Mayor & City Council of Baltimore v. ATF, No. 23-3762, 2024 WL 3082271 (D.D.C. June 21, 2024) (Moss, J.)

Mayor & City Council of Baltimore v. ATF, No. 23-3762, 2024 WL 3082271 (D.D.C. June 21, 2024) (Moss, J.)

Re:  Request for certain firearm trace records from ATF’s National Tracing Center’s Firearms Tracing System to identify sources of guns recovered from crimes committed in Baltimore

Disposition:  Denying third party’s renewed motion to intervene as of right; denying third party’s renewed motion for permissive intervention

• Litigation Considerations, Standing; Reverse FOIA:  The court relates that “the National Shooting Sports Foundation, Inc. (‘NSSF’ or ‘the Foundation’) moved to intervene, seeking to protect the interests of its member[s] [federally licensed firearms dealers (“FFLs”)], who manufacture, distribute, or otherwise sell firearms.”  “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.”  “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.”  “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.’”  “‘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 . . . .’”  “Without standing, NSSF cannot intervene as of right.”  “The Court also held that NSSF’s lack of standing ‘foreclose[d] its motion for permissive intervention.’”  “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.’”  “NSSF renewed its motion to intervene two weeks later . . . .”  “[Plaintiff] opposes the motion to intervene, once again challenging NSSF’s standing, . . . ATF has taken no position on NSSF’s motion . . . .”  “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.”
  
  “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.’”  “Here, in response to [plaintiff’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 [ATF] will not adequately represent its interests with respect to Exemption 3 . . . .”  “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).”  “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).”  “And, to be sure, courts have at time permitted interested parties to intervene in support [of] an agency’s decision to withhold confidential information from disclosure pursuant to a specific FOIA exemption.”  “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).”
  
  “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.”  “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 . . . it either precludes or strongly counsels against granting NSSF’s motion for permissive intervention.”  “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.’”  “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 organization’s purpose,’ and (3) that ‘neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’”  “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 [Plaintiff’s] claim) in her own right.”  “[N]o NSSF member attests that he or she – or that an FFL that he or she owns or operate – 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 [plaintiff’s] FOIA request.”  “They merely state that if their FFL were to be named in ATF’s response to [plaintiff’s FOIA] request, they believe they would suffer reputational harm.”  “This is far too speculative to constitute the type of ‘imminent’ harm necessary to constitute an injury-in-fact for Article III standing purposes.”  “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.”  “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."
  
  “Pivoting, NSSF argues that it has standing to sue on its own behalf.”  “NSSF argues that it ‘will suffer an injury in fact’ if [plaintiff’s FOIA] request is fulfilled due to the “potential stare decisis and persuasive effects of a decision in favor of [plaintiff] in this case.’”  “A favorable outcome for [plaintiff], NSSF argues, will cause it to expend increasing amounts to ‘respond[ ] to the proliferation or new requests and lawsuits’ seeking FFL-level gun-trace information.”  “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.’”  Overall, “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 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.”