United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed December 5, 2022
No. 20-5291
HUMANE SOCIETY OF THE UNITED STATES, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02458)
On Petition for Rehearing and Motion to Intervene
Before: MILLETT* and RAO**, Circuit Judges; and TATEL*,
Senior Circuit Judge
ORDER
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
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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.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
* A statement by Senior Circuit Judge Tatel, with whom Circuit
Judge Millett joins, concurring in the denial of the motion to
intervene, is attached.
** Circuit Judge Rao would grant the motion to intervene and
has abstained from voting on the petition for panel rehearing. A
statement by Circuit Judge Rao, dissenting from the denial of
the motion to intervene, is attached.
TATEL, Senior Circuit Judge, with whom Circuit Judge
MILLETT joins, concurring in the denial of the motion to
intervene: Our dissenting colleague believes that this case
“implicates important questions about the timing and finality
of administrative rulemaking.” Dissenting Op. at 1. 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 (requesting that “at a minimum” the district court
“should have maximum flexibility on remand to address
competing considerations and determine the best use of the
parties’ and the court’s resources in fashioning a remedy”).
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) (granting en banc rehearing only “when necessary to
secure . . . uniformity of the court’s decisions” or to decide
“question[s] of exceptional importance”).
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 (1965). Those
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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, 142 S. Ct. 1002 (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 3. 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
3
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 (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 3, 4–5.
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., 142 S. Ct. 1002 (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
(noting the majority’s decision “interferes with the current
president’s authority to control the regulatory agenda of his
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administration” and “has disturbing implications for due
process in agency enforcement”).
The Association seeks intervention under Federal Rule of
Civil Procedure 24(a)(2), which provides for intervention of
right to anyone who, “[o]n timely motion,” (i) “claims an
interest relating to the property or transaction that is the subject
of the action,” and (ii) “is so situated that disposing of the
action may as a practical matter impair or impede the movant’s
ability to protect its interest,” unless (iii) “existing parties
adequately represent that interest.” FED. R. CIV. P. 24(a).
Neither the plaintiffs nor the Government contest the
Association meets the first two requirements because the rule
at issue would effectively ban from competition a substantial
percentage of Tennessee walking horses, making it impossible
for the Association to stage its show. Now that the Government
has declined to seek further merits review of the panel decision,
it is equally clear that the Government no longer adequately
represents the Association’s interests. The only question is
whether the Association acted “[o]n timely motion.” Id.
“Timeliness is an important consideration in deciding
whether intervention should be allowed.” Cameron, 142 S. Ct.
at 1012. But “timeliness is to be determined from all the
circumstances and the point to which a suit has progressed is
not solely dispositive.” Id. (cleaned up). Applying the
standards in Cameron, the Association’s motion to intervene
was timely.
We issued our panel opinion on July 22, 2022, and the
Association moved to intervene of right shortly thereafter, on
August 5. At the time, the Government had not indicated
whether it would seek rehearing en banc. While the
Government opposed intervention of right, it indicated it would
not object to permissive intervention, particularly if we
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deferred consideration of the motion until after the deadline for
seeking further review passed, on October 6, 2022. On that
date, the Government filed a motion for panel rehearing, but
only to amend our opinion “in a limited respect related to the
issue of remedy.” The Government did not seek rehearing en
banc or review of the panel decision on the merits. On that same
day, with its motion for intervention pending, the Association
lodged its petition for rehearing en banc.
After Cameron, it is clear the Association is entitled to
intervene. In that case, the Court permitted intervention by the
Kentucky Attorney General following a Sixth Circuit decision,
because that was the point at which it became clear that the
state officials defending the law would not seek rehearing en
banc or a writ of certiorari. Cameron, 142 S. Ct. at 1008. The
Court emphasized that “[t]he attorney general’s need to seek
intervention did not arise until the secretary ceased defending
the state law, and the timeliness of his motion should be
assessed in relation to that point in time.” Id. at 1012. In light
of the circumstances, the attorney general’s motion to intervene
was timely. See id. at 1013. The facts here are very similar. The
Association moved quickly when it realized the Government
might not seek rehearing en banc, filing its motion to intervene
within two weeks of our panel opinion and long before the
deadline for further review expired. The Association’s motion
was timely because the “need to seek intervention did not arise
until the [Government] ceased defending the [rule].” 1 Id. at
1012.
1
Despite the obvious applicability of Cameron, the concurring
opinion maintains that under circuit law, an entirely different
standard applies, and that we may grant a motion to intervene at the
appellate stage only in “exceptional cases for imperative reasons.”
Concurring Op. 2 (quoting Amalgamated Transit Union Int’l, AFL-
CIO v. Donovan, 771 F.2d 1551, 1552 (D.C. Cir. 1985) (per curiam))
4
The concurring opinion offers two theories to distinguish
Cameron. First, the concurrence argues Cameron rested on
“sovereignty concerns” associated with the Kentucky Attorney
General’s interest in defending the constitutionality of state
laws. See Concurring Op. 2. That is incorrect. The timeliness
analysis in Cameron was analytically separate from the part of
the opinion discussing Kentucky’s sovereign interest. Justice
Kagan emphasized this point, noting that “[t]he considerations
governing intervention motions—applying equivalently to any
person seeking to intervene, including the attorney general—
show why the Sixth Circuit went wrong in closing off the suit.”
Id. at 1019 (Kagan, J., concurring in the judgment). Moreover,
the Court expressly analogized to a case involving intervention
by a private party. See id. at 1012 (majority opinion) (citing
United Airlines, Inc. v. McDonald, 432 U.S. 385, 396 (1977)).
Nothing in the Court’s opinion limits its timeliness analysis to
cases involving public officials or state sovereign interests.
Second, and more puzzling still, the concurring opinion
relies on the Government’s decision to petition for panel
rehearing to amend the majority opinion “in a limited respect,”
(cleaned up). This approach mirrors that taken by the Sixth Circuit
in the opinion reversed by the Supreme Court in Cameron. Indeed,
that panel also repeatedly cited to Donovan for the proposition that
motions to intervene filed after appellate judgment are disfavored.
See EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 831 F.
App’x 748, 750 (6th Cir. 2020). Yet the Supreme Court flatly
concluded that the Sixth Circuit’s “assessment of timeliness was
mistaken.” Cameron, 142 S. Ct. at 1012–13. To the extent that
Donovan is inconsistent with Cameron, it is no longer good law. And
in any event, Donovan is distinguishable from this case because the
Government there, after losing on appeal, sought further merits
review by filing a motion for panel rehearing and for rehearing en
banc, so there was no basis on which to grant the motion to intervene.
See 771 F.2d at 1552 & n.2.
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suggesting this request somehow resolved the Association’s
grounds for intervention. See Concurring Op. 1, 3. This is
plainly not true. The Association was first and foremost
concerned with securing further merits review of the panel
decision, review it was entitled to seek as an intervenor under
Cameron. The Association’s entire petition for rehearing
argues for en banc review to resolve the panel majority’s
inconsistency “with prior decisions of both this Court and other
circuits” and the “needless uncertainty” the opinion generates
“about the point at which agency actions become final.” Only
at the end of its petition did the Association briefly argue that
we should at a minimum grant the same relief sought by the
Government. But the Association nowhere suggested that it
would be “satisfied with just that relief.” Concurring Op. 1.
Ultimately, the concurring opinion’s argument reduces to
the proposition that intervention is inappropriate if an existing
party has sought any review of the panel decision, no matter
how limited. That rule would render Cameron a dead letter,
allowing existing parties to forestall intervention simply by
requesting the panel amend a sentence or two in its opinion.
Finally, I note that denying intervention in this context
may result in greater litigation burdens. Prospective intervenors
may find it necessary to seek intervention at the outset of an
appeal, or perhaps even earlier, to guard against the possibility
that the party representing their interests will abandon further
review. But at the earlier stage of litigation some parties may
be denied intervention because the “existing parties adequately
represent [their] interest[s].” FED. R. CIV. P. 24(a)(2). The
possibility of this catch-22 will inevitably multiply requests for
early and otherwise unnecessary intervention.
***
6
Following the Supreme Court’s simple directive in
Cameron, I would grant the Association’s motion to intervene
so that it may petition for rehearing en banc on this important
issue of administrative law.