# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2013 Decided January 24, 2014

No. 12

- 5020

J AMES H. R OANE

, ET AL

., A PPELLEES

J EFFREY P AUL

,

A PPELLANT

B RUCE W EBSTER AND A NTHONY B ATTLE

, A PPELLEES

v.

M ICHELE M. L EONHART

, A DMINISTRATOR

, D RUG
E NFORCEMENT A DMINISTRATION

, ET AL

., A PPELLEES

Appeal from the United States District Court

for the District of Columbia (No. 1:05

- cv

- 02337)

Keith M. Rosen argued the cause for appellant. With him

on the briefs was Abbe David Lowell

. Gary Proctor entered

an appearance.

Benton Peterson , Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C.2

Machen Jr. , U.S. Attorney, and R. Craig Lawrence , Assistant U.S. Attorney.

Before: T ATEL an d G RIFFITH

, Circuit Judges , and

W ILLIAMS

, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge G RIFFITH

.

G RIFFITH

, Circuit Judge : Federal death row inmate Jeffrey Paul moved to intervene in this lawsuit, which challenge s the government’s method of carrying out lethal injections and its failure to disclose its execution procedures.

The district court denied his motion. For the reasons set forth below, we reverse

.

I

T hree federal death row inmates filed this law suit in

Decem ber 2005 against various officials responsible for designing and implementing the federal lethal injection protocol

. * Although their primary claim alleged that the three

drug cocktail called for in the protocol violated the Eighth

* These defendants were (a) the Attorney General, who has final responsibility for carrying out executions; (b) the Director of the Bureau of Prisons, who is tasked with promulgating rules and regulations governing federal executions; (c) the Medical Director

of the Bureau of Pr isons, who is responsible for overseeing the provision of medical care to federal inmates; (d) the Warden of the United States Penitentiary at Terr e Haute, Indiana, who is charged with management of the federal prison where all executions are carried out ; (e) the Clinical Director at Terr e Haute, who is the

chief medical officer at that prison ; and (f) the A dministrator of the Drug Enforcement Agency, who is responsible for regulating the manufacture, distribution, and possession of controlled substances,

i ncluding the drugs used in carrying out executions

.3

Amendment’s bar against c ruel and unusual punishment, the

inmates also brought a due process challenge to the government’s refusal to disclose the procedures that would be

used to execute them. The district court stayed the ir executions pending the resolution of the se claims

.

The inmates’ lawsuit has not proceeded quickly

. T he suit was stayed in February 2006 pending the outcome of Hill v. McDonough , 547 U.S. 573 (2006)

, which raised the question

of whether a challenge to a state lethal injection protocol could proceed under 42 U. S.C. § 1983. In June 2006, t he Supreme Court announced that it could. In the wake of the

decision in Hill

, the government successfully sought

extensions of time in August 2006 and October 2006 to

answer the inmates’ complaint , finally doing so in November

2006

. B y the time of the original discovery deadline in June

2007

, little discovery had been conducted and not a s ingle deposition had been taken

. That same month, the district court

allowed three other death row inmates to intervene in the suit

and ordered that discovery be extended until January 2008.

But in December 2007, the suit was stayed once again pending the resolution of Baze v. Rees , 553 U.S. 35 (2008) , an Eighth Amendment challenge to Kentucky’s lethal

- injection protocol. When the Supreme Court upheld Kentucky’s protocol

, the litigation in this case resumed , though activity

was limited to some additional discovery and motions

.

I n April 2011

, the government notified the district court
that sodium thiopental, one of the three drugs used to carry out executions as called for by the federal protocol , was no longer available . (The record does not explain the reason why.) In July 2011, the government informed the court that i n light of the unavailability of sodium thiopental it had decided

to alter the drug mixture used in its executions

. Since then

, activity in this case has been limited to the government filing4

monthly status reports as it continues the still

- uncompleted process by which it will eventually determine what drug

combination will be used

. In the meantime, t he inmates’

claims remain unresolved.

Paul, who had already been convicted of murder and

sentenced to death

, see United States v. Paul , 217 F.3d 989, 995 (8th Cir. 2000), moved to intervene

, both permissively and as of right, on October 6, 2009, the day after his unsuccessful post

- conviction proceedings came to a close. Paul’s motion stipulated that he would not seek to revisit any

of the issues already decided by the district court

, the same concession made by three other death row inmates who the

district court allowed to intervene in 2007.

Paul pointed to this concession and the fact that the litigation was still in its early stages to arg ue that his

intervention motion was timely beca use granting it would no t disrupt or delay the current litigation to the detriment of the existing parties. But the district court denied his motion as untimely

, characterizing Paul’s argument that the litigation would not be disrupted as “speculation” and emphasizing the significant amount of time that had elapsed since the suit was

filed in 2005

. Paul unsuccessfully moved for reconsideration by the district court. When his motion was denied, he appealed to this court

. We have jurisdiction under 28 U.S.C. § 1291.

II

According to the government, we need not reach the

merits of Paul’s appeal because it has been rendered moot by the unavailability of sodium thiopental

. E ven though it was

not raised below , we consider the suggestion of mootness5

because it “implicates our jurisdiction

. ” St. Paul Fire & Marine Ins. Co. v. Barry , 438 U.S. 531, 537 (1978)

.

The mootness doctrine is rooted in the c onstitutional requirement that “limits federal courts to deciding actual, ongoing controversies.” Am. Bar Ass’n v. FTC , 636 F.3d 641, 645 (D.C. C ir. 2011) (internal quotation marks omitted)

. “A case becomes moot . . . when the issues presented are no longer live or the parties lack a legally cognizable interest in

the outcome.” Already, LLC v. Nike, Inc. , 133 S. Ct. 721, 726 (2013) (internal quotat ion marks omitted)

. Accordingly, even if “litigation poses a live controversy when filed,” a court is required to “refrain from deciding it if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more

- tha n

- speculative chance of affecting them in the future.” Am. Bar Ass’n , 636 F.3d at 645 (internal quotation marks omitted)

.

The government argues this suit is moot because it has ceased using the three

- drug mixture that the inmates challenge. But this arg ument falters under the "voluntary cessation" exception to mootness, which states that a lawsuit is not mooted by a defendant's voluntary cessation of challenged activity unless that defendant "demonstrat[es] that there is no reasonable expectation that th e wrong will be repeated." Id. at 648 (internal quotation marks omitted). Here, the government cannot meet that heavy burden because it has merely suspended executions using the three

- drug cocktail called for by the current protocol and has not yet issued a new protocol. The government further argues that the unavailability of sodium thiopental removes the very reason Paul seeks to join the lawsuit. Without sodium thiopental, no one can be executed using the three

- drug cocktail Paul seeks to challenge. But the government’s argument overlooks the

fact that not all of the claims in th is lawsuit are tied to that6

cocktail

. T he inmates ’ due process challenge , which attacks a refusal to disclose the procedures that will be used to execute them, is an independent claim that remains live regardless of whether the government can use the particular combination of drugs it has used in the past. T his suit still present s a live
controversy , and we must consider the merits of Paul’s

a rgument that h e is entitled to intervene

. See Knox v. Serv. Emp s . Int’l Union, Local 1000 , 132 S. Ct. 2277, 2287 (2012) (“[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” (alteration in original) (internal quotation marks omitted)).

III

A district court must grant a timely motion to intervene that seeks to protect an interest that might be impaired by the action and that is not adequately represented by the parties.

See F ED

. R. C IV

. P. 24(a)( 2); Karsner v. Lothian , 532 F.3d 876, 885 (D.C. Cir. 2008). The district court determined that although Paul had a legally protected interest in this lawsuit

, it would not be impaired by this suit and would be adequately represented by the other inmates. M ost importantly for this appeal , the district court ruled that Paul’s motion to intervene was simply brought too late in a lawsuit that already had

taken too much time.

On appeal, Paul challenges each of those determinations. Significantly, the governme nt defends only one: that Paul’s motion was untimely. We see no reason to question the government’s apparent concession that in all other ways Paul’s motion was adequate. At a minimum, if the suit proceeds without Paul, a decision rejecting the inmates ’

cl aims could establish unfavorable precedent that would make

it more difficult for Paul to succeed on similar claims if he brought them in a separate lawsuit of his own, which is7

sufficient to support intervention under our caselaw. See Fund for Animals, Inc . v. Norton , 322 F.3d 728, 735 (D.C. Cir. 2003) ; see also Nuesse v. Camp , 385 F.2d 694, 702 (D.C. Cir. 1967). Likewise, it seems obvious that the existing parties to the suit may be inadequate representatives of Paul. See Hodgson v. United Mine Workers of Am. , 473 F.2d 118, 130 (D.C. Cir. 1972). Unlike him, they have little reason to press for the rapid resolution of the suit because their executions have been stayed

. Therefore, we focus the remainder of our discussion on the disputed question of whether Paul’s motion was timely

. We review a district court’s assessment of

timeliness for abuse of discretion. See Natural Res. Def.

Council v. Costle

, 561 F.2d 904, 907 (D.C. Cir. 1977)

.

The timeliness of a motion to intervene is “to be judged

in co nsideration of all the circumstances

. ” Smoke v. Norton

, 252 F.3d 468, 471 (D.C. Cir. 2001) (internal quotation marks omitted)

. Though the “time elapsed since the inception of the

suit” is relevant, id. (internal quotation marks omitted), measuring the leng th of time passed “is not in itself the

d eterminative test, ” Hodgson

, 473 F .2d at 129

, because w e do not require timeliness for its own s ake. See 7C C HARLES
A LAN W RIGHT ET AL

. , F EDERAL P RACTICE AND P ROCEDURE § 1916 , at 532 ( 3d ed. 2007) (“The timeliness requirement is not intended as a punishment for the dilatory

. . . . ”). Instead,

t he requirement of timeliness is aimed primarily at preventing potential intervenors from unduly disrupting litigation, to the unfair detriment of the existing parties. See id

. at 541 (“The most important consideration in deciding whether a motion

for intervention is untimely is whether the delay in moving for intervention will prejudice the existing parties to the case.”); cf. Hodgson , 473 F.2d at 128

- 29. Thus, e ven where a wo uld

be intervenor could have intervened sooner, in assessing

timeliness a court must weigh whether any delay in seeking8

intervention “ unfairly disadvantage [d] the original parties.”

Costle

, 561 F.2d at 908

.

The district court lost sight of th is fundament al principle

. T h ough acknowledging Paul’s argument that no existing party would be prejudiced by his intervention , and even recognizing

that his argument might have merit, the court declined to give any weight to the point, believing that speculating as to whether other parties would be prejudiced was “risky.” The

court focused instead on the amount of time that had elapsed

since th e suit had been filed . B ecause Paul could have

intervened earlier

, the court ruled that he should have

intervened earlier

. In the district court’s view, P aul’s undue delay rendered his motion to intervene untimely.

Th at determination was an abuse of the court’s discretion.

In focus ing on the amount of time that had elapsed between

the filing of the lawsuit and Paul’s motion to intervene , the

district court overlooked what the relevant caselaw says is the most important consideration: the fact that granting Paul

intervention was highly unlikely to disadvantage the existing parties. See Costle , 561 F.2d at 90 7

- 0 8. Paul b oth foreswore reopening discovery and stipulated that he would not seek to

re visit issues that had already been decided

. See id. at 908 (explaining that the risk of prejudice to existing parties was minimal since the putative intervenor did not seek to ups et prior decisions in the case). Furthermore, a dding Paul as a
party would have require d no add itional factual development.

T he claims in this litigation are legal challenges to the federal government’s execution protocol. Cf. United States v. Am.

Tel. & T el. Co. , 642 F.2d 1285, 1294 (D.C. Cir. 1980) (explaining that intervention motion, which would have been untimely if made for the purpose of “presenting evidence or argument,” was timely because made for a more “limited purpose”). O ther death row inmates had been permitted to9

intervene in 2007 , apparently without prejudicing the existing parties, and nothing indicated that the posture of the case had changed meaningfully before Paul sought to intervene

. Cf.

EEOC v. Nat’l Children’s Ctr., Inc ., 146 F.3d 104 2, 1048 (D.C. Cir. 1998) ( discussing whether other parties had been permitted to intervene). Paul’s intervention carried no risk of prejudicing the existing parties . The government does not suggest otherwise. Its briefing makes the same mistake as the

dist rict court, focusing solely on the substantial amount of time that elapsed before Paul sought to intervene without eve r explaining how any party would be prejudiced by Paul’s

intervention. But i n the absence of any indication that Paul’s

intervention would give rise to such prejudice, his motion wa s timely and he was entitled to intervene as of right

. Given that

he was , we need not determine whether the district court also erred in denying his motion for permissive intervention.

IV

Because this appeal is not moot and Paul’s intervention motion was timely

, we revers e and remand with a direction

that the district court grant Paul’s motion to intervene as of right

. See Fund for Animals, Inc.

, 322 F.3d at 73 7

- 3 8

.

So ordered

.