Case 3:21-cv-00116-B Document 1 Filed 01/15/21 Page 1 of 18 PageID 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

SECOND AMENDMENT FOUNDATION, INC., § Case No. _________________

RAINIER ARMS, LLC, SAMUEL WALLEY, and §
WILLIAM GREEN, §
§
Plaintiffs, §
§
v. §
§ COMPLAINT
BUREAU OF ALCOHOL, TOBACCO, FIREARMS §
AND EXPLOSIVES, REGINA LOMBARDO, in her §
official capacity as Acting Director of the Bureau of §
Alcohol, Tobacco, Firearms, and Explosives, §
UNITED STATES DEPARTMENT OF JUSTICE, §
and JEFFREY ROSEN, in his official capacity as §
Acting ATTORNEY GENERAL, U.S. Department of §
Justice, §
§
Defendants. §
___________________________________________
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INTRODUCTION

1. In a vitally important area of the firearms law, Defendant officials at the Bureau
of Alcohol, Tobacco, Firearms and Explosives have committed serious wrongdoings that violate

both the Administrative Procedure Act and Second Amendment to the United States
Constitution.
2. Knowing that a full-fledged administrative process would interfere with their anti-
gun desires, the Defendants have imposed illegal restrictions on the Second Amendment’s right
to keep and bear arms by way of rules that violate the most rudimentary commands of due
process and the APA. Their illegal actions harm thousands upon thousands of law-abiding
American citizens nationwide, including most particularly persons with disabilities and the
firearms industry that supports them, each of whom is being wrongfully faced with the threat of
criminal prosecution under Defendants’ unlawful rulemaking.
3. The Defendants’ wrongdoing has not ceased. It is an ongoing effort that will
recur under President-elect Biden’s Administration, which publicly espouses staunch anti-gun
policies. Plaintiffs therefore seek declaratory and injunctive relief requiring the government
Defendants to comply with APA rulemaking requirements, to include applicable notice-and-
comment procedures.
I. PARTIES
A. Plaintiffs
4. Plaintiff Second Amendment Foundation, Inc. (“SAF”) is a non-profit
membership organization incorporated under the laws of the State of Washington. SAF’s
principal place of business is in Bellevue, Washington. SAF supports education, research,
publications, and legal action about the Constitution’s right to privately own and possess
firearms and the consequences of gun control. SAF has over 650,000 members and has worked
to promote Second Amendment rights throughout the United States since 1974. SAF has
members who are disabled, including Samuel Walley and William Green. SAF members seek to

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purchase and use arm braces sold by Rainier Arms and other firearms suppliers and

manufacturers.
5. Plaintiff Rainier Arms (“Rainier”) is a private business corporation that is

headquartered and has its principal place of business in the State of Washington. Rainier Arms
is in the business of selling firearms parts and accessories.
6. Plaintiff Samuel Walley (“Walley”) is a natural person and a citizen of the United
States and the State of Georgia. Walley is a disabled veteran of the United States Army who
suffered a traumatic injury in 2012 outside Helmand Province, Afghanistan from an improvised
explosive device that resulted in the partial amputation of his right leg and left arm and a
salvaged left leg limb. Walley uses arm braces to stabilize firearms and increase his accuracy in
shooting. Walley is a SAF member.
7. Plaintiff William Green (“Green”) is a natural person and a citizen of the United
States and the State of Texas. Green is a police officer who was seriously injured in the line of
duty, which resulted in permanent nerve damage affecting his right hand. Green uses arm braces
to stabilize firearms and increase his accuracy in shooting. Green is a SAF member. He resides
in Rockwall County, Texas.
8. SAF brings this action on behalf of itself. SAF also brings this action on behalf of
its members because at least two of its members would have standing to sue in their own right,
the interests the suit seeks to vindicate are germane to SAF’s purpose, and neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.
B. Defendants
9. Defendant the United States Department of Justice (“Justice Department”) is, and
was at all relevant times, an executive department of the United States subject to the
Administrative Procedure Act (“APA”). See 5 U.S.C. § 551(1). The Justice Department is
headquartered in Washington DC.
10. Defendant Jeffrey Rosen is the Acting Attorney General of the United States. He
is sued in his official capacity. In that capacity, he oversees the Justice Department and its

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components. He is responsible for the federal conduct that is the subject of this action and for

the related acts and omissions alleged herein.

11. Defendant the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) is,

and was at all relevant times, a component of the Justice Department subject to the APA. See 5
U.S.C. § 551(1). ATF is headquartered in Washington DC.
12. Defendant Regina Lombardo is the ATF Acting Director. She is sued in her
official capacity. In that capacity, she is responsible for the federal conduct that is the subject of
this action and for the related acts and omissions alleged herein.
II. JURISDICTION AND VENUE
13. 28 U.S.C. § 1331 supplies the Court with original federal question jurisdiction
over this action because it arises under the Constitution and laws of the United States.
14. This action seeks declaratory, injunctive, and other relief pursuant to the
Constitution of the United States of America, 5 U.S.C. § 702, 5 U.S.C. § 705, 5 U.S.C. § 706, 28
U.S.C. § 1651(a), 28 U.S.C. § 2201, and 28 U.S.C. § 2202.
15. There exists an active, justiciable controversy amongst the parties about whether
the Justice Department complied with the APA, 5 U.S.C. §§ 551-559, and violated Second
Amendment rights in promulgating the Open Letter and Notice of Rulemaking attached to this
complaint as Exhibits A and B. Declaratory relief will resolve this controversy and eliminate the
burden imposed on Plaintiffs’ stemming therefrom.
16. This Court constitutes a proper venue for this action because this is an action
against officers and agencies of the United States, a plaintiff resides in this judicial district, and
no real property is involved in the action. See 28 U.S.C. § 1391(e)(1)(C).
III. DEFENDANTS’ ARM BRACE RULE
A. The National Firearms Act
17. Congress passed the National Firearms Act of 1934 (“NFA”), Pub.L. 73–474, 48
Stat. 1236, to impose a tax on the making and transfer of firearms defined by the NFA, as well as
a special (occupational) tax on persons and entities engaged in the business of importing,

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manufacturing, and dealing in NFA firearms. The law also requires the registration of all NFA

firearms with the Secretary of the Treasury.

18. With passage of the Gun Control Act of 1968 (“GCA”), Pub. L. No. 90-618, 82

Stat. 1213, Congress revised the NFA by enacting Title II of the GCA, which regulates
machineguns, short-barreled shotguns and rifles, and destructive devices (including grenades,
mortars, rocket launchers, and other heavy ordnance). 26 U.S.C. § 5801 et seq. Rifles and pistols
not subject to the NFA are regulated under Title I of the GCA. 18 U.S.C. § 921 et seq.
19. Both a “rifle” and “shotgun” are defined under the NFA in terms of “a weapon
designed or redesigned, made or remade, and intended to be fired from the shoulder . . . .” Id. at
§ 5845(c) and (d).
20. Short-barreled rifles and shotguns subject to the NFA are defined as rifles “having
a barrel or barrels of less than 16 inches in length” and shotguns “having a barrel or barrels of
less than 18 inches in length”. Id. at § 5845(a).
21. The GCA defines “handgun” to mean, in part, “a firearm which has a short stock
and is designed to be held and fired by the use of a single hand . . . .” 18 U.S.C. § 921(a)(29).
And the term “pistol” is defined in ATF regulations to mean “[a] weapon originally designed,
made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand,
and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s);
and (b) a short stock designed to be gripped by one hand and at an angle to and extending below
the line of the bore(s).” 27 C.F.R. § 479.11 (emphasis added).
B. Stabilizing Arm Braces
22. Stabilizing arm braces (“arm braces”) are accessories installed on pistols and
shotguns that allow users to stabilize these firearms against their arms, resulting in more accurate
shooting without compromising safety or comfort, and reducing the risk of bruising and other

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injuries when shooting from one hand. They generally consist of two flaps, a strap, and shroud

attached to the end of a firearm.1

23. Originally developed for use by people with disabilities, those with and without

disabilities now use arm braces as an additional point of support to ensure firearm safety and
accuracy in operation of pistols and shotguns.
24. Reportedly, over two million arm braces have been sold.
25. Arm braces are commonly owned throughout the United States.
26. Arm braces are in common use throughout the United States.
C. ATF’s Initial Rule on Classification of Arm Braces
27. In a November 2012 private classification letter, ATF determined that a pistol
equipped with an arm brace was not subject to NFA control.2
28. Thereafter, in a March 2014 private classification letter (the “2014 Letter”), ATF
determined that shouldering a pistol with an arm brace does not change the classification of the
pistol under federal law:

For the following reasons, we have determined that firing a pistol from the
shoulder would not cause the pistol to be reclassified as an SBR:

FTB classifies weapons based on their physical design characteristics. While

usage/functionality of the weapon does influence the intended design, it is not the
sole criterion for determining the classification of a weapon. Generally speaking,
we do not classify weapons based on how an individual uses a weapon.

FTB has previously determined (see FTB # 99146) that the firing of a weapon
from a particular position, such as placing the receiver extension of an AR-15
type pistol on the user's shoulder, does not change the classification of a weapon.
Further, certain firearm accessories such as the SIG Stability Brace have not been
classified by FTB as shoulder stocks and, therefore, using the brace improperly
does not constitute a design change. Using such an accessory improperly would
not change the classification of the weapon per Federal law.

1
See, e.g., www.sb-tactical.com (last accessed Jan. 14, 2021).
2
ATF Letter to Redacted Recipient, Nov. 26, 2012 (“FTB finds that the submitted forearm
brace, when attached to a firearm, does not convert that weapon to be fired from the shoulder and
would not alter the classification of a pistol or other firearm.”). Exhibit C.

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ATF Letter to Sergeant Joe Bradley of the Greenwood Police Department, Mar. 5, 2014

(emphasis in original). Exhibit D.

D. ATF Reverses its Initial Rule on Arm Braces

29. Less than a year after the 2014 Classification Letter, in an abrupt about-face, ATF
issued two private classification letters 3 and issued its “Open Letter on the Redesign of
‘Stabilizing Braces’” on January 16, 2015 (the “2015 Open Letter”) completely reversing the
position taken in its 2014 Letter. Exhibit A.
30. In its 2015 Open Letter, ATF stated that the use of stabilizing braces, as designed,
would not create a short-barreled rifle when attached to a firearm; and that stabilizing braces are
perfectly legal accessories for large pistols. Id. However, the 2015 Open Letter also advised that,
because the stabilizing brace was not designed as a shoulder stock, “use” of the device as a
shoulder stock would constitute a “redesign” of the firearm to which it was attached, resulting in
the classification of the firearm as a short-barreled rifle subject to the NFA:

The pistol stabilizing brace was neither “designed” nor approved to be used as a
shoulder stock, and therefore use as a shoulder stock constitutes a “redesign” of
the device because a possessor has changed the very function of the item. Any
individual letters stating otherwise are contrary to the plain language of the
NFA, misapply Federal law, and are hereby revoked.

Any person who intends to use a handgun stabilizing brace as a shoulder stock on
a pistol (having a rifled barrel under 16 inches in length or a smooth bore firearm
with a barrel under 18 inches in length) must first file an ATF Form 1 and pay the
applicable tax because the resulting firearm will be subject to all provisions of
the NFA.

Id. (emphasis added).

31. The 2015 Open Letter did more than simply interpret existing law. It made a
substantive change to existing law in a complete revocation and reversal of ATF’s previous rule,
as established in the 2014 Letter.

3
See ATF Letter to Eric Lemoine, Oct. 28, 2014 (stating pistol with arm brace is subject to NFA
when arm brace is used as a shoulder stock); ATF Letter to Redacted Recipient, Nov. 10, 2014
(same). Letters attached at Exhibit E.

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32. ATF has since issued interpretations of the 2015 Open Letter in private

classification letters that limit scope of the rule and create an exception for “incidental, sporadic,
or situational ‘use’” of an arm-brace on firearms that do not have certain modifications.

33. Specifically, in a 2017 classification letter to SB Tactical (the “2017 Letter”),

ATF acknowledged “that the Open Letter may have generated some confusion concerning the
analytical framework by which those conclusions were reached.” ATF clarified:

To the extent the January 2015 Open Letter implied or has been construed to hold
that incidental, sporadic, or situational “use” of an arm-brace (in its original
approved configuration) equipped firearm from a firing position at or near the
shoulder was sufficient to constitute “redesign,” such interpretations are incorrect
and not consistent with ATF’s interpretation of the statute or the manner in which
it has historically been enforced.

ATF Letter to M. Barnes, Mar. 21, 2017. Exhibit F.

34. The 2017 Letter also stated:

If, however, the shooter/possessor takes affirmative steps to configure the device
for use as a shoulder-stock—for example, configuring the brace so as to
permanently affix it to the end of a buffer tube, (thereby creating a length that has
no other purpose than to facilitate its use as a stock), removing the arm-strap, or
otherwise undermining its ability to be used as a brace—and then in fact shoots
the firearm from the shoulder using the accessory as a shoulder stock, that person
has objectively “redesigned” the firearm for purposes of the NFA. This
conclusion is not based upon the mere fact that the firearm was fired from the
shoulder at some point.

Id.
35. Worsening the confusion caused by its 2015 Open Letter, the 2017 Letter did not
define “incidental, sporadic, or situational ‘use’”, instead leaving it to ATF to decide on a case-
by-case basis.
36. In other private classification letters, which were posted on the Internet by various
companies and individuals, ATF determined that the addition of ridges to the end of a brace,4

4
See ATF Letter to M. Faucette, Dec. 22, 2015. Exhibit G.

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and/or certain other modifications made to a weapon, when present with a brace that is

sporadically shouldered may subject a pistol to NFA requirements.

IV. DEFENDANTS’ VIOLATION OF APA REQUIREMENTS

A. APA Notice-and-Comment Requirements

37. The APA applies to all executive branch agencies. 5 U.S.C. § 551(1). It
prescribes procedures for agency actions such as rulemaking, as well as standards for judicial
review of agency actions.
38. Rulemaking is the “agency process for formulating, amending, or repealing a
rule”. 5 U.S.C. § 551(5).
39. A rule is defined as “an agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4).
40. Under the APA, legislative rules are rules through which an “agency intends to
create new law, rights or duties,” General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565
(D.C. Cir. 1984) (en banc). They also include rules issued by an agency pursuant to statutory
authority that implements a statute and where, in the absence of the rule, “there would not be an
adequate legislative basis for enforcement action.” Wilson v. Lynch, 835 F.3d 1083, 1099 (9th
Cir. 2016) (citations omitted). In addition, a rule is legislative if it “repudiates or is
irreconcilable with” a prior legislative rule or if it amends a legislative rule. Id.
41. When an agency promulgates legislative rules, or rules made pursuant to
congressionally delegated authority, the exercise of that authority is governed by the APA
informal rulemaking procedures outlined in 5 U.S.C. § 553.
42. These procedures include notice-and-comment provisions in which federal
agencies such as ATF must publish proposed rules in the Federal Register 5 and provide the
public with adequate notice of a proposed rule followed by a meaningful opportunity to comment

5
The Federal Register is a government publication that lists the official and complete text of
federal agency regulations.

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on the rule’s content through the submission of written “data, views, or arguments.” 5 U.S.C. §

553 (b)–(c); see also Fertilizer Inst. v. EPA, 935 F.2d 1303, 1308 (D.C. Cir. 1991) (“[A]n agency
can declare its understanding of what a statute requires without providing notice and comment,

but an agency cannot go beyond the text of a statute and exercise its delegated powers without
first providing adequate notice and comment.”).
43. Unless mandated by statute, there is no minimum period of time for which the
agency is required to accept public comments. However, in reviewing agency rulemaking,
courts focus on whether the agency provided an “adequate” opportunity to comment—of which
the length of the comment period represents a factor for consideration. Fla. Power & Light Co. v.
U.S., 846 F.2d 765, 771 (D.C. Cir. 1988).
44. Additionally, Executive Order 12866, which provides for presidential review of
agency rulemaking via the Office of Management and Budget’s Office of Information and
Regulatory Affairs, states that the public’s opportunity to comment, “in most cases should
include a comment period of not less than 60 days.” Exec. Order No. 12866, § 6(a), 58 Fed. Reg.
51735, 51740 (Oct. 4, 1993).
45. After an agency considers public feedback and makes changes where appropriate,
it then publishes a final rule in the Federal Register describing and responding to public
comments, with a specific date for when the rule will become effective and enforceable.
B. The 2015 Open Letter is Subject to APA Requirements
46. ATF claims that “Open Letters do not have the force and effect of federal statutes
or Department of Justice regulations, and are not final agency actions.”6 But the 2015 Open
Letter was more than a mere interpretative rule and general statement of ATF policy.
47. The 2015 Open Letter is a legislative rule that instituted a drastic change—a
repudiation of the previous ATF rule on arm braces, and that set forth new legal standards and
new legal requirements based on “use.” See, e.g., Guedes v. Bureau of Alcohol, Tobacco,

6
“Open Letters,” available at https://www.atf.gov/rules-and-regulations/open-letters (last
accessed Jan. 14, 2021).

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Firearms and Explosives, 920 F.3d 1 (C.A.D.C. 2019) (ATF rule classifying bump-stock devices

as “machineguns” under NFA was legislative, rather than interpretive); Sig Sauer, Inc. v.
Brandon, 826 F.3d 598, 600 n.1 (1st Cir. 2016) (citing, e.g., FTC v. Standard Oil Co., 449 U.S.

232, 241 (1980) (APA’s finality requirement is satisfied when a decision is a “definitive
statement of the agency’s position and had a direct and immediate effect on the day-to-day
business” of the affected parties)).
48. Moreover, the ATF private classification letters interpreting and applying the
2015 Open Letter are themselves final agency actions subject to the APA. See, e.g., Sig Sauer,
826 F.3d at 600 n.1 (“The parties agree that ATF’s issuance of a classification letter is a ‘final
agency action’ that is reviewable under the Administrative Procedure Act.”); see also Innovator
Enters., Inc. v. Jones, 28 F. Supp. 3d 14 (D.D.C. 2014) (finding ATF private classification
determination arbitrary and capricious under the APA).
49. In fact, following Defendants’ promulgation of the 2015 Open Letter, the Justice
Department enforced ATF’s new rule for arm braces in criminal proceedings under the NFA.
See, e.g., USA v. Wright, Case No. 3:2018-cr-00162 (N.D. Ohio).7 Such enforcement provides
clear evidence that Defendants intend the 2015 Open Letter to serve as a binding application of
its rulemaking authority.
C. ATF’s 2020 Notice of Rulemaking
50. On June 16, 2020, various Members of Congress sent a letter to ATF demanding
that ATF clearly state the specific criteria used to determine if and when use of an arm brace
somehow converts a non-controlled firearm into an NFA firearm. Exhibit H.

7
See Government’s publicly available Motion in Limine from case discussing how “the primary
issue in dispute at trial will be whether or not Kelland Wright’s firearm meets the definition of a
‘rifle,’ that is a firearm designed to be fired from the shoulder”; and discussing the Government’s
desire to keep its arm brace private classification letters off the record. A copy of motion is
available online at: https://princelaw.files.wordpress.com/2018/10/motion-in-limine-atf-
determinations.pdf (last accessed Jan. 14, 2021).

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51. The letter from Members of Congress described ATF’s treatment of arm braces

as: “arbitrary Agency action without any solid foundation in law [that] has the potential to create
overnight felons of millions of law-abiding gun owners, firearm manufacturers and Federal

Firearms Licensees all without ever notifying those individuals that the ATF has — in secret —
come up with a novel interpretation of law without proper comment, review or notice.” Id.
52. Thereafter, on December 18, 2020, ATF published a notice in the Federal
Register seeking to impose NFA controls on braces meeting certain “Objective Factors for
Classifying Weapons with ‘Stabilizing Braces’” (the “2020 Notice”). 85 Fed. Reg. 82,516 (Dec.
18, 2020). Exhibit B.
53. Footnote 8 of the 2020 Notice cited the 2015 Open Letter and the 2017 Letter
approvingly.
54. The 2020 Notice explained:

When an accessory and a weapon’s objective design features, taken together, are
not consistent with use of the accessory as an arm brace, that is, not to stabilize a
handgun when being operated with one hand, such weapon, configured with the
accessory may fall within the scope of the NFA, particularly where the accessory
functions as a shoulder stock for the weapon.

Id. at 82,518.
55. Although the 2020 Notice provided a listing of design features, the listing was
open-ended and included “peripheral accessories commonly found on rifles or shotguns that may
indicate that the firearm is not designed and intended to be held and fired with one hand.” Id. at
82,518.
56. ATF provided an extremely short 17-day time period for public comments to the
2020 Notice that began on the last day of Chanukah and ran over Christmas Eve and New Year’s
Eve.
57. Following publication of the 2020 Notice, Members of Congress sent ATF
another letter on December 22, 2020 stating: “With ambiguous and malleable subjective criteria
such as these, it is obvious the ATF has no interest in clarifying the matter but banning

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stabilizing braces outright and submitting lawfully purchased firearms and their owners to

federal regulation.” Exhibit I.

58. The letter from Members of Congress further stated: “We are disturbed a

government agency would issue guidance that would take away a disabled veteran’s ability to
enjoy his constitutionally protected right.” Id.
59. After receiving over 70,000 public comments,8 ATF withdrew the 2020 Notice.
See 85 Fed. Reg. 86,948 (Dec. 31, 2020). Exhibit J.
60. In its Notice of Withdrawal, ATF stated: “The withdrawal of the guidance does
not change any law, regulation, or other legally binding requirement.” Id. And, to date, ATF has
not withdrawn the rule first announced in its 2015 Open Letter.
V. ADVERSE IMPACTS ON PLAINTIFFS
61. Violations of the NFA are felonies punishable by up to 10 years in prison,
forfeiture of firearms in violation, and forfeiture of the individual's right to own or possess
firearms in the future. See 26 U.S.C. § 5871. The NFA also provides for a penalty of $10,000 for
violations. Id.
62. The individual plaintiffs and other SAF members who use arm braces have no
intent to shoulder pistols or shotguns equipped with the accessories. Rather, they use arm braces
in their only fully functional arm, or to provide support to a damaged limb, in order to stabilize
firearms and increase accuracy.
63. However, the scope of what constitutes “incidental, sporadic, or situational ‘use’”
of an arm brace is undefined and vague, exposing people with disabilities and other individuals
to significant liability under civil and criminal law for the potential actions of friends, family
members, and others who may inadvertently and improperly use their firearms.

8
See https://beta.regulations.gov/docket/ATF-2020-0001 (last accessed Jan. 14, 2021).

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64. Similarly, the scope of what cosmetic and other changes to a firearm equipped

with an arm brace may subject the firearm to the NFA is seemingly open-ended, unfairly
exposing people with disabilities to potential liability under civil and criminal law.

65. The adverse impact on the individual Plaintiffs harms Rainier by impeding sales
of arm braces sold by Rainier by virtue of the shared fear among would-be purchasers. Rainier
may also be forced to halt sales and recall products from customers based on reports from
recipients of ATF positions taken in private classification letters.
66. Plaintiffs reasonably expect that the threat of arbitrary enforcement of gun control
laws will dramatically increase in the next four years under President-elect Biden’s
Administration, which publicly espouses a staunch anti-gun rhetoric.9
67. To address the threat of Defendants’ enforcement of the 2015 Open Rule, the
individual plaintiffs and other SAF members who use arm braces are forced to choose between
taking calculated risks, requesting private classification determinations10 from Defendant ATF,
or registering their firearms.
68. The NFA private classification letter request and the NFA application and
registration processes are more than de minimis burdens on Second Amendment rights because
they involve significant wait periods. For instance, the NFA registration requirement, which is
required for short-barreled rifles, involves wait times of several months to a year or more.11

9
See https://joebiden.com/gunsafety/ (last accessed Jan. 14, 2021).
10
“Even though firearms may appear to have similar features, an ATF classification pertains
only to the particular sample submitted, because variations in submissions, applicable statutes,
judicial interpretations of these statutes, the manufacturer’s or maker’s intent, and the objective
design features supporting that intent, make the general applicability of any particular
classification exceedingly rare.” 85 Fed. Reg. at 82517.
11
See Transfer Tracking, NFA TRACKER, available at https://www.nfatracker.com/nfa-
transfer-time-tracking/ (last accessed Jan. 14, 2021).

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69. Moreover, Defendants’ restrictions on arm braces, accessories necessary for

disabled persons to safely exercise rights protected by the Second Amendment, violate the
Rehabilitation Act of 1973, which applies to actions by federal executive branch agencies.12

70. Requiring Defendants to provide Plaintiffs and other members of the public with
an adequate opportunity to submit comments, and proper agency consideration and response to
those comments, will alert Defendants to the many legal and practical deficiencies of the 2015
Open Letter, which, in turn, should reduce the unwarranted risk of criminal or civil penalties and
the potential for costly product recalls and other corrective actions.
VI. CAUSES OF ACTION
A. Count One: Violation of the Administrative Procedures Act
71. Plaintiffs incorporate the preceding paragraphs as if separately stated herein.
72. The APA requires the Court to “hold unlawful and set aside agency action,
findings, and conclusions” that are found to be “without observance of procedure required by
law.” 5 U.S.C. § 706(2)(D).
73. The Open Letter is a legislative rule because, among other things, it establishes
new legal requirements, reverses the prior rule on arm braces, substantially impacts Plaintiffs and
other members of the public, and forms the basis of criminal enforcement actions.
74. Defendants therefore committed a final agency action that was not in accordance
with procedural law by failing to publish the 2015 Open Letter on the Federal Register and
failing to adequately open the rule to public comment. Plaintiffs are therefore entitled to a
judgment holding this conduct unlawful and awarding damages.
75. Defendants committed and/or attempted to commit a final agency action that was
not in accordance with procedural law by publishing the 2020 Notice with a 17-day public

12
See 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination…under any program or activity
conducted by any Executive agency . . . .”).

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comment period over the 2020 holiday season. Plaintiffs are therefore entitled to a judgment

holding this conduct unlawful and awarding damages.

76. Defendants committed and/or attempted to commit a final agency action that was

not in accordance with procedural law by withdrawing the 2020 Notice in an apparent attempt to
sidestep over 70,000 public comments. Plaintiffs are therefore entitled to judgment holding this
conduct unlawful and awarding damages.
B. Count Two: Violation of the Second Amendment
77. Plaintiffs incorporate the preceding paragraphs as is separately stated herein.
78. The Second Amendment to the United States Constitution provides: “A well
regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” U.S. Const. amend. II.
79. The Supreme Court has held that the Second Amendment secures an individual
right to possess firearms. See District of Columbia v. Heller, 554 U.S. 570 (2008).
80. Arm braces are commonly owned firearms accessories.
81. The APA requires the Court to “hold unlawful and set aside agency action,
findings, and conclusions” that are found to be “contrary to constitutional right, power, privilege,
or immunity.” 5 U.S.C. § 706(2)(B).
82. Defendants violated and/or attempted to violate the Second Amendment by
subjecting Plaintiffs to an unconstitutional abridgement of Second Amendment rights. By
unlawfully imposing NFA registration requirements on firearms outside the APA rulemaking
process, Defendants have created new application and registration requirements that unlawfully
infringe on Second Amendment rights of customers of Rainier Arms, of Green and Walley, and
SAF members.
VII. REQUESTED RELIEF

83. Plaintiffs request a judgment in their favor as to all claims against Defendants

awarding them all relief they are entitled to;

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84. Plaintiffs request a declaration that Defendants’ conduct violates applicable APA

procedural requirements;

85. Plaintiffs request a declaration that Defendants’ conduct violates the Second

Amendment;

86. Plaintiffs request an injunction, on a preliminary and permanent basis, enjoining

Defendants from further failures to comply with APA rulemaking requirements;

87. Plaintiffs request an order requiring that Defendant ATF publish the public

comments it received in response to the 2020 Notice;

88. Plaintiffs request an order requiring that, in any subsequent final agency action

regarding arm braces, Defendant ATF provide at least 60 days for public comment;

89. Plaintiffs request an order requiring that, in any subsequent final agency action

regarding arm braces, Defendant ATF describe and respond to the public comments it received

in response to the 2020 Notice;

90. Plaintiffs request an award of actual damages;

91. Plaintiffs request an award of nominal damages;

92. Plaintiffs request an award against Defendants of reasonable attorney fees and

costs pursuant to 5 U.S.C. § 504(a)(1) and 28 U.S.C. § 2412; and

93. Plaintiffs request any other relief against Defendants to which Plaintiffs are

entitled.

Respectfully submitted,

BECK REDDEN LLP

By /s/ Chad Flores
Chad Flores
[email protected]
State Bar No. 24059759

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Hannah Roblyer
[email protected]
State Bar No. 24106356
1221 McKinney St., Suite 4500
Houston, TX 77010
(713) 951-3700 | (713) 952-3720 (fax)

FARHANG & MEDCOFF

Matthew Goldstein *
[email protected]
D.C. Bar No. 975000
4801 E. Broadway Blvd., Suite 311
Tucson, AZ 85711
(202) 550-0040 | (520) 790-5433 (fax)

Attorneys for Plaintiffs

* Pro Hac Vice application forthcoming

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