1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

Plaintiffs,

and

BLACKHAWK MANUFACTURING GROUP,

INC.; DEFENSE DISTRIBUTED; and SECOND

AMENDMENT FOUNDATION, INC.,

Intervenor-Plaintiffs,

v.

MERRICK GARLAND, in his official

capacity as Attorney General of the United States;

et al.,

Defendants.

Civil Action No. 4:22-cv-00691-O

PLAINTIFFS’ OPPOSITION TO

NOT AN LLC (JSD SUPPLY) AND

POLYMER 80, INC.’S MOTIONS TO INTERVENE

Plaintiffs oppose the motions by Not an LLC d/b/a JSD Supply (“JSD Supply”) and 

Polymer 80, Inc. (“Polymer 80”) to intervene in this lawsuit because additional interventions 

seemingly cannot now be accommodated without a delay in the resolution of Plaintiffs’ case on 

the merits.

The unlawful Final Rule promulgated by Defendants has had significant negative effects 

on many businesses—many more than are parties to this case. However, allowing every 

substantially affected party to intervene in this litigation would delay the resolution of this issue 

for the Plaintiffs and granted Intervenors, causing prejudice. Should the Court allow intervention—

and particularly if the Court allows JSD Supply and Polymer80 to participate in summary 

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 1 of 11 PageID 4630
2

judgment briefing—it would cause significant delay in the resolution of Plaintiffs’ case on the 

merits.

The administrative record has been filed, summary judgment briefing has concluded, the 

preliminary injunction currently protecting Plaintiffs is on appeal to the Fifth Circuit, and 

Plaintiffs’ pending motion for summary judgment addresses additional arguments not considered 

in the preliminary injunction. Moreover, Plaintiffs’ summary judgment motion seeks vacatur of 

the Final Rule, and vacating the Final Rule due to its violation of the APA and constitutional

provisions will provide more complete, permanent relief than the existing preliminary injunction 

and will likely address all the reasons the Final Rule is unlawful. Accordingly, delay of this broader

relief on the full merits of Plaintiffs’ claims, likely resting on multiple alternative bases, puts 

Plaintiffs at needless risk, considering this Court’s preliminary injunction has already been 

appealed.

Polymer80 and JSD Supply—both of whom first sought intervention in January 2023—

are simply late to this litigation. The Final Rule was published in April 2022. The Plaintiffs 

initiated suit in August 2022. This Court granted the original injunction on September 2, 2022.

The parties commenced summary judgment briefing in late December 2022. Allowing intervention 

at this point would likely delay these proceedings and prejudice the Plaintiffs.

1

There is nothing to prevent the proposed intervenors from filing their own lawsuits—

indeed, Polymer80 already has. See Complaint, Polymer80, Inc. v. Garland, 4:23-cv-00029 (N.D. 

Tex. Jan. 9, 2023). There is also nothing that prevented them from participating in this matter 

through amicus briefs. More importantly, should Plaintiffs prevail on their motion for summary 

1 To the extent, however, that granting intervention would not affect or delay resolution of

Plaintiffs’ pending summary judgment motion, Plaintiffs’ concerns about timeliness and prejudice

are somewhat mitigated.

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 2 of 11 PageID 4631
3

judgment, and should this Court vacate the unlawful provisions of the Final Rule, the proposed 

intervenors would benefit from that relief as well.

BACKGROUND

Plaintiffs filed suit against the Department of Justice (“DOJ”) and the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF,” collectively “Defendants”) on August 11, 2022, and

have moved this case forward on an expedited basis. See ECF Nos. 1 (Petition); 16 (motion for

preliminary injunction); 17 (Order expediting briefing on preliminary injunction motion); 23

(Order expediting briefing on Defendants’ motion to transfer); 33 (Order requiring expedited

briefing on potential Rule 65 consolidation). Plaintiffs sought an injunction on August 17, 2022.

ECF No. 16. The Court issued a preliminary injunction on September 2, 2022. ECF No. 56.

Additional expedited briefing followed. See ECF Nos. 56 (providing expedited schedule for any

motion to address scope of injunction); 63 (motion to expand injunction); 74 (Order expediting

briefing on Defendants’ motion for clarification). The Court then expanded the preliminary

injunction on October 1, 2022, and clarified on October 3, 2022. ECF Nos. 89, 91. The preliminary

injunctions covered only the Individual Plaintiffs, Tactical Machining, and Tactical Machining’s

customers while excluding coverage for prohibited persons under 18 U.S.C. § 922(g). On October

5, 2022, Plaintiffs filed an Amended Petition, adding their First Amendment Claim. ECF No. 93.

BlackHawk Manufacturing Group (“BlackHawk”) filed a motion to intervene on

September 22, 2022, and thereafter proceeded on an expedited basis. ECF Nos. 76, 77. BlackHawk

was granted intervenor status by the Court on October 18, 2022. ECF No. 98. BlackHawk filed a

motion for a preliminary injunction on October 20, 2022. ECF Nos. 102, 103. BlackHawk was

granted a preliminary injunction on November 3, 2022. ECF No. 118.

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 3 of 11 PageID 4632
4

On October 24, 2022, this Court entered a Scheduling Order, requiring any motions to

amend to be filed within 21 days of when Defendants answered, and setting a schedule for

summary judgment briefing. ECF No. 105. Also on October 24, 2022, the Defendants lodged the

administrative record. ECF No. 106. The next day, the Court consolidated the preliminary

injunction and trial on the merits for Count I of Plaintiffs’ Amended Petition and provided a

deadline for any related supplemental briefing on Count I. ECF No. 107.

On November 1, Defendants filed notices of appeal, appealing the preliminary injunction

granted to Plaintiffs, ECF Nos. 113, 114, and three days later appealed the preliminary injunction

granted to Blackhawk, ECF No. 120.

Defense Distributed and the Second Amendment Foundation filed motions to intervene on

November 2, 2022. ECF Nos. 116, 117. The Court issued an order granting that motion on

December 19, 2022. ECF No. 137.

2

On November 10, 2022, Defendants filed their Answer to Plaintiffs’ Amended Petition,

making any last motions to amend due December 1, 2022. ECF No. 123.

Pursuant to the Court’s October 25, 2022 Order consolidating the preliminary injunction

and trial on the merits for Plaintiffs’ Count I, on December 5, 2022, Plaintiffs, Blackhawk, and

Defendants filed supplemental briefs addressing Plaintiffs’ and Blackhawk’s claims that the Final

Rule exceeds Defendants’ authority. ECF Nos. 132, 134.

On December 20, 2022, Defendants filed their opening brief before the Fifth Circuit.

On December 23, 2022, Plaintiffs and Blackhawk filed motions for summary judgment.

ECF Nos. 140, 141, 142, 144, 145, 146.

2 Of note, Defense Distributed and the Second Amendment Foundation sought a preliminary

injunction, ECF Nos. 163, 164, which this court granted on March 2, 2023, ECF No. 188, and

which Defendants appealed on May 1, 2023, ECF No. 2010.

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 4 of 11 PageID 4633
5

Not until January 5, 2023, did JSD Supply file its motion to intervene. ECF No. 149.

Polymer80, LLC filed a motion to intervene on January 9, 2023. ECF No. 157. In response,

Defendants requested that either the intervention briefing or the summary judgment briefing be

delayed. ECF No. 170. This Court delayed the former. ECF No. 172.

Briefing on Plaintiffs’ and Blackhawk’s motions for summary judgment was completed on

March 6, 2023. ECF Nos. 191, 192, 193. Defendants filed their final summary judgment brief on

April 19, 2023. ECF No. 204. Additionally, briefing before the Fifth Circuit on Defendants’ appeal

of Plaintiffs’ and BlackHawk’s preliminary injunctions was completed on March 2, 2023.

ARGUMENT

Adding intervening plaintiffs to this case at the advanced stage of these proceedings would 

be untimely and cause prejudice to the existing Plaintiffs. To intervene as of right, an entity must 

demonstrate:

(1) the application for intervention must be timely; (2) the applicant must have an 

interest relating to the property or transaction which is the subject of the action; (3) 

the applicant must be so situated that the disposition of the action may, as a practical 

matter, impair or impede his ability to protect that interest; [and] (4) the applicant’s 

interest must be inadequately represented by the existing parties to the suit.

Guenther v. BP Retirement Accumulation Plan, 50 F.4th 536, 542 (5th Cir. 2022) (internal citation 

omitted); see also Fed. R. Civ. P. 24(a). Likewise, any permissive intervention must be timely and 

not unduly delay or prejudice the existing parties. See United States v. City of New Orleans, 540 

Fed. Appx. 380, 381 (5th Cir. 2013) (affirming denial of permissive intervention where district 

court found it would unduly delay the proceedings).

First, JSD and Polymer80 cannot satisfy the first element for any sort of intervention; the 

applications are not timely. Second, JSD and Polymer80 have not shown how intervention will not 

prejudice Plaintiffs. And third, Plaintiffs fail to see how Polymer80’s interest is inadequately 

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 5 of 11 PageID 4634
6

represented. “The very purpose of intervention is to allow interested parties to air their views so 

that a court may consider them before making potentially adverse decisions.” Brumfield v. Dodd, 

749 F.3d 339, 345 (5th Cir. 2014). Polymer80 has a case on the same subject matter pending before 

this Court, thereby representing its own interests. See Complaint, Polymer80, Inc. v. Garland, 

4:23-cv-00029 (N.D. Tex. Jan. 9, 2023).3

Moreover, should this Court deny intervention, it will not prejudice the proposed 

intervenors. As noted, Polymer80 already has its own independent litigation challenging the Final 

Rule; as for JSD Supply, no statute of limitations has run and they are free to file their own lawsuit

as well, which, for the sake of efficiency, could then be coordinated with this lawsuit. See Glob. 

Ground Automation, Inc v. Groundrez, LLC, No. 6:08-cv-374-LED-JDL, 2011 WL 13098294, at 

*5 (E.D. Tex. Sept. 9, 2011) (where a delay in intervention caused harm to the proposed intervenor, 

it is self-inflicted). The intervenors cannot satisfy the elements for intervention.

I. Timeliness

Timeliness is based on four factors: (1) the time the proposed intervenor knew or should 

have known of his interest in a lawsuit (or that his interest would not be protected); (2) prejudice 

against the existing parties from delay; (3) potential prejudice against the proposed intervenor if 

intervention is denied; and (4) unusual circumstances for or against the determination of 

timeliness. See Rotstain v. Mendez, 986 F.3d 931, 937‒41 (5th Cir. 2021) (citing Stallworth v. 

Monsanto Co., 558 F.2d 257, 264–65 (5th Cir. 1977)).

In addition to this case, there were multiple competing lawsuits challenging the Final Rule

filed before the Final Rule took effect on August 24, 2022. See ECF No. 3 (notice of related cases).

3 Plaintiffs’ counsel reached out to Polymer80’s counsel to determine if they would still pursue

intervention here but received no response.

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 6 of 11 PageID 4635
7

Presumably, Polymer80 and JSD Supply were aware of one or more of these lawsuits (neither 

claims to have been unaware). Moreover, the preliminary injunctions issued in this case are all 

very narrow in scope, limited to the parties and their customers and not covering Plaintiff Firearms 

Policy Coalition’s members. Indeed, the first preliminary injunction ordered by the Court on 

September 2, 2022, covered only Plaintiff Tactical Machining and not any other Plaintiffs or 

Tactical Machining’s customers. At that point, any other market participant would have been 

aware that the Court was limiting preliminary relief to the parties before it. Polymer80 and JSD 

Supply waited more than four months after that time to seek intervention.

JSD Supply offers no excuse for its delay, but merely asserts that they are timely and cites 

a case allowing intervention after five months. See JSD Supp. Mot., ECF No. 150, at 4. The Fifth 

Circuit, however, has affirmed the denial of intervention sought less than three months after the 

complaint was filed where no excuse was offered for the delay and the intervention was sought 

only the day before summary judgment briefs were due. See Save our Springs All. Inc. v. Babbitt, 

115 F.3d 346, 347 (5th Cir. 1997). Additionally, timeliness “is contextual, absolute measures of 

timeliness should be ignored.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).

Polymer80’s position is even more problematic. Polymer80 would have this Court measure 

timeliness from the date of a letter issued by the Defendant ATF on December 27, 2022, that it 

claims “specifically targets Polymer80.” See Polymer80, Inc.’s Br. in Supp., ECF No.158 at 2. 

Timeliness cannot be measured, however, by a document that is outside the administrative record 

in this case and, thus, outside of both the scope of this litigation and this Court’s review.

II. Prejudice

Given that this case is in position to be resolved on the merits, given summary judgment 

briefing has already concluded, intervention by Polymer80 and JSD Supply at this stage will likely

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 7 of 11 PageID 4636
8

prejudice the existing parties. The “prejudice must be measured by the delay in seeking 

intervention.” Espy, 18 F.3d at 1206. Once again, this case has moved quickly. The existing parties 

have already completed summary judgment briefing before this Court, which, due to the nature of 

the claims, will likely fully resolve this case—no party believes that a trial will be necessary. 

Moreover, Plaintiffs and BlackHawk have already fully briefed Defendants’ Fifth Circuit appeals 

as to their respective preliminary injunctions. Allowing the intervention of more parties at this time 

would almost certainly prolong the proceedings with the motions and responses that the new

parties may need to file, prejudicially delaying resolution of the existing parties’ claims on the 

merits. See Lelsz v. Kavanagh, 710 F.2d 1040, 1045 (5th Cir. 1983) (considering potential delay 

of relief when evaluating prejudice from intervention). Prejudice against the existing parties is the 

most important factor the Court should consider when considering intervention. See Rotstain, 986 

F.3d at 938 (referring to prejudice to parties as “the ‘most important consideration’”) (quoting 

McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1073 (5th Cir. 1970)).

Furthermore, at the preliminary injunction stage this Court found that Plaintiffs were likely 

to succeed on the merits of their claim that Defendants acted in excess of their authority. Having 

found that Plaintiffs established a likelihood of success on the merits of one of their claims, it was 

unnecessary for the Court to address Plaintiffs’ remaining claims. As a result, the Fifth Circuit has 

been asked to only consider one of the seven bases that Plaintiff assert render the Final Rule 

unlawful. Plaintiffs believe that it would be to the benefit of the Parties and the Fifth Circuit if the 

merits determination in this Court is made as to all issues, and the Fifth Circuit may, at the same

time, consider all of the bases for evaluating the Final Rule simultaneously. Thus, delay of this 

action would be prejudicial not just to the Parties, but to all individuals and entities affected by the 

Final Rule.

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 8 of 11 PageID 4637
9

Moreover, Polymer80, claiming that they were specifically targeted and pointing to a 

December 27, 2022 letter that post-dates the administrative record in this case, states that they wish 

to have “a meaningful opportunity to participate in the current summary-judgment briefing.”

Polymer80’s Mot. for Expedited Briefing, ECF No. 160 at 3. Additionally, both Polymer80 and 

JSD Supply have expressed interest in obtaining preliminary injunctions in the matter to preserve 

their interests. See Polymer80, Inc.’s Br. in Supp., ECF No.158 at 6; see also JSD’s Proposed Mot.

for Prelim. Inj., ECF No. 151. Neither of the proposed intervenors have offered a timeline that 

would not slow the resolution of Plaintiffs’ claims and the resolution of the pending summary 

judgment motion. If the proposed intervenors did offer such a timeline, or if their claims were 

somehow bifurcated to avoid having any effect on the existing summary judgment briefing, that 

would mitigate some of Plaintiffs’ concern, but likely could not guarantee there would be no 

prejudice to the existing parties.

Courts in this circuit have often denied or restricted intervention in cases that are in the 

summary judgment stage. See Gilyard v. Tex. Laurel Ridge Hosp. LP, No. SA-07-CA-650-OG, 

2009 WL 10670038, at *4 (W.D. Tex. Feb. 18, 2009) (denying intervention after the summary 

judgmentstage had started, because it would unduly delay and prejudice the original parties); Merit 

Elec., Inc. v. Motiva Enters., LLC, No. 10-501-D-M2, 2011 WL 900306, at *4 (M.D. La. Mar. 14, 

2011) (denying intervention after the summary judgment stage had started, because it would 

unduly delay and prejudice the original parties); see also Nat’l Horsemen’s Benevolent &

Protective Ass’n v. Black, No. 5:21-cv-071-H, 2022 WL 974335, at *3, *7 (N.D. Tex. Mar. 31, 

2022) (allowing intervention where intervenor only found out about litigation one month prior, but 

restricted the party from raising any claims not previously raised or from relitigating any resolved 

issues).

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 9 of 11 PageID 4638
10

Prior intervenors did not prejudice Plaintiffs, as those parties filed motions to intervene

prior to the start of summary judgment briefing and ensured that their own summary judgment 

briefing would not affect the timely resolution of Plaintiffs’ claims. Given the advanced state of 

Plaintiffs’ case and that Plaintiffs seek a full vacatur of the Final Rule, Plaintiffs believe that swift 

progression of this case remains critical.

CONCLUSION

For the reasons set forth above, Plaintiffs request that this Court deny JSD Supply and

Polymer80’s motions to intervene. Alternatively, if this Court grants their intervention, Plaintiffs

request that this Court ensure that such intervention does not impact the resolution of Plaintiffs’

motion for summary judgment to ensure no prejudice will come to the existing parties.

DATED this 10th day of May 2023.

R. Brent Cooper (TX Bar No. 04783250)

Benjamin D. Passey (TX Bar No. 24125681)

COOPER & SCULLY, P.C.

900 Jackson Street, Suite 100

Dallas, Texas 75202

Telephone: (214) 712-9500

Telecopy: (214) 712-9540

brent.cooper@cooperscully.com

ben.passey@cooperscully.com

Cody J. Wisniewski* (CO Bar No. 50415)

FPC ACTION FOUNDATION

5550 Painted Mirage Road, Suite 320

Las Vegas, NV 89149

Telephone: (916) 378-5785

Telecopy: (916) 476-2392

cwi@fpchq.org

/s/ Erin M. Erhardt 

Erin M. Erhardt* (CO Bar No. 49360)

Kaitlyn D. Schiraldi* (TN Bar No. 039737)

MOUNTAIN STATES LEGAL FOUNDATION

2596 S. Lewis Way

Lakewood, CO 80227

Telephone: (303) 292-2021

Telecopy: (877) 349-7074

eerhardt@mslegal.org

kschiraldi@mslegal.org

*Admitted pro hac vice

Attorneys for Plaintiffs

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 10 of 11 PageID 4639
11

CERTIFICATE OF SERVICE

I hereby certify that, on May 10, 2023, a true and correct copy of the foregoing document

was served via the Court’s CM/ECF system to all counsel of record.

I certify that all participants in this case are registered CM/ECF users and service will be

accomplished by this Court’s CM/ECF system.

/s/ Erin M. Erhardt

Erin M. Erhardt

MOUNTAIN STATES LEGAL FOUNDATION

Case 4:22-cv-00691-O Document 212 Filed 05/10/23 Page 11 of 11 PageID 4640