Injunctive Relief in Gun Cases: Lessons for the Post-Trump v. CASA World

In perhaps the most significant decision from this past Supreme Court Term, the Court greatly restricted the ability of federal judges to issue universal, or nationwide, injunctions.  In Trump v. CASA, the Court held that, because “[n]othing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter[,] under the Judiciary Act, federal courts lack authority to issue them.”  In other words, the decision determined that federal courts generally may not issue orders that block application of a law or executive order to all parties that might be harmed by it—rather, courts are limited to issuing an order only as broad as necessary to accord complete relief to the parties in the case.  The fractured decision in Trump v. CASA, however, leaves many important questions unanswered.  Recent gun litigation may provide important clues about how lower courts will handle requests for injunctive relief in the decision’s aftermath.

In several high-profile recent cases challenging executive branch gun restrictions, conservative lower court judges have wrestled with how to craft sufficient injunctive relief in the absence of a so-called “universal” injunction.  Litigation challenging ATF gun restrictions tends to be filed in the Fifth Circuit—after all, for federal restrictions plaintiffs generally have their choice of forum and unsurprisingly will sue where their chances are best.  And while resistance to universal injunctions has appeared on both sides of the political spectrum, it tends to be strongest among supporters of the party currently in power (whose executive actions will be the ones blocked on a universal basis by federal judges).  Thus, the conservative Fifth Circuit was not inclined to grant universal injunctions in recent firearm cases despite many judges’ strong pro-gun views.

For example, in August 2023 a Fifth Circuit panel reversed a district court and found that plaintiffs challenging the Biden administration’s regulation of pistol braces as short-barreled rifles under the NFA were entitled to preliminary relief.  The panel remanded to allow the district court to fashion the appropriate injunction but cautioned that nationwide (or universal) injunctions “are not required or even the norm.”  District judges within the Fifth Circuit have been similarly cautious about nationwide injunctions, even in the gun context.  In NAGR v. Garland, Judge Reed O’Connor held in 2024 that ATF exceeded its statutory authority by categorizing forced reset triggers as “machineguns.”  Yet the judge pointedly declined to enjoin the rule on a universal basis, noting that he was “especially mindful of the Supreme Court’s concerns regarding nationwide injunctions.”  Instead, Judge O’Connor vacated (or unwound) the challenged agency action, noting that such a remedy is inherently “universal in scope because it erases an unlawful regulation from the books.” 

Judge O’Connor also presided over the initial litigation in VanDerStok challenging ATF’s ghost-gun rule, which the Supreme Court ultimately upheld.  In a 2022 decision in that case, Judge O’Connor—who previously held that ATF exceeded its authority in regulating gun-assembly kits under the GCA—addressed the scope of injunctive relief.  He observed that universal injunctions were “extraordinary” and that, “[w]ithout disclaiming them entirely, the Supreme Court and the Fifth Circuit have expressed increasing skepticism about the propriety of lower courts’ use of nationwide injunctions.”  Judge O’Connor thus determined that “Plaintiffs have not demonstrated that this case is one [of the very few] in which a national injunction is justified” because such “a broad injunction would far exceed the “‘particular’ tailoring necessary to redress their injuries and afford them complete relief.”  However, he ameliorated the impact of this decision somewhat by extending the scope of the injunction to apply not just to Tactical Machining, LLC (a named plaintiff and gun-kit manufacturer), but also to the company’s customers.  Judge O’Connor ultimately vacated the ghost-gun rule after considering full briefing from the parties—as he would later do in NAGR.  But the Fifth Circuit, in turn, vacated that aspect of the decision and remanded for “for further consideration of the remedy.”

In these cases, district judges have also frequently extended injunctions to apply to large groups potentially impacted by likely-unlawful government action or to associational members.  For example, in NAGR, Judge O’Connor’s July 2024 injunction covered not only members of the two organizational plaintiffs in the case—National Association of Gun Rights (NAGR) and Texas Gun Rights—but also “the downstream customers of any commercial member of an Organizational Plaintiff.”  In other words, the injunction covered any individual who purchased a forced-reset trigger from a gun store that itself happened to be a member of NAGR or Texas Gun Rights.  Similarly, the October 2023 district court decision granting injunctive relief of the pistol brace rule in Texas v. ATF declined to enter the requested nationwide injunction yet included within the scope of injunctive relief both Gun Owners of America (GOA) members and family members of GOA members living in Texas.[1]  Notably, a judge in the Eastern District of Virginia did issue a universal injunction of the federal under-21 FFL handgun sale ban in the Fraser case after certifying a nationwide class (exempting only two federal districts, in Louisiana and West Virginia, where other cases challenging the law were also pending).  The judge determined that “[o]nly a nationwide injunction will ‘prevent irreparable injury to plaintiffs,’ who, since as class has been certified, include all American citizens between the ages of 18 to 21 who are otherwise qualified to purchase a gun.”  A stay of the Fraser order was granted pending appeal, and the Fourt Circuit ultimately reversed and upheld the under-21 restriction. 

Three major lessons emerge from how lower courts have approached the scope of injunctive relief in these recent gun cases.  First, in at least some instances where federal government action is challenged under the APA, courts have vacated the agency rule—thus achieving the same effect as issuing a nationwide injunction of the rule.  Vacatur traces back to statute: the APA states that “[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be” arbitrary and capricious, contrary to the constitution, or otherwise unlawful.  The question of what that language actually means, however, has provoked heated debate among the justices in recent years.  Justice Kavanaugh has urged that, without the ability to vacate unlawful agency action wholesale, “the APA would supply no remedy for most other unregulated but adversely affected parties.”  Justice Gorsuch, by contrast, recently observed that: 

If the Congress that unanimously passed the APA in 1946 meant to overthrow the “bedrock practice of case-by-case judgments with respect to the parties in each case” and vest courts with a “new and far-reaching” remedial power, it surely chose an obscure way to do it.

Scholars are similarly divided.  In any event, the court’s holding in CASA is sure to put more pressure on the universal vacatur question—in large part because many cases where universal injunctions might be considered deal with APA challenges to federal agency action.  Many concerns directed toward universal injunctions seem to apply with full force to wholesale vacatur as well.  While the CASA decision was largely historical in its analysis, the Court did note that universal injunctions “incentivize forum shopping,” “operate asymmetrically” by empowering plaintiffs, and lead to a proliferation of emergency motions.  Those same criticisms apply to universal vacatur.

Second, as the district court did in Fraser, a court might certify a broad nationwide class and find that relief for the entire class is warranted.  The Supreme Court in CASA identified class actions as the “modern” incarnation of the historical “bill of peace” authorizing courts to enter relief as to non-parties, but it also emphasized that “universal injunctions circumvent Rule 23’s procedural protections and allow courts to create de facto class actions at will.”  In concurring and dissenting opinions, some justices sparred over whether and when class actions might allow courts to fashion similarly broad relief.[2]  Justice Sotomayor declared in dissent that “[t]he majority leaves untouched one important tool to provide broad relief to individuals subject to lawless Government conduct: Rule 23(b)(2) class actions for injunctive relief.”  In other words, the exact course followed in Fraser.  Yesterday, a New Hampshire district judge took the same approach in a birthright citizenship challenge: certifying a nationwide class of those newborns who would be denied citizenship under President Trump’s executive order because they do not have at least one parent who is a citizen or lawful permanent resident, and then entering a class-wide preliminary injunction.

Third, even in the absence of universal vacatur or class certification, recent gun cases suggest another mechanism by which district judges might expand the scope of an injunction to provide “complete” relief without operating on a “universal” basis.  Judges, for example, have extended injunctive relief to non-party customers of named plaintiffs and the family members of those who belong to organizational plaintiffs.  In one pistol brace challenge, the Fifth Circuit responded to a motion for clarification by explaining that the injunction of the ATF rule applied to all Firearms Policy Coalition members, their immediate family, and any customers thereof.  While major gun-rights groups often have only around 1-3 million paying members,[3] the customer extensions are doing most of the work in these cases.  A gun store that joins a litigation-focused group (as an organization) is almost certainly covered, and then any individuals who buy firearms or accessories from that store may also benefit from the injunction.  While these decisions have often emphasized the narrow nature of the relief granted, they demonstrate that judges can fashion even non-universal injunctions that sweep quite broadly—especially when membership-based associations are among the named plaintiffs.