Ransom, Alma v. Norton, Gale A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 10, 2001 Decided June 15, 2001

No. 00-5061

Edward D. Smoke, et al.,
Appellant

v.

Gale A. Norton, Secretary of the Interior, et al.,
Alma Ransom, et al.,
Appellees

Consolidated with
00-5062

Appeals from the United States District Court
for the District of Columbia
(No. 98cv01422)

Michael Rhodes-Devey argued the cause and filed the
briefs for appellants. Phillip H. Tarbell, appearing pro se,
entered an appearance.

 Peter B. Work argued the cause for appellees. With him
on the brief was Bradley S. Waterman.

Before: Ginsburg and Henderson, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Ginsburg.

Concurring opinion filed by Circuit Judge Henderson.

Ginsburg, Circuit Judge: The appellants moved to inter-
vene in this case after the district court granted summary
judgment against the Government -- which had represented
their interests in the proceedings below -- and the Govern-
ment indicated it might not appeal. The district court denied
the appellants' motion as untimely. We reverse. The appel-
lants had no occasion to intervene in order to protect their
interests until after the judgment was entered. Hence, their
motion was timely when made.

I. Background

The appellants in this case claim to be officers of the Saint
Regis Mohawk Tribal Government under a constitution they
allege was adopted in 1995 to replace the Tribe's traditional
Three Chief System of government. The appellees, who
claim office pursuant to the Three Chief System, sought
review under the Administrative Procedure Act, 5 U.S.C.
s 551 et seq., of decisions of the Bureau of Indian Affairs
(BIA) recognizing the new constitution as having been validly
adopted by the Tribe, and of the Interior Board of Indian
Affairs (IBIA) affirming that determination. In Ransom v.
Babbitt, 69 F. Supp. 2d 141 (1999), the district court recounts
the history of the dispute that arose over which government
and which slate of electors -- those of the 1995 Constitution
or those of the Three Chief System -- were entitled to
recognition. Ultimately, the court granted summary judg-
ment for the appellees on the ground that the agencies'
recognition of the 1995 Constitution was arbitrary, capricious,
and contrary to law. See id. at 155.

 As long as the United States was resolved to defend the
decisions of the BIA and the IBIA in the district court, the
appellants did not seek to intervene. After the district court
granted summary judgment for the appellees, however, and
before the Government decided not to appeal, the appellants
moved to intervene "in order to ensure that the appeal from
th[at] court's decision take place."

The district court, noting that the appellants did not specify
what type of intervention -- as of right, or permissive -- they
sought, observed that a motion for either type of intervention
must be "timely." Fed. R. Civ. P. 24(a) & (b). The court then
denied the appellants' motion as untimely because, "[h]aving
foregone an opportunity to pursue intervention during the
pendency of the action, the proposed intervenors now seek to
inject additional arguments and materials into a very narrow
review of agency action that had already proceeded to the
next stage." The appellants here seek reversal of the district
court's order denying their motion to intervene so they may
appeal from the underlying judgment.

II. Analysis

The district court did not expressly decide whether the
appellants' motion sought intervention as of right under Rule
24(a) or by permission under Rule 24(b). The court did,
however, correctly enumerate the "four requirements for
intervention [as of right] under Rule 24(a)(2): (1) timeliness;
(2) a cognizable interest; (3) impairment of that interest; and
(4) lack of adequate representation by existing parties." See,
e.g., Williams & Humbert, Ltd. v. W. & H. Trade Marks,
Ltd., 840 F.2d 72, 74 (D.C. Cir. 1988). Because the appel-
lants' motion to intervene and the affidavits filed in support of
that motion focus upon the lack of adequate representation of
their interests -- a defining feature of intervention as of
right -- we consider the motion to have been made under
Rule 24(a). Compare Rule 24(a)(2) with 24(b)(2).

 The settled rule is that the "[d]enial 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 Railroad Trainmen v. Baltimore & Ohio R.R. Co., 331
U.S. 519, 524 (1947) ("since [a would-be intervenor as of right]
cannot appeal from any subsequent order or judgment in the
proceeding unless he does intervene, the order denying inter-
vention has the degree of definitiveness which supports an
appeal therefrom").* We review the district court's denial of
a motion to intervene as of right for clear error. See Foster
v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981). The district
court has much latitude in assessing the timeliness of a
motion, but it must properly take account of the consider-
ations relevant to that determination. In particular,

timeliness is to be judged in consideration of all the
circumstances, especially weighing the factors of time
elapsed since the inception of the suit, the purpose for
which intervention is sought, the need for intervention as
a means of preserving the applicant's rights, and the
probability of prejudice to those already parties in the
case.

United States v. AT&T, 642 F.2d 1285, 1295 (D.C. Cir. 1980).

Here the appellants claim that in moving to intervene they
were prompted by the post-judgment prospect that the Gov-
ernment might not appeal. Prior to the entry of judgment,
the appellants say, they had no reason to intervene; their
interests were fully consonant with those of the Government,

__________
* Although we initially directed the parties to brief the question
whether the summary judgment entered in this case is itself an
appealable, final order (and the appellees argue it is not because it
remands the case to the BIA for further proceedings requiring the
exercise of discretion), we conclude that the answer to that question
does not bear upon the narrow issue before us, namely, the timeli-
ness of the appellants' motion to intervene. Whether the underly-
ing judgment of the district court is final and, if final, is correct are
questions that will not be before us unless the district court grants
the appellants' motion to intervene and they appeal from the
judgment.

and those interests were adequately represented by the Gov-
ernment's litigation of the case. We agree. In these circum-
stances a post-judgment motion to intervene in order to
prosecute an appeal is timely (if filed within the time period
for appeal) because "the potential inadequacy of representa-
tion came into existence only at the appellate stage." Di-
mond v. District of Columbia, 792 F.2d 179, 193 (D.C. Cir.
1986); see United Airlines, Inc. v. McDonald, 432 U.S. 385,
395-96 (1977).

The appellees do not convincingly defend the district
court's ruling that the appellants' motion was untimely. They
argue only that, because the Government "effectively con-
ceded the factual premises underlying Plaintiffs' motion for
summary judgment," the Government's representation of the
appellants' interests was manifestly inadequate at an earlier
point in the litigation. That the facts of this case were not in
dispute is irrelevant, however; the case involved review of an
administrative record the facts of which were settled before
the agency. We have no reason to doubt the adequacy of the
Government's commitment to resisting the appellees' motion
for summary judgment. The Government's representation of
the appellants' interests became potentially inadequate only
when it equivocated about whether it would appeal the ad-
verse ruling of the district court.

Although the district court perceived the appellants as
"seek[ing] to inject additional arguments and materials into a
very narrow review of agency action that had already pro-
ceeded to the next stage," the legally relevant purpose of
their motion was simply to enable them to prosecute an
appeal. Policing the limits upon what the appellants may
argue on appeal is properly left to this court.

III. Conclusion

For the foregoing reasons, we hold that the district court
erred in denying the appellants' motion to intervene as un-
timely. Accordingly, we remand this case to the district

court for it to address in the first instance the other require-
ments for intervention as of right.

Reversed and remanded.

Karen LeCraft Henderson, Circuit Judge, concurring:

I join the court's opinion because I agree that the district
court incorrectly denied the appellants' motion to intervene
on the ground of untimeliness. I write separately, however,
to express my view that the district court will no doubt reach
the same result on remand and I therefore question the
"judicial efficiency" of remanding.

The court correctly sets forth the "four requirements for
intervention [as of right] under Rule 24(a)(2): (1) timeliness;
(2) a cognizable interest; (3) impairment of that interest; and
(4) lack of adequate representation by existing parties." See
Majority Opinion at 3 (citing Williams & Humbert, Ltd. & W.
& H. Trade Marks, Ltd., 840 F.2d 72, 74 (D.C. Cir. 1998)).
The court also correctly concludes that under our precedent
the appellants' motion was timely. That conclusion does not
by itself, however, necessitate a different result on remand
because failure to satisfy any of the remaining three require-
ments is a sufficient ground for denying intervention. See
SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir.
1998).

The appellants tell us their sole goal in seeking intervention
is "to ensure that the appeal from [the district court's]
decision take place." Plaintiffs'-Appellees' Appendix 276.
They also insist that the government's decision not to pursue
an appeal amply demonstrates their lack of adequate repre-
sentation in this proceeding. I am not persuaded. In assess-
ing whether a proposed intervenor's interest is adequately
represented by an existing party, a court must consider
whether the proposed intervenor itself has a right to pursue
whatever it claims it is inadequately represented in pursuing.
If no such right exists, it cannot seriously be maintained that
the proposed intervenor lacks adequate representation. In
this case, I believe an evaluation of the adequacy of represen-
tation issue turns on whether the appellants could have
pursued an appeal from the district court order had they been
parties to the district court proceeding. If so, a court could
conclude they lack adequate representation because the gov-
ernment's decision not to pursue an appeal deprives them of

recourse to which they would otherwise be entitled. If not,
however, the government's decision not to appeal has no
impact on the adequacy of representation of the appellants
inasmuch as they are left no worse off than if they had in fact
been parties to the litigation all along.

The dispositive question then becomes whether the appel-
lants could have taken an appeal from the district court order
had they been parties before the district court ruled. In my
view, they could not have done so. "The jurisdiction of the
courts of appeals to review district court actions is limited to
'final orders.' " Pueblo of Sandia v. Babbitt, 231 F.3d 878,
880 (D.C. Cir. 2000) (quoting 28 U.S.C. s 1291). Section 1291
entitles a party to appeal "from a district court decision that
ends the litigation on the merits and leaves nothing more for
the court to do but execute the judgment." Id. (citations and
internal quotation marks omitted). However, " '[i]t is well
settled that, as a general rule, a district court order remand-
ing a case to an agency for significant further proceedings is
not final,' " id. (quoting In re St. Charles Preservation Inves-
tors, Ltd., 916 F.2d 727, 729 (D.C. Cir. 1990); citing American
Hawaii Cruises v. Skinner, 893 F.2d 1400, 1403 (D.C. Cir.
1990)), unless the remand to the agency is for solely "ministe-
rial" action. See id. at 881. In my view, the district court's
order here was not merely "ministerial" but rather left "sig-
nificant further proceedings" for the agency. And the appel-
lants have no right to appeal a non-final order.1 Accordingly,
even if they get no representation in seeking to appeal the
district court's remand order, they cannot claim"inadequate"
representation to take action they themselves could not take.

__________
1 The agency's right to appeal such an order is based on the fact
that if it were limited to an appeal only after remand proceedings, it
would lose the opportunity to appeal in the event the decision to
remand was in error. See, e.g., County of Los Angeles v. Shalala,
192 F.3d 1005, 1012 (D.C. Cir. 1999) (citing Occidental Petroleum
Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir. 1989)), cert. denied, 530
U.S. 1204 (2000). But the appellants do not succeed to the agency's
right to appeal which is unique to itself.