Firearms Regulatory Accountability Coalition, Inc. v. Merrick B. Garland

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3230
___________________________
Firearms Regulatory Accountability Coalition, Inc.; State of West Virginia;
State of North Dakota; State of Alabama; State of Alaska; State of Arkansas;
State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Iowa;
State of Kansas; State of Kentucky; State of Louisiana; State of Mississippi;
State of Missouri; State of Montana; State of Nebraska; State of New Hampshire;
State of Oklahoma; State of South Carolina; State of South Dakota;
State of Tennessee; State of Utah; State of Virginia; State of Wyoming;
NST Global, LLC, doing business as SB Tactical; B&T USA, LLC;
Richard Cicero
Plaintiffs - Appellants
v.
Merrick B. Garland, in his Official Capacity, as Attorney General of the United
States; The Bureau of Alcohol, Tobacco, Firearms and Explosives;
Steven Dettelbach, in his Official Capacity, as Director of the Bureau of Alcohol,
Tobacco, Firearms and Explosives
Defendants - Appellees
------------------------------
Members of Congress
Amicus on Behalf of Appellants
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Appeal from United States District Court
for the District of North Dakota
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Submitted: March 14, 2024
Filed: August 9, 2024
Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.
GRASZ, Circuit Judge.
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
promulgated a final agency rule1 interpreting the National Firearms Act of 1934
(NFA) and the Gun Control Act of 1968 (GCA). The Final Rule reclassifies pistols
equipped with stabilizing braces (braced weapons) as NFA-regulated “short-
barreled rifles,” which subjects those braced weapons to NFA/GCA regulation. The
plaintiffs—a stabilizing-brace manufacturer, a firearm manufacturer, a gun
association, an individual owner of braced weapons, and twenty-five states
(collectively, the Coalition)—sued to enjoin the Final Rule, arguing it exceeds the
ATF’s statutory authority under the NFA and GCA and is arbitrary and capricious.
The district court denied the Coalition’s motion for a preliminary injunction. The
Coalition appeals that denial. We conclude the Coalition is likely to succeed on the
merits of its arbitrary-and-capricious challenge, so we reverse and remand to the
district court.
I. Background
A. The National Firearms Act and the Gun Control Act
Congress passed the National Firearms Act of 1934, 26 U.S.C. §§ 5801–5872,
in response to rampant criminal gang violence. See Mock v. Garland, 75 F.4th 563,
570 & n.12 (5th Cir. 2023). The NFA’s purpose is to “regulate certain weapons
1 Factoring Criteria for Firearms with Attached “Stabilizing Braces” (the Final
Rule), 88 Fed. Reg. 6,478 (Jan. 31, 2023) (codified in 27 C.F.R. pts. 478 & 479).
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likely to be used for criminal purposes,” such as easily-concealed weapons. United
States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517 (1992) (plurality opinion).
Congress authorized the Attorney General to enforce both the NFA and GCA. See
26 U.S.C. §§ 7801(a)(2), 7805; 18 U.S.C. § 926. In turn, the Attorney General
delegated that regulatory authority to the ATF. See 28 C.F.R. § 0.130; Final Rule at
6,481.
The NFA’s regulations apply only to “firearms.” See 26 U.S.C. § 5861.
Accordingly, “‘[f]irearms’ is a term of art—one that is both highly under- and over-
inclusive (as compared to the word’s ordinary meaning today).” Mock, 75 F.4th at
567. For example, “pistols” and “revolvers”—which the ordinary person would
understand to be firearms—are not NFA “firearms.”2 26 U.S.C. § 5845(a)(5), (e)
(the term “any other weapon” does not include “a pistol or a revolver . . . .”). NFA
firearms include “short-barreled rifles,” which are any “rifle having a barrel or
barrels of less than 16 inches in length,” id. § 5845(a)(3), or “a weapon made from
a rifle if such weapon as modified has an overall length of less than 26 inches or a
barrel or barrels of less than 16 inches in length,” id. § 5845(a)(4). A “rifle” is
defined as “a weapon designed or redesigned, made or remade, and intended to be
fired from the shoulder . . . .” Id. § 5845(c). Meanwhile, the terms “made or remade”
are defined as “manufacturing (other than by one qualified to engage in such
business under this chapter), putting together, altering, any combination of these, or
otherwise producing a firearm.” Id. § 5845(i). “Congress placed stricter
requirements on the making and possession of short-barreled rifles, deeming them
to be dangerous and unusual weapons and posing a significant danger to the public,”
Final Rule at 6,481, as their concealable nature makes criminals more likely to use
them, see Thompson, 504 U.S. at 517 (plurality opinion). Short-barreled rifles, as
with other NFA/GCA firearms, are not per se illegal or banned weapons, but the
making, selling, owning, and transferring of short-barreled rifles is highly regulated.
A few example regulations include:
2 The ATF defines “pistols” and “revolvers” in its regulations. See 27 C.F.R.
§§ 478.11, 479.11.

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• any person possessing a short-barreled rifle must register his or her
possession in the National Firearms Registration and Transfer Record,
26 U.S.C. § 5841;
• any person who wants to transfer or make a short-barreled rifle must
first obtain the U.S. Attorney General’s approval, see 26 U.S.C.
§§ 5812, 5822, and pay a $200 tax, see 26 U.S.C. §§ 5811, 5821; and
• “any person engaged in the business of importing, manufacturing, or
dealing NFA firearms must register with the Attorney General and pay
a special (occupational) tax,” Final Rule at 6,479 (citing 26 U.S.C.
§§ 5801–02).
Failing to comply with the requirements of the NFA and GCA begets serious
consequences, including fines,3 forfeiture of the firearm,4 and felony conviction and
imprisonment5 followed by a lifetime ban on firearm ownership.6 See Mock, 75
F.4th at 570–71. In other words, “those statutory restrictions have teeth,” and those
teeth will bite anyone who, either intentionally or negligently, fails to comply with
these regulations. See id. at 570 (emphasis added). “Consequently, there are
immense incentives not to own [a short-barreled rifle] but instead to have a non-
NFA-regulated pistol.” Id. at 571.
B. Weapons with Attached Stabilizing Braces
In 2012, plaintiff SB Tactical developed its pistol stabilizing brace “to assist
people with disabilities so that they could fire . . . heavy pistols safely and
comfortably” with one hand. See Final Rule at 6,479. SB Tactical describes its
stabilizing braces as “orthotic devices that attach to the rear of a firearm,” consisting
3E.g., 18 U.S.C. §§ 924(a)(1), 3571(b)–(c); 27 C.F.R. § 479.191
4E.g., 26 U.S.C. § 5872.
5E.g., 18 U.S.C. § 924(a)(1); 26 U.S.C. § 5871.
6See 18 U.S.C. § 922(g)(1).

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of “a strap and a cuff made of elastomer material,” which “allow[s] the shooter to
secure the pistol against their forearm.”7
SB Tactical asked the ATF whether its stabilizing brace—when attached to
the rear of a pistol—would change a pistol’s classification under the NFA or GCA.
See Final Rule at 6,479. The ATF initially answered no, determining the stabilizing
brace “was not designed or intended to fire a weapon from the shoulder” but rather
to allow a weapon to be “held and operated with one hand.” Id. (internal quotation
marks omitted). Thus, the ATF initially concluded the braced pistol was not subject
to the NFA’s controls. Id. Plaintiff Richard Cicero was one of the stabilizing brace’s
earliest users. A combat veteran who lost both his right arm and leg while serving
his country in Afghanistan, Cicero discovered the stabilizing brace helped him and
other physically-challenged shooters to use heavy pistols, which they would
otherwise not be able to shoot properly. Cicero uses his weapon’s stabilizing brace
as SB Tactical claims it intends the brace to be used; with the strap wrapped around
the forearm and the cuff providing stabilizing support for the forearm:
Thus, as the ATF concluded at the time, a pistol with an attached stabilizing brace
was not intended to be fired from the shoulder, which means the weapon was neither
a “rifle” nor a “short-barreled rifle” for purposes of the NFA and GCA.
7See Forearm-gripping Stabilizing Attachment for a Handgun, U.S. Patent No.
8,869,444-B2 (filed Feb. 25, 2012) (issued Oct. 28, 2014).

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Though SB Tactical’s stabilizing brace may have been the first of its kind, it
was not the last. Since the ATF made its initial determination, “the variety of
available ‘stabilizing braces’ or similar ‘brace’ devices . . . has grown significantly.”
Id. In 2014, the ATF began to see stabilizing braces being used to shoulder weapons,
while new stabilizing braces “included characteristics common to shoulder stocks.”
Id. This “diversity” of stabilizing braces “yielded a plethora” of braced weapons
whose “objective design features” suggested to the ATF the attached brace was
intended to make the pistol a shoulder-fired weapon, and thus a “firearm.” Id. The
photo below shows two different weapon platforms, each with a different type of
rearward attachment. The top-pictured weapons are heavy pistols attached with
stabilizing braces. The bottom-pictured weapons are the same heavy pistols but
fitted with traditional shoulder stocks, which indisputably makes them “short-barrel
rifles.”
To be sure, there are visual similarities between the weapons attached with
stabilizing braces and the weapons fitted with traditional shoulder stocks. See Mock,
75 F.4th at 589 n.1 (Higginson, J., dissenting). And as the ATF noted, some trade
magazines’ marketing materials began including photos of individuals shouldering
braced weapons, even though the pictured weapon is marketed as a pistol. See, e.g.,
Final Rule at 6,527 (photo below).

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By late 2020, due to the increase in braced weapons, the ATF concluded (1) it
needed to clarify how it would evaluate weapons equipped with stabilizing braces;
(2) some manufacturers were labeling their stabilizing braces as “ATF compliant,”
even though the ATF had not evaluated those stabilizing braces for compliance; and
(3) stabilizing braces were being used with weapons “to create short-barreled rifles
without following NFA requirements.” Final Rule at 6,494. To resolve these issues,
the ATF set out to change how it interpreted the NFA’s and GCA’s definition of
“rifle.”
C. The Proposed Rule and the Final Rule
On June 10, 2021, the Department of Justice published in the Federal Register
its notice of proposed rulemaking, introducing its proposed rule. See Factoring
Criteria for Firearms with Attached “Stabilizing Braces” (the Proposed Rule), 86
Fed. Reg. 30,826 (June 10, 2021). In it, the ATF introduced a new worksheet for
public comment, “Worksheet 4999,” which would “allow individuals or members
of the firearms industry to evaluate whether a weapon incorporating a ‘stabilizing
brace’ . . . will be considered a ‘short-barreled rifle’ or ‘firearm’ under the GCA and
NFA.” Id. at 30,828. To make that determination, Worksheet 4999 incorporated a
point-based system, whereby it would assign “a weighted value to various
characteristics of the fully assembled firearm” based on “objective design

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characteristics or features that are common to rifles, features associated with
shoulder stocks, and those features limiting the ability to use the ‘stabilizing brace’
as an actual brace . . . .” Id. at 30,829. If an evaluated weapon accumulated “4 points
or more” under Worksheet 4999’s criteria, then the ATF would determine the
weapon was “designed and intended to be fired from the shoulder,” id., and classify
it as an NFA firearm, see Mock, 75 F.4th at 573.
The Proposed Rule proved controversial, and comments were
overwhelmingly negative. See id. at 574 (noting the Proposed Rule proved to be
“complex and confusing”); Final Rule at 6,497 (noting negative reception). So,
eighteen months later, the ATF published the Final Rule; abandoning Worksheet
4999 and its point system altogether, while adopting a two-step, multifactor
framework for evaluating whether a braced weapon is objectively designed and
intended for shouldering. See Final Rule at 6,480. At the first step, the ATF
examines whether a weapon “equipped with [a stabilizing brace] provides surface
area that allows the weapon to be fired from the shoulder . . . .” Id. If so, then the
ATF examines six other “objective design features and factors” that indicate whether
“the weapon is designed, made, and intended to be fired from the shoulder.” Id.
Those six other factors are:
(1) Whether the weapon has a weight or length consistent with the
weight or length of similarly designed rifles;
(2) Whether the weapon has a length of pull . . . that is consistent with
similarly designed rifles;
(3) Whether the weapon is equipped with sights or a scope with eye
relief that require the weapon to be fired from the shoulder in order to
be used as designed;
(4) Whether the surface area that allows the weapon to be fired from
the shoulder is created by a buffer tube, receiver extension, or any other
accessory, component, or other rearward attachment that is necessary
for the cycle of operations;

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(5) The manufacturer’s direct and indirect marketing and promotional
materials indicating the intended use of the weapon; and
(6) Information demonstrating the likely use of the weapon in the
general community.
Id.
“The ATF theorized that under this new definition of ‘rifle,’ approximately
99% of pistols with stabilizing braces would be classified as rifles[.]” Mock, 75
F.4th at 574 & n.23. The Final Rule did not adjudicate “stabilizing braces
systematically, such as by stating that a particular manufacturer’s specific brace”
always transforms a weapon into a rifle when attached to that weapon. See id. at
586 n.56 (emphasis added). The ATF deemed it not “administratively feasible” to
follow commenters’ suggestions to provide an exhaustive list of stabilizing braces.
Final Rule at 6,513. Instead, the ATF would make its determinations on a weapon-
by-weapon basis. See id. at 6,513–14.
Alongside the Final Rule, the ATF published two electronic slideshows (the
Slideshows) to inform the public about weapons it considers “short-barreled rifles.”
See id. at 6,481. The first Slideshow contained thirty-two photos of “[c]ommon
weapon platforms with attached ‘stabilizing brace’ designs that are short-barreled
rifles,”8 and the second Slideshow contained thirty-five photos of “[c]ommercially
available firearms equipped with a ‘stabilizing brace’ that are short-barreled rifles.”9
8 ATF, Common Weapon Platforms with Attached “Stabilizing Brace”
Designs That Are Short-Barreled Rifles, available at https://perma.cc/GX8K-
A4TW. Some example slides from this Slideshow are included in Appendix A,
attached to this opinion.
9 ATF, Commercially Available Firearms Equipped with a “Stabilizing
Brace” That Are Short-Barreled Rifles, available at https://perma.cc/BK6C-BRGQ.
Some example slides from this Slideshow are included in Appendix B, attached to
this opinion.

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The ATF claims the Slideshows are for “placing the public on notice that listed
firearm-brace combinations are likely to be classified as short-barreled rifles under
the [Final] Rule’s considerations,” but it did not explain how it determined that the
pictured weapons are short-barreled rifles. Nor do the Slideshows contain a photo
of a single braced weapon the ATF would not consider to be a short-barreled rifle.
Though the Final Rule does not ban stabilizing braces or braced weapons that
are “short-barreled rifles,” the consequences of possessing a braced weapon deemed
to be a “short-barreled rifle” are dire: that firearm and the person who possesses it
are subject to the NFA’s and GCA’s stringent regulations and serious criminal
penalties for non-compliance. Considering the ATF estimated that by 2020 there
were, at the low end, three million stabilizing braces in circulation (with seven
million at the high end) plus an untold number of stabilizing braces sold between
2020 and the Final Rule’s publication in January 2023, then the Final Rule does the
job of reclassifying these millions of braced weapons—and those who possess
them—as violating the NFA and GCA.
After the Final Rule’s publication, the ATF gave possessors of braced
weapons until May 31, 2023 (120 days) to choose one of five options: (1) remove
the firearm’s short barrel and attach a barrel 16-inches or longer, changing the
firearm’s NFA classification; (2) register the weapon with the ATF as an NFA
firearm, paying the applicable tax; (3) permanently remove the weapon’s stabilizing
brace;10 (4) surrender the weapon to the ATF; or (5) destroy the weapon. Id. at
6,570. Anyone possessing a braced weapon who did not exercise one of these five
10 The ATF noted that “the removal of a ‘stabilizing brace’ from a firearm that
was originally received as a ‘short-barreled rifle’ results in the production of a
‘weapon made from a rifle,’ as defined by the NFA,” but in its enforcement
discretion, the ATF would “allow persons to reconfigure the firearm to a pistol by
May 31, 2023 and will not require the registration of these firearms as a ‘weapon
made from a rifle.’” Final Rule at 6,570.

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options would be “in violation of the NFA,” against whom the ATF “may take
enforcement action.” Id. at 6,498.
D. The Lawsuit
Since the Final Rule’s publication, several lawsuits have been filed seeking to
enjoin its enforcement,11 including this one. In this case, the Coalition raised three
grounds for a preliminary injunction: the Final Rule exceeds the ATF’s statutory
authority under the NFA/GCA; various aspects of the Final Rule—including its
multifactor test—are arbitrary and capricious under the Administrative Procedure
Act (APA); and the Slideshows are agency adjudications without explanation and
evince that the Final Rule is arbitrary and capricious. Ultimately, the district court
concluded the Coalition did not demonstrate a substantial likelihood of success on
the merits of its claims, so it denied injunctive relief without analyzing the other
injunctive factors. The Coalition appeals.
II. Analysis
We have jurisdiction over an appeal from a district court’s order denying a
preliminary injunction. See 28 U.S.C. § 1292(a)(1). “We review a district court’s
ultimate ruling on a preliminary injunction for abuse of discretion, though we review
its underlying legal conclusions de novo.” Home Instead, Inc. v. Florance, 721 F.3d
11 As of this writing, that list included Britto v. ATF, No. 2:23-CV-19-Z (N.D.
Tex.), appeal filed, 23-11203 (5th Cir. 2023); Colon v. ATF, No. 8:23-CV-223 (M.D.
Fla.), appeal filed, 24-10897 (11th Cir. 2024); Miller v. Garland, No. 1:23-CV-195
(E.D. Va.), appeal filed, 23-1604 (4th Cir. 2023); Mock v. Garland, No. 4:23-CV-
95-O (N.D. Tex.), appeal filed, 23-11199 (5th Cir. 2023); Nat’l Rifle Assoc. v. ATF,
No. 3:23-CV-1471-L (N.D. Tex.), appeal filed, 23-10707 (5th Cir. 2023); Second
Am. Found. v. ATF, No. 3:21-CV-116-B (N.D. Tex.), appeal filed, 23-11157 (5th
Cir. 2023); Texas v. ATF, No. 6:23-CV-13 (S.D. Tex.), appeal filed, 23-40685 (5th
Cir. 2023); Tex. Gun Rights, Inc. v. ATF, No. 4:23-CV-578-O (N.D. Tex.), appeal
filed, 23-11204 (5th Cir. 2023); and Watterson v. ATF, No. 4:23-CV-80 (E.D. Tex.),
appeal filed 23-40556 (5th Cir. 2023).

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494, 497 (8th Cir. 2013). “A district court abuses its discretion in denying a
preliminary injunction if it ‘rests its conclusion on clearly erroneous factual findings
or erroneous legal conclusions.’” Id. (quoting Barrett v. Claycomb, 705 F.3d 315,
320 (8th Cir. 2013)).
In our circuit, “[a] plaintiff seeking a preliminary injunction must establish
four factors showing such relief is warranted: (1) he is likely to succeed on the
merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in his favor; and (4) an injunction is in the public
interest.” Morehouse Enters., LLC v. ATF, 78 F.4th 1011, 1016 (8th Cir. 2023)
(quoting MPAY Inc. v. Erie Custom Comput. Applications, Inc., 970 F.3d 1010, 1015
(8th Cir. 2020)). “When deciding whether to grant a preliminary injunction, courts
ask ‘whether the balance of equities so favors the movant that justice requires the
court to intervene to preserve the status quo until the merits are determined.’” Id.
(quoting Nebraska v. Biden, 52 F.4th 1044, 1046 (8th Cir. 2022)). “The movant
bears the burden of demonstrating the preliminary injunction is warranted because a
preliminary injunction is an ‘extraordinary remedy never awarded as of right.’” Id.
(quoting Progressive Techs., Inc. v. Chaffin Holdings, Inc., 33 F.4th 481, 485 (8th
Cir. 2022)).
Here, we only review the district court’s holding that the Coalition was not
likely to succeed on the merits, as the district court did not examine the other three
injunctive factors. Of the four injunctive factors, “likelihood of success on the merits
is most significant,” S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir.
1992), because “an injunction cannot issue if there is no chance of success on the
merits,” Mid-Am. Real Est. Co. v. Iowa Realty Co., 406 F.3d 969, 972 (8th Cir.
2005). When a party seeks to enjoin a government regulation that is “based on
presumptively reasoned democratic processes,” as we assume the Coalition does
here, we apply a “more rigorous threshold showing” than just a “fair chance” of
success on the merits. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d
724, 730, 732 (8th Cir. 2008) (en banc). Instead, the Coalition must show it “is likely
to prevail on the merits.” Id. at 732.

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A. Final Agency Action
As a preliminary matter, the ATF argues the Coalition is unlikely to succeed
on the merits because the Final Rule is not a “final agency action.” See 5 U.S.C.
§ 704 (subjecting “final agency action” to judicial review). The ATF claims it is not
attempting to make “positive law,” see Syncor Int’l Corp. v. Shalala, 127 F.3d 90,
94 (D.C. Cir. 1997), but simply is introducing an interpretive rule, which merely
“clarifies or explains existing law or regulations[,]” McKenzie v. Bowen, 787 F.2d
1216, 1222 (8th Cir. 1986). If that is true, then the Coalition cannot prevail on its
APA claim.
The Supreme Court’s two-prong test from Bennett v. Spear, 520 U.S. 154
(1997), “remains finality’s touchstone.” Cal. Cmtys. Against Toxics v. EPA, 934
F.3d 627, 635 (D.C. Cir. 2019). For an agency action to be “final” under the APA,
the action must (1) “mark the consummation of the agency’s decisionmaking
process,” and (2) “be one by which rights or obligations have been determined, or
from which legal consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes
Co., 578 U.S. 590, 597 (2016) (quoting Bennett, 520 U.S. at 177–78). The ATF
concedes the Final Rule was the consummation of its decisionmaking process, so we
must examine Bennett’s second prong.
Under that prong, the Final Rule “must inflict some legal injury upon the party
seeking judicial review,” in that it “either compel[s] affirmative action or prohibit[s]
otherwise lawful action.” Sisseton-Wahpeton Oyate of Lake Traverse Rsrv. v. U.S.
Corps of Eng’rs, 888 F.3d 906, 915 (8th Cir. 2018). In Hawkes Co. v. U.S. Army
Corps of Engineers, we delineated instances when agency action determined “rights
or obligations” under Bennett’s second prong. 782 F.3d 994, 1000 (8th Cir. 2015),
aff’d, 578 U.S. 590 (discussing Bennett, 520 U.S. at 158, 178). For example, when
an agency requires parties “incur substantial compliance costs . . . , forego what they
assert is lawful use of their property, or risk substantial enforcement penalties.” Id.

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Here, we determine the Final Rule satisfies Bennett’s second prong. The Final
Rule represents a sea change in how the ATF evaluates stabilizing braces. It
rescinded all previous braced-weapon classifications, declaring them “no longer
valid.” Final Rule at 6,480. That means the ATF now believes many braced
weapons are short-barreled rifles, so anyone possessing one “may have been
violating the NFA by possessing an unregistered rifle,” including those parties who
relied on the ATF’s prior classification letters in believing they were complying with
the NFA. See id. The consequence of the ATF’s about-face is that many individuals,
relying on the ATF’s previous classifications, were apparently committing felonies
for years by possessing braced weapons. Accordingly, they must take one of the
five compliance steps—including paying a tax, or otherwise surrendering or
destroying their weapon (their property)—or risk prosecution.
This analysis is supported by the Supreme Court’s recent decision in Garland
v. Cargill, 602 U.S. 406 (2024), which was decided while this case was pending
appeal. In Cargill, a plaintiff sued under the APA to challenge an ATF rule that
reinterpreted the term “machinegun,” as defined by the NFA in 26 U.S.C. § 5845(b),
to include weapons equipped with bump stocks. Id. at 414–15. The Supreme Court
clearly treated the ATF interpretive rule as a final agency action because the Court
held the ATF exceeded its statutory authority and affirmed the Fifth Circuit’s
judgment against the ATF. See id. at 427–29. It was true in Cargill and it is true
here: the Final Rule is a final agency action subject to judicial review.
B. Likelihood of Success on the Merits
We turn to the Coalition’s arguments as to why it is likely to succeed on the
merits.12 Though the Coalition argued the Final Rule violated multiple aspects of
12 The Coalition claims the Final Rule wrongly interprets the NFA and GCA,
or those statutes are so ambiguous that the rules of lenity and constitutional
avoidance require interpreting the statutes to exempt braced weapons from their
definition of firearms. Recognizing we “exercise [our] independent judgment in
deciding whether an agency has acted within its statutory authority, as the APA

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the APA, it suffices to address only its arguments that (1) aspects of the Final Rule’s
two-step test, including its multifactor component, are arbitrary and capricious and
(2) the Slideshows represent arbitrary and capricious adjudications without
explanation.13 We “review de novo a district court’s decision on whether an agency
action violates the APA,” including an arbitrary-and-capricious challenge. Friends
of the Norbeck v. U.S. Forest Serv., 661 F.3d 969, 975 (8th Cir. 2011).
Under the APA, a reviewing court sets aside an agency action if that action is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). “The APA’s arbitrary-and-capricious standard requires
that agency action be reasonable and reasonably explained.” FCC v. Prometheus
Radio Project, 592 U.S. 414, 423 (2021). “A court simply ensures that the agency
has acted within a zone of reasonableness and, in particular, has reasonably
considered the relevant issues and reasonably explained the decision.” Id. This
standard is highly deferential to the agency, providing a narrow standard of review.
Org. for Competitive Mkts. v. U.S. Dep’t of Agric., 912 F.3d 455, 459 (8th Cir. 2018).
As we have explained, a decision is arbitrary and capricious if:
requires,” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024)
(overruling Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984)), we still decline to address the Coalition’s statutory-interpretation argument
at this stage because it is likely to succeed on its APA challenge.
13 Notably, the Coalition does not argue the Final Rule fails the “logical-
outgrowth” rule. The logical-outgrowth rule requires “that the final rule the agency
adopts . . . be a logical outgrowth of the rule proposed.” Long Island Care at Home,
Ltd. v. Coke, 551 U.S. 158, 174 (2007) (cleaned up). “If the logical-outgrowth
requirement is not satisfied, a court must set aside the agency action found to be
‘without observance of procedure required by law.’” Mock, 75 F.4th at 583 (quoting
5 U.S.C. § 706(2)(D)). In Mock, the Fifth Circuit agreed with the plaintiffs that they
were likely to prevail on their argument that the Final Rule failed the logical
outgrowth-requirement: the Proposed Rule (with its point-based Worksheet 4999)
bore little resemblance to the Final Rule (with its multifactor test), so that the
“plaintiffs were not on notice, nor could they comment on the expanded rule.” Id.
at 583, 586. But here, the Coalition disclaimed any logical-outgrowth argument.
Nor does the Coalition make out a constitutional challenge to the Final Rule.

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the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise
McClung v. Paul, 788 F.3d 822, 828 (8th Cir. 2015) (quoting Motor Vehicle Mfrs.
Ass’n v. State Farm Ins. Co., 463 U.S. 29, 43 (1983)). Nor can we uphold agency
action that is internally inconsistent or not reasonable and reasonably explained. See
ANR Storage Co. v. F.E.R.C., 904 F.3d 1020, 1024 (D.C. Cir. 2018).
i. The Rear Surface Area Step
The Final Rule’s first step requires examining a “weapon that is equipped with
an accessory, component, or other rearward attachment (e.g., a ‘stabilizing brace’)”
to see if it “provides surface area that allows the weapon to be fired from the
shoulder . . . .” Final Rule at 6,575 (emphasis added). Accord 27 C.F.R. § 479.11.
The Coalition alleges this step is arbitrary and capricious because the ATF refused
to include more specific metrics on the minimum surface area required for
shouldering. We agree with the Coalition.
In promulgating the Final Rule, the ATF decided it was not “appropriate or
necessary to specify a quantifiable metric for what constitutes surface area that
allows for shouldering of the weapon.” Final Rule at 6,529. Nor did it plan on
providing any “minimum surface area,” which would comply with the Final Rule.
Id. Instead, the ATF explained it will “consider whether there is any surface area on
the firearm that can be used to shoulder fire the weapon,” id. at 6,529, and if so,
proceed to step two’s six-factor test. This, despite commenters asking the ATF to
clarify “what amount of material is ‘minimal’ or ‘added’” so that “the rear surface
area is useful for shouldering.” Id. at 6,521–22. The ATF informs us it “reasonably
chose to avoid brightline rules subject to easy circumvention” in favor of an
undefined standard. The problem is the Final Rule does not explain how providing

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any amount of mathematical guidance, never mind bright-line mathematical rules,
was likely to lead to circumvention of the law. Such guesswork fails to create an
identifiable metric that members of the public can use to assess whether their weapon
falls within the Final Rule’s definition of a “rifle.”
In an analogous case, the D.C. Circuit held an ATF determination that a
hobby-rocket fuel “deflagrates” was arbitrary and capricious because the ATF
“never provided a clear and coherent explanation for its classification of [the fuel]”
nor did it “articulate[] the standards that guided its analysis.” Tripoli Rocketry Ass’n,
Inc. v. ATF, 437 F.3d 75, 81 (D.C. Cir. 2006). In Tripoli Rocketry, the ATF
classified a material as an “explosive” if it “functions by detonation or deflagration.”
Id. at 77. The ATF determined whether a material “deflagrates” by looking at the
speed at which the material burns. Id. (“[U]nder [the ATF’s] characterization, a
substance that deflagrates burns more rapidly than something that simply burns (like
paper or a candle wick), but less rapidly than something that detonates (like
dynamite).”). The ATF determined that because a certain hobby-rocket fuel
deflagrates, it was thus subject to regulation. See id. at 80. The ATF could have
mathematically defined the rate of “deflagration” by defining the speed at which a
thing burns—just as the ATF could mathematically define the rear surface area that
allows for shouldering a weapon—but the ATF “never reveal[ed] how it determines
that a material deflagrates,” nor did it even try to define “a range of velocities within
which materials will be considered to deflagrate.” Id. at 81.
Expounding on the tension between providing agency flexibility on the one
hand and regulable precision on the other, the D.C. Circuit explained:
We understand that it may be necessary for [the ATF] to define a range
flexibly, accounting for gray areas where expert discretion is necessary
to characterize a particular substance. But, as a reviewing court, we
require some metric for classifying materials not specifically
enumerated in the statute, especially when, as here, the agency has not
claimed that it is impossible to be more precise in revealing the basis
upon which it has made a scientific determination. Yet, in this case,

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[the ATF] has provided virtually nothing to allow the court to determine
whether its judgment reflects reasoned decisionmaking.
Id. Ultimately, the Tripoli Rocketry court held the determination to be arbitrary and
capricious. See id. at 84. A similar problem arises in this case, when the ATF claims
the right to make an “unbounded comparative analysis,” while “insist[ing] it ha[s]
no burden to make more particularized findings.” Id. at 82. The ATF does not deny
it could provide some range of flexibility in explaining the total surface area that
allows for shouldering a weapon, but it does not want to, citing the need to prevent
circumvention of the law.
This lack-of-metrics issue is compounded by ATF acknowledging that “a
majority” of braced weapons would have a surface area that allows a user to shoulder
the weapon. Final Rule at 6,529. By the ATF’s own estimation, 99% of braced
weapons are “rifles” under the NFA and GCA, not just a simple “majority.”
Likewise, the ATF did not identify a single braced weapon with a surface area that
would not allow the weapon to be shoulder fired. Rather than specify what kind of
brace could pass muster, the ATF posits that a stabilizing brace could hypothetically
“include a feature intended specifically to prevent shooting the firearm from the
shoulder” or otherwise “prevents shouldering.” Id. at 6,530. “A potential example
of such a feature” could include a “permanently attached protrusion that would dig
into a shooter’s shoulder should the firearm be fired from the shoulder.” Id. But
providing this “potential” example is little guarantee to braced-weapon
manufacturers and possessors who risk felony convictions if the ATF deems the
potential protrusion provides just enough surface area to shoulder fire a weapon.
Thus, the Coalition is likely to succeed on the merits of its argument that this
step is arbitrary and capricious; the ATF “has articulated no standard whatsoever for
determining” when a stabilizing brace’s rear surface area would allow the
shouldering of a weapon. See Tripoli Rocketry, 537 F.3d at 84. That the regulated
parties wish to see more specific metrics does not mean they wish to skirt or
circumvent the law, as ATF insinuates. They may simply wish to comply with the

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law, by producing or equipping stabilizing braces that do not have a rear surface area
that allows for shoulder firing a weapon.
ii. The Marketing and Community-Use Factors
If the ATF determines a weapon “provides surface area that allows the weapon
to be fired from the shoulder,” it proceeds to the second inquiry: analyzing the
weapon under six other factors to determine if it is objectively “designed, made, and
intended to be fired from the shoulder.” Final Rule at 6,575. The Coalition alleges
the fifth and sixth factors are arbitrary and capricious. Factor 5 is “[t]he
manufacturer’s direct and indirect marketing and promotional materials indicating
the intended use of the weapon” (the marketing factor) and factor 6 is “[i]nformation
demonstrating the likely use of the weapon in the general community” (the
community-use factor). Id. The Coalition argued these factors “do[] not explain
how ATF will assess this information, permitting the agency to reach arbitrary and
capricious results.” The district court did not discuss its view on these factors,
instead believing the multifactor test, as a whole, was within the realm of
reasonableness.
Before we analyze any alleged deficiencies in the multifactor test, it is
important to understand the problem the Final Rule is trying to solve. The ATF
believes that some devices marketed as “stabilizing braces” are being used as
shoulder stocks, thus circumventing the law. Whereas a heavy pistol attached with
a shoulder stock was a “short-barreled rifle,” a heavy pistol attached with a
stabilizing brace (which could functionally be used as a shoulder stock) was
exempted from regulation. The ATF resolved to examine other objective factors to
determine whether a braced weapon was intended to be shoulder fired. See Posters
‘N’ Things, Ltd. v. United States, 511 U.S. 513, 519–21 (1994) (noting “actual use
of the item in the community” and a “product’s likely use” factor into what purpose
an item is “primarily intended” to serve). As it explained:

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Where ATF’s evaluation of a submitted [braced weapon] demonstrates
that the objective design features of the firearm, as configured, do not
support the manufacturer’s purported intent and . . . suggest a different
intent, then ATF may conclude that the firearm ought not be classified
on the basis of the manufacturer’s purported intent, thus ensuring
effective enforcement of Federal law.
Final Rule at 6,495.
Hence, the need for the ATF to look at other objective factors to determine
whether a braced weapon’s overall design reveals an intent to allow for shouldering
the weapon. Two of those factors include the marketing and community-use factors.
As to the marketing factor, the ATF considers “the marketing of the attachment (e.g.,
indirect marketing through persons that manufacture or sell ‘stabilizing braces’ but
not firearms) and the direct marketing from the firearm manufacturer regarding the
firearm to which the attachment or ‘brace’ is assembled . . . .” Id. at 6,544. The
ATF will examine the manufacturer’s direct and indirect marketing materials to see
if they “directly contradict[] the purpose they stated to ATF when submitting the
firearm and indicate[] that the firearm, in reality, is intended to be fired from the
shoulder.” See id. “Indirect marketing materials can include statements from
accessories manufacturers for the accessories that a firearms manufacturer attaches
or incorporates into its firearm, such as a ‘brace’ manufacturer that advertises that a
‘stabilizing brace’ is a method to circumvent the NFA.” Id.
As an example of probative, indirect marketing materials, the Final Rule
included a screenshot of SB Tactical’s website’s homepage:

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Id. at 6,545. The homepage tells the reader to “BRACE YOURSELF” and “STIFF-
ARM THE ESTABLISHMENT.” Id. The ATF concluded the homepage showed
that SB Tactical was marketing its stabilizing braces as “a way to avoid NFA
controls and to ‘Stiff Arm the Establishment.’” Id. at 6,544. SB Tactical insists that
“stiff arm” innocently “refers to ‘the one-handed precision stance’ that ATF
concedes it had deemed NFA-compliant before its recent reversals.” Even if this
justification is fanciful, it does reveal a flaw with the marketing factor: neither the
Final Rule nor the ATF address how they will evaluate alternative explanations for
the same marketing materials.
The community-use factor is even more amorphous. The ATF will consider
“information demonstrating the likely use of the weapon by the general community,
including both the manufacturer’s stated intent when submitting its item for
classification and use by members of the firearms industry, firearms writers, and in
the general community.” Id. at 6,544. Not only are these terms vague (who
comprises this “general community” and how will the ATF evaluate them?), but the
community-use factor relies on circular reasoning: “the likely use of the weapon by
the general community” is determined by its “use . . . in the general community.”

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Id. That tells the reader nothing about how the ATF will evaluate community use
under the Final Rule, allowing the ATF to reach any decision it wishes by only
looking to specific evidence of community misuse, while ignoring any other
examples of the community’s compliant use.
Furthermore, the community-use factor provides no metrics by which the ATF
deems different community displays to be “representative” of community use. Take,
as an example, the Final Rule’s use of online videos to determine how the
“community” uses a weapon. The ATF analyzed “[n]umerous videos . . .
demonstrat[ing] individuals using the . . . ‘stabilizing brace’ from the shoulder.” Id.
at 6,506. And in “one video,” an individual said he believed the stabilizing brace
was for shouldering weapons. Id. Based on these examples, the ATF concluded
these braced weapons had objective design features indicating they should be
classified as short-barreled rifles. See id. The problem with this reasoning is that
the ATF takes videos of individuals shoulder-firing braced weapons as
representative of how all individuals use braced weapons. How will the ATF weigh
different examples of community use if, say, Cicero posted a video of himself
properly firing a braced weapon without shouldering it, while another individual
posted a video of himself shoulder firing the braced weapon? The Final Rule gives
no indication how the ATF will determine different community displays to be
“representative” of community use.
Finally, because the marketing and community-use factors require analyzing
third parties’ intent and attributing their intent to any individual who affixes a
stabilizing brace to a weapon, the Final Rule “would hold citizens criminally liable
for the actions of others, who are likely unknown, unaffiliated, and uncontrollable
by the person being regulated.” Mock, 75 F.4th at 586; see also id. at 586 n.56 (The
ATF “considered and explicitly rejected” an approach allowing it to systematically
adjudicate stabilizing braces, instead preferring to adjudicate braces “on an entirely
ad hoc basis.”). On the one hand, the ATF claims a “single individual” in “isolated
circumstances” is irrelevant in determining whether a braced weapon is intended to
be shoulder fired. See Final Rule at 6,519. On the other hand, the ATF will consider

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“isolated circumstances” to be probative of intent should those isolated
circumstances reveal an intent to use the braced weapon as a rifle. Which is it?
We conclude the Coalition is likely to succeed on its arguments that the
marketing and community-use factors are arbitrary and capricious because they are
internally inconsistent, “fail[] to provide an intelligible explanation,” and “amount[]
to a failure to engage in reasoned decisionmaking . . . .” Constellation Mystic Power,
LLC v. FERC, 45 F.4th 1028, 1057 (D.C. Cir. 2022) (quoting FPL Energy Marcus
Hook, L.P. v. FERC, 430 F.3d 441, 448 (D.C. Cir. 2005)); see also Dist. Hosp.
Partners, L.P. v. Burwell, 786 F.3d 46, 59 (D.C. Cir. 2015) (collecting cases and
noting the court “ha[s] often declined to affirm an agency decision if there are
unexplained inconsistencies in the final rule”). An agency may promulgate a
“holistic, multi-factor, weight-of-the-evidence test,” but only if that test “define[s]
and explain[s] the criteria the agency is applying.” Miss. Comm’n on Env’t Quality
v. E.P.A., 790 F.3d 138, 150 (D.C. Cir. 2015) (internal quotation marks and citation
omitted). The Final Rule misses that mark. Rather, the Final Rule makes it “nigh
impossible for a regular citizen to determine what constitutes a braced pistol, and
. . . whether a specified braced pistol requires NFA registration.” Mock, 75 F.4th at
584–85. For those reasons, the Final Rule is arbitrary and capricious.
iii. The Accompanying Slideshows
The Coalition also makes two arguments as to the contemporaneously
released Slideshows. First, the Coalition argues these Slideshows represent final
agency actions because they actually judge weapons to be “short-barreled rifles.”
Because the Slideshow adjudications do not provide a reasoned explanation for the
weapon classifications, the Coalition argues they fail the APA’s procedural
requirement that the ATF “provide a reasoned explanation for its action.” See DHS
v. Regents of the U. of Cal., 591 U.S. 1, 35 (2020). Second, the Coalition argues the
Slideshows evince that the Final Rule is arbitrary and capricious because it “allow[s]
ATF to reach whatever result it wants.” We agree with both contentions.

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The ATF argues the Slideshows are not final agency actions because they
“have no legal consequences.” The Slideshows are merely meant to “inform
members of the public of how they might be impacted” by the Final Rule’s future
application. Final Rule at 6,514. The district court agreed, concluding the
Slideshows only “forecast[] the ATF’s position on particular weapons . . . .” But
one need not look further than the opening slides of either Slideshow to see they
represent the ATF’s judgments. Both Slideshows purport to show photos of
weapons that “are short-barreled rifles.”14 And the Final Rule commands “action
such as registration in the [National Firearms Registration and Transfer Record] will
need to be taken . . . .” Id. at 6,514. We take the Slideshows at their word; the ATF
judged the pictured weapons to be short-barreled rifles, which carries direct and
appreciable legal consequences. See Hawkes, 578 U.S. at 597 (An agency action is
“final” if it determines rights and obligations or engenders legal consequences.).
Even though the Slideshows are adjudicatory, they are devoid of any
explanation as to how the ATF applied the Final Rule to the pictured weapons. The
ATF insinuates the Coalition bears the burden to prove the pictured weapons should
not be classified as short-barreled rifles—an impossible task for anyone, including
this court, considering the ATF refuses to give any sort of guidance as to how it
evaluates each factor. The ATF’s burden-inverting argument makes as much sense
as shouldering a rifle by the barrel: “The reasoned explanation requirement of
administrative law, after all, is meant to ensure that agencies offer genuine
justifications for important decisions” so the reviewing court and public may
scrutinize those decisions—not the other way around. Dep’t of Com. v. New York,
588 U.S. 752, 785 (2019) (emphasis added). “Accepting contrived reasons would
defeat the purpose of the enterprise.” Id.; see also LeMoyne-Owen Coll. v. N.L.R.B.,
357 F.3d 55, 61 (D.C. Cir. 2004) (holding agencies must explain how they weigh
factors). Because they lack any such explanation, the Slideshows “cannot carry the
14Supra notes 8–9; Appendix A & B.

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force of law.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016) (citing
5 U.S.C. § 706(2)(A)).15
The irony in this conclusion is that because the Slideshows cannot act as
judgments, then they exist to provide the public notice of how the ATF might classify
the pictured weapons, which is what the ATF claimed the Slideshows were meant to
do in any event. So, the Slideshows represent no more than the firing of a warning
shot. But the above discussion also reveals that the Final Rule, as a whole, is
arbitrary and capricious because it allows the ATF to arrive at whatever conclusion
it wishes without “adequately explain[ing] the standard on which its decision is
based . . . .” See Kearney Reg’l Med. Ctr., LLC v. U.S. Dep’t of Health & Hum.
Servs., 934 F.3d 812, 816 (8th Cir. 2019). “An agency must defend its actions based
on the reasons it gave when it acted.” Regents, 591 U.S. at 24 (emphasis added).
Such explanations are necessary to give guidance on how the ATF is likely to apply
the Final Rule in future instances. See LeMoyne-Owen, 357 F.3d at 61 (quoting
Fastener Co. v. Stanley Works, 59 F.3d 384, 400 (2d Cir. 1995)) (noting “‘thorough,
careful, and consistent application’ of a multi-factor test is important” for drawing
factual distinctions “because ‘appellate courts depend on [agency explanations] for
the performance of their assigned task of review’”). That the Slideshows judged the
weapons without explanation reveals the Final Rule’s arbitrary and capricious
nature. Thus, we conclude the Coalition is likely to succeed on the merits of its
challenge to the Slideshows, and the Slideshows also evince the Final Rule is
arbitrary and capricious.
15 The ATF claims that it fully intends to “follow up” the Slideshows with
“detailed classification letters explaining each determination,” and that any remedy
for improper agency action would simply be to “remand any unexplained
conclusions to the agency for further explanation or reconsideration.” This is much
like shooting the side of a barn, drawing the target around the bullet holes, and then
proclaiming, “bullseye!” Agency actions require “contemporaneous explanations,”
and not just post hoc justifications “raised in court by those appearing on behalf of
the agency or by agency officials themselves.” Regents, 591 U.S. at 23. The ATF’s
act-now-and-justify-later decisionmaking is exactly the kind of post hoc
rationalizing that cannot sustain its unexplained actions.

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C. Injunctive Relief
The district court declined to address the remaining injunctive factors, and we
typically do not address other factors “for the first time on appeal, for ‘[t]he district
court is in the best position to evaluate all of the evidence and weigh the factors to
determine whether the injunction should issue.’” Powell v. Noble, 798 F.3d 690,
703 (8th Cir. 2015) (alteration in original) (quoting Lankford v. Sherman, 451 F.3d
496, 513 (8th Cir. 2006)). Because we hold the Coalition is likely to succeed on the
merits, it was abuse of discretion to deny an injunction based solely on that factor.
We note that while this appeal was pending, a district court in the Northern
District of Texas—per the Fifth Circuit’s remand from Mock, 75 F.4th at 588—held
the Final Rule violated the APA and ordered it be vacated. Mock v. Garland, No.
4:23-CV-00095-O, 2024 WL 2982056, at *6 (N.D. Tex. June 13, 2024). The Fifth
Circuit consolidated that order with other appeals and scheduled oral argument for
September 2024. See Watterson v. ATF, No. 23-40556 (5th Cir. 2023). Though the
district court’s vacatur and appeal thereof bear on the necessity of injunctive relief,
see Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010) (suggesting
an injunction may be warranted if vacatur does not sufficiently redress the plaintiff’s
injury), the district court is best suited to determine to what extent injunctive relief
remains necessary, see Roberts v. Van Buren Pub. Schs., 731 F.2d 523, 526 (8th Cir.
1984).
III. Conclusion
We reverse the order denying a preliminary injunction and remand with
instructions to reconsider the motion consistent with this opinion.
SHEPHERD, Circuit Judge, dissenting.
During the pendency of this appeal, the Northern District of Texas vacated the
Final Rule. Ante at 26 (citing Mock v. Garland, No. 23-CV-00095, 2024 WL

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2982056, at *6 (N.D. Tex. June 13, 2024)). “Vacatur . . . is a universal remedy” that
“caus[es] the rule to lose binding force.” John Harrison, Vacatur of Rules Under the
Administrative Procedure Act, 40 Yale J. on Regul. Bull. 119, 119 (2023).
Accordingly, there is now “no [Final R]ule . . . in place to enforce against anyone.”
Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1122 (2020).
I therefore see no need to preliminarily enjoin the enforcement of the
now-vacated Final Rule and would affirm the district court’s order on that basis
alone. See Ronald M. Levin, Vacatur, Nationwide Injunctions, and the Evolving
APA, 98 Notre Dame L. Rev. 1997, 1999 (2023) (“In functional terms . . . a vacatur
can have roughly the same effects as a nationwide injunction.”); cf. Braidwood
Mgmt., Inc. v. Becerra, 104 F.4th 930, 953-55 (5th Cir. 2024) (concluding that there
was no basis for a nationwide injunction against final agency actions given that there
was no support for vacatur of those actions, and concluding that the district court
abused its discretion in “enter[ing] universal injunctive relief after already providing
complete relief to the plaintiffs [by vacating the actions]”).
The majority concludes otherwise, relying on Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139 (2010). But that decision does not support the majority’s
charted course. In Monsanto, plaintiff farmers and environmental groups challenged
the Animal and Plant Health Inspection Service’s (APHIS) decision to
“unconditionally” deregulate a genetically engineered crop—Roundup Ready
Alfalfa (RRA)—without first completing an environmental impact statement (EIS),
in violation of the National Environmental Policy Act of 1969 (NEPA). Id. at
144-46. The plaintiffs argued that they were injured by the deregulation because the
planting of RRA would likely genetically contaminate their conventional, organic
alfalfa. Id. at 153 & n.3, 160. The district court concluded “that the deregulation
decision ran afoul of NEPA” and subsequently allowed petitioners Monsanto and
others to intervene in the remedial phase of the lawsuit. Id. at 147. Ultimately, the
district court entered a permanent injunction and judgment that

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(1) vacated APHIS’s deregulation decision; (2) ordered APHIS to
prepare an EIS before it made any decision on Monsanto’s deregulation
petition; (3) enjoined the planting of any RRA in the United States after
March 30, 2007, pending APHIS’s completion of the required EIS; and
(4) imposed certain conditions (suggested by APHIS) on the handling
and identification of already-planted RRA.
Id. at 148. The petitioners appealed, challenging the scope of that relief but not
disputing that a NEPA violation had occurred. Id.
Addressing the relief’s propriety, the Supreme Court “assume[d] without
deciding that the District Court acted lawfully in vacating the deregulation decision,”
id. at 156, but concluded that the district court erred in enjoining limited deregulation
of RRA “during the pendency of the EIS process,” id. at 164, because “applicable
regulations allow [APHIS] to take at least some action in furtherance of th[e]
propos[ed deregulation] while the EIS is being prepared,” id. at 145. From this
conclusion, it followed that the district court’s “broad injunction against planting”
was also “inappropriate.” Id. at 165. As the Court explained, “[i]f APHIS may
partially deregulate RRA before preparing a full-blown EIS . . . farmers should be
able to grow and sell RRA in accordance with that agency determination.” Id.
(emphasis added).
It is against these highly specific facts that the Supreme Court “suggest[ed]”,
ante at 26, that the “extraordinary relief of an injunction” may be necessary to
“redress [plaintiffs’] injury,” in “addition[]” to the “vacatur of APHIS’s deregulation
decision”—vacatur which ought to have left open the possibility of partial
deregulation and further planting of RRA. Monsanto, 561 U.S. at 165-66. But here,
no party suggests that the Government will enforce the Final Rule against the
Coalition despite its vacatur. No party points to injuries that the Coalition will suffer
without a preliminary injunction now that the Final Rule has been vacated. Nor does
the Coalition seek an injunction preventing the ATF from pursuing future regulation
of braced-pistols apart from the Final Rule. R. Doc. 1, at 40; cf. United States v.
Texas, 599 U.S. 670, 693 (2023) (Gorsuch, J., concurring in the judgment) (“[T]he

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only injunction [the respondent-States] seek is one barring ‘implementation and
enforcement’ of the Guidelines—essentially an injunction imitating a vacatur order.”
(citation omitted)). “Because courts presume that the federal government will
comply with [their] rulings, . . . injunctive relief is unnecessary . . . .” Mock, 2024
WL 2982056, at *6. I respectfully dissent.
______________________________

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Appendix A.

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Appendix B.

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