Peruta v. Cnty. of San Diego

• Decision Date: 12 November 2014
• Docket Number: No. 10–56971.,10–56971.
• Citation: 771 F.3d 570
• Parties: Edward PERUTA; Michelle Laxson; James Dodd ; Leslie Buncher, Dr.; Mark Cleary; California Rifle and Pistol Association Foundation, Plaintiffs–Appellants, State of California, Intervenor–Pending, v. COUNTY OF SAN DIEGO; William D. Gore, individually and in his capacity as Sheriff, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

771 F.3d 570

Edward PERUTA; Michelle Laxson; James Dodd ; Leslie Buncher, Dr.; Mark Cleary; California Rifle and Pistol Association Foundation, Plaintiffs–AppellantsState of California, Intervenor–Pending

v.COUNTY OF SAN DIEGO; William D. Gore, individually and in his capacity as Sheriff, Defendants–Appellees.

No. 10–56971.

United States Court of Appeals, Ninth Circuit.

Nov. 12, 2014.

Paul Henry Neuharth, Jr., Paul Neuharth, Jr. APC, San Diego, CA, Paul D. Clement, Bancroft PLLC, Washington, DC, Carl D. Michel, Esquire, Michel & Associates, P.C., Long Beach, CA, for Plaintiffs–Appellants.

Gregory David Brown, Esquire, Deputy Attorney General, Ross Moody, Deputy Attorney General, AGCA–Office of the California Attorney General, San Francisco, CA, for Intervenor–Pending.

James Chapin, Esquire, Senior Deputy County Counsel, San Diego, CA, for Defendants–Appellees.

Before: DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER

We must rule on motions to intervene in this Second Amendment case which were filed after our opinion and judgment reversing the District Court were filed.

I

When Sheriff William D. Gore declined to file a petition for rehearing en banc in this case, the State of California and the Brady Campaign to Prevent Gun Violence moved to intervene under Federal Rule of Civil Procedure 24. The California Police Chiefs' Association (CPCA) and the California Peace Officers' Association (CPOA), amici in this case, submitted a petition for rehearing en banc. However, amici cannot file petitions for rehearing en banc. See Day v. Apoliona, 505 F.3d 963, 964 (9th Cir.2007). We therefore construe CPCA and CPOA's petition as a motion to intervene. See CPCA & CPOA Pet. for Reh'g En Banc at 2 n.2 (“To the extent the Court finds that CPCA and CPOA must be a party in order to submit this petition, CPCA and CPOA request that this Court construe this petition to also be a request to intervene as parties.”).

II

Intervention, both of right and by permission, can occur only “[o]n timely motion.” Fed.R.Civ.P. 24(a) -(b). Timeliness is determined with reference to three factors: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir.2004) (quoting Cal. Dep't of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir.2002) ).

A

Regarding the first factor, the stage of the proceedings, the age of the case discourages us from declaring the motions timely. The movants sought intervention more than four years after this case began. See id. (affirming a district court's denial of a motion to intervene as untimely when it was filed four years into the proceedings).

That this case is now on appeal rather than in the district court further suggests that the motions to intervene are untimely. See Bates v. Jones, 127 F.3d 870, 873 (9th Cir.1997) ; Amalgamated Transit Union Int'l, AFL–CIO v. Donovan, 771 F.2d 1551, 1552 (D.C.Cir.1985) (per curiam) (“A court of appeals may allow intervention at the appellate stage where none was sought in the district court only in an exceptional case for imperative reasons.” (internal quotation marks omitted)). In this case, the movants filed motions to intervene after our opinion was filed. If intervention on appeal is limited to “exceptional case[s],” then, by the same logic, intervention after the publication of an appellate opinion must be extremely rare. The first factor, therefore, weighs against timeliness.

B

The second factor, on the other hand, weighs in favor of timeliness. The parties have not given us any reason to believe that they would face prejudice as a result of delayed intervention by the movants.

C

The third factor, the reasons for and length of the delay, suggests that the motions to intervene are untimely. Under our longstanding precedent, “[a] party seeking to intervene must act as soon as he ‘knows or has reason to know that his interests might be adversely affected by the outcome of the litigation.’ ” United States v. Oregon, 913 F.2d 576, 589 (9th Cir.1990) (quoting United States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir.1989) ); accord Alisal Water, 370 F.3d at 922–23 ; Commercial Realty Projects, 309 F.3d at 1120.

Both California and the Brady Campaign argue that their delay in moving to intervene was reasonable. They filed their motions shortly after learning that Sheriff Gore would not file a petition for rehearing en banc, which they contend was the moment they knew that Sheriff Gore would not adequately protect their interests. Cal. Mot. to Intervene at 13; Brady Campaign Mot. to Intervene at 14. If the movants originally thought that Sheriff Gore adequately protected their interests, they must have “know[n] that [their] interests might be adversely affected by the outcome of the litigation.” Oregon, 913 F.2d at 589. The movants do not deny that they have long been aware of this case.¹

Although the movants may have avoided some inconvenience to themselves by waiting to seek intervention, such considerations do not justify delay. See Alisal Water, 370 F.3d at 923–24 (“An applicant's desire to save costs by waiting to intervene until a late stage in litigation is not a valid justification for delay.”). A contrary rule “would encourage interested parties to impede litigation by waiting to intervene until the final stages of a case.” Id. at 924.

D

California and the Brady Campaign rely on our order in Day v. Apoliona, in which we granted the State of Hawaii's motion to intervene even though it was filed after the panel opinion was published. 505 F.3d 963, 966 (9th Cir.2007). Day's reasoning makes clear that it represents the exception rather than the rule. The Day order expressly relied on the fact that Hawaii had not “ignored the litigation or held back from participation to gain tactical advantage.” Id. Instead, Hawaii had “sought amicus status, and—singlehandedly—argued a potentially dispositive issue in this case to the district court and this panel.” Id. Such participation was especially helpful because the existing defendants were “unwilling[ ] ... to take a position on th [at] issue.” Id. at 965.

This case is quite different. Neither California nor the Brady Campaign participated as an amicus below or before this Court. Brady Campaign Mot. to Intervene at 1 n.1 (distinguishing between the Brady Campaign and the Brady Center). Although CPCA and CPOA are amici, their participation has not been comparable to Hawaii's in Day. CPCA and CPOA did not, “singlehandedly” or otherwise, argue any issue that Sheriff Gore refused to litigate.

III

Considering each of the relevant factors, we conclude that the movants have not met the heavy burden of demonstrating “imperative reasons” in favor of intervention on appeal. Bates, 127 F.3d at 873. The stage of the proceedings, the length of the delay, and the reason for the delay all weigh against timeliness. In the absence of a timely motion, intervention is unavailable. Fed.R.Civ.P. 24(a) -(b).

IV

The dissent asserts that 28 U.S.C. § 2403 and Federal Rule of Civil Procedure 5.1 provide a basis for intervention. These assertions are incorrect.

28 U.S.C. § 2403(b) provides:

In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

28 U.S.C. § 2403(b) (emphasis added). Similarly, Rule 5.1 requires “[a] party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute ” to “file a notice of constitutional question” and serve such notice on the relevant sovereign's attorney general. Fed.R.Civ.P. 5.1 (emphasis added).

The dissent admits that no “law or regulation other than the county-specific good cause requirement was in jeopardy” when Peruta presented his challenge to the District Court, dissent at 577, but argues that “on appeal, the case morphed into another challenge entirely, as the majority opinion instead considered the constitutionality of California's firearm regulatory framework.” Dissent at 576. But the dissent cannot assert that the case somehow “morphed” on appeal into a new challenge when the only law “drawn into question” on appeal was the law challenged at the District Court: the San Diego County policy.

Peruta's challenge is only to the San Diego County policy that “an assertion of self-defense is insufficient to demonstrate ‘good cause’ ” under the California statutory scheme. See Peruta v. County of San Diego, 742 F.3d 1144, 1147–48, 1167–68, 1179 (9th Cir.2014) (asking “whether San Diego County's ‘good cause’ permitting requirement ‘infringe[s]’ the right” to bear arms; assessing “the nature of the infringement that the San Diego County policy purportedly effects on the right to bear arms”). As the opinion states, this is “a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry [.]” Id. at 1172–73. Simply put, no California statute has been challenged, overturned, or had its constitutionality “drawn into question.” Of course, analyzing the constitutionality of the San Diego County policy required “considering” the California statutory scheme,...