Humane Soc'y of the U.S. v. U.S. Dep't of Agric.
| Decision Date | 05 December 2022 |
| Docket Number | 20-5291 |
| Citation | 54 F.4th 733 (Mem) |
| Parties | HUMANE SOCIETY OF THE UNITED STATES, et al., Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Julia A. Hatcher, Joseph Begun, L. Allison Herzog, Roman Martinez, Blake E. Stafford, Latham & Watkins LLP, Washington, DC, Ralph Edgar Henry, The Humane Society of the United States, Washington, DC, for Appellants Humane Society of the United States, Humane Society Legislative Fund, Pauline Stotsenberg, Jana Babuszczak.
Julia A. Hatcher, L. Allison Herzog, Blake E. Stafford, Latham & Watkins LLP, Washington, DC, Ralph Edgar Henry, The Humane Society of the United States, Washington, DC, for Appellants William Coon, Kristi Quaintance.
Sushma Soni, Alisa B. Klein, Attorneys, U.S. Department of Justice, (DOJ) Civil Division, Appellate Staff, Washington, DC, H. Thomas Byron, III, Attorney, Thurgood Marshall Federal Judiciary Building, Washington, DC, for Appellees.
Before: Millett* and Rao** , Circuit Judges; and Tatel*, Senior Circuit Judge
Per Curiam Upon consideration of the Tennessee Walking Horse National Celebration Association's ("Association") motion to intervene, the responses thereto, and the reply; the Association's lodged petition for rehearing and rehearing en banc; and appellees’ petition for panel rehearing filed on October 6, 2022, it is
ORDERED that the motion to intervene be denied. It is
FURTHER ORDERED that appellees’ petition for panel rehearing be denied. On remand, the district court may consider all remedial issues, including the question of whether remand to the agency without vacatur is appropriate under the criteria established by Circuit precedent.
Our dissenting colleague believes that this case "implicates important questions about the timing and finality of administrative rulemaking." Dissenting Op. at ––––. But the Department of Agriculture ("the Department"), whose 2017 rule is at issue, disagrees. After consulting with the Solicitor General, it has foregone en banc review and instead decided that the best way to defend its withdrawal of the rule was to file a petition for rehearing asking the panel to clarify that, on remand, "the district court should be allowed to consider all remedial issues, including the question of whether remand to the agency without vacatur is appropriate." Pet. for Reh'g at 1. Not only have we granted that request, but proposed intervenor, the Tennessee Walking Horse National Celebration Association ("the Association"), advises that it would be satisfied with just that relief. See Association Pet. for Reh'g at 15–16 (). This modest request makes sense given that the Department is in the late stages of developing a rule addressing the same topic as the 2017 rule, a fact the district court can consider when determining the proper remedy. Under these circumstances, I cannot imagine why we would allow the Association to intervene so that it can file an en banc petition that could not possibly satisfy our rigorous standards. See Fed. R. App. P. 35(a) ().
Our case law, moreover, supports denying intervention here. Because no rule governs appellate intervention, we consider the "policies underlying intervention" in the district courts when evaluating a motion to intervene.
Automobile Workers v. Scofield , 382 U.S. 205, 217 n.10, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965). Those policies include consideration of the legal interest the parties seek to protect and whether the motion is "timely." Fed R. Civ. P. 24(a)(2). The timeliness requirement is dispositive here. Under our court's standard practice, we grant motions to intervene at the appellate stage only in "exceptional case[s] for imperative reasons." Amalgamated Transit Union International, AFL-CIO v. Donovan , 771 F.2d 1551, 1552 (D.C. Cir. 1985) (per curiam) (internal quotation marks omitted). Moreover, a "motion for leave to intervene [that] comes after the court of appeals has decided a case," like here, "should be even more disfavored." Id. at 1553.
The case our dissenting colleague relies on, Cameron v. EMW Women's Surgical Center , ––– U.S. ––––, 142 S. Ct. 1002, 212 L.Ed.2d 114 (2022), does not require us to grant the motion to intervene. In Cameron , where the Supreme Court allowed the Kentucky attorney general to intervene post-merits after the Kentucky secretary for Health and Human Services declined to continue defending the constitutionality of a state law, the proposed intervenor's legal interest was paramount. The Court repeatedly placed its focus on the "substantial legal interest that sounds in deeper, constitutional considerations," and emphasized the "strength" of the Kentucky attorney general's interest. Cameron , 142 S. Ct. at 1010–12. As the Court explained, a "State's opportunity to defend its laws in federal court should not be lightly cut off." Id. at 1011. No such sovereignty concerns are present in this case.
Even were we to focus, as does the dissent, on Cameron ’s timeliness inquiry in isolation—that is, unconnected to its earlier discussion of sovereignty—it still does not require us to permit intervention. Dissenting Op. at ––––. Explaining that "timeliness is to be determined from all the circumstances," the Court in Cameron concluded that the attorney general's motion was timely because he sought to intervene " ‘as soon as it became clear’ " that Kentucky's interests " ‘would no longer be protected’ " by the parties remaining in the case—that is, when the Health and Human Services secretary declined to continue pursuing review. Cameron , 142 S. Ct. at 1012 (quoting United Airlines, Inc. v. McDonald , 432 U.S. 385, 394, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) ). Here, by contrast, the Department continued pursuing review: it petitioned for rehearing.
According to the dissent, this was the wrong kind of review. Because the Department's petition focuses on remedy as opposed to the merits, the Association must be permitted to intervene to defend its own interests. Dissenting Op. at ––––, –––– – ––––. But this would allow intervention in situations even broader than in Cameron . It would allow a third party to intervene not because an agency failed to move for additional review, but because the agency failed to move for review in the third party's preferred way. The problem with this reasoning is, again, timeliness. The Association has long been on notice that its interests were not the same as the Department's, a government agency bound to represent the "interests of the American people." Fund for Animals, Inc. v. Norton , 322 F.3d 728, 736 (D.C. Cir. 2003). In representing the public, the Department may favor different arguments than a private third party. Dimond v. D.C. , 792 F.2d 179, 193 (D.C. Cir. 1986). For example, the Department may, as it apparently has, determine that the best way to defend its rule withdrawal is to convince the lower court to allow it to complete rulemaking for the replacement rule instead of vacating. It is not for the Association to now second guess the Department's strategy by intervening. Aware from the beginning of this case that its interests may differ, the Association could have intervened in order to influence the way the Department defended the 2017 rule withdrawal. An eleventh-hour motion to do so now is untimely.
Rao, Circuit Judge, dissenting from the denial of the motion to intervene:
I would grant the motion to intervene of the Tennessee Walking Horse National Celebration Association ("Association"). The Association's interests were adequately represented by the government until this point, but now the Government has declined to seek rehearing en banc. The Association satisfies the requirements for intervention of right under Federal Rule of Civil Procedure 24(a)(2), and the Supreme Court's recent decision in Cameron v. EMW Women's Surgical Center, P.S.C. , ––– U.S. ––––, 142 S. Ct. 1002, 212 L.Ed.2d 114 (2022), makes clear the motion is timely.
* * *
The Association is a nonprofit organization that runs the National Celebration, a show featuring Tennessee walking horses. The Association requests intervention to seek further review of this panel's decision in Humane Society of the United States v. USDA , 41 F.4th 564 (2022), which holds the withdrawal of a rule promulgated under the Horse Protection Act was invalid. Beyond the specific rule at issue, the divided decision implicates important questions about the timing and finality of administrative rulemaking. The majority held that a rule is final after it is made available for public inspection in the Office of the Federal Register, even if it has not been published, and therefore at that stage can be withdrawn only by following notice and comment procedures. See id. at 575. The dissent maintained, however, that the decision contravened Kennecott Utah Copper Corp. v. Department of the Interior , 88 F.3d 1191 (D.C. Cir. 1996) (per curiam), and was directly at odds with the Administrative Procedure Act, the Federal Register Act, and numerous decisions holding that a rule is final upon publication in the Federal Register. Humane Society , 41 F.4th at 576–84 (Rao, J., dissenting); see also id. at 585 ().
The Association seeks intervention under Federal Rule of Civil Procedure 24(a)(2)...
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