United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2013 Decided January 24, 2014

No. 12-5020

JAMES H. ROANE, ET AL.,

APPELLEES

JEFFREY PAUL,

APPELLANT

BRUCE WEBSTER AND ANTHONY BATTLE,

APPELLEES

v.

MICHELE M. LEONHART, ADMINISTRATOR, DRUG 

ENFORCEMENT ADMINISTRATION, ET AL.,

APPELLEES

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: TATEL and GRIFFITH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Federal death row inmate 

Jeffrey Paul moved to intervene in this lawsuit, which

challenges 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

Three federal death row inmates filed this lawsuit in 

December 2005 against various officials responsible for 

designing and implementing the federal lethal injection 

protocol.

* Although their primary claim alleged that the threedrug 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 Prisons, who is responsible for overseeing the 

provision of medical care to federal inmates; (d) the Warden of the 

United States Penitentiary at Terre Haute, Indiana, who is charged 

with management of the federal prison where all executions are 

carried out; (e) the Clinical Director at Terre Haute, who is the 

chief medical officer at that prison; and (f) the Administrator of the 

Drug Enforcement Agency, who is responsible for regulating the 

manufacture, distribution, and possession of controlled substances, 

including the drugs used in carrying out executions. 
3

Amendment’s bar against cruel 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 their

executions pending the resolution of these claims.

The inmates’ lawsuit has not proceeded quickly. The 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, the 

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. By the time of the original discovery deadline in June 

2007, little discovery had been conducted and not a single 

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.

In 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 in 

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 filing 
4

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, the 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 argue that his

intervention motion was timely because granting it would not

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. Even though it was 

not raised below, we consider the suggestion of mootness
5

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 constitutional 

requirement that “limits federal courts to deciding actual, 

ongoing controversies.” Am. Bar Ass’n v. FTC, 636 F.3d 641, 

645 (D.C. Cir. 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 quotation 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-than-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 argument 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 the 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 this lawsuit are tied to that
6

cocktail. The 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. This suit still presents a live 

controversy, and we must consider the merits of Paul’s 

argument that he is entitled to intervene. See Knox v. Serv. 

Emps. 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 FED. R. CIV. 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. Most 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 government 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’ 

claims 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 is 
7

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 consideration 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 length of time passed “is not in itself the 

determinative test,” Hodgson, 473 F.2d at 129, because we do 

not require timeliness for its own sake. See 7C CHARLES 

ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE

§ 1916, at 532 (3d ed. 2007) (“The timeliness requirement is 

not intended as a punishment for the dilatory . . . .”). Instead, 

the 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, even where a wouldbe intervenor could have intervened sooner, in assessing 

timeliness a court must weigh whether any delay in seeking 
8

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

Costle, 561 F.2d at 908.

The district court lost sight of this fundamental principle. 

Though 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 the suit had been filed. Because Paul could have 

intervened earlier, the court ruled that he should have 

intervened earlier. In the district court’s view, Paul’s undue 

delay rendered his motion to intervene untimely.

That determination was an abuse of the court’s discretion.

In focusing 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 907-08. Paul both foreswore 

reopening discovery and stipulated that he would not seek to 

revisit 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 upset 

prior decisions in the case). Furthermore, adding Paul as a 

party would have required no additional factual development. 

The claims in this litigation are legal challenges to the federal 

government’s execution protocol. Cf. United States v. Am. 

Tel. & Tel. 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”). Other death row inmates had been permitted to 
9

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 1042, 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 

district court, focusing solely on the substantial amount of 

time that elapsed before Paul sought to intervene without ever 

explaining how any party would be prejudiced by Paul’s 

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

intervention would give rise to such prejudice, his motion was 

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 reverse 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 737-38.

So ordered.