National Rifle Association v. Bureau of Alcohol ( 2023 )

Case: 23-10707 Document: 00516999319 Page: 1 Date Filed: 12/12/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 12, 2023
No. 23-10707 Lyle W. Cayce
____________ Clerk
Second Amendment Foundation Incorporated, Et al.,
Plaintiffs,
The National Rifle Association of America,
Incorporated
Movant—Appellant,
versus
Bureau of Alcohol, Tobacco, Firearms, and Explosives;
Steven Dettelbach, in his official capacity as Director of the Bureau of
Alcohol Tobacco Firearms and Explosives;
United States Department of Justice;
Merrick Garland, U.S. Attorney General,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-116
______________________________
Case: 23-10707 Document: 00516999319 Page: 2 Date Filed: 12/12/2023
No. 23-10707
Before Chief Judge Richman, Jones, and Ho, Circuit Judges.
Per Curiam: *
The National Rifle Association of America (NRA) moved to intervene
in this litigation challenging a recent ATF Rule regulating pistol braces.
88 Fed. Reg. 6478 (Jan. 31, 2023). The district court denied intervention as
of right or permissively. Finding no reversible error of law or fact and no
abuse of discretion, we AFFIRM in part and DISMISS in part.
Because the parties are well aware of this appeal’s genesis, we recount
basics. NRA’s motion was filed after the district court had granted a
preliminary injunction barring enforcement of the rule pending this court’s
resolution of Mock v. Garland, 785 F.4th 563 (5th Cir. 2023). The district
court found NRA’s motion untimely and also held that the current plaintiff,
Second Amendment Foundation (SAF), adequately represented NRA’s
interests.
This court has appellate jurisdiction over an order denying
intervention as of right, which is a final order pursuant to 28 U.S.C. § 1291.
However, we have only “provisional jurisdiction” over orders denying
permissive intervention. Rotstain v. Mendez, 986 F.3d 931, 942 (5th Cir.
2021). If the court holds the district court did not abuse its discretion, it
“must dismiss the appeal for lack of jurisdiction.” Edwards v. City of
Houston, 78 F.3d 983, 992 (5th Cir. 1996)(en banc). NRA bears the burden
to prove its entitlement to intervene. Rotstain, 986 F.3d at 937.
_____________________
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th
Circuit Rule 47.5.4.
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No. 23-10707
NRA first seeks intervention as of right, which occurs if the applicant
files a timely motion, “claims an interest relating to the property or
transaction that is the subject of the action,” is situated such that the action’s
disposition may practically impair his ability to protect his interest, and is
“inadequately represented” with respect to his interest by existing parties.
FED. R. CIV. P. 24(a)(2).
The district court did not err in concluding that NRA has failed to
show that SAF does not adequately represent NRA’s interest in this
litigation. This court holds that a “presumption of adequate representation
arises when the would-be intervenor has the same ultimate objective as a
party to the lawsuit. In such cases, the applicant for intervention must show
adversity of interest, collusion, or nonfeasance on the part of the existing
party to overcome the presumption.” Edwards, 78 F.3d at 1005. “In order
to show adversity of interest, an intervenor must demonstrate its interests
diverge from the putative representative’s interests in a manner germane to
the case.” Texas v. United States, 805 F.3d 653, 662 (5th Cir. 2015). SAF and
NRA filed nearly identical claims and seek identical relief. Moreover, that
SAF sought interim relief only as to its members does not diverge from the
ultimate relief both parties desire: vacatur of the entire rule (which benefits
all potential plaintiffs). Because NRA has not shown that SAF’s tactics are
materially adverse to NRA’s interests, much less that collusion or
nonfeasance occurred, this required element of intervention of right is not
satisfied. We need not further analyze the district court’s reasoning on this
issue. Claimed intervention as of right fails.
Similarly, we conclude that the district court did not “clearly” abuse
its discretion in denying permissive intervention pursuant to Federal Rule of
Civil Procedure 24(b)(1)(B); see Edwards, 78 F.3d at 995. The only
requirements for permissive intervention are timely application and
commonality of fact or legal issues between the would-be intervenor and a
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No. 23-10707
party. FED. R. CIV. P. 24(b)(1)(B). But the ultimate decision is highly
discretionary with the district court. We have already noted that NRA failed
to prove that SAF would not adequately represent NRA’s interests.
Although minimal prejudice would accrue to the current parties if
intervention were approved, NRA’s participation will not “contribute to the
full development of the underlying factual issues.” New Orleans Pub. Serv.,
Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 472 (5th Cir. 1984). Nor is
NRA unable to file its own suit against ATF: that very case is pending before
another judge in the same federal district court. See Korioth v. Brisco,
523 F.2d 1271, 1279 (5th Cir. 1975).
For these reasons, we AFFIRM the denial of intervention as of right
and DISMISS the denial of permissive intervention. Affirmed in Part,
Dismissed in Part.
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