Motion for leave to intervene as petitioner — Joshua Clay McCoy, Individually and on Behalf of All Others Similarly Situated as a Class, et al., Petitioners v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al.

No. 25-24

IN THE

SUPREME COURT OF THE UNITED STATES

JOSHUA CLAY MCCOY, ET

AL., on behalf of themselves

and all others similarly

situated as a Class,

Petitioners,

v.

BUREAU OF ALCOHOL,

TOBACCO, FIREARMS AND

EXPLOSIVES; ET AL.

Defendants

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PROSPECTIVE-INTERVENOR’S MOTION TO INTERVENE AS

PETITIONER

Elliott M. Harding

Harding Counsel, PLLC

2805 Meadow Vista Dr.

Charlottesville, Virginia 22901

(434) 962-8465

Elliott@HardingCounsel.com

Counsel for Petitioners, Class, & Prospective-Intervenor

TABLE OF CONTENTS

Table of Authorities ………………………………………………

ii

Introduction ………………………………………………………...

1

Argument …………………………………………………………….

3

I.

Mr. Gibbs, The Prospective-Intervenor,

Should Be Granted Leave To Intervene

As A Petitioner …………………………………………...

3

A. Mr. Gibbs Is A Party of Interest Per

The Class And Will Continue To

Represent The Interests of Such Class With

Intervention ……………………………………………

5

B. Intervention Is Appropriate

In This Circumstance ……………………………….

6

1. Intervention Is Supported By The

Underlying Purposes and Considerations

Required By Fed. R. Civ. P. 24 …………………

6

2. Allowing Intervention Will Serve The

Interests of Justice ………………………………..

10

a. Denying Intervention Will Impede A

Resolution of A Nationwide Issue

Impacting Millions of Americans …………..

10

b. There Is No Prejudice To The

Defendants And Intervention Advances

The Interests of Judicial Economy …………. 12

Conclusion ……………………………………………………………… 13

Certificate ………………………………………………………………. 14

Exhibit A (Affidavit of Prospective-Intervenor) …………….. 15

i

TABLE OF AUTHORITIES

Cases

Banks v. Chicago Grain Trimmers,

389 U.S. 813 (1967) ………………………………………..

3

BNSF Ry. Co. v. EEOC,

140 S. Ct. 109 (2019) ………………………………………

3

Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326 (1980) ………………………………………..

4

Gerstein v. Pugh,

420 U.S. 103 (1975) ………………………………………..

11

Gonzales v. Oregon,

546 U.S. 807 (2005) ………………………………………...

3

Hirschfeld v. ATF,

5 F.4th 407 (4th Cir. 2021) ………………………………..

11

Hunter v. Ohio ex rel. Miller,

396 U.S. 879 (1968) ………………………………………….

3

Insurance Co. of Pennsylvania v. Ben Cooper, Inc.,

498 U.S. 894 (1990) …………………………………………..

3

Int’l Union v. Scofield,

382 U.S. 205 (1965) …………………………………………..

6

Mullaney v. Anderson,

342 U.S. 415 (1952) …………………………………………...

3

NAACP v. New York,

413 U.S. 345 (1973) ……………………………………………

9

ii

Reese v. ATF,

127 F.4th 583 (5th Cir. 2025) ………………………………..

10

Sosna v. Iowa,

419 U.S. 393 (1975) …………………………………………….

4

United Airlines, Inc. v. McDonald,

432 U.S. 385 (1977) …………………………………………….

4, 9

United States v. Louisiana,

354 U.S. 515 (1957) (per curiam) …………………………….

3, 6

Statutes, Rules, and Other Authorities

Fed. R. Civ. P. 24 ………………………………………………………

7–10

Letter from D. John Sauer, Solicitor Gen.,

U.S. Dep’t of Justice, to Hon. Mike Johnson,

Speaker, U.S. House of Representatives (July 25, 2025) …

11

Stephen M. Shapiro, et al.,

Supreme Court Practice 427 (10th ed. 2013) ……………….

3

iii

INTRODUCTION

The pending Petition for a writ of certiorari was filed on July 3, 2025

and the case awaits the Court’s decision as to it will be granted. The

Petition was subject to a conference on November 14, 2025 with no order

having been rendered and the case has not been relisted for conference

in the interim.

At issue is a federal statutory scheme that categorically prohibits

those under 21 years old from purchasing handguns from federally

licensed dealers (“FFLs”)—the only lawful and regulated means to obtain

new or previously-unowned firearms, submit to background checks, and

safely exercise their right to armed self-defense. The Petitioners brought

this action on behalf of themselves and a nationwide class of similarly

situated individuals and seek to enjoin such laws as unconstitutional

pursuant to the Second Amendment1. The district court granted

summary judgment for the Petitioners and certified the Class. The

United States Court of Appeals for the Fourth Circuit reversed both

1 The Original and Amended Complaint also brought claims pursuant to

the Due Process Clause based on equal protection principles but the

District Court did not rule on that issue due to the decision in favor of the

Plaintiffs via the Second Amendment and the due process challenge was

not addressed by the Fourth Circuit.

1

decisions. As a result, the Petitioners seek reversal of the Fourth Circuit’s

decisions on the merits and on behalf of the Class at issue.

In the Government’s Brief in Opposition (“BIO”), it primarily relied

on an argument suggesting that this case will become moot upon the last

Petitioner turning 21 and, therefore, the Court should not take this case.

In their Reply, the Petitioners adamantly disagreed and continue to

disagree with that position given this Court’s precedent concerning class

actions and mootness. Nevertheless, Mr. Daniel Gibbs, Jr., the

Prospective-Intervenor, seeks leave to intervene to ensure that his rights

and those of the Class remain actively represented in spite of the passage

of time and any impact it may have on the representative capacity of the

Petitioners.

The Class, of which Mr. Gibbs is a part, accounts for approximately

10–14 million law-abiding Americans between the ages of 18 and 20years-old who are otherwise able to purchase a handgun from a FFL but

for the laws at issue. Mr. Gibbs turned 18 just four days prior to the

Fourth Circuit’s decision and could not have intervened prior to the case

being appealed to this Court. See Exhibit A (Affidavit of Mr. Daniel

Gibbs, Jr.). The undersigned counsel for Mr. Gibbs is also that of the

2

Petitioners and the Class. For the reasons stated herein, Mr. Gibbs

should be granted leave to intervene.

ARGUMENT

I.

Mr. Gibbs, The Prospective-Intervenor, Should Be

Granted Leave To Intervene As A Petitioner.

This Court may permit parties to intervene in appropriate cases

pursuant to its “general equity powers.” See, e.g., United States v.

Louisiana, 354 U.S. 515, 516 (1957) (per curiam). The question whether

to allow intervention occurs most frequently in original actions but also

occurs in cases on this Court’s discretionary docket. See, e.g., BNSF Ry.

Co. v. EEOC, 140 S. Ct. 109 (2019); Gonzales v. Oregon, 546 U.S. 807

(2005); Insurance Co. of Pennsylvania v. Ben Cooper, Inc., 498 U.S. 894

(1990); Banks v. Chicago Grain Trimmers, 389 U.S. 813 (1967); Hunter

v. Ohio ex rel. Miller, 396 U.S. 879 (1968); Mullaney v. Anderson, 342 U.S.

415, 416–17 (1952). Intervention is especially appropriate when the

intervenor’s rights would be “vitally affected” by the ruling and where the

party who had previously supported the intervenor’s position stops doing

so. Stephen M. Shapiro, et al., Supreme Court Practice 427 (10th ed.

2013).

3

Mr. Gibb’s rights are undoubtedly at issue, as he falls squarely within

the Class of individuals categorically impacted by the laws at issue. As to

whether the parties “who had previously supported” his position have

“stopped doing so,” that is an issue which remains subject to the debate

the Government has raised. See BIO at 4–5. The Petitioners personally

aging-out of the Class is irrelevant because the Class remains subject to

re-certification in spite of the Fourth Circuit’s decision below.

When the District Court certified the propriety of the class

action, the class of unnamed persons described in the

certification acquired a legal status separate from the interest

asserted by appellant. We are of the view that this factor

significantly affects the mootness determination.

Sosna v. Iowa, 419 U.S. 393, 399 (1975) (finding that the

mootness of the individual petitioners’ claims due to the passage

of time did not render the case moot for the previously certified

class they were representing); see also United Airlines, Inc. v.

McDonald, 432 U.S. 385 (1977); Deposit Guar. Nat’l Bank v.

Roper, 445 U.S. 326 (1980).

Nevertheless, the Government relies on the argument that Mr. Justin

Fraser’s eventual aging-out of the Class renders the case moot as he is

the youngest of the named Petitioners. BIO at 4–5. Should that position

be correct, Mr. Gibbs’ interests will no longer be adequately protected.

Intervention resolves that issue altogether and saves this Court’s time.

4

Even more, if the Government is not correct, there is no harm in allowing

Mr. Gibbs to intervene.

Mr. Gibbs respectfully seeks intervention out of an abundance of

caution so as to ensure that his interests and those of the Class remain

preserved. He has a concrete interest in the laws at issue and that

interest will be substantially affected by the resolution of this case. While

the Petitioners have protected Mr. Gibbs’ interests so far, that would

change should this Court find that the Petition is moot. For the sake of

Mr. Gibbs’ interests, and those of the millions of Americans similarly

situated, the Court should grant the motion to intervene.

A. Mr. Gibbs Is A Party of Interest Per The Class And Will

Continue To Represent The Interests of Such Class

With Intervention.

Mr. Gibbs maintains all of the factors for a qualified petitioner in

this case. See Exhibit A. He is 18, not yet 21. He is a natural-born

American citizen who lacks any disqualifying personal history—whether

criminal, substance-related, military-related, or mental health-related,

that would otherwise prohibit him from firearm ownership or the ability

to purchase a handgun from a federally licensed firearm dealer. He falls

squarely within the defined Class that the district court certified. His

5

sworn affidavit is not lacking of any material factual attestation that was

present for the original plaintiffs in this case. The Government concedes

there is no factual dispute that persons in Mr. Gibbs’ position are facially

and categorically disqualified from purchasing handguns from federally

licensed firearm dealers per the laws at issue. As a result, Mr. Gibbs’

rights are directly impacted by this case and he will receive relief should

the Petitioners prove successful.

B. Intervention Is Appropriate In This Circumstance.

This Court’s rules do not set forth a standard for determining when

intervention is appropriate but this Court made clear that it looks to the

“Federal Rules of Civil Procedure, and the general equity powers of the

Court,” for guidance. Louisiana, 354 U.S. at 516. Both the federal rules

and principles of equity justify intervention.

1. Intervention Is Supported By The Underlying Purposes

and Considerations Required By Fed. R. Civ. P. 24.

While the Federal Rules of Civil Procedure are not binding on this

Court, they provide insight into the “policies underlying intervention”

that “may be applicable in appellate courts.” Int’l Union v. Scofield, 382

U.S. 205, 216 n.10 (1965). Notably, the district court previously allowed

one of the current petitioners, Mr. Justin Fraser, to also intervene after

6

its decision on the merits as Mr. Fraser turned 18 subsequent to the case

having been filed and Mr. Fraser raised the same concerns in support of

intervention that are presented by Mr. Gibbs.

The relevant rule is Fed. R. Civ. P. 24, which permits intervention

of right in some cases and permissive intervention in others. After

considering the Rules and Mr. Fraser’s reasoning, the district court found

that Rule 24 was satisfied and allowed him to join the suit. This Court

should do the same for Mr. Gibbs, as the policies underlying intervention

are adequately presented. Parties that file a “timely” motion have a right

to intervene if they have “an interest relating to the property or

transaction that is the subject of the action,” and if they are “so situated

that disposing of the action may as a practical matter impair or impede

[their] ability to protect [their] interest, unless existing parties

adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). Parties

without a right to intervene can seek permission to do so anyway.

Courts may grant a timely motion for permissive intervention by

any party that “has a claim or defense that shares with the main action

a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(A). When

deciding whether to allow permissive intervention, courts “must consider

7

whether the intervention will unduly delay or prejudice the adjudication

of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Mr. Gibbs meets

every requirement.

First, and for the reasons already discussed, Mr. Gibbs has “an

interest in … the subject of this action.” Fed. R. Civ. P. 24(a)(2). Because

he wishes to challenge the laws at issue and advance the interests of the

Class, he has a “claim that shares with the main action a common

question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Even more, he is a

resident of the Fourth Circuit and has an interest in this case being

resolved on the merits. Without such, he will be bound by the same

Circuit precedent that the Petitioners seek to reverse.

Second, given the Government’s stated intent to argue that the

Petition will be moot due to the aging of individual Petitioners, it is at

least suspect, arguendo, that the “existing parties” will “adequately

represent” Mr. Gibbs’ interests and those of the Class at-large. Fed. R.

Civ. P. 24(a)(2). Finally, the request is “timely,” Fed. R. Civ. P. 24(a)(1) &

(b)(1), and the intervention will not “delay or prejudice the adjudication

of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). “Timeliness is to

be determined from all the circumstances,” not simply the stage of the

8

case at which the party sought to intervene. NAACP v. New York, 413

U.S. 345, 366 (1973); see also United Airlines, Inc., 432 U.S. at 395–96.

Thus, a party acts timely if it moves to intervene “promptly” once it is

clear that doing so is necessary to protect its interests. United Airlines,

432 U.S. at 394. Mr. Gibbs was not yet 18 when this case was initiated or

final in district court. He was not in a position to intervene at that stage.

He was not 18 when the case was appealed or argued in the Fourth

Circuit and turned 18 just four days before the Fourth Circuit rendered

its decision now before this Court. Due to his age, his first opportunity to

intervene comes before this Court and the Petition remains subject to

review. Judged according to Rule 24’s standards, his motion to intervene

is timely.

Because Mr. Gibbs will challenge the same laws at issue on behalf

of the same Class of which he is a member, he will effectively join or, at

worst, step into the same posture as other Petitioners and be able to

argue on behalf of himself and the Class in the same fashion.

Intervention will not and cannot “unduly delay or prejudice” any of the

original parties’ rights. Fed. R. Civ. P. 24(b)(3). In sum, the policies

9

embodied by intervention per Rule 24 support allowing Mr. Gibbs to

intervene.

2. Allowing Intervention Will Serve The Interests of

Justice.

a. Denying Intervention Will Impede A Resolution of A

Nationwide Issue Impacting Millions of Americans.

Though all Petitioners argue that their “aging-out” of the purchase

restrictions at issue do not undermine the validity and viability of the

claims presented by the Class they represent, the Government’s

suggestion otherwise warrants Mr. Gibbs’ attempt to intervene.

Assuming, arguendo, that the Government’s position is correct regarding

these older Petitioners, a denial of intervention may impede the Class’s

resolution of claims and would undermine the rights of Mr. Gibbs and the

millions of similarly situated Americans between 18 and 21 years old.

This is not a situation in which the injury is capable of repetition but

evading review in the traditional sense, as any given plaintiff could only

be impacted once, albeit for a three-year-period. The Government knows

this and relied on it as its primary defense both in its refusal to seek

certiorari review from the Fifth Circuit’s decision in Reese v. ATF, 127

F.4th 583 (5th Cir. 2025), and now in its opposition to the Petitioner’s

10

petition for certiorari. See Letter from D. John Sauer, Solicitor Gen., U.S.

Dep’t of Justice, to Hon. Mike Johnson, Speaker, U.S. House of

Representatives (July 25, 2025) (explaining decision not to appeal the

Reese decision); BIO at 4–5.

This is a sui generis situation in some respects and warrants the

Court’s equitable relief. The pace of litigation places a final merits

decision at risk for any single plaintiff due to practical consideration. For

example, Mr. Justin Fraser was not yet 18 when the suit was initiated in

district court yet once he turned 18, he sought leave to intervene. Now,

years later, he is 21 and the youngest of the Petitioners. Due to the

inevitable duration of district and appellate court proceedings, it is

effectively impossible2 for any single eighteen-year-old to get final relief

by the time they are 21. Cf. Gerstein v. Pugh, 420 U.S. 103, 110 n.11

(1975); see also Hirschfeld v. ATF, 5 F.4th 407 (4th Cir. 2021) (finding

Absent intervention or this Court finding that the Class is otherwise

maintained by the current Petitioners, the only way an individual could

practically seek relief is to be privy to a group with organizational

standing and, even then, no organization could provide the nationwide

relief that a Rule 23 class offers. An individual’s access to justice cannot

be restricted to the whims of organizational standing or be outside of this

Court’s scope merely due to the temporality of any given infringement

and the natural, practical delays of our federal litigation system.

2

11

same laws at issue unconstitutional), vacated as moot, 14 F.4th 322 (4th

Cir. 2021). By allowing Mr. Gibbs’ to intervene at this juncture, he will

preserve his Second Amendment rights and advance those of millions,

along with their right to access justice from this Court, which are

otherwise structurally denied based on the age restrictions at issue.

Intervention will ensure a final decision is granted on the merits,

regardless of outcome.

b. There Is No Prejudice To The Defendants And

Intervention Advances The Interests of Judicial

Economy.

Aside from the prospect that the Government will have to defend

the merits of the laws at issue once and for all, there is no prejudice. Mr.

Gibbs’ factual assertions, sworn under oath, are not materially different

than those of all the Petitioners. This case presents a purely legal issue.

Mr. Gibbs is represented by the same counsel as the Petitioners and the

Class, so there will be full-continuity in briefing, argument, and strategy

and hence no delay or surprise caused by intervention. Alternatively,

should intervention be denied and the Government prove correct,

arguendo, that the Petition should be struck for mootness, there will be

a continuous need to file the same facial challenge to these laws in

12

various courts throughout the United States over and over again with no

guarantee that a final resolution on the merits can ever be achieved. Not

only will the interests of millions of Americans continue to be in jeopardy,

but the Government and the judiciary as a whole will suffer due to

structural inefficiencies and strain on resources. Granting intervention

eliminates that threat and preserves all elements for a final review on

this nationwide issue for a nationwide class should the Court decide to

grant the Petition on the merits.

CONCLUSION

WHEREFORE, the Prospective-Intervenor, Mr. Daniel Gibbs, Jr.,

respectfully requests and moves for this Court to GRANT his Motion to

Intervene and ORDER that he is to be added as a party in his personal

capacity and as a Class representative of those similarly situated before

the Court which remains pending certiorari review.

Respectfully submitted,

_________/s__________________

Elliott M. Harding, VSB 90442

Harding Counsel, PLLC

2805 Meadow Vista Dr.

Charlottesville, Virginia 22901

(434) 962-8465

Elliott@HardingCounsel.com

Counsel for Petitioners, Class, &

Prospective-Intervenor

13

Certificate of Service and Compliance

I, the undersigned counsel, hereby certify that a copy of the

foregoing was mailed this 29th day of April, 2026 to the Supreme Court

of the United States and filed via the electronic filing system and the

necessary copy was sent via USPS certified mail to the Supreme Court of

the United States and to opposing counsel for the Defendants at:

Solicitor General of the United States,

Room 5616, Department of Justice,

950 Pennsylvania Ave., N. W.,

Washington, DC 20530-0001

____________/s___________________

Elliott M. Harding, VSB 90442

Harding Counsel, PLLC

2805 Meadow Vista Dr.

Charlottesville, Virginia 22901

(434) 962-8465

Elliott@HardingCounsel.com

Counsel for Petitioners, Class, &

Prospective-Intervenor

14

EXHIBIT A

McCoy, et al. v. BATFE, et al.

Rec. No. 25-24

Affidavit of Mr. Daniel Gibbs, Jr., Prospective-Intervenor

15