UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

MAYOR AND CITY COUNCIL OF 

BALTIMORE,

Plaintiff,

v.

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS AND EXPLOSIVES,

Defendant.

Civil Action No. 23-3762 (RDM)

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 
2

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.
3

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 
5

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 
6

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-infact 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] 
10

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. 
11

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 twohundred-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 
12

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 industrywide 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-mostcrime-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)
13

(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 
14

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 
15

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 
16

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