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Nagr - RBT Tro
Nagr - RBT Tro
Before the Court are Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 17),
Brief in Support (ECF No. 18), and Appendix (ECF No. 19), filed August 14, 2023; Defendants’
Response (ECF No. 32), filed August 21, 2023; and Plaintiffs’ Reply (ECF No. 33) and
Appendix (ECF No. 34), filed August 25, 2023. Having considered the parties’ briefing and
applicable law, the Court GRANTS Plaintiffs’ Motion for Temporary Restraining Order (ECF
No. 17) to preserve the status quo until either September 27, 2023 or such time that the Court
rules on Plaintiffs’ Motion for Preliminary Injunction (ECF No. 22), whichever is earlier.
Therefore, the Court ORDERS that Defendants—along with their officers, agents, servants, and
against Plaintiffs Patrick Carey, Travis Speegle, and James Wheeler the ATF’s challenged
definition of “machinegun.”
I. BACKGROUND
The United States Congress delegated to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) authority to regulate firearms in interstate commerce under the Gun Control
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Act of 1986. In a 2018 regulation, the ATF expanded the definition of “machinegun.” A few
years later, the ATF determined that additional types of firearms qualify as machineguns and are
thus illegal to possess or transfer. One of those prohibited firearms is a forced reset trigger.
Plaintiffs brought this suit under Administrative Procedure Act (“APA”)1 to challenge the
A forced reset trigger (“FRT”) is a semi-automatic assembly that allows the trigger to
reset quicker than it otherwise would using a traditional trigger-return spring. This assembly
enables the user to fire the firearm at a quicker rate than with a traditional trigger.
works. The function of any trigger is to release the hammer. This occurs when the trigger is
pulled back to the point that a “trigger sear” releases the hammer from its retained position. Once
released by the trigger, the hammer pivots to contact the firing pin. Once contacted, the firing pin
then strikes a chambered ammunition cartridge or “round,” which causes the gunpowder in the
cartridge to combust. The combustion effect propels the cartridge’s bullet out of the barrel of the
firearm. Once fired, a standard semi-automatic trigger returns to its “reset” state—ready-to-fire
or “set” position—by allowing the firearm to function once again by starting the mechanism
anew. In other words, the firearm only fires again by the user pulling the trigger to release the
hammer.
An FRT is a device that forcibly returns the trigger to its reset state. FRTs are designed to
achieve this by the hammer resetting the trigger when the bolt carrier cycles to the rear. A
1
5 U.S.C. §§ 701 et seq.
2
Pl.’s Compl., ECF No. 1.
3
This description of the mechanical workings of FRTs is taken from Plaintiffs’ Complaint. Pls. Compl.
6–7, ECF No. 1. Defendants do not dispute these descriptions in their responsive filing opposing the
temporary restraining order. Defs.’ Resp., ECF No. 32.
2
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“locking bar” mechanically locks the trigger in its reset state, preventing the user from moving
the trigger rearward to function by releasing the hammer, until the bolt has returned to the in-
battery position and the firearm is safe to fire. When firing multiple shots using an FRT, the
trigger must still reset after each round is fired and must separately function to release the
hammer by moving far enough to the rear in order to fire the next round.
The National Firearms Act of 1934 (“NFA”)5 regulates certain firearms in interstate
commerce. At the time of its proposal, the NFA “was known to many as the ‘the Anti-Machine
Gun Bill.’” Cargill v. Garland, 57 F.4th 447, 450 (5th Cir. 2023), pet. for cert. filed, No. 22-976
(2023). Among other things, the NFA criminalized the possession or transfer of certain
unregistered firearms while also prohibiting the registration of firearms otherwise prohibited by
law. 26 U.S.C. §§ 5812(a), 5861. In the decades following its enactment, the possession or
transfer of machineguns was prohibited when Congress enacted the Gun Control Act of 1968
The GCA provides that it is “unlawful for any person to transfer or possess a
4
This description of the regulatory events after 2018 is taken from Plaintiffs’ Complaint. Pls. Compl. 9–
11, ECF No. 1. Defendants do not dispute these descriptions in their responsive filing opposing the
temporary restraining order. Defs.’ Resp., ECF No. 32.
5
26 U.S.C. §§ 5801 et seq.
6
18 U.S.C. §§ 921 et seq.
3
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26 U.S.C. § 5845(b); see also 18 U.S.C. § 921(a)(24) (incorporating the NFA’s definition of
“machinegun” into the GCA). In other words, a machinegun is a “rifle capable of automatic
fire.” Cargill, 57 F.4th at 452. Firearms incapable of automatic fire are thus not machineguns. Id.
For decades, ATF regulations mirrored the federal statutory definition of “machinegun.”
27 C.F.R. §§ 478.11, 479.11 (2017). The statutory parity was disrupted in 2018, when the ATF
broadened the meaning of machinegun in its most recent regulation by re-interpreting the
Three years after the ATF broadened its interpretation of the statutory definition, two of
the ATF’s divisions issued reports regarding FRTs. The Firearms Technology Criminal Branch
(“FTCB”) issued its Technical Examination Report on July 15, 2021, which purportedly
classified the FRT-15—a version of the FRT—as a machinegun.7 The FTCB issued a similar
report several months later on October 21, 2021 regarding the Wide Open Enterprises “WOT”
7
Pls.’ Compl. 9–10, ECF No. 1.
4
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version of the FRT.8 At the beginning of the next year, the FTCB issued its “Open Letter to All
Federal Firearms Licensees” (the “Open Letter”) on March 22, 2022, advising that the ATF
“recently examined devices commonly known as ‘forced reset triggers’ (FRTs) and has
determined that some of them are ‘firearms’ and ‘machineguns’ as defined in the [GCA].”9 Most
important for this case, the Open Letter further explained that “ATF’s examination found that
some FRT devices allow a firearm to automatically expel more than one shot with a single,
continuous pull of the trigger” and that “any FRT that allows a firearm to automatically expel
more than one shot with a single, continuous pull of the trigger is a ‘machinegun.’”10 One month
later, the ATF’s Firearms and Ammunition Technology Division (“FATD”) issued yet another
C. The Parties
Carey, Travis Speegle, and James “J.R.” Wheeler are three individual citizens located in the
Texas–Louisiana area (the “Individual Plaintiffs”). Each Individual Plaintiff has owned,
currently owns, and/or plans to own FRTs in the future. Plaintiffs also include two
organizations—National Association for Gun Rights, Inc. and Texas Gun Rights, Inc.—with
Plaintiff Carey owned two FRTs prior to receiving a warning notice from the ATF on
August 22, 2022.12 The warning notice informed Plaintiff Carey that “ATF has information that
you have acquired one or more [FRTs],” that “[t]hese items have been classified as machineguns
that were unlawfully manufactured,” that “[p]ossession of these devices is a violation of law due
8
Pls.’ Compl. 10, ECF No. 1.
9
Id. (quoting the Open Letter).
10
Id. (quoting the Open Letter).
11
Id.
12
Id.
5
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to their illegal manufacture,” and that “the unlawful receipt and possession of any of these
devices is a felony violation of Federal law.”13 Due to the direct threat of civil and criminal
enforcement, Plaintiff Carey surrendered his two FRTs to ATF agents.14 Plaintiff Wheeler
personally owns one FRT and has a 50% ownership stake in a small firearms and ammunition
business that owns two additional FRTs.15 Plaintiff Speegle personally owns ten FRTs.16 Both
Plaintiffs Wheeler and Speegle wish to maintain possession of their FRTs, but fear they are at
immediate relief, the Individual Plaintiffs are at risk of civil and criminal prosecution. For that
reason, Plaintiffs are suing various government officers and entities—the Attorney General of
the United States, the Department of Justice (“DOJ”), the ATF, and the Director of the ATF
the machinegun regulation.18 In the instant action, Plaintiffs bring an APA challenge to the
this definition is unlawful because “Defendants’ interpretation of the law and their specific
actions to threaten and potentially initiate enforcement actions against Plaintiffs are thus
To protect the status quo during the pendency of the lawsuit, the Individual Plaintiffs
13
Pls.’ Compl. 3, ECF No. 1 (emphasis in original).
14
Id.
15
Id. at 4.
16
Id.
17
Id.
18
Id. at 5, 14–16.
19
Id. at 14–15 (citing 5 U.S.C. § 706(2) as the basis for their declaratory judgment action).
20
Id. at 4.
6
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seek a temporary restraining order (“TRO”) enjoining Defendants from enforcing or otherwise
implementing the novel definition against the Individual Plaintiffs until the Court is able to rule
on the forthcoming preliminary injunction motion. The parties have briefed the issues and the
Defendants raise two threshold issues: (1) standing and (2) judicial review of pre-
enforcement challenges. Before turning to the question of whether a TRO is warranted in this
A. Standing
Defendants first argue that the Individual Plaintiffs lack standing because there is no
credible threat of prosecution.21 Additionally, Defendants contend that they have no current
plans to prosecute the Individual Plaintiffs. But this phrasing reveals the implicit threat that the
Individual Plaintiffs fear: the Defendants could change their current plans at any time by
deciding to prosecute. That is why, as the Fifth Circuit makes clear, standing exists here. See
Franciscan All., Inc. v. Becerra, 47 F.4th 368, 376 (5th Cir. 2022) (emphasizing that “plaintiffs
have standing in the face of similar prosecutorial indecision,” including when an agency “has not
to date evaluated” whether it will pursue enforcement); see also Zimmerman v. City of Austin,
881 F.3d 378, 391 (5th Cir. 2018) (explaining that standing in pre-enforcement challenges
requires a showing “of an intention to engage in a course of conduct arguably affected with a
Defendants do not proffer any Fifth Circuit precedent in support of their particular standing
21
Defs.’ Resp. 3–5, ECF No. 32.
7
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argument. Instead, Defendants point to out-of-circuit cases that differ considerably from the Fifth
Applying Fifth Circuit precedent here, the Individual Plaintiffs successfully satisfy
standing requirements. There is no dispute that the Individual Plaintiffs “inten[d] to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by statute.”
Zimmerman, 881 F.3d at 391. Each Individual Plaintiff currently possesses—or previously
possessed—a newly proscribed FRT. What is disputed is whether engaging in the newly
proscribed FRT ownership carries “a credible threat of prosecution.” Id. Defendants liken
Plaintiffs concern to no more “than a general threat of prosecution” that cannot support pre-
enforcement relief, particularly because the “ATF has no current intention to arrest or bring
charges against the Individual Plaintiffs.”23 The Court disagrees and instead finds that a
By bringing this action, the Individual Plaintiffs place themselves in potential jeopardy
due to acknowledging their possession of FRTs. This is not an imaginary or speculative concern.
Indeed, Defendants’ recent enforcement activity breathes life into this very fear and the factual
record bears this out. Plaintiff Carey has already experienced armed ATF agents arriving at his
home to warn that he could face prosecution by not surrendering his FRTs and by purchasing
additional FRTs in the future.24 Plaintiffs also cite to examples of enforcement activity and
22
Defs.’ Resp. 4, ECF No. 32 (citing two Sixth Circuit cases and one case from the Eastern District of
Kentucky). As Plaintiffs point out in their reply, “[t]hese cases are inapposite.” Pls.’ Reply 4, ECF No.
33. In fact, as one court pointed out, “[t]he Sixth Circuit’s jurisprudence on standing, in particular, the
issue of whether there exists a credible threat of prosecution, bears considerable differences from the
Fifth.” Am. Coll. of Pediatricians v. Becerra, No. 1:21-cv-195, 2022 WL 17084365, at *13 (E.D. Tenn.
Nov. 18, 2022).
23
Defs.’ Resp. 4, ECF No. 32 (emphasis added).
24
Decl. of Patrick Carey, Pls.’ Br. App’x 5, ECF No. 19.
8
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search warrants carried out against other individual owners of FRTs.25 Specifically, at least three
individuals are currently facing prosecution and there have been sixty-seven ATF seizures to
date.26 Based on this record, Defendants certainly appear to be “chomping at the bit” to seize
FRTs.27 Further evidence of this is Defendants’ refusal to disavow prosecuting the Individual
Plaintiffs during the pendency of this case—the exact type of “prosecutorial indecision” that the
Fifth Circuit has “repeatedly held” as more than enough to “have standing.” Franciscan All.,
Inc., 47 F.4th at 376. Given this flurry of recent enforcement activity—stemming from the same
interpretation of the law that proscribes Plaintiffs’ conduct here—and Defendants refusal to
guarantee that no action will be taken against the Individual Plaintiffs during pending disposition
of this action, there is more than a specter of enforcement sufficient to confer standing.
Because Plaintiffs face a credible threat of civil or criminal prosecution for prior and
current ownership of FRTs, the Court finds that this constitutes more than a de minimis harm to
B. Pre-Enforcement Challenges
Defendants next call into question the veracity of pre-enforcement judicial review of laws
prosecutorial discretion that properly rests with the executive branch.28 Based on this,
Defendants contend that granting a TRO enjoining civil and criminal prosecution violates
contentions are true, separation of powers does not mean pre-enforcement judicial review of laws
25
Pls.’ Compl. 11, ECF No. 1; Pls.’ Br. 2, ECF No. 18.
26
Pls.’ Reply 2, 5, 9 n.3, ECF No. 33. In their reply brief, Plaintiffs reference the ATF’s Official
Notification showing multiple seizures of FRTs. Pls.’ Reply App’x 66, ECF No. 34.
27
Decl. of Michael Columbo, Pls.’ Br. App’x 9, ECF No. 19.
28
Defs.’ Resp. 6–8, ECF No. 32.
29
Id. at 6.
9
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carrying criminal penalties is never allowed. See Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979) (emphasizing that a plaintiff facing “a credible threat of prosecution . . . should not be
required to await and undergo a criminal prosecution as the sole means of seeking relief’)
(internal quotation marks omitted)); see also Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272,
279 (6th Cir. 1997) (“Although in regard to criminal statutes, courts are wary of . . . intervening
prior to prosecution and foreshortening the prosecutor’s action, courts have allowed pre-
On top of that, courts have even more authority to review challenges to agency actions.
The APA specifically provides that “[a] person suffering legal wrong because of agency action,
U.S.C. § 702. And the APA expressly provides that criminal proceedings are included in such
review. Id. § 703. It is also notable that the APA empowers courts with even greater authority to
“hold unlawful and set aside agency action, findings, and conclusions found to be” unlawful. Id.
§ 706. This is a marked increase of judicial authority over executive branch actions.30 See id.
§ 705 (authorizing the “reviewing court” to “issue all necessary and appropriate process . . . to
In line with longstanding precedent and the APA’s express authorization, Plaintiffs bring
a facial challenge to the lawfulness of Defendants prosecuting anyone for FRT possession. At no
point do Plaintiffs challenge Defendants’ discretion to prosecute certain individuals but not
others. If Defendants lack the ability to prosecute anyone, there is no prosecutorial discretion to
even exercise in the first place. That the challenged regulation carries the potential for criminal
30
See generally Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA. L. REV. 933, 1012–17
(2018) (explaining that, although the power of judicial review is not akin to an executive veto, the APA
expressly grants courts additional authority to review agency action).
10
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Moreover, Defendants aver that certain safeguards also weigh in favor of no pre-
enforcement intervention by the judicial branch. To allay any concerns about potential abuses by
executive officials insulated from judicial review, Defendants note that “federal criminal
procedure provides a host of opportunities to test the lawfulness of the government’s exercise of
prosecutorial authority.”31 However, this line of argument runs afoul of multiple Supreme Court
decisions. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that [a
plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute
that he claims deters the exercise of his constitutional rights.”); Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014) (“When an individual is subject to such a threat [of
prerequisite to challenging the law.”). And that is to say nothing of the potential harm that such
insulation from pre-enforcement judicial review would likely cause individuals subject to
may surrender the ability to promptly challenge unlawful executive branch actions. This cannot
be.
Alexander Hamilton stressed the importance of judicial review over the other branches of
government: “There is no position which depends on clearer principles, than that every act of a
delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”
THE FEDERALIST NO. 78 (Alexander Hamilton) (emphasis added). This check is an essential
government to oblige another branch to control itself. And this remains just as important today as
it was at the Founding. Not only would Defendants have this Court ignore decades of Supreme
31
Defs.’ Resp. 6, ECF No. 32.
11
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Court precedent and the plain text of the APA, they would also have this Court twist the
foundational value of separation of powers into something it is not. The Court declines the
invitation. Instead, the Court finds that it possesses both constitutional and statutory authority to
* * * *
Having considered Defendants’ threshold issues and finding no bars to the Court’s
authority to afford equitable relief to the Individual Plaintiffs, the Court proceeds with its
The decision to grant or deny injunctive relief is committed to the district court’s
discretion. See Miss. Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir.
1985). “A [temporary restraining order] is simply a highly accelerated and temporary form of
preliminary injunctive relief, which requires that the party seeking such relief establish the same
four elements for obtaining a preliminary injunction.” Greer’s Ranch Café v. Guzman, 540
F.Supp.3d 638, 644–45 (N.D. Tex. 2021) (O’Connor, J.) (cleaned up). To establish entitlement to
any form of injunctive relief, the movant must demonstrate: (1) a substantial likelihood of
success on the merits; (2) a substantial threat of irreparable harm; (3) that the balance of
hardships weighs in its favor; and (4) that the issuance of the preliminary injunction will not
disserve the public interest. Daniels Health Servs., L.L.C. v. Vascular Health Scis., L.L.C., 710
F.3d 579, 582 (5th Cir. 2013). The last two factors merge when the government is the opposing
party. Nken v. Holder, 556 U.S. 418, 435 (2009). As the movant, it is the party seeking relief
who bears the burden of proving all four elements of the requested injunctive relief. Nichols v.
Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008); Miss. Power & Light Co., 760 F.2d at 621.
12
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Upon determining that a party is entitled to injunctive relief, a court must also decide the
appropriate scope of that prospective injunction. “[T]he scope of injunctive relief is dictated by
the extent of the violation established[.]” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). And
burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen
v. Women’s Health Ctr., Inc., 512 U.S. 753, 756 (1994) (cleaned up). Thus, an injunction or TRO
must “redress the plaintiff’s particular injury,” and no more. Gill v. Whitford, 138 S. Ct. 1916,
IV. ANALYSIS
To show a substantial likelihood of success on the merits, Plaintiffs need not show they
are entitled to summary judgment on their claim, but must instead present a prima facie case.
Daniels Health Servs., 710 F.3d at 582. Plaintiffs have met that burden at this stage with respect
to their claim that the expanded definition of machinegun exceeds the scope of ATF’s statutory
authority. Therefore, Plaintiffs have satisfied “arguably the most important” of the four factors.
The Administrative Procedure Act (“APA”) instructs courts to “hold unlawful and set
limitations.” 5 U.S.C. § 706(2)(C). Plaintiffs contend that the ATF’s regulation broadening the
32
Pls.’ Compl. 15, ECF No. 1.
13
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The Fifth Circuit’s recent analysis of the exact statutory language at issue here shows that
Plaintiffs are very likely to succeed on the merits. See Cargill, 57 F.4th at 463 (explaining that
the National Firearms Act unambiguously “requires that a machinegun be capable of firing
automatically once the trigger performs a single function”). According to the en banc Fifth
Circuit, a weapon that qualifies as a machinegun must be capable of (1) firing multiple rounds by
a single function of the trigger and (2) do so automatically. Id. at 460. The definition of
machinegun “utilizes a grammatical construction that ties the definition to the movement of the
trigger itself, and not the movement of a trigger finger” such that “the statutory definition of
machinegun unambiguously turns on the movement of the trigger and not a trigger finger.” Id.
Because FRTs do not enable a weapon to automatically fire multiple rounds with a single
function of the trigger itself, the Court finds that FRTs most likely are not machineguns under
Cargill’s reasoning.
Similar to the government in Cargill, the Defendants here “offer[] nothing to overcome
this plain reading” of the statutory language. Id. When the ATF revised its definition of
machinegun to state that a “single function of the trigger” is the same thing as “a single pull of
the trigger and analogous motion,” its definition conflicts with the definition provided by the
statute. 27 C.F.R. § 479.11 (2018). By comparison, the statutory definition does not define
“machineguns” “according to how quickly they fire.” Cargill, 57 F.4th at 464. To qualify as a
machinegun under the statute, a weapon must only be capable of firing automatically once the
trigger itself performs a single function. Id. at 460, 465. And where an agency regulation
contradicts the statute, not only is that regulation likely arbitrary and capricious, but the statute
governs. Id. at 458–60. Because of this contradiction, the ATF’s broadened definition is likely
unlawful.
14
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Defendants offer almost no rebuttal to the holding of Cargill controlling here. In fact,
their response is relegated to a single footnote. This lone footnote contains the conclusory
statement that Plaintiffs “have not carried their burden of demonstrating a substantial likelihood
of success on the merits of their claim.33 All that Defendants offer to support the conclusion that
“Plaintiffs are incorrect” is a reference to Guedes v. ATF—a case from the District of Columbia
Circuit that disagrees with Cargill on the conclusion that bump stocks are not machineguns.34 45
F.4th 306, 319 (D.C. Cir. 2022). Beyond this reference, Defendants provide no analysis showing
why the Court should vary from Fifth Circuit precedent to accept the reasoning in Guedes.
Instead, Defendants promise that their future briefing at the preliminary injunction stage will set
Whether or not Defendants will successfully make this showing in future briefing is an
issue the Court will address once that argument is fully briefed. But for purposes of what is
before the Court now, Defendants have offered no support for their conclusion that Plaintiffs are
unlikely to succeed on the merits. More importantly, the Fifth Circuit has held that placement of
the responsive argument in a perfunctory footnote may constitute waiver by inadequate briefing.
See United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000) (citing L&A Contracting Co.
Because Plaintiffs point to binding Fifth Circuit precedent that appears squarely
dispositive of the issue in this case, the Court finds that Plaintiffs have carried their burden at this
stage as to this factor and are entitled to a TRO. Defendants’ brief response—if not waived—is
nothing more than a conclusory rebuttal in a footnote.35 Therefore, for the reasons discussed, the
Court finds that Plaintiffs have demonstrated a strong likelihood of success on the merits of their
33
Defs.’ Resp. 9 n.1, ECF No. 32.
34
Id.
35
Id.
15
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APA claim. It is substantially likely that the ATF’s regulation containing a broadened definition
In the Fifth Circuit, it is “well-established” that a harm is considered “irreparable only ‘if
it cannot be undone through monetary remedies.’” Dennis Melancon, Inc. v. City of New
Orleans, 703 F.3d 262, 279 (5th Cir. 2012) (quoting Interox Am. v. PPG Indus., Inc., 736 F.2d
194, 202 (5th Cir.1984)). A showing of economic loss is usually insufficient to establish
irreparable harm because damages are typically recoverable at the conclusion of litigation.
Janvey v. Alguire, 647 F.3d 585, 599–601 (5th Cir. 2011). However, where costs are not
damages, irreparable harm is generally satisfied. Wages & White Lion Invs., L.L.C. v. FDA, 16
F.4th 1130, 1142 (5th Cir. 2021) (citing Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016)).
Likewise, “complying with [an agency order] later held invalid almost always produces the
irreparable harm of nonrecoverable compliance costs.” Id. For harms that are non-pecuniary, the
alleged irreparable injury must also be concrete—“speculative injury is not sufficient” and “there
must be more than an unfounded fear on the part of the applicant.” Daniels Health Servs., 710
F.3d at 585 (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir.
1985)). So long as “‘the threatened harm is more than de minimis, it is not so much the
magnitude but the irreparability that counts for purposes of a preliminary injunction.’” Enter.
Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985)
(citing Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974)).
Without a TRO, Plaintiffs allege that they are suffering, and will continue to suffer,
irreparable harms. The identified harms take the form of unrecoverable compliance costs and
16
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non-pecuniary injuries, such as credible threats of prosecution and deprivations of ownership and
constitutional rights. Defendants contest Plaintiffs’ alleged injuries on grounds that “there is no
Plaintiffs do no more than claim that they will “suffer irreparable injury based on the
The Court disagrees and instead finds that Plaintiffs have carried their burden to show that
First, Plaintiffs face a credible threat of criminal prosecution. As explained earlier in this
Opinion, Plaintiffs place themselves in potential jeopardy by bringing this challenge to the
ATF’s regulation of FRTs. Defendants’ recent enforcement activity validates those fears. Armed
FBI agents visited Plaintiff Carey at his home, prompting him to surrender his FRTs to avoid
prosecution.38 Other individual FRT owners have experienced similar enforcement activities,
such as seizures and search warrants.39 And Defendants are presently prosecuting at least three
individuals.40 The Individual Plaintiffs and these other FRT owners share an important
commonality: they are all engaging in conduct proscribed by the ATF’s interpretation of
“machinegun.” Combined with the amount of recent enforcement activity and Defendants refusal
to disavow taking any action against the Individual Plaintiffs during this lawsuit, the Court
36
Defs.’ Resp. 8, ECF No. 32.
37
Id.
38
Pls.’ Compl. 3, ECF No. 1.
39
Id. at 11–12.
40
Pls.’ Reply 5, 9 n.2, ECF No. 33.
17
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Finding that Plaintiffs face a credible threat of civil or criminal prosecution for prior and
current ownership of FRTs, the Court further finds that this constitutes more than a de minimis
Second, Plaintiffs risk potential compliance costs. These costs stem from the Hobson’s
choice the Individual Plaintiffs face: continue to exercise ownership and constitutional rights
while risking federal prosecution or forfeit those rights to avoid civil and criminal consequences.
Without immediate relief, the Individual Plaintiffs will continue to suffer under the illusion that
an actual choice exists due to Defendants’ refusal to disavow prosecution during this lawsuit.
Compliance with an impermissible or illegal interpretation of the law carries the potential
for economic costs. Texas v. EPA, 829 F.3d at 433 (“Indeed, ‘complying with a regulation later
held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.’”
(citation omitted)). Threats that lead to an individual surrendering FRTs—as was the case for
Plaintiff Carey—often lack compensation after the fact for the deprived use and enjoyment of the
surrendered weapons (assuming the weapons are even returned). See VanDerStok v. Garland,
625 F.Supp.3d 570, 584 (N.D. Tex. Sept. 2, 2022) (explaining that “compliance costs are ‘likely
unrecoverable,’ usually ‘because federal agencies generally enjoy sovereign immunity for any
monetary damages’”) (quoting Texas v. EPA, 829 F.3d at 433)). Because Defendants in this case
are entitled to sovereign immunity, and therefore not liable for damages, any economic injuries
Likewise, compliance can also cause non-pecuniary harms and need not be financial in
nature. Even “alleged” deprivations of constitutional or procedural rights may justify injunctive
relief. See, e.g., Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 294–97 (5th
18
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Cir. 2012) (finding irreparable harm where plaintiffs “alleged” violations of constitutional rights
on grounds that “[t]he loss of [constitutional] freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976)); see also Louisiana v. Horseracing Integrity & Safety Auth. Inc., 617 F. Supp. 3d 478,
500 (W.D. La. July 26, 2022) (finding irreparable harm where plaintiffs alleged the government
Plaintiffs’ Complaint alleges that deprivations of both their constitutional and ownership
rights hang in the balance. For instance, Plaintiffs’ use and enjoyment of FRTs is “chilled . . . by
point and simply reiterate that “ATF has no plans to seize Plaintiffs’ property in the immediate
future.”42 But therein lies the problem. Plaintiffs face potential pressure to comply with a
regulation that is likely unlawful due to ATF’s arbitrary and capricious interpretation of
“machineguns.” The Court is unpersuaded by Defendants’ argument that there are “no plans to
seize Plaintiffs’ property in the immediate future.”43 Without disavowing that these plans will not
change during this lawsuit, Plaintiffs face endemic uncertainty and pressure to comply with
Simply put, Plaintiffs face irreparable injury in whichever course they choose—suffer
injury by complying with a regulation they allege Defendants lack the authority to enforce or
risk civil and criminal enforcement by not complying. For this reason, and because Defendants’
contrary arguments overlook clear Fifth Circuit precedent identifying compliance costs as
irreparable harms, the Court is satisfied that Plaintiffs’ alleged injuries are based on a credible
41
Pls.’ Reply 7, ECF No. 33.
42
Defs.’ Resp. 8, ECF No. 32 (emphasis added).
43
Id.
19
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Accordingly, the Court finds that the Individual Plaintiffs have demonstrated a substantial
The final factor the Court must weigh is the balance of the equities and the public
interest, which “merge” when the Government is a party. Nken, 556 U.S. at 435. A court must
“pay particular regard for the public consequences in employing the extraordinary remedy of
injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). At the same time, a
court must weigh any purported injuries the enjoined party may experience against the strong
likelihood that they will not succeed on the merits. See Freedom From Religion Found., Inc. v.
Mack, 4 F.4th 306, 316 (5th Cir. 2021) (explaining that “any injury to [the enjoined party] is
outweighed by [a] strong likelihood of success on the merits” by the requesting party).
Both parties offer interests that the Court now weighs. On one side, the Individual
Plaintiffs assert interests in “lawfully exercising freedoms they have enjoyed for several years.”44
As law-abiding citizens, this includes the ability possess firearms that are not machineguns.45
Absent protection from a TRO, the Individual Plaintiffs contend that they would suffer
compliance costs from any civil and criminal enforcement actions, in addition to experiencing a
chilling effect on the exercise of their freedoms going forward.46 On the other side, Defendants
argue that their interests in avoiding confusion, retaining prosecutorial discretion, and protecting
public safety tilt the equitable scale in their direction.47 Weighing these interests, the Court finds
that, on balance, the equities favor the Individual Plaintiffs at this stage. The Court will address
44
Pls.’ Br. 8, ECF No. 18.
45
Id.
46
Id.
47
Defs.’ Resp. 6, 9–10, ECF No. 32.
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Defendants first recycle their threshold arguments to insist that the equities weigh against
a TRO in this case. According to Defendants, because the “Individual Plaintiffs’ asserted injuries
are hypothetical, and principles of equity do not permit injunctions against criminal prosecutions,” a
TRO that “block[s] the initiation of actions that ATF has no present intent to pursue would simply
cause confusion.”48 The Court is not persuaded. If anything, it seems that the ATF’s incongruent
definition and refusal to disavow prosecution of the Individual Plaintiffs during the pendency of this
lawsuit jointly form the source of any confusion. Moreover, the Court has already rejected
Defendants’ threshold arguments. Plaintiffs have standing due to credible threats of prosecution
against them. And the concern that pre-enforcement judicial intervention in this case would strip the
Defendants’ of their prosecutorial discretion is similarly misplaced. The Court has already found
that the Plaintiffs are facially attacking the lawfulness of Defendants’ ability to prosecute anyone
for FRT possession under the ATF’s expanded definition. There is no present attack on
prosecutorial discretion because no such discretion can even exist if the ATF’s definition of
“machinegun” does not hold. Combined with the Court’s determination that Plaintiffs are very
48
Defs.’ Resp. 9, ECF. No. 32. Defendants cite to two cases in support of this point: Christoforu v. United
States, 842 F. Supp. 1453, 1456 (S.D. Fla. 1994), and Younger v. Harris, 401 U.S. 37, 46 (1971). From
the Court’s reading of these cases, they are inapposite. To begin with, Christoforu advised that courts
should “not grant equitable relief when [a] preemptive civil suit is filed for the purpose of terminating a
pending criminal action.” 842 F. Supp. at 1455 (emphasis added). But the parties have identified no
pending criminal actions against the Individual Plaintiffs and there is no evidence that the injunctive relief
is sought for the purpose of terminating or otherwise impeding a criminal action. Furthermore, Younger’s
abstention doctrine, as cited by Defendants, applies to the power of federal courts to enjoin ongoing state
prosecutions. 401 U.S. at 43–46. This carries significantly different considerations than pre-enforcement
judicial review of a federal criminal law. But even if Younger’s holding applies to federal prosecutions,
the Supreme Court recognized that “the threat to the plaintiff’s federally protected rights” is precisely the
type of irreparable injury that equitable relief is designed to prevent. Id. at 46. In contrast, the cost of
criminal prosecution to the accused party is not an “irreparable” injury. Id. at 44–46. The reason for
differentiating between these types of harms is due to the importance of avoiding duplicative legal
proceedings. Id. at 42–44. When the alleged injury from a criminal prosecution is merely “the cost,
anxiety, and inconvenience of having to defend,” the initiation of civil proceedings seeking equitable
relief would be duplicative since the issues are capable of resolution via the criminal action. Id. at 44–46.
But where important “federally protected rights” are in jeopardy, equitable relief is proper when those
rights cannot be sufficiently protected in “a single criminal prosecution.” Id. at 46. Therefore, the Court
finds that Christoforu and Younger do not bar equitable relief in this case.
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likely to succeed on the their APA claim that this expanded definition violates the law,
Defendants’ asserted interests do not tip the equitable scale in their favor.
Defendants next assert their primary argument as to why the balance of equities favors
enjoining the ATF from taking future action regarding FRTs “imposes harms that outweigh any
possible harms to the Individual Plaintiffs, who could defend against such actions in the usual
course.”50 These harms to Defendants are grounded in their “strong and continuing interest in
being able to enforce [the] laws restricting the possession and sale of deadly machine guns.”51
Defendants do not dispute that the Individual Plaintiffs are law-abiding citizens who wish to
engage in the lawful conduct of possessing specific firearms—conduct that was lawful until the
ATF said otherwise. Instead, Defendants argue that Plaintiffs “provide no explanation for why
the government’s general public safety concerns would apply any less readily to them than other
individuals who possess deadly machineguns.”52 But it is actually Defendants who lack an
explanation—not Plaintiffs. The fact that Plaintiffs assert they are “law-abiding citizens” who
“have possessed [FRTs] without incident”53 differentiates them from individuals who “create
public health hazards” and “carry out . . . large-scale attack[s].”54 Plaintiffs’ assertion supplies
Yet perhaps most damaging to Defendants are their irreconcilable positions. On the one
these three individuals (who have no criminal history)—poses a threat to public safety. But, on
49
Defs.’ Resp. 10, ECF No. 32.
50
Id. (citing Proctor v. Dist. of Columbia, 310 F. Supp. 3d 107, 117 (D.D.C. 2018) (finding public safety
justified balancing the equities in favor of the government)).
51
Id.
52
Id.
53
Pls.’ Reply 9, ECF No. 33.
54
Defs.’ Resp. 10, ECF No. 32.
22
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the other hand, Defendants aver that they have no current plans to enforce the ATF Rule against
these individuals based on the historic practice of enforcing their interpretation against large
sellers only. Even if Defendants’ representation is true that they have only prosecuted large
sellers in the past, how can they now claim that the threat to public safety is so grave because of
individual ownership by these specific law-abiding citizens at the same time there are no current
that there are no current plans to prosecute as true, this dissonance here suggests a lack of
substance underlying the proffered public safety concern. Defendants offer no argument
specifically showing how public safety would be harmed by the Court granting the narrow
TRO—at most twenty-eight days—to enjoin enforcement actions for possession (and not some
other unlawful use of the FRT) by these Individual Plaintiffs. Because Defendants have no
current plans to prosecute, the Court concludes that they must not seriously object to the issuance
of a TRO memorializing the status quo: no prosecution for prior or current FRT possession by
these three individuals. Thus, the Court finds that Defendants would experience little, if any,
In contrast, the Individual Plaintiffs face the very real potential to experience harms if the
TRO is not granted. These harms include a credible threat of civil or criminal prosecution,
compliance costs, and a chilling of ownership and constitutional rights. On balance, the equities
and public interest weigh in favor of Plaintiffs.55 And any injury to Defendants is further
55
The Court has previously noted that there is also an interest in ensuring that the Government adheres to
its constitutional and statutory obligations. Polymer80, Inc. v. Garland, 4:23-cv-00029-O, 2023 WL
3605430, at *11 (N.D. Tex. Mar. 19, 2023). Indeed, there is undoubtedly “an overriding public interest
[in] . . . an agency’s faithful adherence to its statutory mandate.” Jacksonville Port Auth. v. Adams, 556
F.2d 52, 59 (D.C. Cir. 1977). And “[t]he public interest is served when administrative agencies comply
23
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outweighed by Plaintiffs’ strong likelihood of success on the merits of its APA statutory
* * * *
In sum, Plaintiffs have successfully demonstrated to the Court that they are entitled to a
TRO. Having considered the arguments, evidence, and law, the Court holds that the relevant
factors weigh in favor of GRANTING the TRO. Accordingly, the Court temporarily ENJOINS
Defendants—along with their officers, agents, servants, and employees—from initiating criminal
or civil enforcement actions against Plaintiffs Carey, Speegle, and Wheeler, in any manner,
based on their current or prior possession of one or more FRTs. Further, the Court temporarily
requesting that Plaintiffs Carey, Speegle, and/or Wheeler surrender, voluntarily or involuntarily,
Having determined the Individual Plaintiffs carried their burden showing that equitable
relief is warranted in this situation, the Court must next decide how to provide those parties with
complete relief. When ordering equitable relief, the Court is obligated to state “specifically” and
“in reasonable detail . . . the act or acts restrained or required” under the injunction. FED. R. CIV.
P. 65(d)(1)(b)–(c). In keeping with that obligation, the Court will tailor the scope of the
temporary restraining order with careful attention to avoid upsetting the balance of the
competing interests. Thus, the Court enjoins Defendants from implementing or enforcing the
with their obligations under the APA.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21
(D.D.C. 2009).
24
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Individual Plaintiffs. This relief should alleviate Plaintiffs’ demonstrable injuries without
Crucially, this Court’s temporary injunctive relief does not offer blanket immunity to the
Individual Plaintiffs from prosecution for all firearm-related offenses. The implications of this
TRO’s narrow scope bear further explanation. This TRO protects only the Individual Plaintiffs
from civil or criminal enforcement of the challenged rule during the life of the TRO. Other
unnamed individual members of the Institutional Plaintiffs are not covered under this TRO.
Additionally, this TRO only covers the current or prior possession of FRTs by the Individual
Plaintiffs. This TRO does not cover any future purchases by the Individual Plaintiffs of FRTs
after the date of his order. Importantly, the Plaintiffs may still be prosecuted for violating
otherwise lawful provisions of the NFA and GCA, as well as other lawful firearms regulations.
Accordingly, the Court finds that the aforementioned limitations appropriately narrow the scope
of this extraordinary relief in order to maintain the status quo without overly burdening
Defendants.
Normally, a TRO remains in place for a maximum of fourteen days. Fed. R. Civ. P.
65(b). The Federal Rules of Civil Procedure provide the option to extend a TRO an additional
fourteen days for good cause shown. Id. at 65(b)(2). The wording of Rule 65 does not foreclose
the Court extending the TRO prior to receiving a subsequent renewal request from the party
seeking the TRO. See id. (“The order expires at the time after entry—not to exceed 14 days—
that the court sets, unless before that time the court, for good cause, extends it for a like period or
the adverse party consents to a longer extension.”) (emphasis added)). Other courts have done
the same in similar circumstances. See, e.g., State of Maine v. Fri, 483 F.2d 439, 441 (1st Cir.
25
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1973) (“[A]s long as the hearing on the preliminary injunction is held expeditiously within the
appropriate time frame, the district court should be able to extend the restraining order while it
prepares its decision.”); Fernandez-Roque v. Smith, 671 F.2d 426, 431 (11th Cir. 1982) (“A
district court possesses inherent powers of equity sufficient to enable it to preserve the status quo
Plaintiffs request that the TRO remain in place until such time that the Court can rule on
their imminent preliminary injunction motion.57 The Court construes this as a request for an
extension and finds good cause to extend the TRO an additional fourteen days. Without this
extension, the TRO would otherwise expire six days prior to when the Plaintiffs’ impending
Motion for Preliminary Injunction ripens. And this would occur despite no change in the very
circumstances justifying the TRO. Not only will this extension protect the status quo by ensuring
that there is not a short gap between the temporary relief granted by this Order and any further
injunctive relief that may be granted in the near future, it will also conserve finite judicial
Because the parties’ agreed schedule for the preliminary injunction briefing comes ripe
on September 19, 2023,58 the Court will extend the TRO for one additional fourteen-day period.
Therefore, the TRO will either expire twenty-eight days from the date of this order, on
September 27, 2023, or on the date the Court issues its ruling on the forthcoming preliminary
56
For other examples, see Women’s Med. Prof’l Corp v. Taft, 199 F.R.D. 597, 598 (S.D. Ohio 2000)
(extending a TRO sua sponte); Long Island R.R. Co. v. Int’l Ass’n of Machinists & Aerospace Workers,
709 F. Supp. 376, 377 (S.D.N.Y. 1989) (discussing the prior sua sponte extension of the TRO in order to
preserve the status quo pending the ruling on the preliminary injunction); Hous. Study Grp. v. Kemp, 739
F. Supp 633, 635 n.4 (D.C.C 1990) (discussing the prior sua sponte extension of the TRO to “afford the
parties adequate time to complete briefing.”).
57
Pls.’ Br. 1, ECF No. 22.
58
Joint Proposed Briefing Schedule, ECF No. 25.
26
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V. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Temporary
Restraining Order (ECF No. 17) to preserve the status quo until September 27, 2023 or until such
time that the Court rules on Plaintiffs’ Motion for Preliminary Injunction (ECF No. 22). The
Court ORDERS that Defendants—along with their officers, agents, servants, and employees—
are ENJOINED from implementing or enforcing against Plaintiffs Carey, Speegle, and Wheeler,
in any manner, the ATF’s expanded definition of “machinegun” that this Court has determined is
likely unlawful. Further, the Court waives the security requirement of Federal Rule of Civil
Procedure 65(c).59 See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (holding
that the district court has discretion to waive the security requirement).
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
59
Because neither party raises the security requirement in Rule 65(c), no security is ordered. See FED. R.
CIV. P. 65(c).
27