2023-09-14 Opinion

Case 4:22-cv-00691-O Document 261 Filed 09/14/23 Page 1 of 42 PageID 5193
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JENNIFER VANDERSTOK, et al., §

§
Plaintiffs, §
§
v. § Civil Action No. 4:22-cv-00691-O
§
BLACKHAWK MANUFACTURING §
GROUP INC., et al., §
§
Intervenor Plaintiffs, §
§
v. §
§
MERRICK GARLAND, et al. §
§
Defendants. §
OPINION & ORDER ON DEFENSE DISTRIBUTED AND BLACKHAWK

MANUFACTURING GROUP INC. d/b/a 80 PERCENT ARMS’ EMERGENCY
MOTIONS FOR INJUNCTIVE RELIEF PENDING APPEAL
Before the Court are Defense Distributed and BlackHawk Manufacturing Group Inc. d/b/a
80 Percent Arms’ (“Intervenor-Plaintiffs”) Emergency Motions for Injunction Pending Appeal
(ECF Nos. 249, 251), filed August 9, 2023 and August 14, 2023; the Attorney General of the
United States, the United States Department of Justice, the Director of the Bureau of Alcohol,
Tobacco, Firearms and Explosives, and the Bureau of Alcohol, Tobacco, Firearms and Explosives’
(the “Government Defendants”) Objection and Response in Opposition (ECF No. 254), filed
August 17, 2023; and Intervenor-Plaintiffs’ Replies (ECF Nos. 256, 257), filed August 21, 2023.
Having considered the parties’ briefing and applicable law, the Court GRANTS Intervenor-
Plaintiffs’ emergency motions for injunctive relief pending appeal to enforce unstayed portions of
the Court’s Order Granting Summary Judgment (ECF No. 227) and Final Judgment (ECF No. 231)
against the Government Defendants.

I. BACKGROUND
The United States Congress established the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) to regulate “firearms” in interstate commerce under the Gun Control Act of
1986 (“GCA”). See 26 U.S.C. § 599A(a); 28 C.F.R. § 0.130(a); 18 U.S.C. § 921(a)(3). In April
2022, the ATF promulgated a Final Rule that purports to regulate partially manufactured firearm
parts and weapon parts kits, which took effect on August 24, 2022. See Definition of “Frame or
Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022) (codified at
27 C.F.R. pts. 447, 478, 479). The Final Rule departed from nearly a half century of ATF
precedent, during which the agency declined to interpret the GCA’s term “firearms” as
encompassing partially manufactured frames and receivers.1 ATF subsequently issued an “Open
Letter to All Federal Firearms Licensees,” declaring that certain products are considered “frames”
(and thus qualify as “firearms”) under the GCA pursuant to the Final Rule’s redefinition of that
term.2 Those products include partially complete Polymer80, Lone Wolf, and similar striker-fired
semi-automatic pistol frames, including those sold within parts kits.3
Jennifer VanDerStok, Michael Andren, Tactical Machining, LLC, and the Firearms Policy
Coalition, Inc. (the “Original Plaintiffs”) filed this suit on August 11, 2022, to challenge the Final
Rule’s validity, claiming that the regulation exceeds the lawful scope of statutory authority that
Congress vested in the ATF.4 The Original Plaintiffs subsequently moved for a preliminary
injunction that sought to broadly enjoin the Government Defendants from enforcing the Final
1
See First Op. 2–3, ECF No. 56 (discussing ATF’s Title and Definition Changes, 43 Fed. Reg. 13,531,
13,537 (Mar. 31, 1978) and others)
2
U.S. Dep’t of Justice, Bureau of Alcohol, Tobacco, Firearms & Explosives, Open Letter to All Federal
Firearms Licensees (Dec. 27, 2022) (“ATF Open Letter (Dec. 27, 2022)”), https://www.atf.gov/rules-
andregulations/docs/open-letter/all-ffls-dec2022-open-letter-impact-final-rule-2021-05f/download.
3
Id.
4
Compl. 1, ECF No. 1.
2
Rule.5 On September 2, 2022, the Court issued its First Opinion in which it held that the Original
Plaintiffs were substantially likely to succeed on the merits of their claim that provisions of the
ATF’s Final Rule—namely, 27 C.F.R. §§ 478.11, 478.12(c)—exceed the scope of the ATF’s
lawful jurisdictional grant under the GCA.6 Having made this preliminary finding, the Court
enjoined the Government Defendants, along with their officers, agents, servants, and employees,
from implementing or enforcing the Final Rule against Tactical Machining, LLC (“Tactical”)—
the only Original Plaintiff to establish irreparable harm.7 The Court denied injunctive relief to the
remaining Original Plaintiffs in its First Opinion.8 The Court issued its Second Opinion (ECF No.
89) on the proper scope of the preliminary injunction on October 1, 2022, which expanded the
injunction to include the additional Original Plaintiffs and—for the purpose of providing Tactical
complete relief—Tactical’s customers.9 The Court declined any invitation to issue a “nationwide”
injunction.10
In the ensuing months, the Court further extended this injunctive relief to Intervenor-
Plaintiffs on the same grounds and with the same scope as that of the Original Plaintiffs.11
BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms (“BlackHawk”) is a manufacturer
and retailer that sells products newly subject to the Final Rule, with most of its revenue earned
through sales of those products.12 Defense Distributed is a private defense contractor that primarily
manufactures and deals products now subject to the Final Rule.13 By March 2023, the Government
5
Pls.’ Mot. for Prelim. Inj., ECF No. 15.
6
First Opinion 15, 22–23, ECF No. 56.
7
Id.
8
Id.
9
Second Op. 20–22, ECF No. 89.
10
Id. at 19.
11
See Mem. Ops., ECF Nos. 118, 188.
12
Lifschitz Decl. 6–8, ECF No. 62-5 ¶¶ 8, 11, 13.
13
See generally Defense Distributed Compl., ECF No. 143.
3
Defendants and their officers, agents, servants, and employees were enjoined from implementing
and enforcing against Intervenor-Plaintiffs and their customers the provisions in
27 C.F.R. §§ 478.11 and 478.12 that the Court preliminarily held to be unlawful.14 The
Government Defendants appealed these individualized, Plaintiff-specific preliminary injunctions,
but did not seek stays pending appeal.
On June 30, 2023, the Court ruled in favor of the Original Plaintiffs and Intervenor-
Plaintiffs on the merits and granted their motions for summary judgment.15 The Court held on the
merits that both challenged provisions of the Final Rule were invalid and that the ATF “acted in
excess of its statutory jurisdiction by promulgating [the Final Rule].”16 In Section IV(B)(4) of the
Memorandum Opinion and Order Granting Summary Judgment (ECF No. 227), the Court vacated
the entire Final Rule pursuant to section 706 of the Administrative Procedure Act (“APA”).17 The
Court predicated its APA vacatur on the “default rule” of the Fifth and D.C. Circuits with respect
to the appropriate statutory remedy for unlawful agency action.18 On July 5, 2023, the Court
entered its Final Judgment (ECF No. 231), which categorically memorialized each of the Court’s
June 30, 2023 determinations: (1) grant of summary judgment to Plaintiffs and (2) APA vacatur
of the Final Rule.19
The Government Defendants appealed the Memorandum Opinion and Order Granting
14
See Mem. Ops., ECF Nos. 118, 188 (injunctive relief did not extend to customers prohibited from
possessing firearms under 18 U.S.C. § 922(g)).
15
Summ. J. Mem. Op. & Order 37–38, ECF No. 227.
16
Id. at 35.
17
Id. at 35–37 (setting forth the Court’s “Remedy”); see 5 U.S.C. § 706(2)(C) (directing the reviewing court
to “hold unlawful and set aside agency action” found to be “in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right”).
18
Id. at 35–37 (citing Data Mktg. P’ship, LP v. U.S. Dep’t of Lab., 45 F.4th 846, 859–60 (5th Cir. 2022)
(permitting APA vacatur under 5 U.S.C. § 706(2) as the “default rule”); Franciscan All., Inc. v. Becerra,
47 F.4th 368, 374–75, 375 n.29 (5th Cir. 2022) (“Vacatur is the only statutorily prescribed remedy for a
successful APA challenge to a regulation.”); United Steel v. Mine Safety & Health Admin., 925 F.3d 1279,
1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”)).
19
Final J. 1, ECF No. 231.
4
Summary Judgment (ECF No. 227) and Final Judgment (ECF No. 231) to the United States Court
of Appeals for the Fifth Circuit.20 At the same time, the Government Defendants moved for this
Court to issue an emergency stay pending appeal.21 On July 18, 2023, the Court denied the
Government Defendants’ motion for stay of the Memorandum Opinion and Order (ECF No. 227)
and the Final Judgment (ECF No. 231) pending appeal.22 On July 24, 2023, the United States Court
of Appeals for the Fifth Circuit granted the Government Defendants’ request for a stay of this
Court’s APA vacatur remedy insofar as it applied to provisions of the Final Rule that were neither
challenged by Plaintiffs nor held unlawful by this Court. See VanDerStok v. Garland, No. 23-
10718, 2023 WL 4945360, at *1 (5th Cir. July 24, 2023) (per curiam). The Fifth Circuit otherwise
declined to stay the APA vacatur of provisions of the Final Rule that this Court held unlawful on
the merits. See id. The Fifth Circuit expedited the Government Defendants’ appeal. See id.23
On July 5, 2023, the Government Defendants filed an application with the Supreme Court
of the United States for a stay of this Court’s Final Judgment (ECF No. 231).24 In its application
briefing, the Government Defendants sought a full stay of the Final Judgment, but secondarily
argued that, “[a]t a minimum, the [Supreme] Court should stay the district court’s judgment to the
extent it apples to nonparties.”25 More specifically, the Government Defendants requested that,
“to the extent the [Supreme] Court concludes that the June 30 [summary judgment] order might
continue to have independent effect,” the Supreme Court’s order should “stay both the June 30
20
Defs.’ Notice of Interlocutory Appeal, ECF No. 234.
21
Defs.’ Emergency Mot. for Stay Pending Appeal, ECF No. 236.
22
Order, ECF No. 238.
23
See C.A. Doc. No. 63 (July 25, 2023). Following the Supreme Court’s stay, the Fifth Circuit heard oral
arguments on September 7, 2023.
24
See Government’s Application for a Stay of the Judgment Entered by the United States District Court for
the Northern District of Texas, Garland, Att’y Gen., et al. v. Vanderstok, Jennifer, et al., No. 23A82 (July
2023).
25
Defense Distributed’s Reply Ex., ECF No. 257-3, at 20 (emphasis added).
5
[summary judgment] order and the July 5 final judgment” of this Court.26 On August 8, 2023, the
Supreme Court accepted the Government Defendants’ secondary invitation and granted its
application for a stay. See Garland v. VanDerStok, No. 23A82, 2023 WL 5023383, at *1 (U.S.
Aug. 8, 2023) (mem.). The Supreme Court’s Stay Order provides, in relevant part, that:
[t]he June 30, 2023 [summary judgment] order and July 5, 2023 [final] judgment
of the United States District Court for the Northern District of Texas, case No. 4:22-
cv-691, insofar as they vacate the final rule of the [ATF], 87 Fed. Reg. 24652
(April 26, 2022), is stayed pending the disposition of the appeal in the United States
Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of
certiorari, if such a writ is timely sought.
Id. (emphasis added).
Following the U.S. Supreme Court’s Stay Order, Intervenor-Plaintiffs each filed Opposed
Emergency Motions for Injunction Pending Appeal on August 9, 2023 and August 14, 2023,
respectively.27 Following the completion of expedited briefing,28 Intervenor-Plaintiffs’ motions
are now ripe for the Court’s review.29
II. JURISDICTION
The core issue in dispute between the parties is whether the Court, following the Supreme
Court’s Stay Order, has jurisdiction to afford individualized, post-judgment equitable relief to
Intervenor-Plaintiffs enjoining the Government Defendants from enforcing the challenged
provisions of the Final Rule against each Intervenor-Plaintiff, pending final disposition of the
appellate process. Upon review of the parties’ briefing and applicable law, the Court answers in
the affirmative and holds that it retains Article III jurisdiction to enforce—through party-specific
relief against the Government Defendants—the concrete aspects of its Summary Judgment Order
26
Id. at 20–21, 21 n.4 (emphasis added).
27
See Defense Distributed’s Mot., ECF No. 249; BlackHawk’s Mot., ECF No. 251.
28
See Orders, ECF Nos. 250, 253.
29
See generally Defense Distributed’s Mot., ECF No. 249; BlackHawk’s Mot., ECF No. 251; Defs.’ Resp.,
ECF No. 254; BlackHawk’s Reply, ECF No. 256; Defense Distributed’s Reply, ECF No. 257.
6
(ECF No. 227) and Final Judgment (ECF No. 231) that the Supreme Court declined to stay.
A. Legal Standard
The judicial power “extend[s] to all Cases, in Law and Equity,” that arise under the
Constitution and Laws of the United States. U.S. CONST. art. III § 2. When the demands of a
particular case require a federal court to ascertain the scope of its Article III jurisdiction, it is
instructed to look to “history and tradition” as a “meaningful guide.” United States v. Texas, 143
S. Ct. 1964, 1970 (2023) (cleaned up); cf. Coleman v. Miller, 307 U.S. 433, 460 (1939)
(Frankfurter, J.) (“[T]he framers of [Article III] gave merely the outlines of what were to them the
familiar operations of the English judicial system and its manifestations on this side of the ocean
before the Union.”).
The judicial power of Article III encompasses the inherent authority of federal courts to
grant equitable remedies in the execution of their judgments. See Bodley v. Taylor, 9 U.S. (5
Cranch) 191, 222–23 (1809) (Marshall, C.J.); see also Peacock v. Thomas, 516 U.S. 349, 356
(1996). The question of whether a federal court can properly exercise this inherent authority over
a given matter, therefore, is constrained by historical and traditional equity practice. Grupo
Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318–19 (1999); see also Bivens
v. Six Unknown Named Agents, 403 U.S. 388, 404–05 (1971) (Harlan, J., concurring in the
judgment) (explaining that the reach of a federal court’s inherent equitable powers is “determined
according to the distinctive historical traditions of equity”). Congressional authorizations of
equitable remedies must be construed and exercised in a manner compatible with the same pre-
established body of rules and principles. Guaranty Trust Co. v. York, 326 U.S. 99, 105–06 (1945);
Boyle v. Zacharie, 31 U.S. 648, 658 (1832) (Story, J.). A federal district court’s equitable remedial
power is further subject to the external constraints found elsewhere in the Constitution, as well as
7
in federal common law and congressional enactment. See Peacock, 516 U.S. at 354–59, 354 n.5;
Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); Hecht Co. v. Bowles, 321 U.S. 321, 329–
30 (1944).
B. Analysis
Intervenor-Plaintiffs seek post-judgment injunctive relief pending the outcome of appeal
of the Court’s Summary Judgment Order (ECF No. 227) and Final Judgment (ECF No. 231). The
requested relief would afford individualized, party-specific protection to Intervenor-Plaintiffs that
enjoins the Government Defendants from implementing and enforcing against each Intervenor-
Plaintiff and their respective customers the provisions of the Final Rule that this Court,
preliminarily and on the merits, held are unlawful.30
In its Summary and Final Judgments,31 the Court issued the default legal remedy prescribed
by federal statute for unlawful agency action: vacatur of the entire Final Rule. See 5 U.S.C.
§ 706(2)(C) (authorizing courts to “hold unlawful and set aside agency action”); Data Mktg.
P’ship, LP v. U.S. Dep’t of Lab., 45 F.4th 846, 859–60 (5th Cir. 2022) (discussing vacatur as the
default remedy for unlawful agency action); Franciscan All., Inc. v. Becerra, 47 F.4th 368, 374–
75, 375 n.29 (5th Cir. 2022) (“Vacatur is the only statutorily prescribed remedy for a successful
APA challenge to a regulation.”); United Steel v. Mine Safety & Health Admin., 925 F.3d 1279,
1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”). Following
the Supreme Court’s Stay Order, however, Intervenor-Plaintiffs no longer enjoy the protection
previously afforded to them by the default remedy at law that Congress provided in the APA. See
Vanderstok, 2023 WL 5023383, at *1 (staying the Summary Judgment Order and Final Judgment
30
See Defense Distributed’s Mot., ECF No. 249 (citing 27 C.F.R. §§ 478.11, 478.12); BlackHawk’s Mot.,
ECF No. 251 (same).
31
Summ. J. Mem. Op. & Order 35–38, ECF No. 227; Final J. 1, ECF No. 231.
8
“insofar as they vacate the final rule”). Moreover, Intervenor-Plaintiffs will remain deprived of the
standard statutory relief until “disposition of the appeal in the United States Court of Appeals for
the Fifth Circuit and disposition of a petition for a writ of certiorari.” Id.
On account of Intervenor-Plaintiffs’ prolonged lack of shelter from the Final Rule under
the default statutory relief, they now seek the refuge of this Court’s equitable remedial authority
in the interim. Intervenor-Plaintiffs pray for the Court to exercise its equitable jurisdiction—to the
extent that Intervenor-Plaintiffs each receive individual interlocutory protection against the
Government Defendants’ enforcement of the Final Rule—and at least until such time that the
pending appeal and potential certiorari, as well as the Supreme Court’s Stay Order, have been
exhausted upon final conclusion.
The Court finds that the injunctive relief prayed for by Intervenor-Plaintiffs accords with
(1) the historical and traditional maxims of equitable remedial jurisdiction prescribed by the
Framers in Article III; and (2) the additional jurisdictional constraints imposed by the Constitution
and contemporary judicial doctrine.
1. The History and Tradition of Equity Support Jurisdiction
Article III vests in this Court the equitable power to enforce its federal judgments.
Zacharie, 31 U.S. at 658 (Story, J.) (“The chancery jurisdiction [is] given by the constitution and
laws of the United States.”); cf. THE FEDERALIST NO. 80, at 415 (Alexander Hamilton) (George
W. Carey & James McClellan eds., 2001) (“[I]t would be impossible for the federal judicatories
to do justice without an equitable as well as a legal jurisdiction”). The Court is further vested with
general congressional grants of equity jurisdiction that are applicable in the pending motion.32
32
See 5 U.S.C. § 705 (providing that “to the extent necessary to prevent irreparable injury,” the Court “to
which a case may be taken on appeal from . . . may issue all necessary and appropriate process to . . .
preserve status or rights pending conclusion of the review proceedings”); Fed. R. Civ. P. 62(d) (providing
that the Court “may suspend, modify, restore, or grant an injunction” pending appeal of a final judgment);
9
“We are dealing here with the requirements of equity practice with a background of several
hundred years of history.” Hecht, 321 U.S. at 329. The equity jurisdiction vested in district courts
is an authority to administer “the principles of the system of judicial remedies which had been
devised and was being administered by the English Court of Chancery at the time of the separation
of the two countries.” Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939). Its
contours are outlined by “the jurisdiction in equity exercised by the High Court of Chancery in
England at the time of the adoption of the Constitution.” Grupo Mexicano, 527 U.S. at 318 (citing
A. DOBIE, HANDBOOK OF FEDERAL JURISDICTION AND PROCEDURE 660 (1928)); see Hayburn’s
Case, 2 U.S. (Dall.) 409, 410–11 (1792) (Jay, C.J.). Beyond the equity jurisdiction conferred by
Article III, courts must also construe general statutory grants of equitable remedial authority to
harmonize with “the body of law which had been transplanted to this country from the English
Court of Chancery” at the Founding. Guaranty Trust Co., 326 U.S. at 105. It is “settled doctrine”
that broad congressional authorizations of “remedies in equity are to be administered . . . according
to the practice of courts of equity in the parent country.” Id. (quoting Zacharie, 31 U.S. at 658
(Story, J.)).33 The Court finds that the rules, principles, and practices of equity familiar to the
Founding generation counsel in favor of the Court’s jurisdiction to enjoin the Government
Defendants from enforcing challenged provisions of the Final Rule against Intervenor-Plaintiffs—
at least until the outcome of those judgments are finalized on appeal and certiorari.
Fed. R. App. P. 8(a)(1) (providing that the Court may issue “an order suspending, modifying, restoring, or
granting an injunction while an appeal is pending.”); see also 28 U.S.C. § 1651 (providing that the Court
“may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law.”)
33
To be sure, the “substantive principles of Courts of Chancery remain unaffected” by the fusion of law
and equity in our Federal Rules of Civil Procedure. Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 382 n.
26 (1949).
10
Since King James I decreed the supremacy of English Chancery in 1616,34 the reigning
predominance of equity over law has remained a cornerstone of our Anglo-American legal
tradition. See JOHN H. LANGBEIN ET AL., HISTORY OF THE COMMON LAW: THE DEVELOPMENT OF
ANGLO-AMERICAN LEGAL INSTITUTIONS 335 (2009). Equity supremacy was originally intertwined
with royal prerogative and divinely ordained absolutism.35 Yet in spite of its philosophical
underpinnings, the prevailing jurisdiction, principles, and practices of equity occupied such an
“integral part in the machinery of the law,” that the Court of Chancery and its wide body of
jurisprudence nonetheless survived and maintained preeminent status after nearly two hundred
years of war and revolution in England and the United States—which had been marked by bloody
hostilities, violent overthrows, and abolitionist attempts against the English Crown—and by
extension, the institution of equity itself. LORD NOTTINGHAM’S “MANUAL OF CHANCERY
PRACTICE” AND “PROLEGOMENA OF CHANCERY AND EQUITY” 7–8 (D. E. C. Yale ed. 1965); see
generally LANGBEIN ET AL., at 329–35, 345–55. Equity triumphed in the midst of these existential
threats on account of the three “Great Chancellors,”36 who carefully doctrinalized and enshrined
centuries of deeply ingrained Chancery practices into a system of clearly established rules,
jurisdictional contours, and binding precedents to govern the administration of equitable remedies.
See 1 WILLIAM S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 465 (1922–1966) (16 vols.); 1 LORD
34
The King’s Order and Decree in Chancery, Cary 115, 21 Eng. Rep. 61 (1616) (decreeing the supremacy
of “relief in equity . . . notwithstanding any proceedings at common law . . . as shall stand with the true
merits and justice of [] cases”)
35
See The King’s Order and Decree in Chancery, Cary 115, 21 Eng. Rep. 61 (1616) (decreeing that “God,
who hath placed [the monarch] over” the people, had vested within the king’s “princely care and office
only to judge over all Judges, and to discern and determine such differences as at any time may or shall
arise between our several Courts, touching their Jurisdictions, and the same to settle and decide as we in
our princely wisdom shall find to stand most with our honor . . . .”).
36
LANGBEIN ET AL., at 348–55. Lord Nottingham (1673–1682), Lord Hardwicke (1737–1756), and Lord
Eldon (1801–1806, 1807–1827) are widely accredited with the systemization of modern equity. See S. F.
C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 95 (2d ed. 1981).
11
NOTTINGHAM’S CHANCERY CASES xxxvii–lxxiii (D. E. C. Yale ed. 1957) (2 vols. 1957, 1961). It
was this abundant and systematized body of equity jurisprudence that was peculiarly familiar to
the jurists of our Founding generation. See, e.g., 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE
LAWS OF ENGLAND 432–33 (Oxford 1765–1769) (describing relief in equity as a “connected
system, governed by established rules, and bound down by precedents”); THE FEDERALIST NO. 83,
at 438 n.* (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001) (describing
Article III relief in equity as mirroring “the principles by which that relief is governed [in England,
which] are now reduced to a regular system”).37
The equitable remedial jurisdiction exercised by the Court of Chancery was necessarily
forged out of (and therefore mirrored) the remedial gaps left behind by the austerity and
incompleteness of relief available at law. See FRANZ METZGER, “The Last Phase of the Medieval
Chancery,” in LAW-MAKING AND LAW-MAKERS IN BRITISH HISTORY 84 (Alan Harding ed. 1980).
Equity jurisdiction was supplemental in nature—it neither competed with, nor contradicted, nor
denied the validity of the law—but rather aided, followed, and fulfilled the law. See CASES
CONCERNING EQUITY AND THE COURTS OF EQUITY 1550–1660, vol. I, p. xli (William Hamilton
Bryson, ed. 2001); Cowper v. Earl Cowper (1734) 24 Eng. Rep. 930, 941–42; 2 P. Wms. 720,
752–54 (Jekyll, MR). The “primary use of a court of equity [was] to give relief in extraordinary
cases” where ordinary law remedies could not, which held steady as a routine phenomenon in the
Anglo-American system by and through the Founding Era. THE FEDERALIST No. 83, at 438 & n.*
(Alexander Hamilton) (George W. Carey & James McClellan eds., 2001); see id. NO. 80, at 415
(Alexander Hamilton) (“There is hardly a subject of litigation between individuals which may not
37
Of course, the long legacy of equity’s triumph over law endures in our fused-civil procedure system
today. See generally Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil
Procedure in Historical Perspective, 135 U. PENN. L. REV. 909 (1987).
12
involve those ingredients . . . which would render the matter an object of equitable rather than legal
jurisdiction”); see also CASES CONCERNING EQUITY, at li (“The term ‘extraordinary’ is used [in
equity] in the sense of going beyond the basic rather than in the sense of unusual; equity is both
extraordinary and quite usual and frequent”).
Through the development of equity’s complementary function toward law, the scope of its
jurisdiction became defined by a series of maxims well known to early American jurists—
principally, (i) that equity acts in personam, see JOSEPH STORY, COMMENTARIES ON EQUITY
PLEADINGS § 72, at 74 (Boston, 2d ed. 1840); (ii) that equity “follows the law,” 1 JOSEPH STORY,
COMMENTARIES ON EQUITY JURISPRUDENCE § 19, at 22 (Boston 1836); and (iii) that equity “suffers
not a right to be without a remedy,” RICHARD FRANCIS, MAXIMS OF EQUITY, no. 6, at 24 (London
1728). These primary maxims were crystalized in the rich tradition of injunctive relief practice in
English Chancery and furthermore in the courts of equity of the Early Republic. The Court finds
that the equitable maxims and their historic illustrations are in harmony with the injunctions
presently sought by Intervenor-Plaintiffs in their motions before the Court.
i. The Prayed Injunctions Act in Personam
Like the rest of its remedial toolbox, English Chancery’s decree of injunction operated in
personam (i.e., on the person that is a party), rather than in rem (i.e., on the underlying subject
matter in dispute). See CASES CONCERNING EQUITY, at xlv, li; LORD NOTTINGHAM’S “MANUAL OF
CHANCERY PRACTICE” AND “PROLEGOMENA OF CHANCERY AND EQUITY” 17 (D. E. C. Yale ed.
1965); ROBERT HENLEY EDEN, A TREATISE ON THE LAW OF INJUNCTIONS 141 (London 1821). This
maxim served to demarcate the boundaries of equitable jurisdiction relative to that of law and to
prevent conflict between the two. See, e.g., Massie v. Watts, 10 U.S. 148, 156–59 (1810) (Marshall,
C.J.) (adjudicating the issue of the court’s equitable jurisdiction to issue the prayed relief based on
13
whether it operated in personam). Whereas relief in rem was cabined to courts of law, equity
jurisdiction began at matters in personam and any relief touching upon the conduct of a person
was the sole prerogative of Chancery. See L. B. CURZON, ENGLISH LEGAL HISTORY 106 (2d ed.
1979); CASES CONCERNING EQUITY, at li. Injunctions were crafted as orders directed upon a living
person to either undertake or refrain from undertaking a specific act—subject to enforcement via
contempt of court or imprisonment to ensure compliance. See LANGBEIN ET AL., at 286; Penn v.
Lord Baltimore, 1 Ves. Sen. 444, 447–48, 27 Eng. Rep. 1132, 1134–35, 1139 (1750) (Ld.
Hardwicke, Ch.) (decreeing that, on the basis of Chancery’s in personam jurisdiction over any
party to a proceeding that is present within England, the parties are compelled to specifically
perform their agreed-upon contract terms governing the resolution of boundary disputes; but
declining to exercise any equitable authority on the original right of the boundaries).
The in personam–in rem jurisdictional dichotomy is well documented in the landmark case
that gave rise to equity’s supremacy over the law. In Glanvile’s Case, Richard Glanvile won a
judgment on a sales contract that the buyer entered under Glanvile’s fraudulent misrepresentations.
72 Eng. Rep. 939 (K.B. 1615). In a law court, Glanvile entered judgment for an exorbitant bond
debt. See id.; CASES CONCERNING EQUITY, at xlvi. But in Chancery, Lord Ellesmere decreed an
injunction that operated against Glanvile himself, rather than the underlying property or judgment
at law. See LANGBEIN ET AL., at 333–34. The injunction restrained Glanvile from attempting to
enforce the law court judgment and compelled him to pay back the buyer-debtor, repossess the
merchandise, and acknowledge satisfaction of the judgment. See Glanvile’s Case, 72 Eng. Rep.
939. When Glanvile refused to comply, Chancery exercised its contempt power over Glanvile and
imprisoned him for breach of a decree. Id. From the King’s Bench, Lord Coke ruled that a
judgment at law prevails over Chancery decree and granted the common law writ of habeas corpus
14
for Glanvile’s release from prison. Id. Lord Coke’s maneuver “struck at the heart of the Court of
Chancery’s in personam power,” i.e., the remedial power over a party’s own person that is backed
by the force of contempt. LANGBEIN ET AL., at 330. It also leveled a direct challenge to the finality
and binding effect of an equity order when a conflicting legal order had been entered. The 1616
decree of King James settled equity’s supreme status on both fronts and enshrined the rule of
jurisdiction that endures to this day: where the results of an equity order acting in personam and
the results of a legal order acting in rem “are in disagreement, the equity rule and decree will
prevail.” CASES CONCERNING EQUITY, at xlvii; see The King’s Order and Decree in Chancery,
Cary 115, 21 Eng. Rep. 61 (1616).
Decisions of the Chancery Court of New York under James Kent are instructive as to how
traditional equity maxims applied to injunction practice in the Early Republic. See, e.g., Manning
v. Manning, 1 Johns. Ch. 527, 530 (N.Y. Ch. 1815) (Kent, Ch.) (“It is the duty of this Court to
apply the principles of [English Chancery] to individual cases, . . . and, by this means, endeavor to
transplant and incorporate all that is applicable in that system into the body of our own judicial
annals, by a series of decisions.”).38 In officer suits, Chancellor Kent exercised equitable remedial
jurisdiction to directly enjoin government officials from acting in excess of statutory authority and
infringing upon the legal rights of private persons. E.g., Belknap v. Belknap, 2 Johns. Ch. 463
(N.Y. Ch. 1817) (Kent, Ch.); Gardner v. Vill. of Newburgh, 2 Johns. Ch. 162 (N.Y. Ch. 1816)
(Kent, Ch.); see also Bonaparte v. Camden & A.R. Co., 3 F. Cas. 821, 827, 831–34 (C.C.D.N.J.
1830) (collecting cases).
In Belknap v. Belknap, for example, private plaintiffs sought an injunction to restrain
government inspectors, who were authorized by statute to drain certain swamps and bog meadows
38
See also generally Charles Evans Hughes, James Kent: A Master Builder of Legal Institutions, 9
A.B.A. J. 353 (1923).
15
for the benefit of some properties, from proceeding to cut down the outlet to a pond that supplied
the source of water to plaintiffs’ mills. 2 Johns. Ch. 463, 463–67, 468–70 (N.Y. Ch. 1817) (Kent,
Ch.). Chancellor Kent determined that the officers gave “too extended a construction to their
powers under the act” and that “this power should be kept within the words of the act” through an
injunction. Id. at 470, 472. On the question of jurisdiction to provide such relief, Kent concluded
that if the court is “right in the construction of the act, then the jurisdiction of the Court, and the
duty of exercising it, are equally manifest.” Id. at 472–74. In Gardner v. Village of Newburgh, a
private plaintiff prayed a similar injunction to restrain government trustees, who were authorized
by statute to supply a village with water, from proceeding to divert a stream away from the
plaintiff’s farm that his brickyard and distillery depended on. 2 Johns. Ch. 162, 162–64 (N.Y. Ch.
1816) (Kent, Ch.). The Chancery Court found that the impending diversion exceeded the limits of
the officers’ authority under statute for failing to provide adequate compensation to the plaintiff
pursuant to his rights vested under law. Id. at 164, 166–67. Chancellor Kent held that the statute
“ought not to be enforced . . . until such provision should be made,” id. at 164, asserting the Court’s
jurisdiction to enjoin the officers from proceeding to divert the water course until the plaintiff’s
legal rights were indemnified. Id. at 164–65, 167–69.
Applying on-point precedent from English Chancery, Chancellor Kent concluded that the
equitable remedial jurisdiction in the cases before him was “well settled, and in constant exercise.”
Belknap, 2 Johns. Ch. at 473–74 (citing Hughes v. Trs. of Morden Coll., 1 Ves. Sen. 188, 27 Eng.
Rep. 973 (1748) (Ld. Hardwicke, Ch.); Shand v. Henderson, 2 Dow. P.C. 519 (1814) (Ld. Eldon,
Ch.)); see Gardner, 2 Johns. Ch. at 168 (citing Agar v. Regent's Canal Co., G Coop. 77, 14 R. R.
217 (1815) (Ld. Eldon, Ch.)). Moreover, in each of these cases where the controversy between
parties “turn[ed] upon the construction of [an] act,” Chancellor Kent tailored the injunctive decrees
16
to directly “confine [the officers] and their operations . . . within the strict precise limits prescribed
by the statute,” but not extend jurisdiction in rem over the underlying statute itself. Belknap, 2
Johns. Ch. at 471–74; see Gardner, 2 Johns. Ch. at 162. Each injunction acted strictly in personam
on the officers themselves, dictating only their specific actions in relation to the law at issue
between the parties. The impact in rem of each injunction on the underlying law was merely
incidental. Thus, by operating exclusively within the territory of in personam, Chancellor Kent’s
injunctions could not be dissolved or superseded by an order or judgment at law with conflicting
effects. See Belknap, 2 Johns. Ch. at 474 (Kent, Ch.) (“These cases remove all doubt on the point
of jurisdiction, and the observation of Lord Hardwicke alludes to its preeminent utility.”); CASES
CONCERNING EQUITY, at xlvii; LANGBEIN ET AL., at 334–36 (citing The King’s Order and Decree
in Chancery, Cary 115, 21 Eng. Rep. 61 (1616)).
In the instant motions before the Court, Intervenor-Plaintiffs each seek injunctions that act
in personam on the Government Defendants. The Court is asked to enjoin the Government
Defendants from enforcing against Intervenor-Plaintiffs the two challenged provisions of the Final
Rule—along the same lines as the relief issued by the Court during the preliminary injunction stage
of the litigation.39 Such relief would entail that the Government Defendants and their officers,
agents, servants, and employees are enjoined from implementing and enforcing against Intervenor-
Plaintiffs and their customers the provisions in 27 C.F.R. §§ 478.11 and 478.12(c) that the Court
has determined are unlawful.40 The Government Defendants contend that, following the Supreme
Court’s stay of the APA vacatur of the Final Rule, the prayed injunctions would carve out
exemptions from the stayed vacatur and re-vacate the Final Rule for each Intervenor-Plaintiff.41
39
Defense Distributed’s Mot., ECF No. 249; BlackHawk’s Mot., ECF No. 251.
40
See, e.g., Mem. Ops., ECF Nos. 118, 188.
41
Defs.’ Resp., ECF No. 254.
17
The Government Defendants further assert that the prayed injunctive relief before the Court—as
it relates to the APA vacatur relief issued at Final Judgment and the stay relief issued after Final
Judgment—are “distinctions without a difference,” and thus the Court is without jurisdiction to
grant the motions.42 However, the Government Defendants misunderstand the nature of equitable
relief and are wrong on all counts.
In the Summary and Final Judgments, the Court vacated the Final Rule, which is the default
remedy prescribed by section 706 of the APA for successful challenges to an agency regulation.
See Franciscan All., Inc. v. Becerra, 47 F.4th 368, 374–75, 375 n.29 (5th Cir. 2022). As courts
uniformly recognize, vacatur “does not order the defendant to do anything; it only removes the
source of the defendant’s authority.” All. for Hippocratic Med. v. U.S. Food & Drug Admin., No.
23-10362, 2023 WL 5266026, at *30 (5th Cir. Aug. 16, 2023) (citing Nken v. Holder, 556 U.S.
418, 428–29 (2009)); see also BLACK’S LAW DICTIONARY (11th ed. 2019) (defining Vacatur in
legal parlance as the “act of annulling or setting aside”). In the agency context, “vacatur effectively
rescinds the unlawful agency [rule]” upon a successful APA challenge. Id. (citations omitted). And
where the final rule is vacated, that relief “neither compels nor restrains [any] further agency
decision-making” on the part of the government. Texas v. United States, 40 F.4th 205, 220 (5th
Cir. 2022). Applied here, the APA vacatur merely operated on the Final Rule itself—specifically
the two provisions deemed unlawful—which was entirely annulled, and thus no longer in
existence, until the Supreme Court placed its stay on that vacatur. In that sense, it can fairly be said
that the vacatur relief prescribed under section 706 of the APA—and ordered by the Court in the
Summary and Final Judgments—operated in rem on the underlying provisions of the Final Rule
in controversy between the parties.
42
Id.
18
The Supreme Court’s stay on the Court’s APA vacatur operates as an additional action in
rem on the underlying provisions of the Final Rule. See All. for Hippocratic Med., 2023 WL
5266026, at *30 (expounding that “a stay is the temporary form of vacatur”). It temporarily
supplanted the vacatur in rem with a restoration in rem on the existence of the Final Rule itself.
See id. But as the foundational history and tradition of equity practice demonstrate, this is wholly
different than the prayed relief before the Court. Whereas APA vacatur “unwinds the challenged
agency [rule],” an injunction “blocks enforcement” of it. Driftless Area Land Conservancy v.
Valcq, 16 F.4th 508, 522 (7th Cir. 2021). Similar to the historical officer injunctions granted in
English and Early Republic chancery courts, the preventive injunctions sought by Intervenor-
Plaintiffs here operate to directly restrain the Government Defendants from taking actions (i.e.,
enforcing provisions of the Final Rule) that are in excess of the ATF’s statutory authority under
the GCA. The injunctions confine the Government Defendants’ investigative and enforcement
actions regarding the Intervenor-Plaintiffs within the precise limits prescribed by the GCA.
In this sense, the prayed injunctions act purely in personam over the Government
Defendants themselves. The relief would dictate only the Government Defendants’ specific actions
in relation to the Final Rule in controversy between the parties, without issuing any commands or
alterations on the Final Rule itself. And the prayed injunctions’ binding effect in personam over
the Government Defendants’ enforcement decisions is backed by the traditional force of contempt,
which is wholly lacking in both the Court’s original APA vacatur and the Supreme Court’s stay
that each act in rem over the Final Rule. See All. for Hippocratic Med., 2023 WL 5266026, at *31.
Furthermore, to the extent that the secondary impact of the prayed injunctions may incidentally
conflict with the in-rem operation of the unvacated Final Rule, the force and effect of the in
personam decree sought by Intervenor-Plaintiffs predominates. See Belknap, 2 Johns. Ch. at 474
19
(Kent, Ch.); CASES CONCERNING EQUITY, at xlvii; LANGBEIN ET AL., at 334–36 (citing The King’s
Order and Decree in Chancery, Cary 115, 21 Eng. Rep. 61 (1616)). Accordingly, the prayed
injunctive relief satisfies the first maxim of equity jurisdiction.
ii. The Prayed Injunctions Follow the Law
An outflow of the in personam equity maxim is a companion contour that the exercise of
equitable remedial jurisdiction “follows the law” and “seeks out and guides itself by the analogies
of the law.” 1 STORY, COMMENTARIES ON EQUITY JURISPRUDENCE §§ 19, 64 at 22, 71–72. This
maxim neatly complements that of equity’s in personam posture. That is, if equity power cannot
be exercised in rem, it cannot modify judgments at law or declare new rights at law either. See
CASES CONCERNING EQUITY, at xlv, li (citing Ward v. Fulwood, No. 118–[201] (Ch. 1598)). In
this regard, the Chancellors of England drew upon the wisdom of the ancients. See 1 LORD
NOTTINGHAM’S CHANCERY CASES, at lii, n. 2. Building upon a principle of Aristotle’s original
formulation of equity, the English Chancellors recognized that “laws properly enacted, should
themselves define the issue of all cases as far as possible, and leave as little as possible to the
discretion of the judges.” ARISTOTLE, RHETORIC 1353a-b (J. H. Freese trans., Harvard 1926). By
the 18th century, Chancery fleshed out this antique maxim into a more clearly defined framework:
“[Equitable remedial] discretion, in some cases, follows the law implicitly, in others, assists it, and
advances the remedy. In others again, it relieves against the abuse, or allays the rigour [sic] of it,
but in no case does it contradict or overturn the grounds or principles thereof.” Cowper v. Earl
Cowper (1734) 24 Eng. Rep. 930, 942 (Jekyll, MR); see also Dudley v. Dudley, Prec. Ch. 241,
244, 24 Eng. Rep. 118, 119 (Ch. 1705) (“Equity therefore does not destroy the law, nor create it,
but assist it.”).
Specifically, where a rule of statutory law is directly on point and governs the entire case
20
or particular point at issue, a “Court of Equity is as much bound by it, as a Court of Law, and can
as little justify departure from it.” 1 STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 64 at
72 (citing Kemp v. Pryor (1802) 32 Eng. Rep. 96, 101; 7 Ves. Jr. 237, 249–51 (Ld. Eldon, Ch.)).
To that end, it became a “familiar principle of equity jurisdiction to protect by injunction statutory
rights and privileges which [were] threatened to be destroyed or rendered valueless to the party by
unauthorized interference of others.” Tyack v. Bromley, 4 Edw. Ch. 258, 271–72 (N.Y. Ch.
1843), modified sub nom. Tyack v. Brumley, 1 Barb. Ch. 519 (N.Y. Ch. 1846). If upon following
the applicable law, it was conclusive that a party seeking injunctive relief was in “actual
possession” of a “clear and undisputed” statutory right, the “settled” doctrine of chancery courts
was that an “injunction is the proper remedy to secure to [that] party the enjoyment” of their right
against invasion by others. Croton Tpk. Co. v. Ryder, 1 Johns. Ch. 611, 611, 615–16 (N.Y. Ch.
1815) (Kent, Ch.) (granting injunctive relief to secure a company’s statutory right to a tollway and
explaining that the “equity jurisdiction in such a case is extremely benign and salutary,” without
which “all our statute privileges . . . would be rendered of little value”); see Newburgh & C. Tpk.
Rd. Co. v. Miller, 5 Johns. Ch. 101, 111–14 (N.Y. Ch. 1821) (Kent, Ch.) (granting a perpetual
injunction to secure a company’s statutorily vested right to a operate a bridge); 2 JOSEPH STORY,
COMMENTARIES ON EQUITY JURISPRUDENCE § 927, at 206 (Boston, 2d ed. 1839).
A favorable judgment at law on a statutory right asserted by the plaintiff was sufficient to
establish the possession of a legally vested right entitled to the protection of an injunctive decree.
Tyack, 4 Edw. Ch. at 271 (explaining that “it is discreet to await the decision of a court of law
upon the legal right set up” for a court of chancery to enforce it in equity); 2 STORY,
COMMENTARIES ON EQUITY JURISPRUDENCE § 927, at 207 (“And when the right is fully established
a perpetual injunction will be decreed.”) (citations omitted)); see Livingston v. Livingston, 6 Johns.
21
Ch. 497, 497, 499–501 (N.Y. Ch. 1822) (Kent, Ch.) (holding, after a right was decided in favor of
the plaintiff in one action and while another was still pending, that it was “just and necessary” to
grant injunctive relief to prevent “further disturbance” of the plaintiff’s asserted legal right “until
the right is settled” at law).
The question of whether the prayed injunctions follow the law depends on whether
Intervenor-Plaintiffs are legally vested with the statutory right of having the Final Rule set aside.
See 5 U.S.C. § 706(2)(C) (providing a right of action for regulated entities to have courts “hold
unlawful and set aside agency [rules]” that are determined to be “in excess of statutory jurisdiction,
authority, or limitations”). And whether Intervenor-Plaintiffs are legally vested with the statutory
right to have the Final Rule set aside falls upon the “law of the case” with respect to that right.
Herein lies the dispute between the parties.
The law-of-the-case doctrine posits that “when a court decides upon a rule of law, that
decision should continue to govern the same issue in subsequent stages in the same case.” Med.
Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (cleaned up). In the present litigation,
the Court held on the merits that both challenged provisions of the Final Rule were unlawful and
that the Government Defendants “acted in excess of its statutory jurisdiction by promulgating [the
Final Rule].” Later on in the Court’s Opinion and Order Granting Summary Judgment (ECF No.
227), the Court vacated the Final Rule pursuant to the default statutory remedy that Intervenor-
Plaintiffs were entitled to. The Court entered a Final Judgment (ECF No. 231) categorically
memorializing the grant of summary judgment to Intervenor-Plaintiffs (i.e., statutory right) and
the vacatur of the Final Rule (i.e., statutory remedy). By this point at least, or upon Summary
Judgment, Intervenor-Plaintiffs had been vested with the statutory right to have the unlawful
provisions of the Final Rule set aside under the APA. The Government Defendants contend that
22
that Intervenor-Plaintiffs were divested of that right by the Supreme Court’s Stay Order, which
now controls as the “law of the case” on that issue. See VanDerStok, 2023 WL 5023383, at *1
(mem.). The Stay Order provides, in relevant part, that this Court’s Summary and Final Judgments
are “staying pending the disposition of the appeal . . . insofar as they vacate the final rule of the
[ATF].” Id. (emphasis added). The controlling “law of the case” that is dispositive of Intervenor-
Plaintiffs’ statutory right turns upon an interpretation of the Stay Order.
In any case involving the interpretation of an order, the Court examines the text to give
each word its ordinary meaning and each phrase its intended effect. United States v. Kaluza, 780
F.3d 647, 659 (5th Cir. 2015); Cargill v. Garland, 57 F.4th 447, 458 (5th Cir. 2023). Here, the
plain language of the Stay Order indicates that the Supreme Court did not order a full stay of the
Court’s Summary and Final Judgments. Rather, the inclusion of the phrase “insofar as” is an
express limitation of the scope of the Stay Order. The meaning of “insofar as” in legal parlance is
“[t]o the degree or extent that.” BLACK’S LAW DICTIONARY (10th ed. 2014); see Pub. Serv. Co. of
Ind. v. EPA, 682 F.2d 626, 635 n.15 (7th Cir. 1982) (noting “the primary definition of ‘insofar as’
is to such extent or degree”) (cleaned up)). It is clear to the Court that this phrase narrows the
operative scope of the Stay Order “to the extent that” it merely stays the portion of the Court’s
Summary and Final Judgments that issued an APA vacatur remedy on the Final Rule.
So too, if the Supreme Court intended to order a full stay, it certainly could have used the
familiar phrase of “full stay” that it has in prior stay orders. See, e.g., Morrison v. Olson, 484 U.S.
1058 (1988) (granting “application for full stay”). The Supreme Court could have also crafted a
verbatim stay order that simply omitted of any limiting or conditional language, as it did in a
separate case just months before. See Danco Lab’ys, LLC v. All. for Hippocratic Med., 143 S. Ct.
23
1075, 1075 (2023) (mem.).43 Instead, the Supreme Court followed prior stay orders that
incorporated “insofar as” and like phrases that narrow the scope and frame the specific target of
the stay. See, e.g., Berbling v. Littleton, 409 U.S. 1053, 1053–54 (1972) (“The application for stay
of judgment . . . is granted insofar as it applies to applicants O’Shea and Spomer pending the
timely filing of a petition for a writ of certiorari.”) (emphasis added)); see also Rsrv. Nat. Ins. Co.
v. Crowell, 507 U.S. 1015 (1993) (“The application for stay . . . is granted and it is ordered that
execution upon the punitive damages portion of the judgment . . . is stayed pending the timely
filing and disposition by this Court of a petition for a writ of certiorari”) (emphasis added)).
Furthermore, in its application briefing, the Government Defendants requested that, “to the
extent the [Supreme] Court concludes that the June 30 [summary judgment] order might continue
to have independent effect,” the Supreme Court’s order should “stay both the June 30 [summary
judgment] order and the July 5 final judgment” of this Court.44 The Supreme Court accepted that
invitation and combined it with language confining the stay to cover only this Court’s grant of
vacatur—the statutorily prescribed remedy for unlawful agency actions under the APA—and not
the Court’s judgment on the merits that the challenged provisions of the Final Rule are unlawful.
Accordingly, the Court finds that the law of the case—with respect to the issue of Intervenor-
Plaintiffs’ legal rights—remains decided by the Court’s own Summary and Final Judgments.
Having decided in their favor, each Intervenor-Plaintiff remains legally vested with the statutory
right to have the Final Rule set aside under the APA, even while the statutory remedy for that right
is presently stayed pending appeal.
43
“The April 7, 2023 order of the United States District Court for the Northern District of Texas, case No.
2:22–cv–223, is stayed pending disposition of the appeal in the United States Court of Appeals for the
Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should
certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall
terminate upon the sending down of the judgment of this Court.” Id.
44
Defense Distributed’s Reply Ex., ECF No. 257-3, at 20–21, 21 n.4 (emphasis added).
24
Intervenor-Plaintiffs pray for the Court to preserve their statutory right against the Final
Rule through injunctive relief. In accordance with historical and traditional equity practice, the
Court’s prior judgment of law in favor of Intervenor-Plaintiffs’ asserted statutory right establishes
their possession of a legally vested right within the reach of equity jurisdiction. Tyack, 4 Edw. Ch.
at 271; 2 STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 927, at 207 (citations omitted); see
Livingston, 6 Johns. Ch. at 497, 499–501 (Kent, Ch.). Based on the law-following maxim of equity,
therefore, the Court may enforce Intervenor-Plaintiffs’ APA-vested right against the Final Rule
with an injunctive decree.
iii. The Prayed Injunctions Relieve Rights Without Remedy
Lastly, and inversely proportional to “equity follow[ing] the law,” is the maxim that “equity
suffers not a right to be without a remedy.” FRANCIS, MAXIMS OF EQUITY, no. 6, at 24; see 1 STORY,
COMMENTARIES ON EQUITY JURISPRUDENCE § 56, at 75 (“[I]t cannot be generally affirmed, that,
where there is no remedy at law in the given case, there is none in Equity.”) (citing Kemp v. Pryor
(1802) 32 Eng. Rep. 96, 101; 7 Ves. Jr. 237, 249–250, (Ld. Eldon, Ch.))).45 This maxim reflects
the original teleology of equity in Western law, see id. §§ 2–3, at 2–5 (discussing the ancient and
natural law underpinnings of equity), which was “to give remedy in cases where none was before
administered” under the ordinary law. 3 BLACKSTONE, COMMENTARIES, at 50. Though historically
utilized to expand equitable intervention in the law, the maxim nonetheless functions as another
cabining mechanism on the scope of equity jurisdiction. See 1 STORY, COMMENTARIES ON EQUITY
JURISPRUDENCE § 33, at 32. In addition to the in personam- and law-following constraints,
equitable remedial jurisdiction is further confined to “cases of rights recognised [sic] and protected
45
“The maxim that ‘equity follows the law’ is also reflected in the notion that injunctions were not to be
granted unless the legal remedy was inadequate—equity begins when law ends.” Henry E. Smith, Equity
as Meta-Law, 130 YALE L. J. 1050, 1116 (2021) (emphasis added).
25
by municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the
. . . Law.” Id. (citations omitted). The adequate remedy rule of traditional injunction practice
posited, as it does today, that equity lacks jurisdiction in cases where remedies prescribed by law
are at least as adequate as those available in chancery—measured against the deficiencies of the
party seeking relief for a vested right. See Lewis v. Lord Lechmere (1722) 88 Eng. Rep. 828, 829;
10 Mod. 503, 506, (K.B.) (“The Lord Chancellor was of opinion, that the remedy the [plaintiff]
had at law upon the articles was not adequate to that of a bill in equity for a specific performance.”);
see also, e.g., Bonaparte, 3 F. Cas. at 834 (“[T]his is deemed an irreparable injury, for which the
law can give no adequate remedy, or none equal to that which is given in equity, and is an
acknowledged ground for [equity’s] interference.”).
The historical case law highlights several common threads that, each taken on their own,
were sufficient to render legal relief inadequate per se and call upon preventive injunctive relief to
secure plaintiffs’ legal rights. The first, and most straightforward scenario, is where there is no
statutory remedy available to enforce a party’s legal right vested by that statute. In Bodley v.
Taylor, for example, the Marshall Court was presented with the argument that because the legal
right at issue was “given by a statute ” and the “[statute] affords no remedy against a person who
has defeated this right,” that a “court of chancery, which can afford it, ought to consider itself as
sitting in the character of a court of law, and ought to decide those questions as a court of law
would decide them.” 9 U.S. (5 Cranch) 191, 222 (1809). Chief Justice Marshall retorted that the
“jurisdiction exercised by a court of chancery is not granted by statute; it is assumed by itself.” Id.
(emphasis added). In that case, the Marshall Court held that a federal court in such scenarios “will
afford a remedy which a court of law cannot afford, but since that remedy is not given by statute,
it will be applied by this court as the principles of equity require its application.” Id. at 223
26
(Marshall, C.J.). A second scenario is where the “loss of trade, destruction of the means of
subsistence, or permanent ruin to property, may or will ensure from the wrongful act.” 2 JOSEPH
STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 926, at 204–205. “[I]n every such case,”
Justice Story observed, “Courts of Equity will interfere by injunction, in furtherance of justice and
the violated rights of the party. Id. at 205 (citations omitted). It is of no significance that “an action
for damages would lie at law,” either, “for the latter can in no just sense be deemed an adequate
relief in such a case.” Id. (citations omitted). Thus, where either of these scenarios are present,
traditional injunction practice dictates that equity subsume jurisdiction over the cause and secure
the legal rights of plaintiffs.
The no-right-without-remedy maxim also played a prolific role in actions to enjoin the
ultra vires conduct of public officers during the 18th and 19th centuries. E.g., Hughes v. Trs. of
Morden Coll., 1 Ves. Sen. 188, 27 Eng. Rep. 973 (1748) (Ld. Hardwicke, Ch.); Osborn v. Bank of
the United States, 22 U.S. (9 Wheat.) 738, 845 (1824) (Marshall, C.J.); see also Carroll v. Safford,
44 U.S. (3 How.) 441, 463 (1845) (“[R]elief may be given in a court of equity . . . to prevent an
injurious act by a public officer, for which the law might give no adequate redress.”); Bonaparte,
3 F. Cas. at 827 (collecting cases).
In Hughes v. Trustees of Merton College, English Chancery asserted its equity mandate
over a bill to enjoin turnpike commissioners, acting under color of statute, from proceeding to take
possession of, dig through, and destroy garden grounds that the plaintiff was legally entitled to. 1
Ves. Sen. 188, 27 Eng. Rep. 973 (1748) (Ld. Hardwicke, Ch.). The commissioners’ authorizing
statute had specifically excluded gardens from their lawful mandate. Id. Despite the availability of
a remedy at law, Lord Hardwicke held that the plaintiff was entitled to a preventive injunction to
restrain the commissioners from acting outside of the statute’s provisions, at the expense of the
27
plaintiff’s garden grounds, any further. Id. Lord Hardwicke’s reasoning was grounded in the
recognition that the plaintiff was a gardener by trade, and that the impending “destruction of what
a man was using as his trade or livelihood” could never receive adequate remedy at law. Jerome
v. Ross, 7 Johns. Ch. 315, 335 (N.Y. Ch. 1823) (Kent, Ch.) (citing Hughes, 1 Ves. Sen. 188, 27
Eng. Rep. 973). Thus, Lord Hardwicke found it squarely within the jurisdictional prerogative of
equity to protect the pleading tradesman from permanent economic loss at the hands of government
officers. Id. The precedent set by Lord Hardwicke in Hughes—that equity has jurisdiction to
protect plaintiffs’ trades and livelihoods entangled in their legal rights, by preventive injunctive
relief, from impending destruction at the hands of officer actions that are ultra vires—was directly
followed and extended in subsequent cases under the Court of Chancery of Lord Eldon. See Agar
v. Regent's Canal Co., G Coop. 77, 14 R. R. 217 (1815) (Ld. Eldon, Ch.) (granting an injunction
to restrain defendants, empowered by act of parliament to cut a canal, from departing from the
statutorily prescribed boundaries of the canal and destroying a tradesman’s brickyard and garden).
By the 19th century, the equity jurisdiction head enshrined in Hughes had become “well
settled” and of “preeminent utility” to traditional injunction doctrine. Belknap, 2 Johns. Ch. at 473–
74 (Kent, Ch.). Its preeminence was demonstrated in Osborn v. Bank of the United States, where
the Marshall Court affirmed an injunction that restrained the state auditor from acting outside of
his lawful authority to impose an annual levy of $100,000 on the national bank, threatening both
to destroy its franchise and expel it from the State of Ohio. 22 U.S. (9 Wheat.) 738, 838–40 (1824).
The Supreme Court rejected the state auditor’s challenge to the equitable jurisdiction of federal
courts to provide or affirm injunctive relief, notwithstanding the availability of remedies at law.
See id. at 841–45. The Supreme Court found that “the probability that remedy [at law] would be
adequate, is stronger in the cases put in the books, than in this, where the sum is so greatly beyond
28
the capacity of an ordinary agent to pay.” Id. at 845. Based upon this finding of impending
destruction to the bank’s statutory franchise and business operations, Chief Justice Marshall,
writing for the Supreme Court, held that “it is the province of a Court of equity, in such cases, to
arrest the injury, and prevent the wrong,” and that the Court’s injunctive decree “is more beneficial
and complete, than the law can give.” Id.
In the instant motions, the prayed injunctions embody both scenarios from classical
injunction practice that implicate equitable remedial jurisdiction as a per se matter. First,
Intervenor-Plaintiffs possess a legally vested right that is bereft of any legal remedy. Even
assuming their businesses survive the appeals process, Intervenor-Plaintiffs will never be able to
recoup monetary damages at law due to the Government Defendants’ sovereign immunity. In
traditional and modern injunction practice, this bar on recovery at law is already more than enough
to justify equitable remedial intervention, as such harms cannot be undone through monetary
remedies. Dennis Melancon, 703 F.3d at 279 (citation omitted); Wages & White Lion, 16 F.4th at
1142. Furthermore, the only statutory remedy available to vindicate Intervenor-Plaintiffs’ statutory
right is the vacatur prescribed by § 706(2) of the APA. But because this exclusive remedy is subject
to stay pending appeal and Intervenor-Plaintiffs lack any other remedy at law, the grounds for
equity jurisdiction over the prayed injunctive relief is without doubt at this stage in the litigation.
See Bodley, 9 U.S. (5 Cranch) at 222–23 (1809) (Marshall, C.J.); Louisiana v. Biden, 55 F.4th at
1033–34. Otherwise, Intervenor-Plaintiffs “may be unable to . . . pursue [their] legal rights.”46
Second, compliance with the unlawful interpretation of the GCA carries the potential for
serious economic costs and existential threats to the trades and livelihoods of Intervenor-Plaintiffs.
Jerome, 7 Johns. Ch. at 335 (Kent, Ch.) (citing Hughes, 1 Ves. Sen. 188, 27 Eng. Rep. 973); Texas
46
BlackHawk’s Mot. 8, ECF No. 251.
29
v. EPA, 829 F.3d 405, 433 (5th Cir. 2016). Without intervening equitable relief in the interim,
Intervenor-Plaintiffs will suffer substantial economic costs should the Government Defendants
enforce the Final Rule. Indeed, any resumed enforcement efforts against Intervenor-Plaintiffs
would result in significant harm to their businesses. Defense Distributed has already shown that it
“will go out of business and cease to exist.”47 This harm is even more salient today than when the
Court first took up this issue. The longer the business sustains economic costs, the more likely that
the Final Rule “will destroy Defense Distributed, soon, unless the government is enjoined from
enforcing” the Final Rule in the interim.48 Similarly, BlackHawk “will be unable to continue its
core business operations” and “may cease to exist.”49 BlackHawk previously demonstrated that
complying with the Final Rule’s requirements would entail an overhaul of its entire online, direct-
to-consumer business model, along with requiring it to incur costs through administrative
compliance and other FFL-related fees.50 While the vacatur of the Final Rule is on appeal,
preventing the incurrence of such prohibitive costs will avoid irreversible damage to Intervenor-
Plaintiffs’ businesses.
But even if the Court’s original APA vacatur remedy is ultimately affirmed on appeal, any
incurred economic losses will be for naught. Harms that flow from “complying with a regulation
later held invalid almost always produce[] the irreparable harm of nonrecoverable compliance
costs.” Texas v. EPA, 829 F.3d at 433 (cleaned up). This is especially true when such harms
“threaten the existence of the [Intervenor-Plaintiffs’] business[es]” and could lead to catastrophic
economic losses—including closing the business—absent interim protection from an injunction
pending appeal. Atwood Turnkey, 875 F.2d at 1179. Where a plaintiff occupied the status of
47
Defense Distributed’s Mot. 5, ECF No. 249.
48
Id.
49
50
Second Mem. Op. 7, ECF No. 118.
30
tradesman, traditional equity practice posited that the impending “destruction of what [that
plaintiff] was using as his trade or livelihood” can never receive adequate remedy at law. Jerome,
7 Johns. Ch. at 335 (Kent, Ch.) (citing Hughes, 1 Ves. Sen. 188, 27 Eng. Rep. 973). Under the
historical no-right-without-remedy maxim of equity, therefore, there can be no uncertainty as to
the Court’s equitable remedial prerogative over Intervenor-Plaintiffs’ prayed injunctions. See
Osborn, 22 U.S. (9 Wheat.) at 845 (Marshall, C.J.); Carroll, 44 U.S. (3 How.) at 463 (1845).
Further than that, an injunctive decree awarded to Intervenor-Plaintiffs would affirm the maxim’s
core tenet that “equity suffers not a right to be without a remedy.” FRANCIS, MAXIMS OF EQUITY,
no. 6, at 24; see 1 STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 56, at 75.
Accordingly, the Court finds that the history and tradition of equity practice familiar to our
Founding generation, along with its accompanying jurisdictional maxims, are in perfect parity with
the injunctions presently sought by Intervenor-Plaintiffs in their motions before the Court. The
Court proceeds by testing this holding against applicable constitutional and doctrinal restraints.
2. Jurisdiction Lies Within Constitutional and Doctrinal Boundaries
Drawing from the classical roots of equity jurisprudence, contemporary judicial doctrine
recognizes that “it is axiomatic that federal courts possess inherent power to enforce their
judgments.” Thomas v. Hughes, 27 F.4th 363, 368 (5th Cir. 2022) (cleaned up). “That a federal
court of equity has jurisdiction of a bill ancillary to an original case or proceeding in the same
court, whether at law or in equity, to secure or preserve the fruits and advantages of a judgment or
decree rendered therein, is well settled.” Loc. Loan Co. v. Hunt, 292 U.S. 234, 239 (1934). A
court’s ancillary enforcement jurisdiction over its orders and judgments is a “creature of
necessity,” see Peacock, 516 U.S. at 359, without which “the judicial power would be incomplete
and entirely inadequate to the purposes for which it was conferred by the Constitution.” Riggs v.
31
Johnson County, 73 U.S. (6 Wall.) 166, 187 (1868); Bank of U.S. v. Halstead, 23 U.S. (10 Wheat.)
51, 53 (1825). This ancillary enforcement jurisdiction includes the power to “enter injunctions as
a means to enforce prior judgments.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 577–
78 (5th Cir. 2005) (citing Santopadre v. Pelican Homestead & Sav. Ass’n, 937 F.2d 268 (5th
Cir.1991)). When a federal district court had subject-matter jurisdiction over the principal action
containing the order or final judgment that a party seeks to enforce in a post-judgment proceeding,
there is no doubt as to the jurisdiction of that same court to enjoin actions threatening to contravene
that prior order or judgment in which the court itself had originally entered. See Hunt, 292 U.S. at
239; Boim v. Am. Muslims for Palestine, 9 F.4th 545, 551–52 (7th Cir. 2021). This is true of the
instant injunction proceedings and is not disputed by either of the parties.
But a district court’s ancillary equitable enforcement power is cabined by the additional
constraints found within Article III and contemporary judicial doctrine. As “inferior Courts”
ordained and established by Congress, the judicial power of a district court is limited by and
subservient to the judicial power exercised by higher inferior courts, the judicial power exercised
by the Supreme Court of the United States, and Congressional enactments defining or limiting the
scope of the district court’s judicial power. U.S. CONST. art. III §§ 1, 2; see Martin v. Hunter’s
Lessee, 14 U.S. 304, 314–15 (1816); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938). To
that end, a district court retains ancillary enforcement jurisdiction pending direct appeal only
insofar as its prior order or judgment is not stayed or superseded by a superior federal court. Nicol
v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 n.2 (5th Cir. 1984); Farmhand, Inc. v. Anel
Eng’g Indus., Inc., 693 F.2d 1140, 1145–46 (5th Cir. 1982); Deering Milliken, Inc. v. F.T.C., 647
F.2d 1124, 1128–29 (D.C. Cir. 1978). Moreover, its jurisdiction over an injunction pending appeal
is “limited to maintaining the status quo” and cannot extend so far as to “divest the court of appeals
32
[of] jurisdiction” while the appealed issues are before it. Coastal Corp. v. Texas E. Corp., 869 F.2d
817, 820 (5th Cir. 1989) (citing FED. R. CIV. P. 62(c)); see also EEOC v. Locs. 14 & 15, Int’l Union
of Operating Engineers, 438 F. Supp. 876, 880 (S.D.N.Y. 1977). The parties are in dispute over
whether the Court would upset these boundaries by exercising jurisdiction over the prayed relief.
The Court finds that the exercise of equitable remedial jurisdiction over the prayed relief is safely
within the boundaries prescribed by the Constitution of the United States and federal judicial
doctrine.
For starters, the Government Defendants’ assertion that the Supreme Court’s Stay Order
functions as a bar to jurisdiction falls short. Guided by the history and tradition of equity and the
plain meaning of the Supreme Court’s Stay Order, the Court’s prior analysis of how the equitable
maxims comport with the prayed relief are dispositive of the matter. Very simply, the Stay Order
merely acts in rem over the Final Rule, while the prayed injunctions act in personam on the
Government Defendants and their conduct in relation to the Final Rule. Thus, if the Court were to
issue the injunctive decrees sought by Intervenor-Plaintiffs, the Final Rule would remain on the
books and carry the force and effect of law—unless and until the Supreme Court’s stay is lifted
and the Court’s original APA vacatur remedy is reinstated. Moreover, the breadth of the Stay Order
is limited to the statutory remedy decreed by the Court at Final Judgment, while the statutory rights
decreed by the Court at Final Judgment remain the applicable law of the case. Under that law of
the case, Intervenor-Plaintiffs are vested with a statutory right against the Final Rule that is
enforceable in equity. And to the degree that the material results of the prayed injunctions, if
granted, might intersect with the material results of the stay insofar as it concerns enforcement of
the challenged provisions of the Final Rule against Intervenor-Plaintiffs, our system rests on the
bedrock principle that “the equity rule and decree will prevail.” CASES CONCERNING EQUITY, at
33
xlvii; see The King’s Order and Decree in Chancery, Cary 115, 21 Eng. Rep. 61 (1616). In sum,
the Stay Order does not bar the Court’s equitable remedial jurisdiction to issue relief in equity to
Intervenor-Plaintiffs.
Lastly, the injunctive decree sought by Intervenor-Plaintiffs would merely preserve the
status quo pending appeal and potential certiorari. According to the Fifth Circuit, the status quo
ante this litigation is the “world before the [Final] Rule became effective.” VanDerStok v. Garland,
No. 23-10718, 2023 WL 4945360, at *1 (5th Cir. July 24, 2023) (per curiam). With vacatur stayed,
the full scope of the status quo ante is currently unattainable, as it would require some form of
rescission operating in rem on the Final Rule itself. However, within the status quo world before
the Final Rule became effective is the next closest analog at a lower level of generality, which is
the world before the Final Rule became enforceable against Intervenor-Plaintiffs. And indeed, the
Government Defendants themselves conceded this in their stay application briefing before the
Supreme Court of the United States.51 The Court agrees with the Government Defendants and
finds that the injunctive relief sought by Intervenor-Plaintiffs would merely preserve the status
quo ante this litigation with respect to the legal relationship between the parties before the Court
in the present motion.
Accordingly, the Court finds that the exercise of equity jurisdiction over the prayed
injunctions falls within constitutional and judicial constraints. The historical and traditional
grounds for the Court’s equity jurisdiction neatly trace the separate boundaries erected by the
Constitution of the United States and federal judicial doctrine. Overall, the Court holds that it is
properly vested with equitable remedial jurisdiction under Article III to afford injunctive relief to
51
Defense Distributed’s Reply Ex., ECF No. 257-1, at 41 (“To begin with, the [Final] Rule has been the
“status quo” since August 2022 for everyone except some respondents and their customers who secured
preliminary relief.”); Id. No. 257-3, at 19 (“First, the Rule has been the “status quo” for nearly a year for
everyone except some respondents who secured preliminary relief (and their customers).”).
34
Intervenor-Plaintiffs, pending appeal, that would secure their legally vested rights under the APA
against the Government Defendants’ enforcement of the Final Rule. The Court proceeds to the
merits of Intervenor-Plaintiffs’ emergency motions for injunctive relief to determine if such shall
warrant.
III. LEGAL STANDARD
Having established ancillary enforcement jurisdiction, the decision to extend interlocutory
relief now rests with the sound discretion of this Court. See Miss. Power & Light Co. v. United
Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (laying out the criteria for preliminary
injunctive relief); see also Hecht, 321 U.S. at 329 (“An appeal to the equity jurisdiction conferred
on federal district courts is an appeal to the sound discretion which guides the determinations of
courts of equity.” (cleaned up)). The factors governing the Court’s discretion on whether to grant
an injunction pending appeal are virtually identical to those governing whether to grant a
preliminary injunction. See, e.g., Chamber of Com. v. Hugler, No. 3:16-CV-1476-M, 2017 WL
1062444, at *2 (N.D. Tex. Mar. 20, 2017); Cardoni v. Prosperity Bank, No. CIV.A. H-14-1946,
2015 WL 410589, at *1 (S.D. Tex. Jan. 29, 2015).
To establish entitlement to injunctive relief pending disposition of appeal, Intervenor-
Plaintiffs 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 their favor; and (4) that the
issuance of injunctive relief 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 final two elements merge
when the opposing party is the government. Nken v. Holder, 556 U.S. 418, 435 (2009). As
movants, Intervenor-Plaintiffs seeking relief bear the burden of proving all four elements. Nichols
v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008); Miss. Power & Light Co., 760 F.2d at 621.
35
Upon determination that a party is entitled to injunctive relief, a court must make a separate
determination regarding the appropriate scope of the prospective relief, which is “dictated by the
extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). As an
extraordinary remedy, an injunction “should be no more burdensome to the defendant than
necessary to provide complete relief to the plaintiff.” Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 765 (1994) (cleaned up). Thus, an injunction must “redress the plaintiff’s particular
injury,” and no more. Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (citation omitted).
IV. ANALYSIS
A. Substantial Likelihood of Success on the Merits
At the outset, Intervenor-Plaintiffs must demonstrate that they are substantially likely to
succeed on the merits of their APA claims. Daniels Health Servs., 710 F.3d at 582. Intervenor-
Plaintiffs contend that the Final Rule exceeds the scope of lawful authority that Congress conferred
upon the ATF. The Court agrees.
Very simply, the Court has already decided on the merits that there exists no genuine
dispute of material fact that the challenged provisions of the Final Rule—specifically,
27 C.F.R. §§ 478.11, 478.12(c)—exceed the scope of the ATF’s statutory jurisdiction under the
GCA, see 18 U.S.C. § 921(a)(3), and that Intervenor-Plaintiffs are entitled to judgment as a matter
of law on their APA claims. See 5 U.S.C. § 706(2)(c) (codifying the statutory cause of action and
relief for agency actions “in excess of statutory jurisdiction, authority, or limitations”).52 In their
motions before the Court, Intervenor-Plaintiffs seek injunctive relief from the Government
Defendants’ enforcement of the Final Rule on identical grounds.53 As discussed earlier in this
52
See Summ. J. Mem. Op. & Order 35, ECF No. 227 (holding on the merits that both challenged provisions
of the Final Rule were invalid and that the ATF “acted in excess of its statutory jurisdiction by promulgating
[the Final Rule].”).
53
See Defense Distributed’s Mot., ECF No. 249; BlackHawk’s Mot., ECF No. 251.
36
Opinion, the Court finds that its previous judgments on the merits of these APA claims have not
been stayed by the Supreme Court and continue to embody the “law of the case.” Med. Ctr.
Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (“[W]hen a court decides upon a rule of
law, that decision should continue to govern the same issue in subsequent stages in the same case.”)
(cleaned up)).
Based on the foregoing, Intervenor-Plaintiffs have demonstrated, a fortiori, an actual
success on the merits of their claims.
B. Substantial Threat of Irreparable Harm Absent Injunctive Relief
Intervenor-Plaintiffs are also obliged to show a substantial threat of irreparable harm.
Irreparable harm exists where “there is no adequate remedy at law.” Louisiana v. Biden, 55 F.4th
1017, 1033-34 (5th Cir. 2022) (cleaned up). The Fifth Circuit considers harm 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) (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 may be recoverable at the conclusion of litigation. Janvey v. Alguire, 647 F.3d
585, 600 (5th Cir. 2011). However, “an exception exists where the potential economic loss is so
great as to threaten the existence of the movant’s business.” Atwood Turnkey Drilling, Inc. v.
Petroleo Brasileiro, S.A., 875 F.2d 1174, 1179 (5th Cir. 1989). Or where costs are nonrecoverable
because the government-defendant enjoys sovereign immunity from monetary damages, as is the
case here, irreparable harm is generally satisfied. See Wages & White Lion Invs., L.L.C. v. FDA,
16 F.4th 1130, 1142 (5th Cir. 2021). Irreparable harm must be concrete, non-speculative, and more
than merely de minimis. Daniels Health Servs., 710 F.3d at 585; Dennis Melancon, Inc., 703 F.3d
at 279. Finally, a movant’s “delay in seeking relief is a consideration when analyzing the threat of
37
imminent and irreparable harm.” Anyadike v. Vernon Coll., No. 7:15-cv-00157, 2015 WL
12964684, at *3 (N.D. Tex. Nov. 20, 2015).
Compliance with an impermissible or illegal interpretation of the law carries the potential
for economic costs. Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016). Without an injunction
pending appeal, Intervenor-Plaintiffs will suffer substantial economic costs should the
Government Defendants enforce the Final Rule. Indeed, any resumed enforcement efforts against
Intervenor-Plaintiffs would result in significant harm to their businesses. Defense Distributed has
already shown that it “will go out of business and cease to exist.”54 This harm is even more salient
today than when the Court first took up this issue. The longer the business sustains economic costs,
the more likely that the Final Rule “will destroy Defense Distributed, soon, unless the government
is enjoined from enforcing” the Final Rule in the interim.55 Similarly, BlackHawk “will be unable
to continue its core business operations” and “may cease to exist.”56 BlackHawk previously
demonstrated that complying with the Final Rule’s requirements would entail an overhaul of its
entire online, direct-to-consumer business model, along with requiring it to incur costs through
administrative compliance and other FFL-related fees.57 While the vacatur of the Final Rule is on
appeal, preventing the incurrence of such prohibitive costs will avoid irreparable damage to
Intervenor-Plaintiffs’ businesses.
If this Court’s vacatur is ultimately affirmed on appeal, any incurred economic losses will
be for naught. Harms that flow from “complying with a regulation later held invalid almost always
produce[] the irreparable harm of nonrecoverable compliance costs.” Texas v. EPA, 829 F.3d at
433 (cleaned up). This is especially true when such harms “threaten the existence of the
54
Defense Distributed’s Mot. 5, ECF No. 249.
55
Id.
56
57
Second Mem. Op. 7, ECF No. 118.
38
[Intervenor-Plaintiffs’] business[es]” and could lead to catastrophic economic losses—including
closing the business—absent interim protection from an injunction pending appeal. Atwood
Turnkey, 875 F.2d at 1179. And even if the businesses somehow survive beyond the appeals
process, Intervenor-Plaintiffs would never be able to recoup monetary damages due to the
Government Defendants’ sovereign immunity. This bar on recovery is enough to show irreparable
harm because such harms cannot be undone through monetary remedies. Dennis Melancon, 703
F.3d at 279 (citation omitted); Wages & White Lion, 16 F.4th at 1142. In fact, only one remedy at
law is available to the Intervenor-Plaintiffs: vacatur under § 706(2) of the APA. Because this
exclusive remedy is the subject of the appeal and the parties lack any other remedy at law, the need
for injunctive relief pending appeal is even more critical at this stage to preserve the status quo.
Louisiana v. Biden, 55 F.4th at 1033–34 (explaining that irreparable harm exists where “there is
no adequate remedy at law”). Otherwise, Intervenor-Plaintiffs “may be unable to . . . pursue [their]
legal rights.”58
Further underscoring the need for an injunction pending appeal is the timing of the
requested relief. Intervenor-Plaintiffs filed their emergency motions immediately after the
Supreme Court issued its stay order.59 This timing demonstrates the urgency of the need for an
injunction. Anyadike, 2015 WL 12964684, at *3. Because Intervenor-Plaintiffs are no longer
protected by this Court’s Final Judgment during the appeals process, an individualized injunction
pending appeal is the only way to preserve the status quo and prevent irreparable harm in the
interim until the appeals process concludes.
58
59
The Supreme Court issued its Order staying the Final Judmgent on August 8, 2023. Vanderstok, 2023
WL 5023383, at *1. Defense Distributed filed its emergency motion the very next day on August 9, 2023.
Defense Distributed’s Mot., ECF No. 249. BlackHawk filed its emergency motion less than a week later
on August 14, 2023. BlackHawk’s Mot., ECF No. 251.
39
For these reasons, the Court finds that Intervenor-Plaintiffs have carried their burden to
show that irreparable harms exist at this stage.
C. The Balance of Equities and Public Interest Favor Issuing Injunctive Relief
The final two elements necessary to support a grant of injunctive relief—the balance of
equities (the difference in harm to the respective parties) and the public interest—merge together
when the government is a party. Nken, 556 U.S. at 435. In this assessment, the Court weighs “the
competing claims of injury” and considers “the effect on each party of the granting or withholding
of the requested relief,” paying close attention to the public consequences of granting an
injunction. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citations omitted).
The Court has established on multiple occasions—and again in this Opinion—that
Intervenor-Plaintiffs each face a substantial threat of irreparable harm absent relief from
enforcement of the Final Rule. But at the other end of the scale, there can be “no public interest in
the perpetuation of unlawful agency action.” Louisiana v. Biden, 55 F.4th 1017, 1035 (5th Cir.
2022) (emphasis added). As it relates to enforcement of the Final Rule against Intervenor-
Plaintiffs, “neither [the Government Defendants] nor the public has any interest in enforcing a
regulation that violates federal law.” All. for Hippocratic Med. v. FDA, No. 23-10362, 2023 WL
5266026, at *28 (5th Cir. Aug. 16, 2023) (emphasis added). In this respect, the government-public-
interest equities evaporate entirely upon adverse judgment on the merits. See Sierra Club v. U.S.
Army Corps of Eng’rs, 990 F. Supp. 2d 9, 43 (D.D.C. 2013) (Jackson, J.) (expounding that public
interest arguments are “derivative of . . . merits arguments and depend in large part on the vitality
of the latter”). The controlling law of this case is that the Government Defendants’ promulgation
of the two challenged provisions of the Final Rule, see 27 C.F.R. §§ 478.11, 478.12(c), transgress
the boundaries of lawful authority prescribed by Congress, see 18 U.S.C. § 921(a)(3), and are in
40
violation of the federal APA. See 5 U.S.C. § 706(2)(c). It follows, of course, that there is no injury
that the Government Defendants and the public at-large could possibly suffer from.
Having no equities to balance against those of Intervenor-Plaintiffs, the Court finds that
the public’s interest is entirely undisturbed by a grant of the prayed-for relief.
* * * *
Having considered the arguments, evidence, and applicable law, the Court holds that it has
ancillary jurisdiction to enforce, in equity, the portions of its Summary Judgment Order (ECF No.
227) and Final Judgment (ECF No. 231) that remain in effect following the Stay Order of the
Supreme Court of the United States. See VanDerStok, 2023 WL 5023383, at *1 (mem.). The Court
also holds that the relevant factors weigh in favor of granting injunctive relief to Intervenor-
Plaintiffs. The proper scope of relief is that which mirrors the relief previously granted to
Intervenor-Plaintiffs at the preliminary injunction stage—plus an extended effective period that
mirrors the expiration timetable of the stay ordered by the Supreme Court of the United States on
August 8, 2023.
V. CONCLUSION
The Court is properly vested with the jurisdiction to dispense—and each Intervenor-
Plaintiff has demonstrated their individual entitlement to—injunctive relief against the
Government Defendants’ enforcement of provisions of the Final Rule that this Court has
repeatedly held to be void.
For the foregoing reasons, the Court GRANTS the Emergency Motions for Injunction
Pending Appeal. Accordingly, the Court ORDERS that the Government Defendants—the
Attorney General of the United States; the United States Department of Justice; the Director of the
Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco,
41
Firearms and Explosives—and each of their respective officers, agents, servants, and employees—
are ENJOINED from implementing and enforcing against Intervenor-Plaintiffs Defense
Distributed and BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms the provisions in 27
C.F.R. §§ 478.11 and 478.12 that the Court has preliminarily and on the merits determined are
unlawful. Reflecting the scope of relief previously afforded to each Intervenor-Plaintiff, this
injunctive relief shall extend to each of Defense Distributed’s and BlackHawk Manufacturing
Group Inc. d/b/a 80 Percent Arms’ respective customers (except for those individuals prohibited
from possessing firearms under 18 U.S.C. § 922 (g)). Reflecting the scope of the stay on the final-
judgment remedy decreed in this case, so ordered by the Supreme Court of the United States on
August 8, 2023, this injunctive relief shall take effect immediately and shall remain in effect
pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit
and disposition of a petition for a writ of certiorari, if such a writ is timely sought, absent other
order on this issue. Should certiorari be denied, this injunctive relief shall terminate automatically.
In the event certiorari is granted, this injunctive relief shall terminate upon the sending down of
the judgment of the Supreme Court of the United States.
The Court waives the security requirements of Federal Rules of Civil Procedure 62(d) and
65(c). See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).60
SO ORDERED this 14th day of September, 2023.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
60
Because neither party raises the security requirement in Rule 65(c), no security is ordered. See FED. R.
CIV. P. 65(c).
42

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Case 4:22-cv-00691-O Document 261 Filed 09/14/23 Page 1 of 42 PageID 5193

UNITED STATES DISTRICT COURT

JENNIFER VANDERSTOK, et al., §

OPINION & ORDER ON DEFENSE DISTRIBUTED AND BLACKHAWK

80 Percent Arms’ (“Intervenor-Plaintiffs”) Emergency Motions for Injunction Pending Appeal

against the Government Defendants.

semi-automatic pistol frames, including those sold within parts kits.3

BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms (“BlackHawk”) is a manufacturer

and enforcing against Intervenor-Plaintiffs and their customers the provisions in

Government Defendants appealed these individualized, Plaintiff-specific preliminary injunctions,

but did not seek stays pending appeal.

of the Final Rule.19

Id. (emphasis added).

respectively.27 Following the completion of expedited briefing,28 Intervenor-Plaintiffs’ motions

are now ripe for the Court’s review.29

Intervenor-Plaintiffs enjoining the Government Defendants from enforcing the challenged

before the Union.”).

according to the distinctive historical traditions of equity”). Congressional authorizations of

Intervenor-Plaintiffs seek post-judgment injunctive relief pending the outcome of appeal

requested relief would afford individualized, party-specific protection to Intervenor-Plaintiffs that

preliminarily and on the merits, held are unlawful.30

exhausted upon final conclusion.

and contemporary judicial doctrine.

1. The History and Tradition of Equity Support Jurisdiction

that broad congressional authorizations of “remedies in equity are to be administered . . . according

extension, the institution of equity itself. LORD NOTTINGHAM’S “MANUAL OF CHANCERY

LAWS OF ENGLAND 432–33 (Oxford 1765–1769) (describing relief in equity as a “connected

which] are now reduced to a regular system”).37

extraordinary and quite usual and frequent”).

presently sought by Intervenor-Plaintiffs in their motions before the Court.

i. The Prayed Injunctions Act in Personam

Cary 115, 21 Eng. Rep. 61 (1616).

1830) (collecting cases).

In Belknap v. Belknap, for example, private plaintiffs sought an injunction to restrain

legal rights were indemnified. Id. at 164–65, 167–69.

in Chancery, Cary 115, 21 Eng. Rep. 61 (1616)).

relief and are wrong on all counts.

in controversy between the parties.

injunctive relief satisfies the first maxim of equity jurisdiction.

ii. The Prayed Injunctions Follow the Law

NOTTINGHAM’S CHANCERY CASES, at lii, n. 2. Building upon a principle of Aristotle’s original

but assist it.”).

as little justify departure from it.” 1 STORY, COMMENTARIES ON EQUITY JURISPRUDENCE § 64 at

COMMENTARIES ON EQUITY JURISPRUDENCE § 927, at 206 (Boston, 2d ed. 1839).

the right is settled” at law).

Herein lies the dispute between the parties.

Plaintiffs’ statutory right turns upon an interpretation of the Stay Order.

is presently stayed pending appeal.

with an injunctive decree.

iii. The Prayed Injunctions Relieve Rights Without Remedy

COMMENTARIES ON EQUITY JURISPRUDENCE § 56, at 75 (“[I]t cannot be generally affirmed, that,

JURISPRUDENCE § 33, at 32. In addition to the in personam- and law-following constraints,

acknowledged ground for [equity’s] interference.”).

the legal rights of plaintiffs.

3 F. Cas. at 827 (collecting cases).

and complete, than the law can give.” Id.

1033–34. Otherwise, Intervenor-Plaintiffs “may be unable to . . . pursue [their] legal rights.”46

economic losses—including closing the business—absent interim protection from an injunction

historical no-right-without-remedy maxim of equity, therefore, there can be no uncertainty as to