress have the power to write new federal 

criminal laws.”); Cargill v. Garland, No. 20-51016, 2023 U.S. App. LEXIS 344, at *50 

(5th Cir. Jan. 6, 2023) (en banc) (suggesting that it would be problematic “[i]f ATF 

could change the scope of criminal liability by issuing a regulation,” because then “the 

Executive could wield power that our Constitution reserves to the Legislature”). 

The Rule is thus an unconstitutional exercise of core legislative power. Not 

only did the Department make the policy decision that unregistered possession of 

pistols with stabilizing braces is a crime that can be punished with 10 years’ 

imprisonment, Rule, 88 Fed. Reg. at 6,480-82; Compl. at ¶¶ 21-23, 27-28, but it also 

crafted a purported “enforcement discretion” scheme that waives statutory 

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requirements for certain persons if they abide by one of the Rule’s compliance options, 

see Rule, 88 Fed. Reg. at 6,480-81, 6,507, 6,549, 6,570-71; Compl. at ¶¶ 84-93. Such 

significant policy decisions with severe criminal consequences cannot be delegated to 

unelected officials. See Cargill, 2023 U.S. App. LEXIS 344, at *5 (allowing ATF 

“rather than Congress . . . set forth the scope of criminal prohibitions” would violate 

the principle that “[i]t is the legislature . . . which is to define a crime, and ordain its 

punishment” (quotation omitted)). Nor do Supreme Court cases approving limited 

delegations in the criminal context demonstrate otherwise as they are 

distinguishable. See, e.g. United States v. Grimaud, 220 U.S. 506, 521-22 (1911)

(involving a public welfare offense with less serious penalties); Loving v. United 

States, 517 U.S. 748, 753-54 (1996) (Thomas, J., concurring) (noting the unique 

context of military prosecutions); Gundy, 139 S. Ct. at 2123-25 (plurality op.) 

(concluding the delegated authority in the Sex Offender Registration and Notification 

Act was a feasibility determination, not the policy decision of whether a statute 

should apply to a subset of persons); Touby v. United States, 500 U.S. 160, 162-63 

(1991) (discussing specific factors and findings required by the Controlled Substances 

Act); Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting) (describing the delegation 

approved in Touby as being “an essentially fact-finding responsibility”).

In any event, the Rule is also an unconstitutional delegation, because Congress 

failed to provide an intelligible principle to guide the Department’s discretion. See 

Jarkesy, 34 F.4th at 46 (explaining a delegation is unconstitutional if Congress failed 

to “provide[] an intelligible principle such that the agency exercises only executive 

power”). Here, Congress did not cabin the Department’s discretion by setting forth 

specific fact findings that must be made to expand the definitions in the federal 

firearm statutes. Instead, it simply tasked the Department with “[t]he administration 

and enforcement” of the National Firearms Act, 26 U.S.C. § 7801(a)(2)(A), and 

instructed it to prescribe “such rules and regulations as are necessary to carry out” 

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the Gun Control Act, 18 U.S.C. § 926(a). There is a “total absence of guidance” that 

restricts the Department’s ability to expand the definitions and criminal liability, 

which is “impermissible under the Constitution.” Jarkesy, 34 F.4th at 463. 

Accordingly, there is no true intelligible principle in the statutes that would allow the 

Department to issue the Rule and create new crimes without violating the structural 

provisions of the Constitution.

C. The Rule Exceeds the Department’s Statutory Authority. 

Watterson has similarly shown that he has “a substantial likelihood of success” 

as to his claim that the Rule exceeds the Department’s statutory authority, 

Lakedreams, 932 F.2d at 1109 n.11, or at least, “present[ed] a substantial case on the 

merits” regarding the “serious legal question” of the scope of the major questions 

doctrine, Miller, 661 F.3d at 910. See Mot. for Summ. J. Part IV. 

Congress did not speak clearly—as required—to give the Department the 

authority to adopt the Rule. The Rule is a major policy decision of great political 

significance because it infringes on individual liberties: it turns millions of Americans 

into criminals guilty of felonies and restricts the right to make and possess pistols 

with stabilizing braces. See, e.g., Rule, 88 Fed. Reg. at 6,480-82. It also fundamentally 

changes the statutory scheme by crafting an “enforcement discretion” scheme. See id. 

at 6,480-81, 6,563, 6,570-71; see also Compl. at ¶¶ 84-93. Because the Rule makes 

decisions of “such magnitude and consequence,” those decisions rest with Congress 

or, at the very least, with “an agency acting pursuant to a clear delegation from that 

representative body.” West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022)). 

Accordingly, the Department “must point to clear congressional authorization for the 

power it claims.” Id. at 2609 (quotation omitted). 

The Department fails to do so, because Congress did not speak clearly to give 

the Department the power it claims. See 26 U.S.C. § 7801(a)(2)(A); 18 U.S.C. § 926(a). 

That is fatal under the major questions doctrine. See Gun Owners of Am. v. Garland, 

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19 F.4th 890, 919 (6th Cir. 2021) (Murphy, J., dissenting); see also United States v. 

Kuzma, 967 F.3d 959, 971 (9th Cir. 2020) (noting the National Firearms Act does not 

delegate the “authority to promulgate underlying regulatory prohibitions, which are 

then enforced by a criminal statute prohibiting willful violations of those 

regulations”); Stephen P. Halbrook, FIREARMS LAW DESKBOOK, § 7:7 (Oct. 2022 

Update) (similar).

Regardless, even apart from the major questions doctrine, the Rule exceeds the 

Department’s statutory authority by expanding the definition of “rifle” (and thus 

short-barreled rifle). Congress defined rifle based on whether the weapon was 

“designed or redesigned, made or remade, and intended to be fired from the shoulder.” 

26 U.S.C. § 5845(c); 18 U.S.C. § 921(a)(7). As ATF previously recognized, this 

definition necessarily excludes pistols with stabilizing braces as they are designed to 

be braced against a shooter’s forearm, not braced against a shooter’s shoulder. See 

Mot. Summ. J. Exs. 6-9. Yet the Department expanded the definition of rifle to include 

weapons “equipped with . . . a ‘stabilizing brace’” that (1) have any surface area that 

could be used for shoulder firing, and (2) fail a prong of a multi-factor test. Rule, 88 

Fed. Reg. at 6,574-75. The multi-factor test examines whether a gun could be fired 

from the shoulder, not whether it was designed and intended to be fired in that 

fashion. This revision thus rewrites, rather than merely interprets, statutory terms.

The Department, however, has no statutory authority to expand the definition 

of “rifle” and create new crimes (as opposed to its authority to omit weapons from the 

definition of “firearm” after making specific fact findings, see 26 U.S.C. § 5845(a)). See 

Gonzales v. Oregon, 546 U.S. 243, 262-63 (2006); Gun Owners, 19 F.4th at 919

(Murphy, J., dissenting). The Department similarly lacks the authority to regulate 

stabilizing braces, which are not swept into the statutory definition of firearm unlike 

other gun parts. See Vanderstok v. Garland, No. 4:22-cv-00691-O, 2022 U.S. Dist. 

LEXIS 159459, at *19-20 (N.D. Tex. Sept. 2, 2022). And the Department lacks the

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authority to provide compliance options that are outside of the statutory scheme. See

Mot. Summ. J. Ex. 13 at MSJ_034, Ex. 10 § 3.3; Util. Air Regulatory Grp. V. EPA, 573 

U.S. 302, 328 (2014) (“Agencies are not free to adopt . . . unreasonable interpretations 

of statutory provisions and then edit other statutory provisions to mitigate the 

unreasonableness.” (quotation omitted)). Watterson has thus shown he will likely 

succeed on his statutory claim, as well as his constitutional claims.

II. PLAINTIFF WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF 

PRELIMINARY RELIEF.

Watterson also satisfies the second factor, because he is—and will continue 

to—suffer irreparable harm in the absence of preliminary relief. The Rule prevents 

Watterson from being able to attach his stabilizing brace to his pistol and have a 

pistol equipped with a stabilizing brace for self-defense without risking prosecution 

and a 10-year prison sentence. See Mot. Summ. J. Ex. 3 at ¶¶ 26-27; Rule, 88 Fed. 

Reg. at 6,480-81. This “loss of constitutional freedoms for even minimal periods of 

time . . . unquestionably constitutes irreparable injury.” BST Holdings, L.L.C. v. 

OSHA, 17 F.4th 604, 618 (5th Cir. 2021) (quotation omitted); see Ezell v. City of 

Chicago, 651 F.3d 684, 698 (7th Cir. 2011) (explaining that if a range ban is 

unconstitutional, plaintiffs’ Second Amendment rights are violated “every day it 

remains on the books”); Hardaway v. Nigrelli, No. 22-CV-771 (JLS), 2022 U.S. Dist. 

LEXIS 200813, at *42-43 (W.D.N.Y. Nov. 3, 2022) (concluding the irreparable harm 

element was satisfied when plaintiffs were forced to “forgo their Second Amendment 

rights to exercise their First Amendment rights”). 

Nor can the Department suggest that this irreparable harm is self-imposed or 

imaginary. Watterson faces a credible threat of prosecution if he exercises his Second 

Amendment rights. See Mot. for Summ. J. Ex. 3 at ¶¶ 18-26. Not only does the Rule 

revoke the prior classification letter that recognized his specific stabilizing brace 

would not transform a pistol into a short-barreled rifle, but it also states that 

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“possessors of firearms equipped with ‘stabilizing braces’ that were at issue in those 

letters may also be in possession of unregistered [National Firearm Act] firearms.” 

Rule, 88 Fed. Reg. at 6,480; see Mot. for Summ. J. Ex. 3 at ¶¶ 11-12, 25. Accordingly, 

the chilling of Watterson’s Second Amendment rights caused by the Rule’s “threat of 

a potential felony indictment” satisfies the irreparable harm requirement. See 

Vanderstok v. Garland, No. 4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 180398, at *16-

17 (N.D. Tex. Oct. 1, 2022) (explaining that the plaintiffs’ decision to not purchase 

products “in response to the perceived threat of looming civil and criminal liability” 

according to a final rule “sufficiently demonstrated irreparable harm”); Rigby v. 

Jennings, No. 21-1523 (MN), 2022 U.S. Dist. LEXIS 172375, at *27 (D. Del. Sept. 23, 

2022) (finding “irreparable harm” where plaintiffs “are threatened by criminal 

penalties should they engage in conduct protected by the Second Amendment”).

Furthermore, there is no way for Watterson to avoid an infringement of his 

Second Amendment rights. Even if he attempted to comply with the Rule’s unlawful 

requirements, it would take months to a year to receive permission to possess a pistol 

equipped with a stabilizing brace. See Mot. Summ. J. Ex. 3 at ¶¶ 27, 29-30; Rule, 88 

Fed. Reg. at 6,558-89. He would additionally have to incur unrecoverable compliance 

costs, which would constitute irreparable harm. See, e.g., Texas, 829 F.3d at 433-34

(explaining that “complying with a regulation later held invalid almost always

produces the irreparable harm of nonrecoverable compliance costs” and that “it is not 

so much the magnitude but the irreparability that counts” (quotations omitted)). And 

even if Watterson could “avoid the harm by complying with the unlawful agency 

rule”—which he cannot—that is “no answer” to negate the showing of irreparable 

harm. See Vanderstok, 2022 U.S. Dist. LEXIS 159459, at *29.

III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WEIGH IN FAVOR 

OF GRANTING PRELIMINARY RELIEF.

Watterson also satisfies the third and fourth factors, because the absence of 

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preliminary relief “will injure other parties” and “the public interest favors” 

preliminary relief. See Texas, 829 F.3d at 434.

Because it can “be assumed that the Constitution is the ultimate expression of 

the public interest,” the “enforcement of an unconstitutional law is always contrary 

to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)

(quotations omitted); see Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 

n.9 (5th Cir. 2014) (“[I]t is always in the public interest to prevent the violation of a 

party’s constitutional rights.” (quotation omitted)). It is therefore in the public 

interest to grant preliminary relief and stop the violation of individual constitutional 

rights. See Ezell, 651 F.3d at 710 (concluding “[t]he balance of harms favors the 

plaintiffs” where they “have established a strong likelihood that they are suffering 

violations of their Second Amendment rights every day the range ban is in effect”); 

Rocky Mt. Gun Owners, Nat’l Ass’n v. Bd. of Cty. Comm’rs, No. 1:22-cv-02113-CNSMEH, 2022 U.S. Dist. LEXIS 156308, at *4 (D. Colo. Aug. 30, 2022) (concluding it 

was in the public interest to prevent the violation of the plaintiff’s Second 

Amendment rights). Granting relief also benefits the public given Watterson’s 

likelihood of success on his separation-of-powers claim, because the public interest is 

“served by maintaining our constitutional structure.” See BST Holdings, 17 F.4th at 

618-19. The public interest is likewise served by stopping the enforcement of an 

unlawful regulation. After all, the public is harmed by “the perpetuation of unlawful 

agency action,” Louisiana v. Biden, 55 F.4th 1017, *36 (5th Cir. 2022) (quotation 

omitted), and has an interest “in having governmental agencies abide by the federal 

laws that govern their existence and operations,” State v. Biden, 10 F.4th 538, 559-

60 (5th Cir. 2021) (quotation omitted); see Jacksonville Port Auth. v. Adams, 556 F.2d 

52, 58-59 (D.C. Cir. 1977) (“[T]here is an overriding public interest . . . [in] an agency’s 

faithful adherence to its statutory mandate.”).

The Department will likely counter that relief will threaten public safety, Rule, 

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88 Fed. Reg. at 6,481, but that is speculative at best. Despite millions of pistols with 

stabilizing braces, the Department points to only two crimes and less than 300 

investigations involving them over the past decade. Id. at 6,499. Nor is there any 

evidence the Rule would prevent criminals from possessing and using pistols with 

stabilizing braces as opposed to simply depriving law-abiding citizens of the ability 

to defend themselves effectively with a gun that is easier and safer for them to shoot. 

See Hardaway, 2022 U.S. Dist. LEXIS 200813, at *43-44 (W.D.N.Y. 2022) (noting 

preliminary relief would benefit the public where “the challenged law [prohibiting 

concealed carry in places of worship] creates a vulnerable population of attendees . . . 

left to the whims of potential armed wrongdoers who are uninterested in following 

the law in any event”). Regardless, the public’s interest in allowing “law-abiding 

citizens . . . to engage in historically lawful conduct” outweighs any speculative 

interest the Department has in requiring current possessors of pistols with stabilizing 

braces to register those weapons and requiring citizens to apply for permission to 

attach stabilizing braces to pistols. See Vanderstok v. BlackHawk Mfg. Grp., Inc., No. 

4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 200315, at *15 (N.D. Tex. Nov. 3, 2022). That 

is especially true considering that the Department seeks to overrule “ATF regulatory 

precedent against a public that has relied on that historic posture.” Id.

IV. THE COURT SHOULD POSTPONE OR STAY THE RULE’S EFFECTIVE DATE

OR, ALTERNATIVELY, ISSUE A PRELIMINARY INJUNCTION.

To stop the ongoing deprivation of Second Amendment rights and to prevent 

additional irreparable harm while this case is pending, the Court should postpone or 

stay the Rule’s effective date until 60 days after this case is resolved on the merits

under 5 U.S.C. § 705. Watterson would then not need to fear prosecution under the 

Rule and could rely on the prior ATF classifications concluding that a stabilizing 

brace does not transform a pistol into a short-barreled rifle. 

Section 705 specifically authorizes courts to “issue all necessary and 

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appropriate process to postpone the effective date of an agency action or to preserve 

status or rights pending conclusion of the review proceedings.” Whereas agencies are 

limited to postponing an effective date, federal courts have the “broader power” to 

“postpone the effective date” or “to preserve status or rights pending conclusion of the 

review proceedings.’” Texas v. Biden, No. 2:21-CV-067-Z, 2022 U.S. Dist. LEXIS 

226330, at *23 (N.D. Tex. Dec. 15, 2022) (quoting 5 U.S.C. § 705). Courts thus have 

broad power to fashion appropriate relief under § 705.

The Court should exercise that power and postpone the Rule’s effective date

until 60 days after this case has been resolved on the merits. Although the 

Department claims the Rule’s effective date is its publication date (January 31, 2023), 

Rule, 88 Fed. Reg. at 6,478, 6,480, it cannot make the Rule effective immediately, see 

5 U.S.C. § 553(d) (requiring publication “not less than 30 days before [a substantive 

rule’s] effective date”); Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 665 (2022)

(“Administrative agencies are creatures of statute. They accordingly possess only the 

authority that Congress has provided.”). The Rule’s true effective date—at the 

absolute earliest—would be March 2, 2023. See 5 U.S.C. § 553(d).1 See Envtl. Defense 

Fund v. EPA, 515 F. Supp. 3d 1135, 1151 (D. Mont. 2021) (concluding the agency 

lacked the authority to make the rule “effective immediately on publication” and 

declaring the “rule is ineffective until 30 days from the date of its publication”).

Accordingly, the Court can and should postpone that effective date. 

1 Under 5 U.S.C. § 801(a)(3), the Rule cannot be effective until even later. See 5 U.S.C. 

§ 801(a)(3) (providing that “[a] major rule relating to a report submitted [to Congress] 

shall take effect on the latest of . . . 60 days after the date on which . . . Congress 

receives the report . . . [or] the rule is published in the Federal Register”). It is 

unclear, however, whether a failure to comply with the Congressional Review Act is 

reviewable. Compare, e.g., Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 

229 (D.C. Cir. 2009) (concluding that § 805 “precludes review” of noncompliance with 

the Act), with United States v. S. Ind. Gas & Elec. Co., No. IP99-1692-C-M/S, 2002 

U.S. Dist. LEXIS 20936, at *18 (S.D. Ind. 2002) (concluding that Congress’s actions 

are not subject to judicial review, but an agency’s actions are).

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The Department will likely counter that the Rule is an interpretive rule that 

can be effective immediately and that the Court cannot postpone an effective date 

that has already passed. See Rule, 88 Fed. Reg. at 6,480 (citing 5 U.S.C. § 553(d)(2)). 

But this is false. As explained in the summary-judgment motion (at 8-9), the Rule is 

a substantive rule that is “binding” and creates “rights and obligations.” See Texas v. 

United States, 809 F.3d 134, 171 (5th Cir. 2015), aff’d 577 U.S. 1101 (2016). It not 

only overrules prior classifications of weapons, Rule, 88 Fed. Reg. at 6,480,

constituting a “substantive change in existing law or policy,” Texas v. United States, 

86 F. Supp. 3d 591, 670 (S.D. Tex. 2015), but it also confers benefits, such as waiving 

a $200 tax and removing agency discretion to prosecute those who satisfy the Rule’s 

compliance options, see Rule, 88 Fed. Reg. at 6,480-81, 6,498; Texas, 809 F.3d at 148, 

171-72, 176. 

In any event, even assuming the Rule’s effective date is January 31, 2023, the 

Court can stay the Rule and set a new effective date as it would be “necessary and 

appropriate” to preserve the status quo and rights pending review. 5 U.S.C. § 705; see 

Texas, 2022 U.S. Dist. LEXIS 226330, at *22-23 (concluding that “[w]hether the 

effective date . . . has passed is irrelevant,” because courts can and routinely do “stay 

already-effective action” under § 705). The Court should therefore grant relief under 

§ 705 and postpone or stay the Rule’s effective date.

The Court should alternatively grant a preliminary injunction under Federal 

Rule of Civil Procedure 65 and temporarily enjoin the Department from enforcing the 

National Firearms Act or the Gun Control Act in accordance with the Rule. Doing so 

would temporarily protect Watterson from prosecution under the Rule. 

CONCLUSION

The Court should therefore postpone or stay the Rule’s effective date until 60 

days after the case is resolved on the merits. 

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Date: February 2, 2023 Respectfully submitted, 

/s/Autumn Hamit Patterson 

ROBERT HENNEKE

Texas Bar No. 24046058

rhenneke@texaspolicy.com 

CHANCE WELDON

Texas Bar No. 24076767

cweldon@texaspolicy.com 

AUTUMN HAMIT PATTERSON

Texas Bar No. 24092947

apatterson@texaspolicy.com

CLAYTON WAY CALVIN

Texas Bar No. 24132780

ccalvin@texaspolicy.com 

TEXAS PUBLIC POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I certify that I caused the foregoing document to be served via certified mail on 

February 2, 2023, to:

Bureau of Alcohol, Tobacco, Firearms and Explosives

99 New York Avenue NE

Washington, DC 20226

Director Steven Dettelbach

Bureau of Alcohol, Tobacco, Firearms and Explosives

99 New York Avenue NE

Washington, DC 20226

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Attorney General Merrick Garland

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Civil Process Clerk

U.S. Attorney’s Office for the Eastern District of Texas

110 North College, Suite 700

Tyler, Texas 75702

Faith E. Lowry

Michael Drezner

Jody Lowenstein

United States Department of Justice 

1100 L St. NW

Washington, D.C. 20530

 /s/Autumn Hamit Patterson 

AUTUMN HAMIT PATTERSON

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CERTIFICATE OF CONFERENCE

I hereby certify, pursuant to Local Rule CV-7(i), that (1) I complied with the 

meet-and-confer requirement in Local Rule CV-7(h), and (2) this motion is opposed.

On February 2, 2023, I had a telephone conference with Faith Lowry, Michael 

Drezner, and Jody Lowenstein, who are representing the defendants in this case. In 

that conference we discussed this motion and possible agreements regarding a 

briefing schedule. The defendants do not think that the plaintiff is likely going to be 

successful on the merits and disagree that he is facing irreparable harm. Accordingly, 

the government indicated that it is opposed to preliminary relief in this case. Because 

no agreement about the necessity of preliminary relief could be reached and the 

discussion ended in an impasse, there is an open issue for the court to resolve.

/s/Autumn Hamit Patterson

AUTUMN HAMIT PATTERSON

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