Cameron v. EMW Women's Surgical Ctr.

• Decision Date: 03 March 2022
• Docket Number: 20-601
• Parties: Daniel CAMERON, Attorney General of Kentucky, Petitioner v. EMW WOMEN'S SURGICAL CENTER, P.S.C., et al.
• Court: U.S. Supreme Court

142 S.Ct. 1002

Daniel CAMERON, Attorney General of Kentucky, Petitioner

v.EMW WOMEN'S SURGICAL CENTER, P.S.C., et al.

No. 20-601

Supreme Court of the United States.

Argued October 12, 2021

Decided March 3, 2022

Leah Godesky, Kendall Turner, O'Melveny & Myers LLP, Los Angeles, CA, Jeffrey L. Fisher, O'Melveny & Myers LLP, Menlo Park, CA, Heather L. Gatnarek, ACLU of Kentucky Foundation, Louisville, KY, Michele Henry, Craig Henry PLC, Louisville, KY, Alexa Kolbi-Molinas, Counsel of Record, Andrew Beck, Jennesa Calvo-Friedman, Whitney L. White, Jennifer Dalven, American Civil Liberties Union Foundation, New York, NY, David D. Cole, American Civil Liberties Union Foundation, Washington, DC, for Respondents.

Office of the Kentucky, Attorney General, Frankfort, KY, Barry L. Dunn, Deputy Attorney General, Victor B. Maddox, Associate Attorney General, Matthew F. Kuhn, Principal Deputy Solicitor General, Brett R. Nolan, Deputy Solicitor General, for Petitioner.

Principal Deputy Solicitor General Matthew F. Kuhn, for Petitioner

Alexa Kolbi-Molinas, New York, NY, for Respondents.

Justice ALITO delivered the opinion of the Court.

This case concerns a state attorney general's attempt to intervene in a federal appellate proceeding for the purpose of defending the constitutionality of a state law. The issue arose after a panel of the United States Court of Appeals for the Sixth Circuit affirmed a decision holding a Kentucky statute unconstitutional. The Kentucky official who had been defending the law decided not to seek any further review, but the Kentucky attorney general then moved to intervene for the purpose of taking up the defense. The panel denied that motion, but we granted review.

I

In April 2018, the Kentucky Legislature adopted House Bill 454 (HB 454), which regulates the abortion procedure known as dilation and evacuation. See Ky. Rev. Stat. Ann. §§ 311.787(1) – (2) (West 2021). EMW Women's Surgical Center, a clinic that performs abortions, and two of its doctors filed this action in Federal District Court and sought to enjoin the enforcement of the new law. Their complaint named four defendants, and two of these, the attorney general and the cabinet secretary for Health and Family Services, played pivotal roles in the events that followed. The attorney general is a "[c]onstitutional State office[r]" who is independently elected and serves until a successor is elected and qualified. Ky. Const. § 91. The secretary, on the other hand, is appointed by the Governor and serves at his pleasure. See Ky. Rev. Stat. Ann. §§ 11.065, 12.020, 63.080.

The plaintiffs agreed to the dismissal without prejudice of the claims against the attorney general (at that time Andrew Beshear) and one other defendant.¹ In agreeing to the dismissal of these claims, the attorney general reserved "all rights, claims, and defenses that [might] be available to him" and "specifically reserve[d] all rights, claims, and defenses relating to whether he is a proper party in this action and in any appeals arising out of this action ." App. 28–30 (emphasis added). It was also stipulated "that any final judgment in this action concerning the constitutionality of HB 454 [would] be binding on the Office of the Attorney General, subject to any modification, reversal or vacation of the judgment on appeal ." Id., at 29–30 (emphasis added).

After the dismissal of these parties, the secretary remained in the case and conducted the defense of the challenged law.² Following a bench trial, the District Court held that HB 454 unconstitutionally burdens a woman's right to an abortion, EMW Women's Surgical Center, P.S.C. v. Meier , 373 F.Supp.3d 807 (W.D. Ky. 2019), and it issued a permanent injunction against the law's enforcement. The secretary then filed a notice of appeal. App. 19.

While the appeal was pending, Kentucky held its 2019 general elections. Andrew Beshear won the race for Governor, and petitioner Daniel Cameron was elected to replace him as attorney general. On January 20, Governor Beshear appointed a new secretary for Health and Family Services, and the new secretary, represented by lawyers from the attorney general's office, continued the defense of the challenged law. On January 28, one day before the appeal was argued, Attorney General Cameron also entered an appearance as counsel for the secretary. Id ., at 82–83.

On June 2, 2020, a divided panel of the Sixth Circuit affirmed the District Court's judgment. EMW Women's Surgical Center, P.S.C. v. Friedlander , 960 F.3d 785, 790–812. In dissent, Judge Bush argued that the plaintiffs lacked third-party standing and criticized the majority for refusing to wait for our decision on that issue in June Medical Services L. L. C. v. Russo , 591 U.S. ––––, 140 S.Ct. 2103, 207 L.Ed.2d 566 (2020). Within a week after the panel's decision, the secretary informed the attorney general's office that he would not file a petition for rehearing en banc or a petition for a writ of certiorari, App. 153, 161, but the secretary agreed not to oppose the attorney general if he moved to intervene for the purpose of seeking further review. Id ., at 153–154. Two days later, the attorney general moved to withdraw as counsel for the secretary and to intervene as a party on behalf of the Commonwealth. Id ., at 152. The secretary did not oppose that motion, but respondents did. Id ., at 170–172. Five days later, and within the 14-day deadline for an existing party to seek rehearing, the attorney general tendered a petition for rehearing en banc. Id ., at 210–227; Fed. Rules App. Proc. 35(c) and 40(a)(1).

By the same divided vote as before, the panel denied the attorney general's motion to intervene, citing Circuit precedent under which intervention on appeal is judged by essentially the same standard as intervention in district court. See Blount-Hill v. Zelman , 636 F.3d 278, 283 (C.A.6 2011). Applying that standard, the panel majority held, first, that the attorney general's motion was untimely because it was not filed until years of litigation had passed and the panel had already decided the appeal; second, that no " ‘substantial legal interest’ " was at stake because the attorney general was pursuing " ‘extraordinary’ " forms of review (rehearing en banc and certiorari) to which litigants are not generally entitled; and third, that allowing intervention would prejudice respondents because the attorney general's rehearing petition included an argument (that respondents lacked third-party standing) that the secretary's briefs had not raised.³

EMW Women's Surgical Center, P.S.C. v. Friedlander , 831 Fed.Appx. 748, 749–753 (C.A.6 2020).

We granted certiorari limited to the question whether the Sixth Circuit should have permitted the attorney general to intervene. 592 U.S. ––––, 141 S.Ct. 1734, 209 L.Ed.2d 503 (2021).

II

In considering this question, we begin with respondents' contention that the attorney general's motion to intervene was jurisdictionally barred. Respondents never advanced this argument below, and the Sixth Circuit did not consider it. Nevertheless, we must assure ourselves that jurisdictional requirements are met at all stages of the cases that come before us for review, see Arbaugh v. Y&H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

A

Respondents' argument is narrow and somewhat complicated. While implicitly conceding that a court of appeals generally has jurisdiction to consider a non-party's motion to intervene in a pending appeal, they claim that one narrow sub-set of non-parties is jurisdictionally barred: those non-parties that are bound by the district court judgment. Respondents' argument goes like this. Non-parties who are bound by a judgment can obtain appellate review by filing a notice of appeal within the time prescribed by law. See 28 U.S.C. § 2107(a) ; Fed. Rule App. Proc. 4(a)(1). These time limits are jurisdictional, see Bowles v. Russell , 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ; Torres v. Oakland Scavenger Co. , 487 U.S. 312, 315, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) ; Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam ). And because non-parties who are bound by a judgment can seek appellate review in this way, they cannot circumvent the jurisdictional time limits for filing a notice of appeal by filing a motion to intervene after the deadline for filing a notice of appeal has passed.

Applying this theory, respondents contend that the Court of Appeals lacked jurisdiction to entertain the attorney general's motion. Because the attorney general agreed to be bound by the judgment, respondents maintain, he could have filed a notice of appeal, but since he failed to do so within the time allowed by law, his motion for intervention should be treated like an untimely notice of appeal.

B

This argument fails for the simple reason that no provision of law limits the jurisdiction of the courts of appeals in the way respondents suggest. We do not read a statute or rule to impose a jurisdictional requirement unless its language clearly does so. See Henderson v. Shinseki , 562 U.S. 428, 439, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (a provision is not jurisdictional when its language "provides no clear indication that Congress wanted that provision to be treated as having jurisdictional attributes"). Here, respondents cite no provision of law that deprives a court of appeals of jurisdiction to entertain a motion for intervention that is filed by a non-party who is bound by the judgment that is appealed. No such language can be found in either 28 U.S.C. § 2107, the Federal Rules of Appellate Procedure 3 and 4, or any other provision of law. We therefore see no basis for holding that petitioner's motion was jurisdictionally barred.

C

What respondents ask us to recognize is essentially a mandatory claims-processing rule. Such rules are not jurisdictional, and if a non-jurisdictional argument was not raised below, we generally...