Case 6:23-cv-00013 Document 51 Filed on 05/31/23 in TXSD Page 1 of 8

United States District Court

Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT May 31, 2023
Nathan Ochsner, Clerk
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

The STATE OF TEXAS, GUN OWNERS §

OF AMERICA, INC., GUN OWNERS §
FOUNDATION, and BRADY BROWN, §
§
Plaintiffs, §
§
v. § Civil Action No. 6:23-CV-00013
§
U.S. BUREAU OF ALCOHOL, §
TOBACCO, FIREARMS AND §
EXPLOSIVES, U.S. DEPARTMENT OF §
JUSTICE, and STEVEN M. §
DETTELBACH, Director of the U.S. §
Bureau of Alcohol, Tobacco, Firearms §
and Explosives, in his official capacity, §
§
Defendants. §

ORDER

The State of Texas, Gun Owners of America, Inc., Gun Owners Foundation, and

Brady Brown (the “Plaintiffs”) filed this Civil Action on February 9, 2023, against the

Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), the U.S. Department of

Justice, and the Director of ATF, Steven M. Dettelbach (the “Defendants”), challenging

the legality and constitutionality of the Final Rule issued by the ATF on January 31, 2023,

entitled “Factoring Criteria for Firearms With Attached ‘Stabilizing Braces.’” (Dkt. No.

1); see 88 Fed. Reg. 6,478 (Jan. 31, 2023). Pending before the Court is Plaintiffs’ Motion for

Preliminary Injunction. (Dkt. No. 16). In their Motion, Plaintiffs argue that the Final Rule

is unconstitutional and violates the Administrative Procedure Act. (See id. at 15–28).
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Plaintiffs seek a nationwide preliminary injunction enjoining the Defendants from

enforcing the Final Rule until the conclusion of this case. (Id. at 31).

The Court is aware of several other cases where private plaintiffs are challenging

the same Final Rule on identical or similar grounds.1 Recently, in one such case, the

Honorable Reed O’Connor in the Northern District of Texas denied a substantially similar

motion for preliminary injunction. See Mock v. Garland, No. 4:23-CV-00095, ____ F. Supp.3d.

____, 2023 WL 2711630 (N.D. Tex. Mar. 30, 2023). On appeal from that order, the Plaintiff-

Appellants filed an Opposed Emergency Motion for Injunction Pending Appeal arguing the

same four elements required at the district court level for a preliminary injunction. Mock v.

Garland, No. 23-10319, Dkt. No. 25 (5th Cir. May 17, 2023). A motions panel for the United

States Court of Appeals for the Fifth Circuit enjoined the Final Rule pending the expedited

appellate review of the district court’s decision in Mock.2 Mock, No. 23-10319, Dkt. No. 52 (5th

Cir. May 23, 2023). The Fifth Circuit’s preliminary injunction extended only to the plaintiffs

in that case. Id. A few days later, the Fifth Circuit clarified that the preliminary injunction

also applies to the customers and members whose interests the Mock plaintiffs have

represented since day one of the litigation and to the individual plaintiffs’ resident family

members. Mock, No. 23-10319, Dkt. No. 78 (5th Cir. May 26, 2023).

1 See Second Amend. Found. v. ATF, No. 3:21-CV-00116 (N.D. Tex.) (Boyle, J.); Mock v.
Garland, No. 4:23-CV-00095 (N.D. Tex.) (O’Connor, J.); Britto v. ATF, No. 2:23-CV-00019
(Kacsmaryk, J.); Watterson v. ATF, No. 4:23-CV-00080 (E.D. Tex.) (Mazzant, J.); FRAC v. Garland,
No. 1:23-CV-00024 (D.N.D.) (Hovland, J.); Miller v. Garland, No. 1:23-CV-00195 (E.D. Va.) (Alston,
J.).
2 By granting the appellate preliminary injunction, the Fifth Circuit necessarily found sub
silentio that the four elements for a preliminary injunction had been satisfied as to the plaintiffs in
that case.

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The Court finds the same relief afforded to the Mock plaintiffs is appropriate for

the private Plaintiffs in this case—Gun Owners of America, Inc., Gun Owners

Foundation, and Brady Brown. This is because the motion in Mock and the Motion before

this Court are substantially similar. Both motions seek an injunction enjoining

enforcement of the Final Rule on the grounds that it violates the Administrative

Procedure Act and the Second Amendment. And while the Plaintiffs here raise some

arguments that were not raised in Mock, the resolution of that appeal will almost certainly

affect, if not control, the Court’s decision on Plaintiffs’ Motion.

Notably, one substantial difference between Mock and the case pending before this

Court is that this case includes a non-private plaintiff—the State of Texas. To determine

whether Texas is entitled to injunctive relief, the Court must first decide whether Texas

has satisfied Article III standing, and if so, whether Texas has made a sufficient showing

of irreparable harm.3

A. STANDING

To establish Article III standing, Texas must demonstrate that it “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

578 U.S. 330, 338, 136 [Link]. 1540, 1547, 194 [Link].2d 635 (2016) (citing Lujan v. Def. of

Wildlife, 504 U.S. 555, 560–61, 112 [Link]. 2130, 2136, 119 [Link].2d 351 (1992)). Here, the only

3 The Court only addresses Article III standing and irreparable harm because these are
fact-specific inquiries that the private Plaintiffs have satisfied. To receive injunctive relief Texas
must also satisfy these requirements.

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standing element in serious dispute is the first standing element—injury in fact—that is,

whether Texas has shown that it has suffered “an invasion of a legally protected interest”

that is “concrete,” “particularized,” and “actual or imminent, not conjectural or

hypothetical.”4 Id. at 339, 136 [Link]. at 1548 (quoting Lujan, 504 U.S. at 560, 112 [Link]. at

2136). The Court finds that the compliance costs to be incurred by Texas as a result of the

Final Rule are sufficient to satisfy the injury element of Article III standing.5 (See Dkt. No.

16 at 29–30) (“Texas police who possess previously legal handguns with stabilizing braces

will have to expend resources to register those weapons.”); 88 Fed. Reg. at 6567 (“ATF

notes that it may take 30 minutes to complete an Application for Registration of Firearms

Acquired by Certain Governmental Entities [ ], with a loaded wage rate of $49.67, making

the per application burden $25.”); see also Texas v. Biden, 589 [Link].3d 595, 611 (N.D. Tex.

2022) (collecting cases).

Notably, Texas does not assert parens patriae as a basis for standing. Nevertheless,

the Court construes Texas to have done so, as it invokes an injury to its quasi-sovereign

4 The Court finds that the latter two standing requirements of traceability and
redressability are comfortably satisfied, as any injuries suffered by Texas will be attributable to
the implementation of the Final Rule, and the requested relief here—an injunction and,
ultimately, vacating the Final Rule—would remedy the alleged injury. Further, Texas is “entitled
to special solicitude . . . [which] makes it easier for them to establish the imminence and
redressability components of standing.” Texas v. United States, 606 [Link].3d 437, 466 n.46 (S.D.
Tex.), cert. granted before judgment, 143 [Link]. 51, 213 [Link].2d 1138 (2022). The Court holds that
Texas has established standing without the need for special solicitude, but lest any doubt remain,
special solicitude pushes Texas over the line.
5 The Court recognizes that Texas has not submitted any signed affidavits or declarations
detailing the exact dollar amount of the compliance costs associated with implementing the Final
Rule. However, such a showing is not necessary. See e.g., Rest. L. Ctr. v. U.S. Dep’t of Lab., 66 F.4th
593, 600 (5th Cir. 2023) (stating that “[s]tringently insisting on a precise dollar figure reflects an
exactitude our law does not require”).

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interests—the health and well-being of its residents—and parens patriae standing is the

only proper vehicle for doing so.6 But in this context, Texas cannot establish standing

under a theory of parens patriae in light of Massachusetts v. Mellon and its progeny.7 262

U.S. 447, 43 [Link]. 597, 67 [Link]. 1078 (1923). At this juncture, Texas has established

standing through its own compliance costs.

B. IRREPARABLE HARM

Since Texas has established Article III standing, the Court must now determine

whether Texas has made a sufficient showing of irreparable harm. To warrant a grant of

a preliminary injunction, Texas must demonstrate that it is likely to “suffer irreparable

harm in the absence of preliminary relief[.]” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20, 129 [Link]. 365, 374, 172 [Link].2d 249 (2008).

Texas alleges three types of irreparable harm related to the Final Rule: (1) harm to

its sovereign interests, (2) harm to its quasi-sovereign interests, and (3) unrecoverable

compliance costs with respect to a subset of its employees. (Dkt. No. 45 at 1–5). With

respect to its sovereign interests, Texas argues broadly that the Final Rule distorts

6 The concepts of parens patriae and quasi-sovereign interests are invariably intertwined.
See, e.g., Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 178 (D.C. Cir. 2019) (treating quasi-sovereign
interests and parens patriae as the same concept). Parens patriae is the vehicle through which a
state pursues its quasi-sovereign interests. Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez,
458 U.S. 592, 602, 102 [Link]. 3260, 3266, 73 [Link].2d 995 (1982); Estados Unidos Mexicanos v. DeCoster,
229 F.3d 332, 335 (1st Cir. 2000); Chapman v. Tristar Prods., Inc., 940 F.3d 299, 305 (6th Cir. 2019);
Texas v. United States, 555 [Link].3d 351, 377 (S.D. Tex. 2021), appeal dismissed, No. 21-40618, 2022
WL 517281 (5th Cir. Feb. 11, 2022) (citing Snapp, 458 U.S. at 602, 102 [Link]. at 3266).
7 Under Massachusetts v. Mellon, a State may not “institute judicial proceedings to protect
citizens of the United States from the operation of the statutes thereof.” 262 U.S. at 485, 43 [Link].
at 600; see also Massachusetts v. EPA, 549 U.S. 497, 520 n.17, 127 [Link]. 1438, 1455 n.17, 167 [Link].2d
248 (2007) (explaining that states have standing to assert rights under federal law but not to
protect their own citizens from the operation of federal law).

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applicable Texas law and subverts principles of federalism. (Id. at 1–3). But because the

Texas state law definition of short-barrel firearm stands independent from the federal

framework and remains undisturbed, see Tex. Penal Code §§ 46.01(10), 46.05(a)(1), Texas

is under no “pressure to amend, or at least decline to enforce, [its] laws.” Texas v. Becerra,

577 [Link].3d 527, 558 (N.D. Tex. 2021).

Texas further argues that it has a “quasi-sovereign interest in ensuring that

persons are able to continue using braces to safely handle pistols[.]” (Dkt. No. 49 at 2);

see also (Dkt. No. 45 at 3–4). This argument is unavailing for two reasons. First, as

previously discussed, Texas cannot assert this quasi-sovereign interest as an injury

because parens patriae standing has not been shown to be applicable here. Second, even

if the Court were to permit a theory of parens patriae standing, Texas, at this juncture, has

not shown a quasi-sovereign interest in “ensuring that persons are able to continue using

braces to safely handle pistols[.]”8 (See Dkt. No. 49 at 2).

With respect to the compliance costs, however, the Court finds that Texas has

established that it is likely to suffer irreparable harm absent the issuance of a preliminary

injunction. This kind of harm is generally satisfied in the context of government

8 As explained in Snapp, what constitutes a quasi-sovereign interest “is a matter for case-
by-case development[.]” 458 U.S. at 607, 102 [Link]. at 3268. To be sure, while courts have
recognized a state’s quasi-sovereign interest in its residents’ health and well-being in certain
contexts, this case falls outside the typical parameters of the recognized applications. See
Massachusetts v. EPA, 549 U.S. at 520, 127 [Link]. at 1454–55 (recognizing a quasi-sovereign interest
in regulating emissions); Texas v. United States, 50 F.4th 498, 515 (5th Cir. 2022) (recognizing
Texas’s quasi-sovereign interest in classifying aliens); Castillo v. Cameron Cnty., Tex., 238 F.3d 339,
351 (5th Cir. 2001) (protecting state citizens from criminal activity is a recognized quasi-sovereign
interest). Complying with the Final Rule’s register-or-lose-it requirement does not comport with
the traditional, recognized notions of what constitutes a harm to the health and well-being of
Texas residents, as that term has been understood.

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defendants who enjoy sovereign immunity from monetary damages. See Wages & White

Lion Invs., L.L.C. v. FDA, 16 F.4th 1130, 1142 (5th Cir. 2021); see also Texas v. EPA, 829 F.3d

405, 433 (5th Cir. 2016) (holding that “complying with a regulation later held invalid

almost always produces the irreparable harm of nonrecoverable compliance costs”)

(emphasis in original).

Considering the foregoing, the Court holds that Texas has established Article III

standing and has sufficiently shown that it will suffer irreparable harm absent a

preliminary injunction enjoining the enforcement of the Final Rule.

* * *

For these reasons, the Court GRANTS IN PART Plaintiffs’ Motion for Preliminary

Injunction, (Dkt. No. 16). Defendants are ENJOINED from enforcing the Final Rule

against (1) the private Plaintiffs in this case, including its current members and their

resident family members, and (2) individuals employed directly by the State of Texas or

its agencies.9 The preliminary injunction will remain in effect pending resolution of the

expedited appeal in Mock v. Garland.

It is SO ORDERED.

9 The Court declines Texas’s invitation to extend injunctive relief to within the sovereign
borders of the State. (See Dkt. No. 45 at 6). This is because “the scope of injunctive relief is dictated
by the extent of the violation established,” Califano v. Yamasaki, 442 U.S. 682, 702, 99 [Link]. 2545,
2558, 61 [Link].2d 176 (1979), and, at this point, Texas has only shown a likelihood of irreparable
harm with respect to its own compliance costs. Injunctive relief within the borders of the State of
Texas would be overbroad. See VanDerStok v. BlackHawn Mfg. Grp. Inc., No. 4:22-CV-00691, 2022
WL 16680915, at *2 (N.D. Tex. Nov. 3, 2022) (finding that “an injunction must ‘redress the
plaintiff’s particular injury,’ and no more”).

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Signed on May 31, 2023.

___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE