Mayor and City Council of Baltimore v. Bureau of Alcohol, Tobacco, Firearms and Explosives

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAYOR AND CITY COUNCIL OF
BALTIMORE,
Plaintiff,
Civil Action No. 23-3762 (RDM)
v.
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES,
Defendant.
MEMORANDUM OPINION AND ORDER
On September 12, 2023, Brandon Scott, the Mayor of the City of Baltimore, submitted a
request for records, on behalf of the City, to the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) under the Freedom of Information Act (“FOIA”). The City’s request, which
contains four parts, seeks certain firearm trace records from ATF’s National Tracing Center’s
Firearms Tracing System to identify the sources of guns recovered from crimes committed in the
City. See Dkt. 1-1. Part 1 requests “[r]ecords sufficient to identify the federally licensed
firearms dealers (‘FFL’) that are the top ten sources of firearms recovered in Baltimore from
2018 through 2022” and several statistics relating to those top-source FFLs. Dkt. 1-1 at 2. Part 2
requests “records sufficient to show, with respect to firearms recovered in Baltimore on an
annual basis from 2018 through 2022, in connection with the category of offense or other
circumstance of Homicide, Homicide-Attempted, Aggravated Assault, Robbery, Suicide, and
Suicide-Attempted,” the total number of firearms recovered in certain periods of time, the “total
number of each firearm type by manufacturer, weapon type, and caliber,” and the total number of
firearms from each source state. Id. at 3. Finally, Parts 3 and 4 seek the “[u]nderlying data
related to ATF’s recent report on trace data in Baltimore showing the ‘Top Source Cities’” and
the “Top Recovery Cities,” or more specifically, “any tables or spreadsheets used to compile”
those tables. Id. ATF refused to provide the records the City requested, invoking Exemption 3,
which permits an agency to withhold records the disclosure of which is prohibited by statute. 5
U.S.C. § 552(b)(3). The City responded by filing this suit on December 18, 2023. See Dkt. 1.
Shortly thereafter, the National Shooting Sports Foundation, Inc. (“NSSF” or “the
Foundation”) moved to intervene, seeking to protect the interests of its member FFLs, who
manufacture, distribute, or otherwise sell firearms. See Dkt. 11. The Court denied NSSF’s
motion to intervene as of right or permissively, concluding that the Foundation had failed to
carry its burden of showing that it has Article III or statutory standing. See Min. Order (March 4,
2024). The Foundation lacked associational standing, the Court explained, because it had failed
to identify any specific member that is likely to suffer a cognizable harm if the records at issue
are released. Id. (quoting Chamber of Com. of U.S. v. EPA, 642 F.3d 192, 199 (D.C. Cir.
2011)).1 The Court also held that NSSF lacked statutory standing because
it is generally up to the agency to decide what FOIA exceptions to assert and a
court cannot determine that an agency appropriately withheld records based on
an exemption that the agency does not assert. Cf. Maydak v. U.S. Dep’t of Just.,
218 F.3d 760, 765 (D.C. Cir. 2000). Here, NSSF seeks to intervene to argue that
the withholdings were justified under Exemptions 4 and 6, Dkt. 11-3 at 13; Dkt.
23 at 11; exemptions that, to date, ATF has not asserted, Dkt. 1-2; Dkt. 14. To
be sure, a private party can object to an agency’s failure to protect that party’s
trade secrets, but there are procedures for doing so, which, among other things,
require the private party to bring a reverse FOIA case, which NSSF does not
purport to do here . . . .
Id. Without standing, NSSF cannot intervene as of right. See Fund For Animals, Inc. v. Norton,
322 F.3d 728, 731–32 (D.C. Cir. 2003) (“[I]n addition to establishing its qualification for
1
NSSF advanced no organizational-standing theory in its first motion for leave to intervene.
2
intervention under [Federal Rule of Civil Procedure] 24(a)(2), a party seeking to intervene as of
right must demonstrate that it has standing under Article III of the Constitution.”).
The Court also held that NSSF’s lack of standing “foreclose[d] its motion for permissive
intervention.” Min. Order (March 4, 2024). The Court explained:
Although the question of whether standing is required for permissive
intervention has been described as “open” by the D.C. Circuit, see In re
Endangered Species Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972,
980 (D.C. Cir. 2013), the D.C. Circuit recently upheld a district court order
denying a party’s motion for permissive intervention on the ground that the
proposed intervenor lacked standing, see Yocha Dehe v. U.S. Dep’t of the
Interior, 3 F.4th 427, 431-32 (D.C. Cir. 2021) (“Because Yocha Dehe does not
currently satisfy the injury requirement of Article III standing, it lacks standing
to intervene. Accordingly, we affirm the judgment of the district court and do
not reach Rule 24(a)(2)’s requirements or permissive intervention.”)[;] . . .
EEOC v. Nat’l Children's Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998)
(explaining that “the putative intervenor must ordinarily present: (1) an
independent ground for subject matter jurisdiction; (2) a timely motion; and (3)
a claim or defense that has a question of law or fact in common with the main
action” because “the typical movant asks the district court to adjudicate an
additional claim on the merits”).
Id. The Court, accordingly, denied NSSF’s motion to intervene as of right and “decline[d] in its
discretion to find that permissive intervention [was] warranted.” Id. (citing Aristotle Int’l, Inc. v.
NGP Software, Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010)).
NSSF renewed its motion to intervene two weeks later, this time seeking leave to file
three supporting declarations under seal that, according to NSSF, identified specific members of
the Foundation from Maryland and Ohio who would likely suffer a cognizable harm if the
records were released. Dkt. 25; Dkt. 26. The City opposes the motion to intervene, once again
challenging NSSF’s standing, Dkt. 31; ATF has taken no position on NSSF’s motion, Dkt. 17.
For the reasons that follow, the Court concludes that NSSF has remedied neither one of the two
defects that the Court identified in its prior Order—that is, that the Foundation lacks statutory
standing and Article III standing to intervene—and will therefore DENY NSSF’s renewed
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motion to intervene as of right, and the Court will also exercise its discretion to DENY NSSF’s
renewed motion for permissive intervention, Dkt. 26. In addition, the Court will GRANT
NSSF’s motion for leave to file the three declarations under seal. Dkt. 25.
I.
The Court begins with the statutory standing issue. As the Court noted in its Order
denying NSSF’s first motion to intervene, “it is generally up to the agency to decide what FOIA
exceptions to assert and a court cannot determine that an agency appropriately withheld records
based on an exemption that the agency does not assert.” Min. Order (March 4, 2024). Here, in
response to the City’s FOIA request, the ATF invoked Exemption 3. NSSF echoes that defense
but, in doing so, it fails to offer any reason to conclude that the AFT will not adequately
represent its interests with respect to Exemption 3, see Fund for Animals, Inc. v. Norton, 322
F.3d 728, 731 (D.C. Cir. 2003) (applicant for intervention as of right must show, inter alia, that
its interest will not be adequately represented by an existing party). That, however, is not all that
NSSF seeks to argue; to the contrary, much of the amicus brief that it has already filed maintains
that the records at issue are also exempt from disclosure under FOIA Exemptions 4, 6, and 7(C).
Dkt. 34 at 18–24.
As the Court explained in its prior Order, NSSF lacks statutory standing to assert FOIA
exemptions that the federal agency—here, the ATF—has not invoked. FOIA is a disclosure
statute, and nothing in FOIA itself requires an agency to withhold any records. To be sure, other
statutes, including the Trade Secrets Act, 18 U.S.C. § 1905, may preclude an agency from
releasing certain confidential records, and that prohibition may be enforceable under the
Administrative Procedure Act, 5 U.S.C. § 701(a). See Chrysler Corp. v. Brown, 441 U.S. 281(1979). And, to be sure, courts have at time permitted interested parties to intervene in support
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an agency’s decision to withhold confidential information from disclosure pursuant to a specific
FOIA exemption. See Jud. Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 145 (D.C. Cir.
2006) (“The intervenors’ affidavits supported the FDA’s reasons for using Exemptions 4 and 6 to
withhold information submitted to it during mifepristone's approval.”); Pub. Citizen Health Rsch.
Grp. v. Food & Drug Admin., 185 F.3d 898, 900 (D.C. Cir. 1999). But it is an entirely different
matter for a private party to seek leave to intervene in a FOIA action—without asserting its own
reverse-FOIA claim pursuant to the APA or any other statute—to invoke FOIA exemptions that
the agency has not itself invoked. If that party has a cause of action that it can assert against the
agency, seeking to bar the agency from releasing the records, it can bring that suit. A private
party cannot, however, step into the shoes of the agency and assert a discretionary exemption
that the agency has not itself invoked. That is the problem with NSSF’s efforts to invoke
Exemptions 4, 6, and 7(C) that the Court identified in its prior Order, and nothing in NSSF’s
renewed motion overcomes, addresses, or even mentions that problem.
Because NSSF offers no answer to this fundamental problem with its effort to invoke
FOIA exemptions that the agency has not itself invoked, the Court once again concludes that the
Foundation lacks statutory standing (or a cause of action) to do so. FOIA Exemptions 4, 6, and
7(C) are not at issue in this litigation, and NSSF cannot change that fact by intervening as of
right (and without bringing a reverse-FOIA action against the agency).
II.
That leaves the question whether NSSF should be allowed to intervene merely to reargue
the Exemption 3 argument pressed by the ATF. As noted above, the Foundation fails to explain
why the ATF has not adequately represented its interests with respect to Exemption 3 and has
thus failed to carry its burden of establishing that it is entitled to intervene as of right. See Fund
5
for Animals, Inc., 322 F.3d at 731. Even more importantly, NSSF has also failed to show that it
has Article III standing. That lack of standing precludes the Court from granting NSSF’s motion
for leave to intervene as of right, and, for the reasons explained below, see Part II.C., it either
precludes or strongly counsels against granting NSSF’s motion for permissive intervention.
When an organization, like NSSF, seeks to establish Article III standing, it may proceed
in one of two ways: it may show that it has “organizational standing” to sue on its own behalf, or
it may demonstrate that it has “associational standing” to sue on behalf of its members. See
Public Citizen, Inc. v. Trump, 297 F. Supp. 3d 6, 17 (D.D.C. 2018); Crossroads Grassroots Pol’y
Strategies v. Fed. Election Comm’n, 788 F.3d 312, 316 (D.C. Cir. 2015) (“Article III standing is
not a threshold determination that courts normally make before allowing a defendant to enter a
case. . . . But where a party tries to intervene as another defendant, we have required it to
demonstrate Article III standing, reasoning that otherwise ‘any organization or individual with
only a philosophic identification with a defendant—or a concern with a possible unfavorable
precedent—could attempt to intervene and influence the course of litigation.’” (quoting Deutsche
Bank Nat’l. Trust Co. v. FDIC, 717 F.3d 189, 195 (D.C. Cir. 2013) (Silberman, J., concurring))).
In its renewed motion, NSSF pursues both avenues and fails in both efforts.
A.
The Court starts with associational standing, which is premised on the theory that the
organizational plaintiff is not seeking a remedy on its own behalf but, rather, is proceeding “as
the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975). As such, the
organization need not establish that it has standing to sue in its own right, but must show (1) that
at least one of “its members would otherwise have standing to sue in [her] own right,” (2) that
the interests that the association “seeks to protect” in the litigation “are germane to the
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organization’s purpose,” and (3) that “neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977). NSSF’s associational standing arguments fail at the first
step: NSSF has failed to demonstrate that at least one of its members would have standing to sue
(or to defend against the Mayor’s claim) in her own right. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992) (explaining that an individual has satisfied the “irreducible
constitutional minimum of standing” when that individual demonstrates that (1) she has or will
experience “an injury in fact . . . which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical,” (2) that there is “a causal connection between the
injury and the conduct complained of,” and (3) that it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision”).
1.
NSSF first contends that at least one of its members has standing to defend the ATF’s
decision to withhold the records the City seeks because “[t]here is a substantial likelihood that
one or more of NSSF’s member FFLs will be identified in connection with one or more traces
responsive to Baltimore’s FOIA requests” and that the identification of those FFLs will be
harmful to the FFLs’ reputations and pocketbooks. Dkt. 26-1 at 12. In advancing this argument,
NSSF does not contend that any of its members have already suffered an injury as a result of the
City’s FOIA request; nor could it, as the City’s FOIA request at this point has not resulted in the
disclosure of any materials. Instead, NSSF argues that at least one of its member FFLs (or one of
its members that owns or operates an FFL) faces a risk of a future injury if the documents the
City requests are released.
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As the D.C. Circuit has explained, any party “alleging only future injuries confronts a
significantly more rigorous burden to establish standing.” United Transp. Union v. ICC, 891
F.2d 908, 913 (D.C. Cir. 1989). To establish standing, the party “must demonstrate that the
alleged future injury is ‘imminent.’” Chamber of Com., 642 F.3d 192, 200 (D.C. Cir. 2011)
(quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)); see Whitmore v. Arkansas, 495 U.S. 149,
158 (1990) (“Allegations of possible future injury do not satisfy the requirements of Art. III[;] [a]
threatened injury must be certainly impending to constitute injury in fact.” (internal quotation
marks omitted)). To “shift[ ] injury from ‘conjectural’ to ‘imminent,’ the petitioners must show
that there is a ‘substantial . . . probability’ of injury.” Id. (quoting Sherley v. Sebelius, 610 F.3d
69, 74 (D.C. Cir. 2010)). NSSF attempts to demonstrate this probability of injury in two ways.
First, it proffers declarations from three owners or operators of FFLs, two of which do
business in Maryland, Dkt. 25-1 at 1; Dkt. 25-3 at 1, and one of which is in Ohio, Dkt 25-2 at 1.
These declarants attest that their FFLs have “complied with all reporting requirements imposed
by federal law,” including “responding to all requests from the ATF and the National Tracing
Center for information associated with firearms tracing.” Dkt. 25-1 at 2; Dkt. 25-2 at 2; Dkt. 25-
3 at 2. They each also explain that “[b]eing named in any such disclosure would cause me and
my business reputational harm as a result of being associated with one or more “crime-gun”
traces.” Dkt. 25-1 at 2; Dkt. 25-2 at 2; Dkt. 25-3 at 2.
But no NSSF member attests that he or she—or that an FFL that he or she owns or
operates—provided relevant gun tracing information to the ATF during the relevant period (2017
onward) or that he or she expects that his or her FFL will be named in the agency’s response to
the City’s FOIA request. They merely state that if their FFL were to be named in ATF’s
response to the City’s FOIA request, they believe they would suffer reputational harm. This is
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far too speculative to constitute the type of “imminent” harm necessary to constitute an injury-in-
fact for Article III standing purposes. See La. Envtl. Action Network v. Browner, 87 F.3d 1379,
1384 (D.C. Cir. 1996) (holding that the petitioner’s claim that “dire consequences . . . would
befall it if” certain events were to transpire was insufficient to “state an injury sufficiently
imminent and concrete for constitutional standing”); Chamber of Com., 642 F.3d at 202 (finding
declarations that stated merely that harm “could” or “may” occur too equivocal to demonstrate
an injury-in-fact).
NSSF also submits a survey of its member FFLs in Alabama, Delaware, Florida, Georgia,
Kentucky, Maryland, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Tennessee,
Virginia, and West Virginia. Dkt. 26-2 at 4 (Fatohi Decl. ¶ 17). These states were selected
because it is NSSF’s understanding that they, “along with the District of Columbia, are the top
15 sources of firearms traced and recovered in Maryland for 2022.” Id. at 4 n.1 (Fatohi Decl.).
NSSF asked respondents a range of yes/no questions, including whether they had received to a
trace request from the ATF since 2017 (203 yes; 76 no); whether “being publicly identified as an
FFL connected to one or more traces [would] create the misimpression that you or your business
engaged in criminal or other wrongdoing” (253 yes; 27 no); and whether “any such
misimpression” would harm the “reputation or your business” (251 yes; 2 no), “cause you or
your business to suffer economic harm” (252 yes; 1 no), or “cause you to incur increased costs”
(237 yes; 16 no). Dkt. 26-3 at 2–3 (NSSF 2024 Survey).
NSSF argues that the answers to these questions show that “NSSF’s members include
one or more FFLs who are virtually certain to be included in connection to at least one of the
traces Baltimore seeks” and that this identified FFL will face harm as a result. Dkt. 26-1 at 14.
This is because Parts 3 and 4 of the City’s FOIA request are, in NSSF’s view, “broad[ly]
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word[ed]” to “quite literally request[] every trace for every crime gun with a known purchaser
that was recovered in Baltimore between 2017 and 2021.” Id. at 13. As a result, NSSF argues
that the fact that any of its members from states that are top source states for crime guns
recovered in Baltimore answered a trace request from the ATF since 2017 makes it likely that at
least one of these members will be identified in ATF’s response to the City’s FOIA request.
But the City itself disavows this reading of its request. In its opposition to NSSF’s
motion to intervene, the City explains that Parts 3 and 4 of its request do “not seek records of
individual firearm transactions or the data that could be used to reconstruct individual firearms
transactions.” Dkt. 31 at 22. Nor do Parts 3 and 4 of the FOIA request “seek information that
could reasonably be expected to interfere with law enforcement investigations,” “information
that would infringe on personal privacy,” or “to connect any one gun to any particular crime.”
Id. at 22 & n.9. To the extent there is any doubt about the scope of the request, moreover, the
ATF is entitled to hold the City to that representation. Thus, Parts 3 and 4 of the City’s request
are not seeking “every trace for every crime gun with a known purchaser,” which would identify
individual FFLs who responded to trace requests from the ATF since 2017.2
To be sure, Part 1 of the City’s FOIA does request “[r]ecords sufficient to identify the
federally licensed firearms dealers (‘FFL’) that are the top ten sources of firearms recovered in
Baltimore from 2018 through 2022.” Dkt. 1-1 at 2. But the Court cannot discern from NSSF’s
2
The Court also notes that Part 3 of the City’s FOIA request seeks the “tables or spreadsheets
used to compile” charts in “ATF’s recent report on trace data in Baltimore showing the ‘Top
Source Cities.’” Dkt. 1-1 at 3. That chart showed that five cities in Maryland were the “Top
Source Cities.” Dkt. 26-4 at 3 (Baltimore, Glen Burnie, Timonium, Halethorpe, Hanover). Only
13 of the 280 FFL respondents to NSSF’s survey are located in Maryland. Dkt. 26-3 at 1. The
record does not reveal whether any of those 13 respondents are located in the five cities in
Maryland that are the top source cities. According to NSSF’s own declarations, none of the three
declarants are located in one of the five top source cities. See Dkt. 25-1 at 1; Dkt. 25-3 at 1.
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survey responses whether any of NSSF’s members are likely to be identified as such a source.
NSSF’s survey indicates that the majority of the respondents to its survey had received gun trace
requests from the ATF since 2017. It is does not show, however, that NSSF’s survey
respondents make up the majority (or even a significant portion) of the FFLs in the relevant
areas. And it certainly does not offer any reason to believe that any of the respondents—or any
other FFL member—is likely to qualify as a top-ten source of traced guns. In fact, the sheer
number of “crime guns” retrieved between 2017 and 2021 suggest that it is unlikely that the two-
hundred-odd respondents make up a statistically significant proportion of the FFLs who have
provided gun-trace information to the ATF during that period. See Dkt. 26-1 at 13 (noting that
“[b]etween 2017 and 2021, 13,336 crime guns were traced and recovered in Baltimore, only
8,057 of which were traced to known purchasers”).
For these reasons, the Court lacks any basis, beyond mere speculation, from which to
conclude that any one of NSSF’s members is likely to appear by name in ATF’s response to the
City’s FOIA request. Because NSSF “must specifically ‘identify members who have suffered
[or are likely to suffer] the requisite harm’” to establish associational standing, Chamber of
Com., 642 F.3d at 199 (quoting Summers, 555 U.S. at 499), and NSSF has failed to do so, the
Court concludes that NSSF has not established that it has standing on this basis.
2.
NSSF argues in the alternative that all of its members have standing because all FFLs are
harmed when any FFL is associated publicly with a gun used in a crime. Dkt. 26-1 at 8. In
particular, NSSF argues that the “release of any information related to any crime-gun trace harms
the reputational and economic interests of all FFLs—regardless of whether a particular FFL has
any connection to the trace at issue—by stigmatizing FFLs generally as facilitators of illegal gun
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trafficking and gun crimes.” Id. But even if the Court were to credit NSSF’s assertion that every
FFL is injured when a gun used in a crime is traced to an FFL—an assertion that is implausible
on its face—NSSF’s argument fails for another reason: causation and redressability.
As noted above, “the ‘case or controversy’ limitation of Article III . . . requires that a
federal court act only to redress injury that fairly can be traced to the challenged action of the
defendant, and not injury that results from the independent action of some third party not before
the court.” Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 176 (D.C. Cir. 2012) (quoting Simon v.
Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976)). Accordingly, to satisfy the
constitutional minimum to have standing, a party must show that the injuries complained of are
caused by the defendant such that the Court can take action to redress those injuries. But as the
City notes in its opposition to NSSF’s renewed motion to intervene, NSSF argues “that industry-
wide harm will result from disclosure of any trace data,” but “that supposed harm could never be
redressed by relief in this case because certain crime gun trace information is already regularly
made public.” Dkt. 31 at 21. The identities of FFLs that sell guns used in crimes, for example,
are routinely disclosed in public court filings. Id. at 25 (listing examples of court filings in
which the source FFL is disclosed as part of a criminal proceeding). News outlets also publish
lists of the FFLs that are the top sources of guns used in crimes. See, e.g., Nick Penzenstadler,
Gun Shops that Sell the Most Guns Used in Crime Revealed in New List, USA Today (Feb. 15,
2024), https://www.usatoday.com/story/news/investigations/2024/02/15/shops-selling-most-
crime-guns-revealed-atf/72581120007/. In light of the regular public disclosure of FFLs that sell
guns used in crimes, it is hard to see how disclosure of any specific FFLs by the ATF in response
to the City’s FOIA request would harm NSSF members—writ large—in any cognizable way.
See Rtskhiladze v. Mueller, No. 20-cv-1591, 2021 WL 3912157, at *11 (D.D.C. Sept. 1, 2021)
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(finding “an independent, sufficient, unchallenged, and admittedly accurate source of those same
injuries that would not be affected by any decision or relief ordered in this matter” to defeat the
plaintiff’s standing); Am. Chemistry Council, Inc. v. Nat’l Acad. of Scis., No. 23-cv-2113, 2024
WL 1141465, at *15 (D.D.C. Mar. 15, 2024) (noting that the carcinogenic effect of
formaldehyde had been commented on for years, and thus the release of the report at issue would
not have a reputational effect that would be redressable by the court).
Accordingly, this theory on which NSSF seeks to establish associational standing also
fails.
B.
Pivoting, NSSF argues that it has standing to sue on its own behalf. To establish
“organizational standing,” an organization must establish that the organization itself faces a
threat of “actual or threatened injury in fact that is fairly traceable to the alleged illegal action
and likely to be redressed by a favorable court decision.” Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 919 (D.C. Cir. 2015) (quoting Equal Rights Ctr. v. Post Props., Inc., 633 F.3d
1136, 1138 (D.C. Cir. 2011)). It is insufficient for an organization to allege “a frustration of its
purpose because frustration of an organization’s objectives ‘is the type of abstract concern that
does not impart standing.’” Id. (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d
1428, 1433 (D.C. Cir. 1995)). Instead, the organization must show that “the agency’s action . . .
injured [or will injure] the [organization’s] interest” and that “the organization used [or will use]
its resources to counteract that harm.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015).
Here, NSSF argues that it “will suffer an injury in fact” if the City’s FOIA request is
fulfilled due to the “potential stare decisis and persuasive effects of a decision in favor of
Baltimore in this case.” Dkt. 26-1 at 16. A favorable outcome for the City, NSSF argues, will
13
cause it to expend increasing amounts to “respond[] to the proliferation or new requests and
lawsuits” seeking FFL-level gun-trace information. Id. at 17. But “[t]he mere fact that an
organization redirects some of its resources to litigation and legal counseling in response to
actions or inactions of another party is insufficient to impart standing upon the organization.”
Turlock Irr. Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015) (quoting Nat’l Taxpayers Union, 68
F.3d at 1434; see also Food & Water Watch, 808 F.3d at 919 (D.C. Circuit “precedent makes
clear that an organization’s use of resources for litigation, investigation in anticipation of
litigation, or advocacy is not sufficient to give rise to an Article III injury.”). NSSF’s attempt to
demonstrate organizational standing is therefore plainly foreclosed by precedent.
C.
NSSF’s failure to demonstrate it that is has Article III standing requires the Court to deny
its motion for leave to intervene as of right. See Mil. Toxics Project v. EPA, 146 F.3d 948, 953
(D.C. Cir. 1998). Although the law is less well settled when it comes to permissive intervention,
the Court concludes that the Foundation’s failure to establish that it has Article III standing
provides an additional reason to deny its request for leave to intervene permissively.
As the Court noted in its prior Order, some uncertainty exists regarding whether
Article III standing is required for permissive intervention in this circuit. In In re Endangered
Species Act Section 4 Deadline Litigation, 704 F.3d 972, 980 (D.C. Cir. 2013), the D.C. Circuit
observed that the question remains unresolved. Years earlier, in EEOC v. National Children’s
Center, Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998), the D.C. Circuit at least gestured toward
requiring standing for permissive intervention. In that case, the court addressed subject-matter
jurisdiction and held that “[p]ermissive intervention . . . has always required an independent
basis for jurisdiction,” but then recognized “a narrow exception when the third party seeks to
14
intervene for the limited purpose of obtaining access to documents protected by a confidentiality
order.” Id. More recently, in Yocha Dehe v. United States Department of the Interior, 3 F.4th
427, 431–32 (D.C. Cir. 2021), the D.C. Circuit upheld a district court order denying a party’s
motion for permissive intervention on the ground that the proposed intervenor lacked standing.
The question is further complicated, moreover, by cases permitting a group of interested parties
to intervene, so long as at least one of the proposed intervenors was able to establish Article III
standing. See, e.g., Food & Water Watch v. FERC, 28 F.4th 277, 284 (D.C. Cir. 2022) (“[W]hen
multiple petitioners bring claims jointly, only one petitioner needs standing to raise each
claim.”).
Without endeavoring to answer the open question for all purposes, the Court can discern
the following principles, which are dispositive here. First, a federal court may not, of course,
“adjudicate a claim over which it lacks subject matter jurisdiction.” Nat’l Children’s Ctr., 146
F.3d at 1046. Second, permissive intervention requires that the putative intervenor “have a claim
or defense that shares with the main action a common question of law or fact,” Fed. R. Civ. P.
24(b)(1)(B), although the D.C. Circuit has not always construed the term “claim” narrowly, Nat’l
Children’s Ctr., 146 at 1046 (citing Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967)).
Third, the federal court must maintain jurisdiction throughout the litigation, see TransUnion LLC
v. Ramirez, 594 U.S. 413, 431 (2021), and, thus, if the only party with standing declines to
pursue a claim or defense, a third-party that lacks standing cannot step into the shoes of the
principal party and continue to litigate that claim or defense, see Diamond v. Charles, 476 U.S.
54, 68 (1986) (“[A]n intervenor’s right to continue a suit in the absence of the party on whose
side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the
requirements of Art. III.”); Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 65 (1997) (“An
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intervenor cannot step into the shoes of the original party unless the intervenor independently
fulfills the requirements of Article III.” (quotation marks omitted)).
Applying those principles here, the Court declines to exercise its discretion to permit
NSSF to appear permissively as a party to case. As this point, the Foundation has already—with
leave of the Court—filed an amicus brief, and there is no reason to believe that it would have any
argument to add if permitted to participate as a party. If the Court concludes that oral argument
is warranted, moreover, it will permit NSSF to be heard. As a result, all that permissive
intervention would add to NSSF’s arsenal of litigation tools is the ability to appeal, should the
ATF lose and decline to appeal, or to continue to litigate the Exemption 3 defense, should the
agency accede to the City’s objections. To take either of these steps, however NSSF would need
standing, and as explained above, it has failed to clear that hurdle. See Arizonans for Off. Eng.,
520 U.S. at 64 (“Standing to defend on appeal in the place of an original defendant, no less than
standing to sue, demands that the litigant possess ‘a direct stake in the outcome.’” (quoting
Diamond, 476 U.S. at 62)). Moreover, should the ATF withdraw its invocation of Exemption 3,
nothing would remain from NSSF to litigate, since, as explained above, FOIA is a disclosure
statute, and NSSF has not brought a reverse-FOIA action under the APA or any other statute. In
short, under these circumstances, permissive intervention would serve no meaningful purpose—
or at least no purpose that is not served equally well by permitting NSSF to participate as an
amicus.
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CONCLUSION
For these reasons, it is hereby ORDERED that NSSF’s renewed motion to intervene,
Dkt. 26, is DENIED.
In addition, NSSF has moved for leave to file under seal the declarations from individual
FFLs discussed in this order, Dkt. 25. NSSF “seeks only to prevent the public disclosure of the
FFLs’ names,” id. at 2; the substance of the FFLs’ declarations will be filed on the public docket.
After considering the factors in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), the
Court concludes that permitting the redaction of the FFLs’ names is appropriate to protect the
privacy of the FFLs and will not prejudice the parties or the public as the substance of the
declarations will be publicly available. Accordingly, the Court hereby GRANTS NSSF’s
motion for leave to file under seal. NSSF is directed to file a redacted version of the declarations
on the public docket on or before July 1, 2024.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: June 21, 2024
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