Full Opinion (html_with_citations)

                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 22-2812
                        ___________________________

 Morehouse Enterprises, LLC, doing business as Bridge City Ordinance; Eliezer
      Jimenez; Gun Owners of America, Inc.; Gun Owners Foundation

                                     Plaintiffs - Appellants

State of Arizona; State of West Virginia; State of Alaska; State of Arkansas; State
of Idaho; State of Indiana; State of Kansas; Commonwealth of Kentucky; State of
    Louisiana; State of Missouri; State of Montana; State of Nebraska; State of
    Oklahoma; State of South Carolina; State of Texas; State of Utah; State of
                                     Wyoming

                                              Plaintiffs

                                         v.

Bureau of Alcohol, Tobacco, Firearms and Explosives; United States Department
    of Justice; Bureau of Alcohol, Tobacco & Firearms, Director, Steven M.
                    Dettelbach (formerly Gary M. Restaino)

                                    Defendants - Appellees

                            ------------------------------

    District of Columbia; State of New Jersey; State of Pennsylvania; State of
 California; State of Colorado; State of Connecticut; State of Delaware; State of
       Hawaii; State of Illinois; State of Maine; State of Maryland; State of
Massachusetts; State of Michigan; State of Minnesota; State of New York; State of
North Carolina; State of Oregon; State of Rhode Island; State of Washington; State
of Wisconsin; Prosecutors Against Gun Violence; 16 Major Cities; Gun Violence
                                 Prevention Groups

                                Amici on Behalf of Appellee(s)
                         ___________________________

                                 No. 22-2854
                         ___________________________

  Morehouse Enterprises, LLC, doing business as Bridge City Ordinance; Eliezer
Jimenez; Gun Owners of America, Inc.; Gun Owners Foundation; State of Arizona

                                                Plaintiffs

 State of West Virginia; State of Alaska; State of Arkansas; State of Idaho; State of
Indiana; State of Kansas; Commonwealth of Kentucky; State of Louisiana; State of
 Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of South
             Carolina; State of Texas; State of Utah; State of Wyoming

                                      Plaintiffs - Appellants

                                          v.

Bureau of Alcohol, Tobacco, Firearms and Explosives; United States Department
    of Justice; Bureau of Alcohol, Tobacco & Firearms, Director, Steven M.
                    Dettelbach (formerly Gary M. Restaino)

                                     Defendants - Appellees

                             ------------------------------

    District of Columbia; State of New Jersey; State of Pennsylvania; State of
 California; State of Colorado; State of Connecticut; State of Delaware; State of
       Hawaii; State of Illinois; State of Maine; State of Maryland; State of
Massachusetts; State of Michigan; State of Minnesota; State of New York; State of
North Carolina; State of Oregon; State of Rhode Island; State of Washington; State
of Wisconsin; Prosecutors Against Gun Violence; 16 Major Cities; Gun Violence
                                 Prevention Groups

                                 Amici on Behalf of Appellee(s)
                                  ____________

                     Appeal from United States District Court
                     for the District of North Dakota - Eastern
                                          -2-
                                  ____________

                            Submitted: March 14, 2023
                              Filed: August 22, 2023
                                  ____________

Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
                         ____________

MELLOY, Circuit Judge.

       Two organizations, one individual, one business, (collectively “Private
Plaintiffs”) and seventeen states (“the States”) sued the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) for overstepping its statutory authority and for
violating federal law in promulgating the “Definition of ‘Frame or Receiver’ and
Identification of Firearms” (“Final Rule”).
87 Fed. Reg. 24,652
 (April 26, 2022)
(codified at 27 C.F.R. pts. 447, 478, and 479). The plaintiffs appeal the district
court’s1 denial of a motion for a preliminary injunction. We affirm.

                                           I.

       The Gun Control Act of 1968 (“the Act”) requires anyone “engag[ing] in the
business of importing, manufacturing, or dealing in firearms” to be licensed and
places certain requirements—such as record keeping—on licensed persons.
18 U.S.C. § 923
(a), (g); see generally Gun Control Act of 1968,
Pub. L. No. 90-618, § 101
,
82 Stat. 1213
-1236 (1968) (codified at 18 U.S.C. § 921–28). The Act defines
“firearm” as “(A) any weapon (including a starter gun) which will or is designed to
or may readily be converted to expel a projectile by the action of an explosive; (B)
the frame or receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include an antique
firearm.”
18 U.S.C. § 921
(a)(3). The responsibility for administering and enforcing

      1
       The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.
                                         -3-
the Act is delegated to the Director of the ATF subject to the direction of the
Attorney General. See 26 U.S.C. § 599A.

      The ATF has promulgated rules and regulations defining terms necessary to
enforce the Act, such as “frame or receiver.” In 2021, ATF began the process of
updating these rules and regulations to reflect changes to firearms in circulation. In
May 2021, the ATF issued a Notice of Proposed Rule Making (“Notice”). See
generally Definition of “Frame or Receiver” and Identification of Firearms,
86 Fed. Reg. 27,720
 (proposed May 21, 2021) (to be codified at 27 CFR pts. 447, 478, and
479). The summary of the Notice stated:

      The Department of Justice (“Department”) proposes amending Bureau
      of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations to
      provide new regulatory definitions of “firearm frame or receiver” and
      “frame or receiver” because the current regulations fail to capture the
      full meaning of those terms. The Department also proposes amending
      ATF’s definitions of “firearm” and “gunsmith” to clarify the meaning
      of those terms, and to provide definitions of terms such as “complete
      weapon,” “complete muffler or silencer device,” “privately made
      firearm,” and “readily” for purposes of clarity given advancements in
      firearms technology. Further, the Department proposes amendments to
      ATF’s regulations on marking and recordkeeping that are necessary to
      implement these new or amended definitions.

Notice, 86 Fed. Reg. at 27,720. The Notice contained the text of the proposed rule.
The comment period closed on August 19, 2021. ATF and the DOJ reviewed over
290,000 public comments, made several changes to the proposed definitions, and
published the Final Rule on April 26, 2022. The Final Rule became effective on
August 24, 2022. See Final Rule,
87 Fed. Reg. 24,652
.

       On July 5, 2022, Private Plaintiffs filed a complaint in the district court.
Private Plaintiffs include: 1) an individual who lives in North Dakota and buys
materials online to make firearms; 2) an LLC that holds an active federal firearms
license and sells firearms in North Dakota; 3) a California corporation formed to

                                         -4-
protect the Second Amendment rights of gun owners; and 4) a Virginia corporation
that operates as a nonprofit legal defense and educational foundation. Private
Plaintiffs and the States filed an amended complaint on July 27.2 The two complaints
assert the same causes of action. The complaints discuss distinct harms for the
different categories of plaintiffs.

        The plaintiffs have three categories of claims. First, the plaintiffs argue the
Final Rule violates the APA because the Notice did not give interested parties fair
notice. Second, the plaintiffs argue the Final Rule violates federal law in several
ways including: 1) updating definitions in a way that impermissibly expands the
scope of the Act; 2) creating a new requirement that dealers put serial numbers on
firearms; 3) creating a national gun registry in violation of
18 U.S.C. § 926
 (“no such
rule . . . may require that records required to be maintained under this chapter or any
portion of the contents of such records, be recorded at or transferred to a facility
owned, managed, or controlled by the United States[]”); and 4) generating
requirements in violation of the Second Amendment. Finally, the plaintiffs argue the
rule is arbitrary and capricious.

       On August 23, 2022, the district court denied a motion for a preliminary
injunction. On October 4, this court denied a motion for an injunction pending
appeal. All parties have agreed to stay the case in the district court pending the result
of this interlocutory appeal.3




      2
       The States were: Arizona, West Virginia, Alaska, Arkansas, Idaho, Indiana,
Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South
Carolina, Texas, Utah, Wyoming. Arizona was voluntarily dismissed from the
lawsuit on March 20, 2023.
      3
        A February 2023 joint status report in the district court stated: “it would best
serve the interests of all parties involved” to stay the case pending this interlocutory
appeal. The next status report is due to the district court by September 1, 2023.
                                          -5-
                                            II.

       “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.” MPAY
Inc. v. Erie Custom Comput. Applications, Inc.,
970 F.3d 1010, 1015
 (8th Cir. 2020)
(quotation marks and citations omitted). 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.” Nebraska v. Biden,
52 F.4th 1044, 1046
 (8th Cir. 2022) (per
curiam) (citation omitted). 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.” Progressive Techs., Inc. v.
Chaffin Holdings, Inc.,
33 F.4th 481, 485
 (8th Cir. 2022) (citation omitted).

       The district court concluded the plaintiffs had not demonstrated a likelihood
of success on any of their claims. The district court also concluded “the Plaintiffs
had not met their burden to demonstrate irreparable harm.” Due to the failure to show
the first two factors, the district court found neither the balance of equities nor the
public interest favored a preliminary injunction. The Eighth Circuit “review[s] a
district court’s ultimate ruling on a preliminary injunction for abuse of discretion,
though we review its underlying legal conclusions de novo. . . . 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.” MPAY Inc.,
970 F.3d at 1015
 (citations omitted).




                                          -6-
                                          III.

                                          A.

       Because, as discussed below, we find the plaintiffs have failed to show they
will suffer irreparable harm absent a preliminary injunction, we need not address the
likelihood of success on the merits. Grasso Enters., LLC v. Express Scripts, Inc.,
809 F.3d 1033, 1040
 (8th Cir. 2016) (holding the absence of irreparable harm “is an
independently sufficient ground upon which to deny a preliminary injunction.”).
This is especially true when, as is the case here, we are not the only court addressing
the merits of these arguments. See Garland v. VanDerStok, U.S. Sup. Ct. No. 23A82
(Miscellaneous Order Aug. 8, 2023). 4

                                          B.

       To show irreparable harm, “a party must show that the harm is certain and
great and of such imminence that there is a clear and present need for equitable
relief.” Dakotans for Health v. Noem,
52 F.4th 381, 392
 (8th Cir. 2022) (citation
omitted). The plaintiffs must show the harm is “not merely a ‘possibility’” but is
likely to occur absent preliminary injunctive relief. Tumey v. Mycroft AI, Inc.,
27 F.4th 657, 665
 (8th Cir. 2022) (citations omitted). The plaintiffs argue two categories
of irreparable harms: 1) Second Amendment harms; and 2) economic harms.5 Here,

      4
        The VanDerStok case is in a somewhat unusual procedural posture. The
Northern District of Texas entered a final order invaliding the entire Final Rule
which had become effective on August 24, 2022. On appeal, the Fifth Circuit issued
a stay pending appeal as to part of that district court’s order. The result of the stay
pending appeal would have been for the majority of the Final Rule to remain in effect
while two provisions would have been vacated. Then, on an application for stay, the
Supreme Court issued an order granting a stay pending appeal as to the entire district
court order. The net effect of these orders is that the Final Rule will remain in effect
in its entirety while the Fifth Circuit considers the appeal.
      5
        The States present several distinct harms. We need not address these harms
as we find the states lack standing. The states allege several harms they claim warrant
                                           -7-
the harms, if any, are so slight and speculative that we find the district court did not
error in denying a preliminary injunction.

                                            i.

       The plaintiffs assert they will suffer Second Amendment harm absent a
preliminary injunction. We conclude that the plaintiffs have alleged a mere
“possibility of irreparable harm before a decision on the merits can be rendered.”
Id.
(quotation marks and citation omitted). They have failed to “show that irreparable
injury is likely in the absence of an injunction[.]”
Id.
 Our conclusion, at this early
stage of litigation, does not speak to the merits of a Second Amendment claim later
in this litigation.

       In most instances, constitutional violations constitute irreparable harm. See
Powell v. Ryan,
855 F.3d 899, 904
 (8th Cir. 2017) (en banc). However, the assertion
of a possible constitutional violation does not release plaintiffs from their burden of
showing that irreparable harm is more than just a “mere possibility.” See Sessler v.
City of Davenport, Iowa,
990 F.3d 1150, 1156
 (8th Cir. 2021).

       The plaintiffs have not clearly shown how the Final Rule will prevent them
from engaging in constitutionally protected conduct. Regarding the business
plaintiff in this case, we are left unsure what behavior it wishes to engage in, as an
LLC, that is protected by the Second Amendment. For the individual plaintiff, as
well as the advocacy organizations purporting to represent the rights of individual


standing: 1) the Final Rule will result in fewer firearms in circulation and therefore
less crime deterrence; 2) the Final Rule frustrates state firearm policy; and 3) the
Final Rule will force firearm dealers to close thus decreasing state tax revenue. These
alleged harms are vague and speculative. The states have not shown these injuries
are “concrete, particularized, and actual or imminent[.]” Davis v. Fed. Election
Comm’n,
554 U.S. 724, 733
 (2008). Nor have plaintiffs shown these alleged harms
are “fairly traceable to the defendant’s challenged behavior; and likely to be
redressed by a favorable ruling.”
Id.
                                          -8-
firearm owners, we are left unsure how the Final Rule—that creates no new
obligations on individuals—will prevent individuals from engaging in protected
Second Amendment activity. See
id.
 (finding the plaintiff failed to show irreparable
harm when he could not show he would have engaged in constitutionally protected
conduct absent the government regulation). The record needs to be developed further
to explain both the Second Amendment rights of the plaintiffs in this case and how
the Final Rule will impact those rights.

                                             ii.

       The plaintiffs also argue they will suffer economic harm without a preliminary
injunction. The plaintiffs assert generally that compliance costs and uncertainty
surrounding the validity and scope of the Final Rule will be costly to businesses and
lead to fewer sales of firearms. However, the plaintiffs do not explain the economic
harm in definite enough terms to show the extent of any harm is “actual and not
theoretical.” Packard Elevator v. I.C.C.,
782 F.2d 112
, 115 (8th Cir. 1986). The
plaintiffs do not try to quantify, or clearly explain, their generally alleged compliance
costs. The plaintiffs also fail to explain how the Final Rule’s regulations will impact
their overall business model in a way that will result in closures. “Injunctive relief
‘will not be granted against something merely feared as liable to occur at some
indefinite time’; the party seeking injunctive relief must show that ‘[t]he injury
complained of [is] of such imminence that there is a “clear and present” need for
equitable relief to prevent irreparable harm.’” Id. (citations omitted). Without more
information about the financial impact of the Final Rule, we find no clear and present
need for preliminary injunctive relief.

        In asking for a preliminary injunction, the plaintiff “is not required to prove
with certainty the threat of irreparable harm, but it must prove that ‘irreparable injury
is likely in the absence of an injunction.’” Sleep No. Corp. v. Young,
33 F.4th 1012, 1018
 (8th Cir. 2022) (citation omitted). The district court did not abuse its discretion
in concluding plaintiffs have not met their burden.


                                          -9-
                                         C.

      The third and fourth factors for a preliminary injunction—harm to the
opposing party and the public interest—merge when the Government is the party
opposing the preliminary injunction. Nken v. Holder,
556 U.S. 418, 435
 (2009).
Given the lack of irreparable harm, we do not find that “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.” Nebraska v. Biden,
52 F.4th at 1046
 (citation
omitted).

                                        IV.

       Given a lack of irreparable harm, we conclude the district court did not abuse
its discretion in denying the preliminary injunction.
                        ______________________________




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