UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

 Plaintiffs, Case No. 4:22-cv-00691-O

 v.

MERRICK GARLAND, in his official 

capacity as Attorney General of the United 

States, et al., 

 Defendants.

DEFENDANTS’ OPPOSITION TO DEFENSE DISTRIBUTED & SECOND 

AMENDMENT FOUNDATION, INC.’S MOTION TO INTERVENE (ECF NO. 116) 

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TABLE OF CONTENTS

INTRODUCTION......................................................................................................................................................... 1

I. Neither Defense Distributed Nor SAF Has Established Article III Standing, As Is 

Required to Pursue Distinct Relief from the Existing Parties. ........................................................... 1

A. Defense Distributed Has Not Established Article III Standing.......................................... 2

B. SAF Has Not Established Article III Standing. ....................................................................... 4

II. Putative Intervenors Have Not Demonstrated an Entitlement to Intervene in This 

Action Pursuant to Rule 24(a)................................................................................................................... 5-6

A. Putative Intervenors’ Motion to Intervene Is Untimely. ....................................................... 6

B. Putative Intervenors Have Not Established a Protectable Interest That May 

Be Impaired or Impeded as a Result of This Litigation......................................................... 9

C. Putative Intervenors Have Not Established That Any Interest They May 

Have in This Litigation Is Inadequately Represented by the Existing Parties. .............11

III. Defense Distributed and SAF Are Not Entitled to Permissive Intervention..............................13

CONCLUSION.............................................................................................................................................................14

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TABLE OF AUTHORITIES

Cases

Abraugh v. Altimus, 

26 F.4th 298 (5th Cir. 2022)..................................................................................................................................... 2 

Brackeen v. Haaland, 

994 F.3d 249 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. 

granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and 

cert. granted, 142 S. Ct. 1205 (2022)........................................................................................................................13

Brumfield v. Dodd, 

749 F.3d 339 (5th Cir. 2014)..................................................................................................................................11 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013)..................................................................................................................................................... 4 

DeOtte v. Azar, 

332 F.R.D. 173 (N.D. Tex. 2019)....................................................................................................................2, 11

Edwards v. City of Houston, 

78 F.3d 983 (5th Cir. 1996)....................................................................................................................................... 6 

Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 

346 F.3d 552 (5th Cir. 2003).................................................................................................................................... 6 

Friends of the Earth, Inc. v. Chevron Chem. Co., 

129 F.3d 826 (5th Cir. 1997).................................................................................................................................... 5 

Garnett v. Zeilinger, 

485 F. Supp. 3d 206 (D.D.C. 2020)....................................................................................................................... 2 

Hunt v. Wash. State Apple Advert. Comm’n, 

432 U.S. 333 (1977)..................................................................................................................................................... 5 

In re Lease Oil Antitrust Litig., 

570 F.3d 244 (5th Cir. 2009), remanded sub nom. In re Lease Oil Antitrust Litig. (No. II), No. MDL 

1206, 2009 WL 5195977 (S.D. Tex. June 27, 2011), reversed and vacated sub nom. All Plaintiffs v. All 

Defendants, 645 F.3d 329 (5th Cir. 2011)............................................................................................................... 6 

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 

140 S. Ct. 2367 (2020)............................................................................................................................................ 1-2 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992)..................................................................................................................................................... 8 

New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 

732 F.2d 452 (5th Cir. 1984).................................................................................................................................... 6 

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Norris v. Causey, 

869 F.3d 360 (5th Cir. 2017).................................................................................................................................... 2 

Rotstain v. Mendez, 

986 F.3d 931 (5th Cir. 2021)......................................................................................................................6, 11, 13

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998), remanded, 151 F.3d 1032 (7th Cir. 1998), remanded, 1999 WL 412439 (N.D. Ill. 

June 9, 1999), aff’d, 230 F.3d 923 (7th Cir. 2000), cert. denied, 523 U.S. 994 (2001) ................................ 8 

Summers v. Earth Island Inst., 

555 U.S. 488 (2009)..................................................................................................................................................... 5 

Texas v. United States, 

805 F.3d 653 (5th Cir. 2015).............................................................................................................................6, 11 

Town of Chester v. Laroe Ests., Inc., 

137 S. Ct. 1645 (2017)......................................................................................................................................... 2, 13 

United States v. Texas, 

No. CV 5281, 1998 WL 36027548 (E.D. Tex. Apr. 17, 1998)....................................................................11

VanDerStok v. Garland, 

No. 4:22-CV-00691-O, 2022 WL 4009048 (N.D. Tex. Sept. 2, 2022), opinion clarified, No. 4:22-CV00691-), 2022 WL 6081194 (N.D. Tex. Sept. 26, 2022)................................................................................. 2 

VanDerStok v. Garland, 

No. 4:22-CV-00691-O, 2022 WL 4809376 (N.D. Tex. Oct. 1, 2022)...................................................2, 5

VanDerStok v. Garland, 

No. 4:22-CV-00691-O, 2022 WL 16680915 (N.D. Tex. Nov. 3, 2022)..................................................... 2 

Rules

Fed. R. Civ. P. 24(a)......................................................................................................................................................... 6 

Fed. R. Civ. P. 56(e)......................................................................................................................................................... 8 

Administrative and Executive Materials

27 C.F.R. § 478.11 ............................................................................................................................................................ 3 

27 C.F.R. § 478.12(c)................................................................................................................................................... 3-4 

Definition of “Frame or Receiver” and Identification of Firearms, 

87 Fed. Reg. 24,652 (Apr. 26, 2022) .................................................................................................................. 2-4 

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Other Authorities

AR-00: 0% Receiver, GHOST GUNNER, 

https://ghostgunner.net/zero-percent/ (last visited Nov. 23, 2022) .......................................................10

Michael Del Castillo, Open Source Terror: How the World’s Most Dangerous Crypto Anarchist Intends To 

Neutralize Biden’s Proposed Gun Control Regulations, FORBES (Jan 12, 2022)

https://www.forbes.com/sites/michaeldelcastillo/2022/01/12/open-source-terror-how-theworlds-most-dangerous-crypto-anarchist-intends-to-neutralize-bidens-proposed-gun-controlregulations/?sh=4e8969f13dd6 (last visited Nov. 23, 2022)...................................................................9-10

Zach Weissmueller, Cody Wilson Thwarts Another Attempt to Stop Ghost Guns, REASON (Jan. 12, 2022)

https://reason.com/video/2022/01/12/cody-wilson-thwarts-another-attempt-to-stop-ghostguns/ (last visited Nov. 23, 2022) ........................................................................................................................10

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INTRODUCTION

In their brief in support of their Motion to Intervene, ECF No. 117 (“Motion to Intervene”

or “Mot.”), Defense Distributed and the Second Amendment Foundation, Inc. (“SAF”) (collectively, 

“Putative Intervenors”) argue that this Court should permit them to intervene in this action—either 

by mandatory or permissive intervention—for all of the same reasons that this Court held that 

BlackHawk Manufacturing Group Inc. d/b/a 80 Percent Arms (“BlackHawk”) was entitled to 

intervene in this action. See ECF No. 98 (“BlackHawk Intervention Op.”). As a threshold matter, 

both Defense Distributed and SAF fail to establish Article III standing, as is required to seek relief 

not sought by the existing parties. Putative Intervenors’ Motion to Intervene also is untimely, in light 

of the developments in this action since the Court granted BlackHawk’s motion to intervene. 

Moreover, Putative Intervenors fail to show that they are similarly situated to BlackHawk in the 

relevant respects with anything other than self-supporting conclusory allegations. For example, 

Putative Intervenors do not establish that they have a protectable interest that might be impaired or 

impeded as a result of this litigation. Nor do they support the factual premise that Defense Distributed 

is likely to dissolve absent expanded preliminary injunctive relief, which was the basis for this Court’s 

holding that BlackHawk had such an interest. Putative Intervenors likewise do not provide support 

for the factual premise that Defense Distributed is a competitor to the existing parties, which was the 

basis for this Court’s holding that BlackHawk’s interests were not adequately represented absent 

intervention. For all of these reasons, this Court should deny Putative Intervenors’ Motion to 

Intervene.

I. Neither Defense Distributed Nor SAF Has Established Article III Standing, As Is 

Required to Pursue Distinct Relief from the Existing Parties.

As the Supreme Court and this Court have held, “[a]n intervenor of right must independently 

demonstrate Article III standing if it pursues relief that is broader than or different from the party 

invoking a court’s jurisdiction.” Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. 

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Ct. 2367, 2379 n.6 (2020) (citing Town of Chester v. Laroe Ests., Inc., 137 S. Ct. 1645, 1651 (2017)); accord

DeOtte v. Azar, 332 F.R.D. 173, 179 (N.D. Tex. 2019). Here, Putative Intervenors seek, among other 

relief, a preliminary injunction barring enforcement of the Rule1 against Defense Distributed or against 

SAF’s members and an award of costs, including attorney fees—neither of which is sought by an 

existing party in this litigation. See ECF No. 117-1 (“Proposed Compl.”) ¶¶ 91-93. With respect to 

Putative Intervenors’ request for preliminary injunctive relief, none of the existing parties currently 

seeks preliminary injunctive relief extending to Defense Distributed or to SAF’s members.2

 Further, 

no party seeks an award of fees to Putative Intervenors. Cf. Garnett v. Zeilinger, 485 F. Supp. 3d 206, 

215-19 (D.D.C. 2020) (assessing whether a party had demonstrated Article III standing to seek

attorney’s fees and costs where fees and costs were the only form of relief distinct from that sought 

by parties that already had demonstrated Article III standing). 

In sum, because putative Intervenors seek relief that is different from that sought by the 

existing parties, they must demonstrate Article III standing, i.e., “the well-known injury, causation, and 

redressability trifecta.” Abraugh v. Altimus, 26 F.4th 298, 304 (5th Cir. 2022) (quoting Norris v. Causey, 

869 F.3d 360, 366 (5th Cir. 2017)). Neither Defense Distributed nor SAF has satisfied this burden.

A. Defense Distributed Has Not Established Article III Standing.

Defense Distributed has not establishedArticle III standing because it fails to concretely allege 

any injury-in-fact traceable to the Rule. Indeed, Defense Distributed fails to identify in its Motion to 

1 Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022).

2 The original Plaintiffs twice sought a nationwide preliminary injunction, which would have barred 

enforcement of the Rule against Defense Distributed or against SAF’s members. See ECF No. 55, at 

14-15; ECF No. 63, at 14-18. The Court denied that request both times. See VanDerStok v. Garland, 

No. 4:22-CV-00691-O, 2022 WL 4009048, at *10 (N.D. Tex. Sept. 2, 2022), opinion clarified, No. 4:22-

CV-00691-O, 2022 WL 6081194 (N.D. Tex. Sept. 26, 2022); VanDerStok v. Garland, No. 4:22-CV00691-O, 2022 WL 4809376, at *9-10 (N.D. Tex. Oct. 1, 2022). Intervenor BlackHawk Manufacturing 

sought (and obtained) a preliminary injunction that protects only BlackHawk and its customers, not 

Putative Intervenors. See ECF No. 103, at 19; VanDerStok v. Garland, No. 4:22-CV-00691-O, 2022 

WL 16680915, at *5 (N.D. Tex. Nov. 3, 2022).

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Intervene any specific product or product category that it sells or sold that falls under the Rule’s scope. 

And Defense Distributed’s allegations that it “is the first private defense contractor in service of the 

general public” and “has defined the state of the art in small scale, digital, personal gunsmithing 

technology,” shed no light on whether its products are “firearms” under the Rule. Proposed Compl. 

¶ 9.

To be sure, Defense Distributed alleges that, as a result of the Rule, it has ceased dealing in, 

manufacturing, selling, delivering, shipping, transporting, and receiving “unfinished receivers” and 

“frame and receiver parts kits” and that the cessation of “certain [unspecified] lines of business” has 

“deprived Defense Distributed of over one hundred thousand dollars in revenues to date,” among 

other alleged harms. Id. ¶¶ 47-50, 54-55. Without greater specificity, however, it is impossible to 

discern whether the “unfinished receivers” or “frame and receiver parts kits” to which Defense 

Distributed refers or the other unspecified “lines of business” are newly classified as firearms under 

the Rule. Significantly, the Rule does not classify all unfinished receivers or frame or receiver parts 

kits as firearms. Rather, the determination whether a particular unfinished receiver is a “firearm” 

under the Rule is governed by an eight-factor standard, see 86 Fed. Reg. at 24,739 (codified as amended 

at 27 C.F.R. § 478.12(c)) (defining “[p]artially complete, disassembled, or nonfunctional frame or 

receiver”); id. at 24,735 (codified as amended at 27 C.F.R. § 478.11) (defining “[r]eadily”), and the Rule 

provides examples of various unfinished receivers that are not “firearms” under the Rule, see id. at 

24,739 (codified as amended at 27 C.F.R. § 478.12(c), examples 4-5). Similarly, frame or receiver parts 

kit “must be re-evaluated” to “determine whether they would now be classified as ‘firearms,’ ‘frames,’ 

or ‘receivers.’” 87 Fed. Reg. at 24,668. Indeed, Putative Intervenors acknowledge as much in alleging 

that “‘a frame or receiver parts kit’ can constitute ‘a partially complete, disassembled, or nonfunctional 

frame or receiver.’” Proposed Compl. ¶ 53 (emphasis added) (quoting 27 C.F.R. § 478.12(c)). In 

short, Defense Distributed’s allegations that it has ceased engaging in commercial activity relating to

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unspecified “unfinished receivers” and “frame and receiver parts kits” do not suffice to establish a 

causal link between any resulting harm and the Rule. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 

418 (2013) (holding that “self-inflicted injuries” that are not “fairly traceable to the Government’s 

purported activities” do not give rise to standing).

Contrary to Putative Intervenors’ contention that “Defense Distributed’s case for intervention 

is just as compelling as Blackhawk’s in every relevant respect,” Mot. at 3,3 BlackHawk submitted 

evidence that it had previously sold partially complete AR-style receivers that ATF had classified not 

to be “firearms” under the previous regulatory definitions, alongside jigs that consumers could use to 

render functional the partially complete AR-style receivers, see ECF No. 77-3 (“Lifschitz Decl.”), ¶¶ 4-

5. In conjunction with the text of the Rule, this evidence plausibly established that BlackHawk had 

previously sold products that were newly classified as “firearms” as a result of the Rule. Indeed, the 

Rule explains that, “[p]rior to this rule, ATF did not examine templates, jigs, or other items and 

materials in determining whether partially complete frames or receivers were ‘firearms’ under the 

GCA.” 87 Fed. Reg. at 24,668. And it further provides that “[a] frame or receiver parts kit containing 

a partially complete or disassembled billet or blank of a frame or receiver that is sold, distributed, or 

possessed with a compatible jig or template is a frame or receiver” under the Rule. Id. at 24,739 

(codified as amended at 27 C.F.R. § 478.12(c), example 1). Thus, BlackHawk colorably pleaded, for 

purposes of its motion to intervene, that it sold products that were newly classified as “firearms” under 

the Rule. By contrast, Defense Distributed fails to make a comparable showing, and thus has not 

established Article III standing to seek relief or pursue claims distinct from the existing parties.

B. SAF Has Not Established Article III Standing.

SAF also fails to establish Article III standing. SAF appears to invoke associational standing 

3 Because Putative Intervenors’ Motion to Intervene lacks page numbers, citations thereto are to the 

Bates-stamped pagination created by the ECF system.

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on behalf of its members, as opposed to asserting any injury in its own right. See Mot. at 7 (“SAF . . . 

advances the interests of members suffering irreparable harm akin to the individual plaintiffs.”). As 

this Court set forth earlier in this action:

The associational standing doctrine permits an organization to invoke the court’s 

injunctive or declaratory remedial powers on behalf of its members provided it can 

satisfy a three-prong test: (a) its members would otherwise have standing to sue in 

their own right; (b) the interests it seeks to protect are germane to the organization’s 

purpose; and (c) neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit.

VanDerStok, 2022 WL 4809376, at *7 (internal quotation marks and brackets omitted) (quoting Hunt 

v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 333 (1977)).

SAF alleges that the Rule harms certain unidentified SAF members who wish to “commercially 

purchase, possess, or otherwise acquire from firms like Defense Distributed the articles defined for 

the first time ever as ‘firearms’ by the new Final Rule” and would do so “imminently” but for the Rule. 

Proposed Compl. ¶¶ 61-63. But Putative Intervenors fail to identify any individual member who 

allegedly is similarly situated to the Individual Plaintiffs in this action, as is required to establish 

associational standing. See Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (“[T]he Court has 

required plaintiffs claiming an organizational standing to identify members who have suffered the 

requisite harm . . . .”). Additionally, even if these allegations plausibly established that any one of 

SAF’s members would have standing in his or her own right to challenge the Rule—which they do 

not—Putative Intervenors offer no arguments, allegations, or evidence to support a finding that the 

other two prongs of the associational standing standard are satisfied. Moreover, their filings also fail 

to address the “indicia of membership” that constitute a threshold requirement to invoking 

associational standing as a membership organization. See Hunt, 432 U.S. at 334; Friends of the Earth, 

Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir. 1997). For these reasons, SAF has not established 

standing to seek relief on behalf of its members. 

II. Putative Intervenors Have Not Demonstrated an Entitlement to Intervene in This 

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Action Pursuant to Rule 24(a).

Even if Defense Distributed or SAF had established Article III standing, the Court should 

deny their request to intervene pursuant to Rule 24(a) because they fail to establish, first, that their 

“application for intervention [is] timely,” second, that they “have an interest relating to the property or 

transaction which is the subject of the action,” third, that “the disposition of the action may, as a 

practical matter, impair or impede [their] ability to protect that interest,” or, fourth, that their “interest 

[is] inadequately represented by the existing parties to the suit.” Texas v. United States, 805 F.3d 653, 

657 (5th Cir. 2015) (quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 

(5th Cir. 1984) (en banc)). “A would-be intervenor bears the burden to prove an entitlement to 

intervene,” and “failure to prove a required element is fatal.” Rotstain v. Mendez, 986 F.3d 931, 937 

(5th Cir. 2021) (citing Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996)). Here, Putative 

Intervenors fail to prove any of the four required elements.

A. Putative Intervenors’ Motion to Intervene Is Untimely.

Intervention as of right may only be granted “[o]n timely motion.” Fed. R. Civ. P. 24(a). 

Timeliness “should be determined based on all the circumstances.” Effjohn Int’l Cruise Holdings, Inc. v. 

A&L Sales, Inc., 346 F.3d 552, 561 (5th Cir. 2003) (citation omitted). The Fifth Circuit’s test for 

timeliness of intervention requires the Court to consider “(1) the length of time between the wouldbe intervenor’s learning of his interest and his petition to intervene, (2) the extent of prejudice to 

existing parties from allowing late intervention, (3) the extent of prejudice to the would-be intervenor 

if the petition is denied, and (4) any unusual circumstances.” In re Lease Oil Antitrust Litig., 570 F.3d 

244, 247-48 (5th Cir. 2009), remanded sub nom. In re Lease Oil Antitrust Litig. (No. II), No. MDL 1206, 

2009 WL 5195977 (S.D. Tex. June 27, 2011), reversed and vacated sub nom. All Plaintiffs v. All Defendants, 

645 F.3d 329 (5th Cir. 2011). These factors weigh against a finding of timeliness here.

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First, that Putative Intervenors waited nearly three months after the filing of the Complaint,

to seek intervention, without any compelling explanation for such a delay, weighs against timeliness. 

During that time, the parties have briefed and the Court has ruled on Plaintiffs’ motion for preliminary 

injunction, in addition to multiple motions to expand or clarify the scope of the preliminary injunction, 

see ECF Nos. 56, 84, 89; BlackHawk has moved to intervene, and the Court has granted BlackHawk’s 

motion for intervention and motion for preliminary injunction, see ECF Nos. 98, 118; Defendants 

have produced the administrative record; and the Court has set a Scheduling Order, which included a 

deadline of October 31, 2022 for amended pleadings by intervenors, see ECF No. 105. Putative

Intervenors claim to be similarly situated to BlackHawk, but the fact that BlackHawk moved to 

intervene on September 22, 2022, far earlier than Putative Intervenors, underscores that Putative

Intervenors had no justification to delay until November to seek intervention.

Second, the parties will be prejudiced if Putative Intervenors are allowed to intervene, because 

the case has reached an advanced stage, and the schedule set by the Court would not allow sufficient 

time for Defendants to put Putative Intervenors to their standing burden at the summary judgment

stage, in the event that the Court does not deny this motion on the ground that Putative Intervenors 

lack standing. See supra Section I. In deciding that the parties would not be prejudiced by BlackHawk’s 

intervention, the Court stated that “this litigation [had not] yet reached a critical stage” and “the Court 

[had] not even issued a scheduling order in the case.” BlackHawk Intervention Op. at 6. That is no 

longer true. The Court has now entered a Scheduling Order, which calls for summary judgment 

briefing to begin 60 days after completion of the administrative record, ECF No. 105, and has 

separately issued orders directing the filing of supplemental briefs on December 5, 2022, in order to 

resolve the merits Plaintiffs’ statutory interpretation claims. ECF Nos. 107, 110, 115.

Putative Intervenors assert that they are “willing to comply with the case’s current schedule,” 

Mot. at 6, but intervention at this late stage would disrupt that schedule. The schedule called for any 

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amended pleadings by intervenors to be filed by October 31, 2022, ECF No. 105, at 2, but Putative

Intervenors filed their motion and proposed complaint after that date. Further, as explained above, 

Putative Intervenors have not established standing. See supra Section I. While Defendants maintain

that Putative Intervenors’ failure to plead standing is apparent from the face of their proposed 

complaint, at the very least, standing is in dispute. Even if the Court were to determine that Putative

Intervenors’ allegations are sufficient to plead standing, Putative Intervenors would need to provide 

evidence (not just allegations) to support standing at the summary judgment stage. See Lujan v. Defs.

of Wildlife, 504 U.S. 555, 561 (1992) (explaining that while well-pleaded allegations of injury suffice at 

the pleading stage, at the summary judgment stage, “plaintiff can no longer rest on such ‘mere 

allegations,’ but must set forth by affidavit or other evidence specific facts” to establish standing

(quoting Fed. R. Civ. P. 56(e))). Disputes over Putative Intervenors’ claims to standing would likely 

extend beyond the schedule for briefing the statutory interpretation issue and may well extend beyond 

the Court’s schedule for briefing summary judgment. But the Court cannot rule on the merits of 

Putative Intervenors’ claims—either for or against Putative Intervenors—unless and until the Court 

determines that Putative Intervenors have standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 

83, 94-95 (1998), remanded, 151 F.3d 1032 (7th Cir. 1998), remanded, 1999 WL 412439 (N.D. Ill. June 9, 

1999), aff’d, 230 F.3d 923 (7th Cir. 2000), cert. denied, 523 U.S. 994 (2001).

Third, Putative Intervenors would not be prejudiced by denying intervention. As shown 

above, Putative Intervenors lack standing because Defense Distributed has not pleaded that the Rule 

has caused it any injury that would be redressed by a favorable ruling, and SAF has not met the 

requirements to invoke associational standing on behalf of its members. See supra Section I. It 

therefore follows that denying intervention could not prejudice their interests.

Fourth, no unusual circumstances weigh in favor of timeliness. Putative Intervenors state that 

this factor “either pushes in neither direction or weighs slightly in favor of intervention,” Mot. at 6, 

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but they identify no unusual circumstances weighing in their favor. If anything, the fact that Putative

Intervenors have sought to intervene after the deadline set by the Court for amended intervenor 

pleadings weighs against intervention here.

B. Putative Intervenors Have Not Established a Protectable Interest That May Be 

Impaired or Impeded as a Result of This Litigation.

Putative Intervenors also fail to establish that they have a protectable interest in the Rule that 

may be impaired or impeded absent intervention. In their Motion to Intervene, Putative Intervenors 

argue that “[t]he Court rightly found that Blackhawk met these parts of the test, and for essentially 

those same reasons the test is met here as well.” Mot. at 6 (citation omitted) (citing BlackHawk 

Intervention Op. at 7-8). Critically, however, Putative Intervenors cite no allegations or evidence to 

support their bare assertion they have a protectable interest in this litigation analogous to that of 

BlackHawk—that is, a risk of dissolution absent preliminary injunctive relief. See BlackHawk 

Intervention Op. at 7-8. Rather, while Putative Intervenors repeatedly cite this Court’s opinion 

granting BlackHawk’s motion to intervene, they fail to demonstrate, beyond mere ipse dixit, how it 

applies to them. Putative Intervenors are free to argue that their circumstances are analogous to that 

of BlackHawk, but they must marshal factual support for that argument, which they fail to do.

For example, Putative Intervenors contend that “absent expanded injunctive relief, [Defense 

Distributed’s] cognizable property interest may not only be impeded, it will likely dissolve entirely.”

Mot. at 7 (alteration in original) (quoting BlackHawk Intervention Op. at 7-8). But they cite no 

allegations or evidence to support the assertion that the Rule poses an imminent, existential threat to 

the viability of Defense Distributed’s business.

4

 

4 Moreover, a review of the Proposed Complaint reveals no non-conclusory allegations to 

support that proposition. For example, a loss of $100,000 in revenue as a result of ceasing the sale of 

certain unspecified product lines does not by itself translate to a need for preliminary injunctive relief 

to prevent dissolution of Defense Distributed’s business. See Proposed Compl. ¶¶ 50(a), 55(a); see also

Michael del Castillo, Open Source Terror: How the World’s Most Dangerous Crypto Anarchist Intends To 

Neutralize Biden’s Proposed Gun Control Regulations, FORBES (Jan. 12, 2022), available at

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By contrast, BlackHawk submitted evidence in support of its motion to intervene that its 

average daily revenue had decreased by more than 90% after the Rule took effect and that its sales 

relative to website traffic had “dropped precipitously” in the same time period, including graphs 

demonstrating this decrease over time and broken down by state. Lifschitz Decl. ¶¶ 12-15. 

BlackHawk also offered a benchmark for interpreting these figures relative to BlackHawk’s historical 

performance and norms in the e-commerce industry. Id. ¶ 12. Further, it projected the effect on its 

business if it did not resume selling jigs on its website within two to three months, forecasting 

cumulative losses that would lead BlackHawk to shut down its business between November 1, 2022, 

and December 1, 2022, absent preliminary injunctive relief. Id. ¶ 20.5

 

https://www.forbes.com/sites/michaeldelcastillo/2022/01/12/open-source-terror-how-theworlds-most-dangerous-crypto-anarchist-intends-to-neutralize-bidens-proposed-gun-controlregulations/?sh=4e8969f13dd6 (last visited Nov. 23, 2022) (reporting that, according to founder and 

director Cody Wilson, see Proposed Compl. ¶ 8, Defense Distributed was on track to earn $5 million 

in 2021). Further, Wilson has made public statements suggesting that the Rule benefits Defense 

Distributed overall. For example, Wilson stated in a media interview earlier this year that he expected 

the Rule to effectively give Defense Distributed “a monopoly of the market,” because Defense 

Distributed had “modified its[] home milling machine,” known as the “Ghost Gunner,” “so that users 

no longer need to load it with the partially fabricated metal parts subject to the new rule. Instead, 

they’ll be able to start from scratch with a solid block of aluminum.” Zach Weissmueller, Cody Wilson 

Thwarts Another Attempt to Stop Ghost Guns, REASON (Jan. 12, 2022), available at 

https://reason.com/video/2022/01/12/cody-wilson-thwarts-another-attempt-to-stop-ghost-guns/

(last visited Nov. 23, 2022). On its website, Ghost Gunner touts that it “is a unique platform which 

is not limited by” the Rule, and that what it calls the “Zero Percent Receiver” is the “[o]nly legal and 

affordable method for unregistered metal lowers in 2022 and beyond.” AR-00: 0% Receiver, GHOST 

GUNNER, available at https://ghostgunner.net/zero-percent/ (last visited Nov. 23, 2022). 

Any remaining allegations in the Proposed Complaint regarding financial harm are wholly 

conclusory. See, e.g., Proposed Compl. ¶ 56 (“The new Final Rule irreparably harms Defense 

Distributed by causing the financial injuries listed about [sic] in amounts that are very, very 

substantial.” (emphasis omitted)). 

To be sure, an existential threat to the viability of one’s business is not the only interest that 

could support a motion to intervene. But it is the only one that Defense Distributed identifies and 

attempts to rely on here, by citing the Court’s opinion on BlackHawk’s motion to intervene as the 

exclusive basis for its argument that it has a protectable interest in the outcome of this litigation that 

may be impaired or impeded absent intervention.

5 Although Defendants argued that BlackHawk’s injury was self-imposed in light of BlackHawk’s

voluntary decision to stop selling jigs rather than to offer jigs for sale with its receiver blanks subject 

to the requirements of the Gun Control Act of 1968 (“GCA”), Defendants did not dispute that 

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11

As noted, a would-be intervenor bears the burden of proving all four factors that are required 

to establish an entitlement to intervene. See Rotstain, 986 F.3d at 937. Although “Rule 24 is to be 

liberally construed,” Texas, 805 F.3d at 656 (quoting Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 

2014)), a putative intervenor must, at a minimum, support its assertions regarding its protectable 

interest in the litigation with specific, non-conclusory allegations, see, e.g., DeOtte, 332 F.R.D. at 184 

(“While the well-pleaded facts presented by [the putative intervenor] are taken as true, the Court is 

not required to accept conclusory assertions.”); United States v. Texas, No. CV 5281, 1998 WL 

36027548, at *4 (E.D. Tex. Apr. 17, 1998) (holding that “an unsupported allegation is insufficient to 

support a motion for intervention of right”). Because Defense Distributed fails to satisfy that burden, 

the Court should deny its Motion to Intervene. 

SAF also fails to identify a cognizable interest in the outcome of this litigation, offering only a 

one-sentence contention that it “advances the interests of members suffering irreparable harm akin to 

the individual plaintiffs.” Mot. at 7. Not only is such a bare contention inadequate to establish the 

requisite interest, but—as explained above—SAF has not satisfied the threshold requirement of 

establishing associational standing to seek relief on its members’ behalf. See supra Section I.B.

C. Putative Intervenors Have Not Established That Any Interest They May Have in 

This Litigation Is Inadequately Represented by the Existing Parties. 

For similar reasons, Putative Intervenors also fail to establish that the existing parties do not 

adequately represent any interest that they may have in the outcome of this litigation. Once again, 

Putative Intervenors argue principally that they are entitled to intervene for the same reasons that this 

Court granted BlackHawk’s motion for intervention, but they fail to support that analogical reasoning

with any factual allegations or evidence. For example, Putative Intervenors argue that “Defense 

Distributed’s status as a competitor seller vis-à-vis Tactical Machining ‘is a practical nuance sufficient 

BlackHawk plausibly alleged that it faced existential financial harm if it did not resume selling jigs. See 

generally ECF No. 96.

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12

to overcome’ the relevant threshold,” Mot. at 7 (quoting BlackHawk Intervention Op. at 9), but they 

fail to support the underlying factual contention that Defense Distributed is a competitor seller vis-àvis Tactical Machining.

By contrast, the pleadings and evidence before the Court when it decided BlackHawk’s motion 

to intervene demonstrated that BlackHawk was a direct competitor to Tactical Machining. Compare

ECF No. 77-1, ¶ 97 (“BlackHawk fulfills orders by shipping receiver blanks, jigs, tools, and 

instructions to customers and businesses across the country that place orders for products. The bulk 

of its customers are out of state.”), and Lifschitz Decl. ¶ 17 (“80 Percent Arms’ jig and the ‘80% 

Lowers’ that [BlackHawk] sell[s] are complementary goods that are used together, each creating a 

demand for the other. The inability to sell the jig drastically reduces sales for the ‘80% Lowers,’ as well 

as other ancillary products and accessories.”), with ECF No. 16-1, ¶ 7 (characterizing Tactical 

Machining’s central product offering as items “marketed using the colloquial term 80% lowers”); ECF 

No. 62-3, ¶¶ 15-17 (stating that, but for the Rule, Tactical Machining would resume selling the jigs 

that it offered before the Rule took effect, which it expected “would significantly increase sales of 

Tactical Machining’s other products.”). 

Putative Intervenors offer no comparable allegations or evidence. To the contrary, they allege 

that Defense Distributed previously sold “unfinished receivers” and “frame or receiver parts kits” but 

has ceased doing so since the Rule took effect. See Proposed Compl. ¶¶ 47, 49, 53-55. Neither an 

“unfinished receiver” nor a “frame or receiver parts kit” is synonymous with the specific combination 

of an incomplete AR-style receiver blank and a jig to readily facilitate its completion, which both 

Tactical Machining and BlackHawk sold directly to out-of-state customers over the Internet before 

the Rule took effect. See supra Section I.A (discussing the Rule’s differing application to these various 

product configurations). 

Aside from the unsupported contention that Defense Distributed is similarly situated to 

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13

BlackHawk for purposes of the inadequate representation inquiry, Putative Intervenors’ only other 

contention with respect to this factor is that they “make unique arguments against the regulation (e.g., 

their Count II).” Mot. at 7. But, as noted above, Putative Intervenors have not established standing 

to bring a claim that the existing parties do not already advance. See supra Section I; see also Brackeen v. 

Haaland, 994 F.3d 249, 369 (5th Cir. 2021) (“At least one plaintiff must have standing ‘for each claim

he seeks to press . . . .’” (emphasis added) (quoting Town of Chester, 137 S. Ct. at 1650)), cert. granted sub 

nom. Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted 

sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022). This factor 

thus cannot weigh in favor of intervention as of right.

III. Defense Distributed and SAF Are Not Entitled to Permissive Intervention.

Finally, the Court should deny Defense Distributed and SAF’s request for permissive 

intervention. Putative Intervenors argue that permissive intervention “is warranted because Defense 

Distributed and SAF’s request for permissive intervention is timely and because Defense Distributed 

and SAF’s claims share common questions of law and fact with those of the main action.” Mot. at 7. 

They are wrong on both scores.

With respect to timeliness, “[t]imeliness under mandatory intervention is evaluated more 

leniently than under permissive intervention.” Rotstain, 986 F.3d at 942 (citation omitted). As 

explained above, Putative Intervenors’ Motion to Intervene is not timely for purposes of mandatory

intervention. See supra Section II.A. It follows that Potential Intervenors’ motion for permissive 

intervention is also untimely. See Rotstain, 986 F.3d at 942 (“Because we conclude that the district 

court did not abuse its discretion by determining that the request for mandatory intervention was 

untimely, we also conclude that the district court did not abuse its discretion by determining that the 

request for permissive intervention was untimely.”).

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14

With respect to common questions of law or fact between Putative Intervenors’ proposed 

claims and those of the existing parties, this Court has held that “[n]ot all challenges to ATF’s final 

rule warrant . . . consolidation.” See ECF No. 65, at 2. It follows that high-level similarities between 

Putative Intervenors’ bases for challenging the Rule and the challenges brought by the existing parties 

are insufficient to justify permissive intervention in this Court’s equitable discretion. 

CONCLUSION

For the foregoing reasons, this Court should deny Defense Distributed and SAF’s Motion to 

Intervene. 

DATED: November 23, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ALEXANDER K. HAAS

Director, Federal Programs Branch

LESLEY FARBY

Assistant Director, Federal Programs Branch

/s/ Taisa M. Goodnature 

DANIEL RIESS

MARTIN M. TOMLINSON

TAISA M. GOODNATURE

JEREMY S.B. NEWMAN

Trial Attorneys

Civil Division, Federal Programs Branch

U.S. Department of Justice

1100 L Street, NW

Washington, DC 20005

Phone: (202) 353-4556

Email: martin.m.tomlinson@usdoj.gov

Attorneys for Defendants

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CERTIFICATE OF SERVICE

On November 23, 2022, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Texas, using the electronic case filing system 

of the court. I hereby certify that I have served all parties electronically or by another manner 

authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Taisa M. Goodnature 

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