GOA's Injunction Against The ATF's Pistol Brace Rule Extended Until The Case Is Settled
GOA's Injunction Against The ATF's Pistol Brace Rule Extended Until The Case Is Settled
ENTERED
UNITED STATES DISTRICT COURT October 27, 2023
Nathan Ochsner, Clerk
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
dangerous subset of firearms in an effort to curb organized crime. To that end, Congress
first passed the National Firearms Act of 1934 (“NFA”) and later the Gun Control Act of
1968 (“GCA”). These statutes remain two of the primary means for regulating and
licensing firearms at the federal level. They impose heightened requirements on the
(“SBRs”). That is important in this case because pistols, revolvers, and handguns are not
Since 2012, however, the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) has seen a dramatic increase in the use of stabilizing braces on handguns. These
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braces were originally designed to assist people with disabilities, or mobility or strength
issues so that they could safely handle heavy handguns. Over time, some of these
stabilizing braces have taken on a new function and appearance and have morphed into
what looks like a shoulder stock. As a result, handguns with those stabilizing braces
In January 2023, the ATF promulgated a Final Rule that modified the ATF’s earlier
regulations addressing how the agency would determine whether a weapon is a “rifle”
for purposes of the NFA and GCA. One of the primary changes involves whether a
handgun is transformed into an SBR when certain stabilizing braces are attached. So, the
Plaintiffs have sued to invalidate the Final Rule alleging that it violates the
Administrative Procedure Act and the United States Constitution. Plaintiffs allege that
the Final Rule places law abiding citizens at risk of unwittingly becoming felons
overnight. Plaintiffs ask for a preliminary injunction to prevent the rule from going into
effect. Specifically, Plaintiffs request a nationwide injunction on the rule to maintain the
status quo ante prior to the Final Rule’s promulgation at the start of the year.
Pending before the Court is Plaintiffs’ Motion for Preliminary Injunction. (Dkt.
No. 16). For the following reasons, the Court GRANTS IN PART the Motion.
I. BACKGROUND
This case challenges an agency’s final rule. Therefore, the regulatory history of the
Final Rule is an integral part of the Court’s analysis. The Court will review the relevant
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statutes from which the ATF derived its authority to promulgate this Final Rule in order
A. STATUTORY HISTORY
In 1934, Congress passed the NFA. 26 U.S.C. §§ 5801–5872. The NFA was
dangerous weapons and devices such as machine guns, sawedoff shotguns and
silencers.” Lomont v. O’Neill, 285 F.3d 9, 11 (D.C. Cir. 2002) (citing Sonzinsky v. United
States, 300 U.S. 506, 511–12, 57 S.Ct. 554, 554–55, 81 L.Ed. 772 (1937)). To ensure that it
covered only the most dangerous class of weapons, the NFA identified eight categories
The dispute in this case concerns two categories of firearms commonly referred to
as SBRs. Id. § 5845(a)(3), (4). These two subsections describe an SBR as “a rifle having a
barrel or barrels of less than 16 inches in length” or “a weapon made from a rifle if such
weapon as modified has an overall length of less than 26 inches or a barrel or barrels of
less than 16 inches in length.” Id. The NFA also defines a rifle:
1 The GCA uses the same definition of rifle. See 18 U.S.C. § 921. Thus, any rules
promulgated by the ATF that affect this definition implicate both the NFA and the GCA. This
lawsuit, however, focuses primarily on the effects under the NFA.
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Id. § 5845(c) (emphasis added). The “made or remade” phrasing within the definition is
Id. § 5845(i) (emphasis added). Taken together, these portions of the NFA mean that a
rifle—which alone would not be regulated by the NFA—can be put together or altered
To be clear, the NFA does not ban SBRs—it regulates them. Such regulations
require, inter alia, (1) requesting permission to create the SBR, (2) paying a $200 tax for
every approved SBR made by an unlicensed person, (3) registering the SBR in the
National Firearms Registration and Transfer Record, (4) and placing a serial number on
the SBR. 26 U.S.C. §§ 5821, 5822. Making or possessing an SBR in violation of any of
these requirements is a crime. See 26 U.S.C. § 5871. And if charged with violating the
convert it into an NFA-regulated SBR has tremendous ramifications for actual and
The power to enforce and administer the NFA is vested in the U.S. Attorney
General. 18 U.S.C. § 926(a). The Attorney General has delegated that responsibility to
the ATF. See 28 C.F.R. § 0.130. Specifically, the ATF has the power to issue regulations,
i.e., the ATF can publish interpretations of Congress’ various gun statutes and offer
explanations on how gun owners can best comply. See 27 C.F.R. pts. 478, 479. Moreover,
the ATF has also made a practice of taking “classification requests,” in which firearm
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manufacturers and members of the public can “submit weapons or other devices to the
ATF for a classification of whether the weapon or device qualifies as a ‘firearm’ under the
Near the end of 2020, the ATF turned its attention to a class of pistol attachments
generally described as stabilizing braces. (Dkt. No. 22 at 22–23). Namely, the ATF grew
In January 2023, the ATF addressed its concerns with its newest rule, “Factoring
Criteria for Firearms with Attached ‘Stabilizing Braces’” (the “Final Rule”). 88 Fed. Reg.
6478 (Jan. 31, 2023) (to be codified at 27 C.F.R. pts. 478, 479). The Final Rule sought to
clarify the ATF’s interpretation of “rifle,” as defined in the NFA. 88 Fed. Reg. at 6574–75
(amending 27 C.F.R. §§ 478.11, 479.11). Under the Final Rule, the phrasing in the NFA’s
from the shoulder,” would now be read even more broadly than before, including:
Id. at 6480. If a weapon after production or modification fits this description, the Final
Rule then employs six factors to determine whether the weapon is now converted into a
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Id. “If a firearm with an attached ‘stabilizing brace’ meets the definition of a ‘rifle’ based
on the factors indicated in this final rule, then that firearm could also be a short-barreled
rifle depending on the length of the attached barrel, thus subjecting it to additional
requirements under the NFA[.]” Id. While the ATF does not elaborate on how this rubric
will operate, e.g., whether each factor is weighted the same or some more than others, the
effects of the rubric are clear—almost every time a weapon is evaluated under this new
framework, it will be classified as a rifle. For example, in its “Final Regulatory Impact
Analysis,” regarding the Final Rule, the ATF estimates there would be only “1 percent of
‘stabilizing braces’ that, when attached to [a] firearm, would not result” in a rifle subject
to the NFA. (Dkt. No. 16-9 at 21). The Fifth Circuit has also noted that after promulgating
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the Final Rule, the ATF has not issued a single example of a “pistol with a stabilizing
brace that would constitute an NFA-exempt braced pistol.” Mock v. Garland, 75 F.4th 563,
The ATF estimates in its Final Regulatory Impact Analysis that the Final Rule
converted 2,970,000 weapons to NFA-regulated SBRs. (Dkt. No. 16-9 at 21). For this
group of affected gun owners, the Final Rule proposed five different avenues for
compliance. First, they could “[r]emove the short barrel and attach a 16-inch or longer
rifled barrel to the firearm, thus removing it from the scope of the NFA.” 88 Fed. Reg. at
6570. Second, the owners could register the firearm as an SBR. Id. This option would
also be exempt from the $200 “marking tax” that the NFA traditionally requires. Id. at
6571. Third, the stabilizing brace could be “permanently” removed, disposed of, or
altered so that it could never be re-attached. Id. at 6570. Fourth, the newly minted SBR
owners could simply turn their weapon over to the ATF. Id. And fifth, the owner could
destroy their firearm. Id. As defined by the ATF, destruction of a firearm means
rendering the weapon “not restorable to firing condition and . . . otherwise reduced to
scrap.” How to Properly Destroy Firearms, Bureau of Alcohol, Tobacco, and Firearms and
The Final Rule went into immediate effect on January 31, 2023. 88 Fed. Reg. at
6480. However, gun owners were given a grace period, until May 31, 2023, to choose
which compliance method, if any at all, they wished to pursue. Id. at 6570.
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B. PROCEDURAL HISTORY
Shortly after the Final Rule was rolled out, Plaintiffs filed this action against
Defendants the ATF, the United States Department of Justice, and Steven M. Dettelbach,
the Director of the ATF, in his official capacity. (Dkt. No. 1). Plaintiffs are comprised of
(“GOF”) and Gun Owners of America (“GOA”); and the State of Texas. (Id. at 6–12).
Plaintiffs’ suit alleges that the Final Rule violates the Administrative Procedure Act
arguing that the Final Rule: (1) exceeds the ATF’s statutory authority, (2) violates the
(4) violates the Fifth Amendment, (5) is not a proper exercise of Congress’ taxing power,
(6) is arbitrary and capricious, and (7) was not a logical outgrowth from the notice of
(Dkt. No. 22), and notified the Court of a recently decided Northern District of Texas
order on the same issue. See Mock v. Garland, No. 4:23-CV-00095, ____ F. Supp.3d. ____,
2023 WL 2711630 (N.D. Tex. Mar. 30, 2023), rev’d and remanded, 75 F.4th 563 (5th Cir. 2023).
In that order, the court denied a preliminary injunction against enforcement of the same
2 Mock is not the only other case challenging this Final Rule. At this time, the Court is
aware of at least eight additional challenges to the Final Rule across the country. See Second
Amend. Found. v. ATF, No. 3:21-CV-00116 (N.D. Tex.) (Boyle, J.); Britto v. ATF, No. 2:23-CV-00019
(N.D. Tex.) (Kacsmaryk, J.); Texas Gun Rights v. ATF, No. 4:23-cv-578 (N.D. Tex.) (O’Connor, J.);
(continue)
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In Mock, the district court denied a substantially similar motion for preliminary
injunction. See 2023 WL 2711630 at *8. The Mock plaintiffs appealed and sought
emergency injunctive relief in the interim. See Mock v. Garland, No. 23-10319, Dkt. No. 25
(5th Cir. May 17, 2023). In response, a motions panel for the Fifth Circuit enjoined the
Final Rule pending expedited appellate review of the district court’s decision. No. 23-
10319, Dkt. No. 52 (5th Cir. May 23, 2023). Because this case involves many of the same
challenges brought by the Mock plaintiffs, this Court granted in part Plaintiffs’ request
The Fifth Circuit has now ruled. See Mock v. Garland, 75 F.4th 563 (5th Cir. 2023).
In Mock, the Fifth Circuit reversed the district court’s denial of an injunction, finding that
“plaintiffs will likely succeed on the merits of their Administrative Procedure Act (‘APA’)
challenge.” Id. at 567. The Fifth Circuit found that the Final Rule was not a logical
outgrowth of the NPRM, but it refrained from ruling on the other factors necessary for a
preliminary injunction and remanded the case for consideration of those remaining
factors. Id. After a status conference to discuss the impact of Mock on this case, the Parties
filed supplemental briefing on Plaintiffs’ Motion for Preliminary Injunction.3 (Dkt. Nos.
Nat’l Rifle Ass’n of Am., Inc. v. ATF, 3:23-cv-01471 (N.D. Tex) (Lindsay, J.); Watterson v. ATF, No.
4:23-CV-00080 (E.D. Tex.) (Mazzant, J.); Colon v. ATF, 8:23-cv-00223 (M.D. Fla.) (Stenson Scriven,
J.); FRAC v. Garland, No. 1:23-CV-00024 (D.N.D.) (Hovland, J.); Miller v. Garland, No. 1:23-CV-
00195 (E.D. Va.) (Alston, J.).
3 After remand, the district court granted the preliminary injunction. Mock v. Garland, No.
4:23-CV-00095, ____ F. Supp.3d. ____, 2023 WL 6457920 (N.D. Tex., Oct. 2, 2023).
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Benisek v. Lamone, 585 U.S. ____, ____, 138 S.Ct. 1942, 1943, 201 L.Ed.2d 398 (2018)
treated as the exception rather than the rule.” Miss. Power & Light Co. v. United Gas Pipe
Line Co., 760 F.2d 618, 621 (5th Cir. 1985). Thus, “[i]n each case, courts must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24,
129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008) (quotation omitted). And in determining
whether injunctive relief is proper, “courts of equity should pay particular regard for the
v. Romero–Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982).
that the movant will prevail on the merits; (2) there is a substantial threat that irreparable
harm will result if the injunction is not granted; (3) the threatened injury outweighs the
threatened harm to the defendant; and (4) the granting of the preliminary injunction will
not disserve the public interest.” Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). As
such, “[t]he party seeking such relief must satisfy a cumulative burden of proving each
of the four elements enumerated” for a preliminary injunction to be granted. Id. The last
two factors, “harm to the opposing party and weighing the public interest[,] merge when
the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749,
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Int’l, S. A., 518 F.2d 175, 180 (5th Cir. 1975). “Rather, a sliding scale is utilized, which
takes into account the intensity of each in a given calculus.” Id. (citing Siff v. State
Democratic Exec. Comm., 500 F.2d 1307 (5th Cir. 1974)). For instance, “a preliminary
injunction does not follow as a matter of course from a plaintiff’s showing” of the first
element, “a likelihood of success on the merits.” Benisek, 585 U.S. at ____, 138 S.Ct. at
1943–44 (emphasis added). Thus, federal courts must consider whether the movant has
established the three other elements as well for a preliminary injunction to issue. Id. at
III. DISCUSSION
Before the Court can reach the merits of Plaintiffs’ Motion, the Court first revisits
Plaintiffs’ standing.
A. STANDING
To establish Article III standing, plaintiffs bear a burden to demonstrate that they
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Regarding
the weight of that burden, the Supreme Court has explained that “each element [of
standing] must be supported in the same way as any other matter on which the plaintiff
bears the burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct.
2130, 2137, 119 L. Ed. 2d 351 (1992). Thus, “[a]t earlier stages of litigation . . . the manner
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and degree of evidence required to show standing is less than at later stages.” Speech
First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020), as revised (Oct. 30, 2020). Here, “[a]t
the preliminary injunction stage, the movant must clearly show only that each element of
The Court finds that the latter two standing requirements of traceability and
redressability are comfortably satisfied in this case. This is because any injuries suffered
by Plaintiffs are attributable to the implementation of the Final Rule, and the requested
relief here—an order enjoining and, ultimately, vacating the Final Rule—would remedy
the alleged injury.4 The only standing element in serious dispute is the first—injury-in-
fact. Thus, the Court must decide whether Plaintiffs have clearly shown that they have
suffered or will suffer “an invasion of a legally protected interest” that is “concrete,”
U.S. at 339, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. at 2136). The Court
4 It is worth noting that Defendants do make one traceability argument. Defendants argue
that any harm claimed by the Plaintiffs would be attributable solely to the NFA—not the Final
Rule. (Dkt. No. 22 at 27). Therefore, according to Defendants, Plaintiffs grievances are more
properly aimed at the NFA, as opposed to the Final Rule. (Id.). The Court is not persuaded.
While the NFA is the statute which sets out the heightened regulations of consequence and
penalties for non-compliance, the weapons that give rise to this suit would not be subject to the
NFA but-for the Final Rule. Thus, the Final Rule going into effect is causing harm to the Plaintiffs
for Article III purposes.
5 When multiple plaintiffs seek the same form of relief, generally only “one plaintiff must
have standing to seek each form of relief requested.” Town of Chester v. Laroe Ests., Inc., 581 U.S.
433, 439, 137 S.Ct. 1645, 1651, 198 L.Ed.2d 64 (2017). However, because the Court deems party-
specific injunctive relief to be the most proper remedy to Plaintiffs’ motion, each party must have
Article III standing to be entitled to such relief. See VanDerStok v. Garland, No. 4:22-CV-00691,
2023 WL 4539591, at *9 (N.D. Tex. June 30, 2023) (explaining that party-specific injunctive relief
should not be granted to parties that have not “independently demonstrate[ed] standing”).
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1. Brady Brown
Plaintiff Brady Brown alleges that he is injured by the ATF’s Final Rule because it
impermissibly broadens the NFA’s definition of “rifle,” thereby subjecting several of his
firearms to new, heightened regulations. The Supreme Court has spoken to this sort of
504 U.S. at 561–62, 112 S.Ct. 2137 (emphasis added). “It follows from Lujan that if a
standing to challenge that regulation.” Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d
514, 518 (5th Cir. 2014). Therefore, Brown’s ability to demonstrate injury-in-fact hinges
sufficient to establish that he is likely regulated by the Final Rule. Brown’s Declaration
states that, in his personal capacity,6 he lawfully possesses at least one “AR-15 style
6 Brown also owns a business inventory of weapons—including at least one more firearm
and stabilizing brace that would be subjected to NFA regulation under the Final Rule. (Dkt. No.
16-14 at 2). Brown alleges that even in his capacity as a firearms dealer, the Final Rule renders
him unable to lawfully transfer the offending firearms to another dealer. (Id.). A regulatory
action which threatens a movant’s ability to sustain his business can, in some cases, constitute
irreparable harm. Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1179 (5th
(continue)
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firearm in pistol configuration equipped with a stabilizing brace” that would now
constitute an SBR under the Final Rule. (Id. at 2). And compliance with the Final Rule
will almost always require time expenditures and various compliance costs. See infra
III.B.2.a. Thus, Brown would suffer injury-in-fact under the Final Rule and, therefore, has
Plaintiffs GOA and GOF are non-profit organizations who bring this suit and
request injunctive relief on behalf of their members and supporters. (Dkt. No. 1 at 8);
(Dkt. No. 16 at 31); (Dkt. No. 16–13 at 2). Defendants challenge whether GOF has
sufficiently alleged that it is a membership organization that can bring claims on behalf
of its members. (Dkt. No. 47 at 6). Defendants also contest whether both organizations
have sufficiently alleged facts to support associational standing at all. (Dkt. No. 47 at 5–
11).
standing.’” OCA-Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017). “Associational
standing is a three-part test: (1) the association’s members would independently meet the
Article III standing requirements; (2) the interests the association seeks to protect are
germane to the purpose of the organization; and (3) neither the claim asserted, nor the
Cir. 1989). However, because Brown has standing in his personal capacity, standing due to his
business-incurred costs need not be addressed.
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Comm’n, 78 F.4th 827, 836–37 (5th Cir. 2023). In situations where a representational
plaintiff is not a traditional member-organization, the court will “exalt form over
the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 828–29 (5th Cir. 1997) (citing Hunt v.
Wash. State Apple Advert. Comm’n, 432 U.S. 333, 345, 97 S.Ct. 2434, 2442, 53 L.Ed.2d 383
(1977). This test seeks to determine whether the entity “represents [its ‘members’] and
provides the means by which they express their collective views and protect their
collective interests.” Id. at 828 (quoting Hunt v. Washington State Apple Advertising
Comm’n, 432 U.S. 333, 344–45, 97 S.Ct. 2434, 2441–42, 53 L.Ed.2d 383 (1977)).
One way to apply the indicia of membership test is to look at whether nonstandard
members “elect leadership, serve as the organization's leadership, and finance the
organization’s activities, including the case’s litigation costs.” Funeral Consumers All., Inc.
v. Serv. Corp. Int’l, 695 F.3d 330, 344 n.9 (5th Cir. 2012) (citing Hunt, 432 U.S. at 344–45, 97
S.Ct. at 2442). However, the Supreme Court has recently clarified that when “an
organization has identified members and represents them in good faith, our cases do not
require further scrutiny into how the organization operates” in order to sufficiently meet
the test. Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll., 600 U.S.
181, 201, 143 S.Ct. 2141, 2158, 216 L.Ed.2d 857 (2023).
GOA and GOF do not assert claims on their own behalf as organizations. Rather,
they assert claims on behalf of their “more than two million members and supporters
across the country,” (Dkt. No. 1 at 8); (Dkt. No. 16-13 at 2), so they are subject to an
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“associational or representational standing” analysis. Friends of the Earth, 129 F.3d at 828.
defend the Second Amendment rights of gun owners.” (Dkt. No. 16-13 at 2). GOF is “a
non-profit legal defense and educational foundation . . . supported by gun owners across
the country[.]” (Id. at 2). As for their respective purposes, both organizations purport to
preserve and defend the rights of gun owners under the Constitution.7 (Id. at 3).
According to their Senior Vice President, “GOA and GOF routinely litigate cases across
the country in furtherance of their mission, on behalf of their members and supporters in
various states.” (Id. at 3). Many of GOA and GOF’s members and supporters, which
include individuals as well as industry members, “currently own pistols equipped with
stabilizing braces [and are effected by] the Final Rule in various ways.” (Id. at 3).
GOA and GOF assert their claims as though they are the same kind of entity.
Defendants point out, however, that GOA is a membership organization while GOF is
not. (Dkt. No. 47 at 5–6). As such, the Court first looks to whether GOF satisfies the
indicia of membership test before it proceeds to whether GOF can assert associational
standing. GOF did not provide explicit information regarding its organizational
structure and whether its supporters elect or serve as its leadership. It did, however,
assert that it is a 501(c)(3) non-profit, (Dkt. No. 16-13 at 2), which means that it is a
7 Although not explicitly stated, these two organizations appear to have ties to each other
as they share the same Senior Vice President and always refer to their actions, litigation, and
members in the collective. (See Dkt. No. 16-13).
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501(c)3, 509. In other words, it is likely that GOF’s nonstandard members do finance the
organization’s activities and litigation costs. However, GOF has not defined the scope of
who it considers to be its “supporters,” and it is not this Court’s role to operate on
inferences or to impose an arbitrary scope on who those supporters might be. As such,
GOF has failed to allege an identifiable set of members. Despite not being a membership
organization, GOF could have representational standing on behalf of its supporters, but
the Court finds that it has not sufficiently identified them here. Therefore, GOF has not
satisfied the indicia of membership test as is required to have standing for a preliminary
injunction.
organization, but rather argue that GOA fails to satisfy the elements of associational
First, many of GOA’s members are simlar to Plaintiff Brown in that they are
individuals or businesses who own weapons whose classification was altered by the Final
Rule and who are now subject to injuries stemming therefrom. See supra III.A.1.
organizational mission is to litigate when laws affect gun owners, and here they filed suit
to invalidate a federal regulation that reclassifies their members’ weapons and subjects
those weapons to heightened regulation. In other words, the interests that GOA seeks to
protect in this lawsuit are germane to the purpose of the organization. Finally, because
the claims asserted and relief requested involve invalidating a federal regulation based
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members and supporters is not required to allow the claims to proceed. In sum, the Court
finds that GOA meets all the requirements for associational standing.
Although Texas does not spend much of its briefing responding to Defendants’
standing arguments, the Court understands Texas to argue that the Final Rule would
cause Texas (1) sovereign injury, (2) quasi-sovereign injury, and (3) nonrecoverable
compliance costs. (Dkt. No. 29 at 38–39). In its May 31 Order, this Court previously
rejected Texas’s arguments regarding its alleged sovereign and quasi-sovereign injuries.
(Dkt. No. 51 at 4–5). The Court sees no reason to depart from its earlier ruling as to these
arguments. However, also in its May 31 Order, the Court found that Texas had standing
due to the nonrecoverable compliance costs that the Final Rule would impose. The Court
reasoned that Texas would suffer injury in the form of compliance costs incurred by its
agencies—e.g., state law enforcement—being forced to comply with the Final Rule. (Dkt.
No. 51 at 5). In reaching this conclusion, the Court noted that injury via compliance costs
immunity from monetary damages. See Wages & White Lion Invs., L.L.C. v. FDA, 16 F.4th
1130, 1142 (5th Cir. 2021); see also Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (holding
that “complying with a regulation later held invalid almost always produces the
the benefit of time and supplemental briefing, the Court now reevaluates whether Texas
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costs.8
clear showing” of injury-in-fact under the Final Rule. Barber v. Bryant, 860 F.3d 345, 352
(5th Cir. 2017). In proving up its alleged compliance costs, Texas fails to make a “clear
showing,” and instead, asks the Court to speculate. Texas initially argued that its state
law enforcement officers who “possess previously legal handguns with stabilizing braces
will have to expend resources to register those weapons.” (Dkt. No. 16 at 29–30).
However, Defendants pointed out that Texas had not submitted any actual evidence to
“substantiat[e] the allegation that any of its law enforcement agencies possess pistols with
stabilizing braces in their inventories.” (Dkt. No. 22 at 60). Texas did not address this
At this juncture, Texas has not even stated, let alone provided concrete evidence,
that any of its law enforcement agencies actually own a braced pistol subject to the Final
Rule. And according to Texas, it does not need to. (Dkt. No. 45 at 5). Because the ATF
estimates that there are at least three million attached braces in circulation, Texas asks the
Court to “find as a commonsense matter that Texas is highly likely either now or in the
future to incur compliance costs as a result of the rule.” (Id.). Essentially, Texas argues
8 Throughout the briefing, each Party seems to conflate the injury-in-fact standing
requirement with the irreparable harm showing required for a preliminary injunction. At this
stage of the case, the Court agrees that they are essentially two sides of the same coin. Compliance
costs, regardless of who suffers them, will not be recoverable because Defendants are protected
from monetary damages by sovereign immunity. See 5 U.S.C. § 702. Thus, any finding of injury-
in-fact due to compliance costs would also support a finding of irreparable harm, and vice versa.
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that because so many braces exist, surely at least one brace is owned by a Texas law
enforcement agency. The Court rejects Texas’s request to infer harm; this does not
constitute a “clear showing” of an injury. Texas has failed to meet its Article III burden
of establishing injury-in-fact under the Final Rule in order to merit injunctive relief.
The Court notes that this is only the preliminary injunction stage of this case.
Accordingly, any Party will be able to supplement the record with actual evidence
B. PRELIMINARY INJUNCTION
The Court will next evaluate the merits of Plaintiffs’ Motion by working through
the four preliminary injunction factors articulated by the Fifth Circuit. Clark, 812 F.2d at
993.
The first inquiry is whether a Plaintiff that has standing has established a
substantial likelihood of prevailing on the merits. Id. The Fifth Circuit has already
decided “that the Final Rule fails the logical-outgrowth test and violates the APA.” Mock,
75 F.4th at 578. Because that holding pertained to the ATF’s rulemaking process, any
plaintiff challenging the Final Rule on APA grounds in the Fifth Circuit has the same
9 Both parties agree that the Court is bound by the Fifth Circuit’s decision in Mock v.
Garland. (Dkt. No. 73 at 5); (Dkt. No. 74 at 1).
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Plaintiffs argue in their supplemental briefing that the Court’s analysis should not
stop there and should address the remaining grounds for setting the Final Rule aside.
(Dkt. No. 73 at 5). Defendants respond that evaluating other grounds would run contrary
to “[f]undamental rules of judicial restraint.” (Dkt. No. 74 at 2). At this stage of the
“It goes without saying that constitutional questions should be avoided if there
are independent ‘ground[s] upon which the case may be disposed of.’” Teltech Sys., Inc.
v. Bryant, 702 F.3d 232, 235 (5th Cir. 2012) (quoting Ashwander v. TVA, 297 U.S. 288, 347,
56 S.Ct. 466, 483, 80 L.Ed. 688 (1936)). Since the Fifth Circuit has already decided that the
Final Rule violates the APA, it would be improper for this Court to now evaluate
constitutional issues. Further, the Supreme Court has encouraged lower courts to avoid
constitutional or statutory interpretation that will ‘have no effect on the outcome of the
case.’” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011)
(quoting Pearson v. Callahan, 555 U.S. 223, 236–37, 129 S.Ct. 808, 818, 172 L.Ed.2d 565
(2009)). A finding that any of Plaintiffs’ additional claims are likely to succeed on the
merits would not affect the Court’s analysis regarding whether to issue a preliminary
injunction.
Again, this case is only at the preliminary injunction phase. Should the case be in
a different posture at the final merits stage, the Court may find it appropriate to address
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2. Irreparable Harm10
Plaintiff Brown, according to his declaration, personally owns at least one “AR-15
style firearm in pistol configuration equipped with a stabilizing brace” that would now
constitute an SBR under the Final Rule. (Dkt. No. 16–14 at 2). Plaintiff Brown also owns
a business inventory consisting of at least one more such firearm. (Id.). Plaintiff GOA is
a non-profit organization who, in this suit, represents the interests of its members and
supporters.11 (Dkt. No. 16–13 at 2). GOA exists to advocate for the Second Amendment
rights of its members and supporters, and “routinely litigate[s] cases across the country
in furtherance of [its] mission.” (Id. at 3). These members and supporters include gun
owners across the nation, some of whom “purchase, transfer, possess, own, customize,
accessorize, and utilize” stabilizing braces or weapons equipped with stabilizing braces.
(Id.). Absent an injunction, the Court finds that Brown and the similarly situated
individuals represented by the GOA would be forced to comply with the Final Rule and
is no adequate remedy at law.’” Louisiana v. Biden, 55 F.4th 1017, 1033–34 (5th Cir. 2022)
(quoting Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th
10 Having found that only Plaintiffs Brown and GOA have established standing, the Court
will not address possible harms to the other Plaintiffs.
11 The Government seems to insist that GOA must assert exactly which individuals are
being represented and how each of them are being irreparably harmed. (Dkt. No. 47 at 5). The
Supreme Court has rejected this requirement. United Food & Commercial Workers Union Local 751
v. Brown Grp., Inc., 517 U.S. 544, 546, 116 S. Ct. 1529, 1532, 134 L. Ed. 2d 758 (1996) (explaining that
“individual participation is not normally necessary when an association seeks prospective or
injunctive relief for its members” (cleaned up)).
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Cir. 2013)). Harm is generally irreparable “if it cannot be undone through monetary
remedies.” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012)
(cleaned up). And in lawsuits arising from potentially invalid federal rules and
regulations, the federal government “generally enjoy[s] sovereign immunity for any
monetary damages.” Wages & White Lion Invs., 16 F.4th at 1142. Thus, in the Fifth Circuit,
constitute irreparable harm.” Rest. L. Ctr. v. United States Dep’t of Lab., 66 F.4th 593, 597
Under the Final Rule, compliance will almost always come at a cost. When the
Fifth Circuit sent Mock back to the district court, the court evaluated the irreparable harm,
if any, that several private plaintiffs in the case would suffer. Mock, 2023 WL 6457920,
at *7. Because the Mock plaintiffs owned firearms and stabilizing braces that the Final
Rule would classify as an SBR, the plaintiffs had “no trouble establishing a substantial
threat of irreparable harm in the form of nonrecoverable compliance costs.” Id. That logic
The ATF gave affected gun owners until May 31, 2023, to register their stabilizing
braces. 88 Fed. Reg. at 6570. Because that deadline has now passed, complying with the
Final Rule would require the private Plaintiffs to do one of four things: (1) permanently
modify their weapon to remove it from the scope of the NFA, (2) dispose of or “alter”
their stabilizing brace so that it can never be reattached, (3) turn over their weapon to the
ATF, or (4) destroy their weapon completely. Id. As the ATF acknowledges, each of these
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avenues come at a cost to gun owners. 12 Furthermore, even if a gun owner had registered
their weapon with the ATF prior to the May 31 deadline, the weapon must still be
“marked,” to reflect its new classification. Id. The ATF estimates that each engraving, or
marking, would cost gun owners anywhere from $30 to $65. Id. at 6563. And as the Fifth
Circuit noted regarding these engraving costs, “[t]here is no given process for undoing
or recouping those compliance costs.” Mock, 75 F.4th at 576 n.29. Thus, under the Final
Rule, Plaintiffs would incur costs regardless of their chosen method of compliance. And
because sovereign immunity would prevent them from recouping their costs from the
ATF, see 5 U.S.C. § 702, GOA and Brown would be irreparably harmed absent injunctive
relief.
“[T]he balance of equities and consideration of the public interest [] are pertinent
555 U.S. at 32, 129 S.Ct. at 381. This means the Court must “explore the relative harms to
[Plaintiffs] and [Defendants], as well as the interests of the public at large.” Trump v. Int’l
Refugee Assistance Project, 582 U.S. 571, 580, 137 S.Ct. 2080, 2087, 198 L.Ed.2d 643 (2017)
(quoting Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305, 112
12 For example, in the ATF’s “Final Regulatory Impact Analysis and Final Regulatory
Flexibility Analysis,” (Dkt. No. 16-9), it estimates the various harms that an individual would
incur by complying with the statute past the registration date: (1) $270 for disposing of a
stabilizing brace, (id. at 60), (2) $567 for adding barrel length to a weapon to remove it from the
“short barrel rifle” classification, (id. at 44), and (3) $2,500 to destroy or turn in the firearm and
brace altogether, (id. at 38).
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Plaintiffs argue that no harm befalls the ATF if the Final Rule is enjoined because
that would merely maintain the status quo prior to its promulgation. (Dkt. No. 16 at 30).
In contrast, Plaintiffs urge that they will suffer substantial harm if the Final Rule stays in
effect, citing the threat of prosecution, the destruction of their property that was originally
legal when purchased, and compliance costs for a regulatory scheme that is
unconstitutional, among their concerns. (Dkt. No. 16 at 31); (Dkt. No. 29 at 39–40).
agency action.” (Dkt. No. 16 at 31 (quoting Wages & White Lion Invs., 16 F.4th at 1143).
Defendants respond that the Final Rule benefits public safety by clarifying the law
Congress passed to regulate firearms it determined pose a greater risk to public safety.
(Dkt. No. 22 at 61). In other words, Defendants contend that the public benefits from
greater clarity by the ATF about which weapons are considered SBRs. Defendants further
urge that enjoining the Final Rule would create ambiguity about SBRs that would make
the public less safe. (Id.). Plaintiffs reply that Defendants cannot point to any concrete
public harm prevented by the Final Rule remaining in effect while this suit pends, and
that in the end, the only harm to Defendants is a delay in processing paperwork and
collecting a tax that it has already agreed to waive. (Dkt. No. 29 at 39–40).
The Court finds that the balance of equities tips in Plaintiffs favor because the Final
Rule’s effect on Plaintiffs is immediate and imminent while the effect on Defendants,
harm to the public are unavailing. Although Defendants can point to a few incidents
where pistols with stabilizing braces were used to harm the public, see (Dkt. No. 22 at 23);
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(Dkt. No. 74 at 5–6), the NFA regulates, but does not ban, gun owners from possessing
these weapons. So, permitting the Final Rule to continue in effect would not necessarily
protect the public from any like incidents recurring. Further, the fact that the Final Rule
clarifies for gun owners which criteria the ATF uses to classify braced weapons as SBRs
is beneficial, but its absence—i.e., a return to the lack of direction provided by the ATF
for the last ten years—does not create a public harm if the Final Rule is temporarily
enjoined from enforcement. Conversely, Plaintiffs, who represent a portion of the public,
will suffer imminent harm, as discussed above. See supra III.B.2. While Defendants are
eager to provide improved guidance to gun owners about which weapons are classified
as SBRs, that does not mean that public harm necessarily results absent such guidance.
But for Plaintiffs, a pause in the Final Rule’s effect provides a safe harbor from immediate
injury. Further, Plaintiffs are correct that “there is generally no public interest in the
perpetuation of unlawful agency action,” League of Women Voters of U.S. v. Newby, 838
F.3d 1, 12 (D.C. Cir. 2016) (cleaned up), and the Fifth Circuit has already found that the
Final Rule is likely unlawful, see Mock, 75 F.4th at 578. Therefore, the public interest and
C. SCOPE OF RELIEF
Plaintiffs collectively seek a nationwide injunction. (Dkt. No. 16 at 31). GOA and
GOF argue it is appropriate because their affected members live nationwide. Texas joins
in that request, arguing that piecemeal implementation across the country impacts
criminal prosecutions and fundamental rights. (Id. at 31); (Dkt. No. 29 at 34–35).
Defendants oppose such a broad injunction, asserting that principles of judicial restraint
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counsel against granting relief to non-parties, particularly when the Final Rule is subject
to litigation in several other jurisdictions. (Dkt. No. 22 at 62). The Court agrees with
Defendants.
dependent as much on the equities of a given case as the substance of the legal issues it
presents.” Int’l Refugee Assistance Project, 582 U.S. at 579, 137 S.Ct. at 2087. “The purpose
of such interim equitable relief is not to conclusively determine the rights of the parties,
. . . but to balance the equities as the litigation moves forward.” Id. at 580, 137 S.Ct. at
2087. “[T]he scope of injunctive relief is dictated by the extent of the violation
established[.]” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S. Ct. 2545, 2558, 61 L.Ed.2d 176
(1979). And the injunctive relief “should be no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs.” Id. At this stage, only Plaintiffs
GOA and Brown have shown a likelihood of irreparable harm with respect to their
individual compliance costs. Injunctive relief nationwide or within the borders of the
State of Texas would be overbroad to protect the interests of the Parties with standing
before the Court. See VanDerStok v. BlackHawn Mfg. Grp. Inc., No. 4:22-CV-00691, 2022
WL 16680915, at *2 (N.D. Tex. Nov. 3, 2022) (observing that “an injunction must redress
In its May 31, 2023 Order, the Court held that the appropriate scope of the
preliminary injunction pending resolution of the appeal in Mock was limited. (See Dkt.
No. 51 at 7). Private Plaintiff organizations’ members, including Brown, and those
members’ household family members were entitled to relief from the Final Rule as were
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individuals employed directly by the State of Texas or its agencies. (Id.). However, after
revisiting standing and irreparable harm, a different scope of relief is now required.
“Equitable remedies, like remedies in general, are meant to redress the injuries
York, ____ U.S. ____, 140 S.Ct. 599, 600, 206 L.Ed.2d 115 (2020) (Gorsuch, J., concurring).
To this end, “[w]hen a district court orders the government not to enforce a rule against
the plaintiffs in the case before it, the court redresses the injury that gives rise to its
jurisdiction in the first place.” Id. “But when a court goes further than that, ordering the
government to take (or not take) some action with respect to those who are strangers to
the suit, it is hard to see how the court could still be acting in the judicial role of resolving
cases and controversies.” Id. Although preliminary injunctive relief is warranted, the
Court declines to grant it on a nationwide basis and instead limits relief to Brown, GOA
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART Plaintiffs’ Motion for
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States Court of Appeals for the Fifth Circuit, or the United States Supreme
Court.
It is SO ORDERED.
___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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