# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Filed De cembe r 5, 2022

No. 20-5291

H U M A N E S O C I E TY

O F T H E U

N I TE D S TA TE S , E T A L ., A P P E L L A N TS

v.

U N I TE D S TA TE S D E P A R TM E N T O F A G R

I C U L TU R E , E T A L ., A P P E L L E E S

Appea l from the United States District Court for the D istrict of Columbia (No. 1:19-c v-02458)

On Petition for Rehea

ring and Motion to I nterve ne

Be fore : M I L L E TT * and R A O **, Circ u i t Judges ; and T A TE L *, Senior Circuit Judge

O R D E R

Upon consideration of the Tenne ssee Walking Horse National Celebra tion Assoc iation’s (“A ssociation”) motion to intervene

, the response s there to, and the reply ; the Association’s lodge d petit i o n for rehe aring and rehe aring en banc; and appellee s’ petition for panel rehe aring filed on October 6, 2022, it is2

ORDERED that the motion to int erve ne be de nied. I t is

F URTHER ORDERED that appellee s’ petition f or panel rehe aring be denied. On rema nd, the district court may consider all reme dial issues, including the question of whether rema nd to the ag enc y wi thout vacatur is appropr iate under the criter ia established by

Circuit prec edent.

P er C uriam

F OR THE COURT: Mark J. L ang er, Cler

k

BY : /s/ Michae l C. McGrail Deputy Clerk

* A statement by Senior Circuit J udg e Tatel, with whom Circuit J udg e Millett joins, concur ring in the denial of the motion to intervene , is attache d.

** Circuit J udg e Rao would g rant the m o t ion to intervene and has abstained from voting on the petition for panel rehe aring

. A
statement by Circuit J udg e Rao, dissenting from the denial o f the motion to int erve ne, is attac hed.T ATEL , Senior Circuit Judge

, with whom Circuit Judge M ILLETT 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 t he Department of Agriculture (“the Department”)

, whose 2017 rule is at issue, disagrees . After consulting with th e 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 consid er 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 Associatio n (“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 d etermine 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 ban c 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 ”).

O ur 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). Those2
policies include consideration of the lega l 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 “exception al 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 o f appeals has decided a case ,” like here,

“ should be even more disfavored.” Id. at 15 5 3

. The case our dissenting colleague relies on, Cameron v. EMW Women’s Surgical Center

, 1 4 2 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 g eneral’s interest. Cameron , 142 S. Ct. at 101 0

– 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 s uch 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

“ t imeliness 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 it3
became clear’” that Kentucky’s interests “‘would no longer be protected’” by the parties remaining in the c ase

— 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

. B ecause the Department’s petition focuses on remedy as opposed to the merits, the Association must be permitted to intervene to defend its own inte rests

. Dissenting Op. at 3

, 4

– 5

. But this would allow intervention in situation s even broader than in Cameron

. I t 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 r eview 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, t he 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 vac ating. It is not for the Association to now second guess the Department’s strategy by intervening

. A ware from the beginning of this case that its interests may differ, the Association could have intervened in order to influence the way the Department defen ded the 2017 rule withdrawal. An eleventh

- hour motion to do so now is untimely.R AO , Circuit Judge , dissenting from the denial of the motion to intervene: I would grant the motion to intervene of
t he 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 Pr ocedure 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 s how featuring Tennessee w alking h orses. The Association requests intervention to seek further review of this panel’s decision in Humane Society of the U nited 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. T he 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. Th e dissent maintained, howev er, 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 57 6

– 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 his2
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.” F ED

. R. C IV

. 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. N ow that the Government has declined to seek further merits review of the panel decision, it is equally clear that the G overnment no longer adequately represents the Association’s interest s . 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 dispositiv e.” 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 Gover nment 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 we3

deferred consideration of the motion until after the deadli ne 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, t he 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 defendi ng 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 timeli ness 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 whe n 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. T he 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. Don ovan , 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 opin ion 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 in ter vention 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 “asses sment 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.2.5
suggesting this request somehow resolved the Association’s grounds for interve ntion

. 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 pe tition 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 f inal.” Only at the end of its petition did t he Association briefly argue that

we should at a minimum grant the same relief sought by the Government

. Bu t 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 in appropriate if an existing party has sought any review of the panel de cision, 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 contex t 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 fu rther review

. But at the earlier stage of litigation some parties may be denied intervention because the “existing parties adequately represent [ their ] interest [ s ] .” F ED

. R. C IV

. P. 24 (a) (2)

. Th e 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.