A blog on practice in the Nation’s second-most powerful court

When is it too late to intervene on appeal?

Motions practice is rarer in circuit court than in district court. Still more rare in circuit court is motions practice that prompts a written opinion. Rarer still is motions practice that prompts dueling written opinions. But that’s what happened this past week in the D.C. Circuit.

The question in Humane Society of the United States v. USDA (No. 20-5291) was whether a movant waited too long to intervene in the appeal. The majority (Tatel, joined by Millett) said the movant did wait too long. The dissenting judge (Rao) said the movant filed in time.

You may be wondering why you’d ever wait to intervene on appeal. There’s not even a rule setting a general standard for allowing intervention on appeal, but there’s just such a rule for district court (FRCP 24). But you can intervene on appeal. There’s even a rule (FRAP 15(d)) expressly allowing intervention in cases challenging agency orders (though the rule doesn’t say what standards to apply).

And sometimes, these cases garner big headlines. Earlier this year, for example, the Supreme Court reversed the Sixth Circuit for denying a motion to intervene on appeal.

The scenario in both the Sixth Circuit case, and the new D.C. Circuit case, was similar. A party that had been defending a position dropped out, leaving a nonparty exposed. In both cases, the nonparty promptly moved to intervene. In both cases, the circuit court ruled that the nonparty should have moved to intervene earlier to protect its interests.

But the Supreme Court reversed the Sixth Circuit’s order, holding that the nonparty could have had no inkling that its interests were in jeopardy until just before it moved to intervene.

And that is what Judge Rao in the D.C. Circuit case said happened in this new D.C. Circuit case: The nonparty couldn’t know that its interests were at risk until the party (the government) dropped its merits challenge. The panel majority disagreed, holding that the would-be intervenor “has long been on notice that its interests were not the same as the [government’s],” which is “bound to represent the interests of the American people.”

The lesson here is to intervene early.

Yes, this may mean that occasionally you’ll join as a precaution that later turns out to be needless. But better to be in the case, with the parties still dutifully carrying the water, than to be out of the case when the party defending your client’s position suddenly sets the water down.