Alternative Research & Development Foundation v. Veneman

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided September 7, 2001

No. 00-5438

Alternative Research and Development Foundation, et al.,
Appellees

v.

Ann M. Veneman, Secretary,
U.S. Department of Agriculture, et al.,
Appellees

National Association for Biomedical Research,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 99cv0581)

---------

On Motion to Dismiss

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John Mendelson, III, was on the motion to dismiss filed by
plaintiffs-appellees Alternative Research and Development
Foundation, et al.

 Michael Jay Singer and John S. Koppel, Attorneys, U.S.
Department of Justice, for federal appellees, were on a
pleading in support of the motion to dismiss.

Michael P. Socarras and Elliot H. Scherker, for appellant
National Association for Biomedical Research, were on the
response to appellees' motion to dismiss.

Before: Ginsburg, Chief Judge; Williams and Randolph,
Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: Alternative Research and Development Foun-
dation filed a petition for rulemaking requesting that the
Secretary of Agriculture amend the definition of "animal" in
regulations promulgated pursuant to the Animal Welfare Act
("Act") to remove the current exclusion of birds, mice, and
rats bred for use in research. Under the Act, the Secretary
of Agriculture is authorized to promulgate standards and
other requirements to govern the handling, care, and treat-
ment of animals by dealers, research facilities, and exhibitors.
7 U.S.C. s 2143(a)(1). On January 28, 1999, the United
States Department of Agriculture ("USDA") published the
petition and requested comments. See 64 Fed. Reg. 4356
(1999). While its agency petition was pending, Alternative
Research and Development Foundation, as well as In Vitro
International, and Kristine Gausz (collectively, "Alternative
Research") filed a complaint for declaratory and injunctive
relief in the district court, alleging that the USDA's exclusion
of birds, rats, and mice from the definition of "animal" in 9
C.F.R. s 1.1 violates the Act. It sought an order enjoining
the exclusion and directing USDA to amend the regulation by
eliminating the exclusion.

After the district court denied a motion to dismiss filed by
USDA, see Alternative Research v. Glickman, 101 F. Supp.
2d 7, 11-14 (D.D.C. 2000), the National Association for
Biomedical Research ("NABR"), an association engaged in
research using birds, rats, and mice, sought intervention as of
right or, alternatively, permissive intervention. Subsequent-
ly, Alternative Research and USDA entered into a stipulation

of dismissal without prejudice under Federal Rule of Civil
Procedure 41(a)(1). The stipulation provides, in pertinent
part, that USDA will grant Alternative Research's petition for
rulemaking to amend the USDA regulation, and USDA
agrees to initiate and complete a rulemaking on the regula-
tion of birds, rats, and mice within a reasonable time. NABR
then filed a motion to vacate the stipulation under Rule
60(b)(4). After a hearing, the district court filed the stipula-
tion of dismissal and denied the motions to intervene and to
vacate the stipulation under Rule 60(b), concluding that it
lacked jurisdiction to decide the motions in light of the
stipulated dismissal. Alternatively, the district court denied
the motion to intervene as of right on the merits, concluding
that NABR's interests would not be impaired by the proposed
rulemaking.

NABR appeals from the stipulated dismissal and the order
denying intervention and Rule 60(b) relief. Alternative Re-
search moves to dismiss the appeal for lack of jurisdiction.
The district court's order denying intervention is appealable,
but was not in error; we therefore grant summary affirmance
of that ruling. Because intervention was properly denied,
NABR is not a party to the action and lacks standing to
appeal from the stipulated dismissal and from the order
denying relief under Rule 60(b); we therefore grant the
motion to dismiss as to those appeals.

* * *

Appealability of denial of intervention as of right. In
considering whether it had jurisdiction to review an order of
the district court denying intervention to a would-be interve-
nor, the Supreme Court in Brotherhood of Railroad Train-
men v. Baltimore & Ohio R. Co., 331 U.S. 519, 524 (1947),
stated:

Our jurisdiction to consider an appeal from an order
denying intervention ... depends upon the nature of the
applicant's right to intervene. If the right is absolute,
the order is appealable and we may judge it on its
merits.... [O]ur jurisdiction is identified by the neces-
sary incidents of the right to intervene in each particular

 instance. We must therefore determine the question of
our jurisdiction in this case by examining the character
of the [would-be intervenor's] right to intervene in the
proceeding....

Id. at 524-25.

In Brotherhood, and certain subsequent cases, the Supreme
Court postponed consideration of whether the denial of inter-
vention as of right was appealable until it decided the appeal
on the merits, thus suggesting that the appealability of the
denial turned on the merits of the applicant's right to inter-
vene. See Sam Fox Publishing Co. v. United States, 366
U.S. 683, 687-88 (1961) (noting that answer to question
whether court has jurisdiction to review order denying inter-
vention as of right also determines merits of appeal from
denial); Brotherhood, 331 U.S. at 524-32; see also Sutphen
Estates v. United States, 342 U.S. 19, 20-21 (1951). Upon
concluding that intervention as of right was properly denied,
the Court in Sam Fox Publishing and Sutphen Estates
dismissed the appeals. See Sam Fox Publishing, 366 U.S. at
695; Sutphen Estates, 342 U.S. at 22-23. More recently,
however, the Supreme Court assumed jurisdiction over an
appeal from the denial of intervention as of right without first
determining the merits of the applicant's right to intervene,
and, after concluding that a lower court's denial of interven-
tion was correct, affirmed the decision. Donaldson v. United
States, 400 U.S. 517, 530-31 (1971).

The Court's inconsistent treatment is mirrored in the fed-
eral courts of appeals. Some decisions make appealability of
the denial of intervention automatic once the district court
issues its denial; that is, the denial is held to be a final order
that is immediately appealable. This approach is followed by
a majority of the circuit courts. See Cotter v. Massachusetts
Ass'n of Minority Law Enforcement Officers, 219 F.3d 31, 33
(1st Cir. 2000); League of United Latin American Citizens v.
Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); Development
Finance Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d
156, 158 (3d Cir. 1995); Shea v. Angulo, 19 F.3d 343, 344-45
(7th Cir. 1994); Corby Recreation, Inc. v. General Electric

Co., 581 F.2d 175, 176 n.1 (8th Cir. 1978) (per curiam);
Securities and Exchange Comm'n v. Everest Management
Corp., 475 F.2d 1236, 1238 n.2 (2d Cir. 1972). Having con-
cluded that this type of order is appealable, these courts
review the order denying intervention on the merits and will
affirm the district court's ruling if they find no error.

The second approach makes appealability turn on the mer-
its of the motion for intervention as of right, and the denial of
intervention is not automatically an appealable, final order.
This approach is followed by the Eleventh Circuit. See
EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 637 (11th Cir.
1984). Under its self-styled "anomalous rule," the Eleventh
Circuit has jurisdiction only to decide whether the district
court was correct in denying intervention. Under this rule, if
the circuit court concludes that the district court's order was
correct, the circuit court's jurisdiction evaporates because the
ruling was not a final order, and the circuit court must
dismiss the appeal for want of jurisdiction. See id. Converse-
ly, if the circuit court concludes that the district court erred,
the circuit court retains jurisdiction and reverses the district
court ruling. Either way, the circuit court first decides
whether the motion to intervene was properly denied before
determining whether the order is appealable. See id. at 641
(concluding that trial court's denial of intervention was cor-
rect and that denial was thus not an appealable final order,
and dismissing appeal); see United States v. Georgia, 19 F.3d
1388, 1393 (11th Cir. 1994) (same).

Our circuit has not been entirely consistent in its approach.
In Hodgson v. United Mine Workers of America, 473 F.2d
118, 127 (D.C. Cir. 1972), this court concluded that a district
court's denial of intervention as of right was "amenable to
review on the merits" and reversed the district court's denial.
The court stated that where intervention is sought as of right,
a denial of the application may be appealed, and that where
permissive intervention is sought, a denial may only be ap-
pealed where the trial court has clearly abused its discretion.
See id. And in Moten v. Bricklayers, Masons and Plasterers
International Union of America, 543 F.2d 224, 228-32 (D.C.
Cir. 1976), a would-be intervenor challenged the district

court's orders denying a motion to intervene and approving a
settlement between the parties. On appeal, this court noted
that denial of intervention as of right is an appealable final
order and affirmed the district court's denial of intervention
as of right under Rule 24.

In United States v. American Telephone and Telegraph
Co., 642 F.2d 1285 (D.C. Cir. 1980), on the other hand, we
suggested that the appealability of a district court order
denying intervention as of right depends on whether the
applicant had a "valid claim" for intervention as of right. See
id. at 1290-91. But in that case the court determined that
appellant had a right to intervene, and therefore the court did
not need to reach the issue whether the district court's order
denying intervention would be appealable in the absence of a
valid claim. Id. at 1290-91.

This court now clarifies that the denial of intervention as of
right is an appealable, final order regardless of the merits of
the claim for intervention as of right. This approach is in
accord with the majority of circuits and is consistent with two
recent rulings from this circuit. In Smoke v. Norton, 252
F.3d 468, 470 (D.C. Cir. 2001), this court considered an appeal
from a district court order denying a motion to intervene as
of right under Rule 24(a). Appellants moved to intervene
after the district court granted summary judgment in order
to appeal from the underlying judgment, which remanded the
case to the agency. The district court denied the motion to
intervene as untimely. In reversing the district court's deni-
al, this court stated that the denial of intervention as of right
is an appealable final order because it is conclusive with
respect to the distinct interest asserted by the movant. See
id. (quoting Brotherhood, 331 U.S. at 524). The court treated
the denial of intervention as immediately appealable and
independent from the underlying judgment, noting that the
question whether the underlying judgment is final would not
be before the court unless appellants were allowed to inter-
vene and they appealed from that judgment. See id. at 470
n.1.

 Similarly, in In re: Vitamins Antitrust Class Actions, 215
F.3d 26 (D.C. Cir. 2000), we also considered an appeal from
the district court's denial of intervention as of right under
Rule 24(a). Appellants, who were presumptive members of
the class but who had opted out, moved to intervene under
Rule 24(a) for the limited purpose of opposing a clause in the
proposed settlement of class claims. While the appeal from
the denial of intervention was pending, the district court
approved the settlement, which was not appealed. See id. at
28. This court affirmed the district court's denial of interven-
tion, concluding that appellants were not entitled to intervene
as of right because their asserted interest in being able to opt
out of the class was insufficient to give them standing to
challenge the settlement agreement. Id.

Although In re: Vitamins does not directly address wheth-
er the denial of intervention as of right is appealable, the
court's statement that it may exercise pendent jurisdiction to
reach the issue of permissive intervention because it is inex-
tricably intertwined with the issue of intervention as of right,
see 215 F.3d at 31, and the court's affirmance of the district
court's denial of intervention (rather than dismissal of the
appeal), indicate it considered the denial of intervention as of
right independently appealable. Thus we conclude that the
district court's denial of NABR's motion to intervene as of
right is an independently appealable, final order. See Hodg-
son, 473 F.2d at 124 & n.29 (entry of final order starts time
period for filing notice of appeal as to that order under
Federal Rule of Appellate Procedure 4(a)).

Furthermore, our jurisdiction to review that denial is not
affected by the fact that the district court denied intervention
after the stipulated dismissal was entered; the dismissal does
not render the appeal moot. See Massachusetts School of
Law at Andover, Inc. v. United States, 118 F.3d 776, 780-81
(D.C. Cir. 1997) (where would-be intervenor sought to chal-
lenge consent decree, appeal from denial of intervention as of
right reviewable even though district court denied interven-
tion after it entered consent judgment). NABR appeals from
both the denial of intervention and the denial of its Rule 60(b)
motion, which challenged the dismissal. If this court were to

conclude that NABR was entitled to intervene in the litiga-
tion, NABR would have standing to appeal the district court's
denial of the Rule 60(b) motion attacking the stipulated
dismissal, and we would review that Rule 60(b) denial. See
Purcell v. Bank Atlantic Fin. Corp., 85 F.3d 1508, 1511 n.3
(11th Cir. 1996) (appeal from denial of intervention not moot-
ed by district court's entry of judgment in underlying case);
see also League of United Latin American Citizens, 131 F.3d
at 1301 n.1 (appeal from denial of intervention not mooted
despite district court issuance of memorandum disposing of
claims). Because we can potentially grant NABR effective
relief, this appeal is not moot. See Purcell, 85 F.3d at 1511
n.3.

* * *

Entitlement to intervention as of right. An applicant seek-
ing to intervene as of right must show, among other things,
that it is "so situated that the disposition of the action may as
a practical matter impair or impede [its] ability to protect [its]
interest." Mova Pharmaceutical Corp. v. Shalala, 140 F.3d
1060, 1074 (D.C. Cir. 1998). The relevant inquiry here is
whether NABR's concerns about the terms of the stipulated
dismissal were sufficient to constitute an interest requiring
intervention. See Moten, 543 F.2d at 229, 232-34; see also
Natural Resources Defense Council v. Costle, 561 F.2d 904,
908-11 (D.C. Cir. 1977). NABR asserts that "USDA's collu-
sive stratagem with [Alternative Research] to expand USDA's
regulatory jurisdiction without public comment or judicial
review" shows that USDA was not adequately representing
NABR's interest.

But NABR's rights were not impaired by the initiation of a
rulemaking. NABR is a non-profit association whose mem-
bers are engaged in biomedical research that involves the use
of birds, rats, and mice. NABR's position is that the exclu-
sion for birds, rats, and mice should be removed only if
regulations can be developed that take into account enforce-
ment needs, current scientific practices, standards already
established in other policy statements, and administrative and
financial burdens on research facilities. As the district court

noted during the hearing on the motion to intervene, NABR
will not be precluded from participating in the rulemaking
and, if USDA decides to issue a final rule, NABR is not
precluded from challenging that rule. Significantly, the stip-
ulated dismissal does no more than what the agency could
have done by granting Alternative Research's pending agency
petition for rulemaking, and the stipulated dismissal does not
bind the agency in its rulemaking. Cf. Massachusetts School
of Law at Andover, 118 F.3d at 780-81 (noting that consent
decree "with res judicata, collateral estoppel, or stare decisis
effect might very well affect MSL's ability to protect its
interests," but because the consent decree had no such effect,
MSL's interest was not impaired). Accordingly, NABR's
concerns about the terms of the stipulated dismissal are
insufficient to constitute an interest requiring intervention
before the district court under Rule 24(a)(2).

* * *

Appeal from stipulated dismissal and denial of Rule 60(b)
motion. Finally, because the district court correctly denied
intervention, NABR is not a party to the action and lacks
standing to appeal from either the stipulation of dismissal or
the order denying its Rule 60(b) motion, which challenged the
stipulated dismissal. See Fed. R. Civ. P. 60(b) (relief limited
to a party); Farmland Dairies v. Commissioner of the New
York State Department of Agriculture and Markets, 847 F.2d
1038, 1045 (2d Cir. 1988) (concluding that because court was
affirming district court order denying intervention, appellants
had no standing to appeal any other order entered by district
court, and court dismissed their appeals from those orders).

* * *

For the preceding reasons, we conclude this court has
jurisdiction to review the denial of intervention as of right
and affirm the denial because NABR has not shown that the
stipulated dismissal may impair its ability to protect its
interest. Because the district court correctly denied inter-
vention, NABR is not a party to the action and does not have
standing to appeal from either the stipulated dismissal or the

order denying its Rule 60(b) motion; the court dismisses the
appeal from those rulings.