NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-35153
Plaintiff-Appellee, D.C. No. 1:22-cv-00329-BLW
v.
MEMORANDUM*
STATE OF IDAHO,
Defendant-Appellee,
v.
MIKE MOYLE, Speaker of the Idaho House
of Representatives; CHUCK WINDER,
President Pro Tempore of the Idaho Senate;
THE SIXTY-SEVENTH IDAHO
LEGISLATURE, Proposed Intevenor-
Defendants,
Movants-Appellants.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted April 4, 2024**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.
The Idaho Legislature appeals the district court’s denial of its request to
intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2)
in the pending litigation between the United States and the State of Idaho. Because
the parties are familiar with the facts, we do not repeat them here, except as
necessary to provide context to our ruling.
1. We lack jurisdiction to review the district court’s intervention ruling. While
the denial of a motion to intervene is ordinarily appealable, it is not when the party
was granted an opportunity to permissively intervene under Rule 24(b). See
Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377–78 (1987)
(noting that “when an order prevents a putative intervenor from becoming a party
in any respect, the order is subject to immediate review,” but that review was
unavailable because permissive intervention was granted and “CNA . . . was
permitted to participate to the extent not duplicative of other parties.”) (emphasis in
original); see also Prete v. Bradbury, 438 F.3d 949, 959 n.14 (9th Cir. 2006)
(“[T]he denial of a motion to intervene is a final order and is thus immediately
appealable . . . . Yet the grant of a motion to intervene is not a final order and is not
appealable until after final judgment.”) (emphasis omitted).
The district court permitted the Idaho Legislature to participate in this case,
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including by calling witnesses to the preliminary injunction hearing and providing
extensive record evidence. Because this was not a situation where “the order
den[ied] all intervention,” the order is not final under 28 U.S.C. § 1291.
Stringfellow, 480 U.S. at 378.
The Legislature argues that there is jurisdiction to hear this case, citing the
Supreme Court’s decision in Berger v. North Carolina State Conference of the
NAACP, 597 U.S. 179, 200 (2022), in which the Court found North Carolina
legislators entitled to intervene as a matter of right. But that case is inapposite. In
Berger, the district court denied both permissive and mandatory intervention,
and—unlike here—the intervening legislators sought to defend a law that the state
officials charged with defending it had previously denounced. Id. at 186–87.
Here, the district court denied the Legislature’s motion to intervene because its
interests and the interests of the State align: both seek to defend the Total Abortion
Ban as constitutional. And, the district court granted the Legislature’s motion to
permissively intervene.
The more apt case is Stringfellow, 480 U.S. at 375. In that case, as in this
one, a district court denied a non-party’s motion to mandatorily intervene but
granted its motion to permissively intervene. Id. at 378. The Supreme Court
“refuse[d] to find that the grant of permissive intervention, even though subject to
conditions, should be treated as a complete denial of the right to participate” for
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purposes of §1291 and remanded the appeal for dismissal for want of jurisdiction.
Id.; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 872 (1992)
(noting that “restrictions on the rights of intervening parties . . . may burden
litigants in ways that are only imperfectly reparable by appellate reversal of a final
district court judgment . . . . But if immediate appellate review were available
every such time, Congress’s final decision rule would end up a pretty puny one[.]”)
Section 1291 was the only basis the Legislature cited in its statement of
jurisdiction in its opening brief. Confronted with the government’s jurisdictional
argument, it now argues that we nonetheless have jurisdiction under the collateral
order doctrine in its reply brief. But the Legislature forfeited that argument by not
raising it in its opening brief, and even if it had, the argument is foreclosed by
Stringfellow. See Stringfellow, 480 U.S. at 377.
APPEAL DISMISSED.
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