Amador County v. United States Department of the Interior

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2014 Decided December 2, 2014

No. 13-5245

AMADOR COUNTY, CALIFORNIA,

APPELLEE

BUENA VISTA RANCHERIA OF THE ME-WUK INDIANS,

APPELLANT

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-00658)

Padraic I. McCoy argued the cause for appellant. With him

on the briefs was Carrell C. Doyle. Mark C. Tilden entered an

appearance.

Dennis J. Whittlesey argued the cause and filed the brief for

appellee.

Before: KAVANAUGH, Circuit Judge, and SENTELLE and

RANDOLPH, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

Concurring opinion filed by Senior Circuit Judge

RANDOLPH.

SENTELLE, Senior Circuit Judge: In 2005, Amador

County, California brought suit against the Department of

Interior challenging the Secretary’s approval of a gaming

compact between the Buena Vista Rancheria of Me-Wuk

Indians (the “Tribe”) and the State of California. After nearly

six-and-a-half years of litigation, the Tribe sought to intervene

for the limited purpose of moving to dismiss the amended

complaint under Federal Rule of Civil Procedure 19. The

district court denied the motion as untimely, and this appeal

followed. Because we conclude that the district court did not

abuse its discretion, we affirm.

BACKGROUND

The Buena Vista Rancheria of Me-Wuk Indians is a

federally recognized Indian tribe that occupies a 67-acre parcel

of land located entirely within Amador County, California. See

Indian Entities Recognized and Eligible to Receive Services

from the United States Bureau of Indian Affairs, 79 Fed. Reg.

4,748, 4,749 (Jan. 29, 2014). In 1999, the Tribe negotiated a

gaming compact with the State of California under the Indian

Gaming Regulatory Act (“IGRA”), and submitted the compact

to the Secretary of the Interior for approval. Under the IGRA,

once the Tribe submits a gaming compact to the Secretary, the

Secretary can either approve the compact; disapprove the

compact, if it violates certain federal laws; or do nothing. If the

Secretary does nothing, the compact is deemed approved after

forty-five days. 25 U.S.C. § 2710(d)(8). In 2000, the Secretary

approved the compact. Notice of Approved Tribal-State

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Compacts, 65 Fed. Reg. 31,189, 31,189 (May 16, 2000). In

2004, the Tribe submitted an amended gaming compact to the

Secretary. This time, the Secretary took no action on the

amended compact for forty-five days, at which point the

compact was deemed approved by operation of law. See 25

U.S.C. § 2710(d)(8)(C).

In April 2005, Amador County challenged the

Secretary’s “no-action” approval of the amended compact,

arguing that the Tribe’s land fails to qualify as “Indian

lands”—a statutory requirement for gaming under the IGRA.

See id. at § 2710(d)(1). On July 22, 2005, Interior filed a motion

to dismiss the case, arguing that the County’s claims were not

subject to judicial review under the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701(a)(2). Shortly thereafter, the Tribe

sought leave to participate in the case as amicus curiae. The

Tribe argued that the suit had to be dismissed under Rule 19 of

the Federal Rules of Civil Procedure because the Tribe was an

indispensable party to the litigation, and the Tribe is protected

by sovereign immunity so that the litigation could not proceed.

The Tribe also claimed that Interior did not adequately represent

the Tribe’s interests. The district court denied the Tribe’s

motion without explanation.

In 2008, while Interior’s motion to dismiss was still

pending, Amador County filed an amended complaint, and

Interior again moved to dismiss. The district court granted

Interior’s motion, finding that the Secretary’s “no action”

approval was “unreviewable,” as the decision to approve a

gaming compact is committed to agency discretion. Amador

County, Cal. v. Kempthorne, 592 F. Supp. 2d 101, 106–07

(D.D.C. 2009). Amador County appealed to this court. We

reversed. See Amador County, Cal. v. Salazar, 640 F.3d 373

(D.C. Cir. 2011).

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Upon review, we concluded that judicial review was not

precluded under the APA, as the decision to approve a compact

is not committed to agency discretion, but guided by principles

established in the IGRA. Amador County, 640 F.3d at 380–81.

We then “turn[ed] to the merits” of the suit, i.e., whether the

Tribe’s land qualifies as “Indian land” under the IGRA. Id. at

383. However, because the answer to this question turned on

extrinsic evidence not in the record, we remanded to the district

court to “assess the merits in the first instance.” Id. at 384.

Following this court’s remand, the district court ordered

the parties to file a Joint Status Report by November 7, 2011.

Three days before the parties filed the Joint Status Report, the

Tribe filed its motion to intervene. In June 2013, the district

court denied as untimely the Tribe’s motion to intervene, noting

that the parties’ Joint Status Report stated that the case is “ready

for oral argument and decision on the merits.” The Tribe now

appeals the district court’s denial of its motion for intervention.

ANALYSIS

Intervention of right as sought by appellant is governed

by Federal Rule of Civil Procedure 24. That rule provides:

(a) Intervention of Right. On timely motion, the court

must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a

federal statute; or

(2) claims an interest relating to the property or

transaction that is the subject of the action, and 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 existing parties

adequately represent that interest.

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Under that rule, a district court must grant a motion to intervene

if the motion is timely, and the prospective intervenor claims a

legally protected interest in the action, and the action threatens

to impair that interest, unless that interest is adequately

represented by existing parties. Karsner v. Lothian, 532 F.3d

876, 885 (D.C. Cir. 2008). At the threshold, however, the

motion to intervene must be timely. U.S. v. British Am. Tobacco

Australia Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006). If

the motion is untimely, the explicit language of the rule dictates

that “intervention must be denied.” NAACP v. New York, 413

U.S. 345, 365 (1973); U.S. v. Am. Tel. & Tel. Co., 642 F.2d

1285, 1294 (D.C. Cir. 1980).

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.” British Am. Tobacco, 437

F.3d at 1238 (internal quotation marks and citation omitted).

We review the district court’s denial of intervention for

untimeliness under the abuse of discretion standard. Id. A

district court abuses its discretion when it applies the wrong

legal standard or relies on clearly erroneous findings of fact. See

In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209

(D.C. Cir. 2003).

In this case, after setting forth the timeliness test, the

district court found that the Tribe’s motion for intervention was

untimely. The district court found that the Tribe, from the outset

of this litigation, both knew that the suit could adversely affect

its rights, and questioned the adequacy of the United States’

representation. Mem. Op. & Order at 6–9, No. 05-cv-658

(D.D.C. June 4, 2013). The district court reasoned that

regardless of whether it measured the elapsed time from the time

when the prospective intervenor “‘knew or should have known

that any of its rights would be directly affected by the

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litigation,’” Roeder v. Islamic Republic of Iran, 333 F.3d 228,

233 (D.C. Cir. 2003) (quoting Nat’l Wildlife Fed’n v. Burford,

878 F.2d 422, 433–34 (D.C. Cir. 1989)), or when the “‘potential

inadequacy of representation came into existence,’” Smoke v.

Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (quoting Dimond v.

District of Columbia, 792 F.2d 179, 193 (D.C. Cir. 1986)),

timeliness weighs against the Tribe. Mem. Op. & Order 6–9.

The district court also considered the Tribe’s purpose for

intervention, namely to file a Rule 19 motion, and noted that the

Tribe’s need to intervene to maintain its sovereign immunity

was a “significant factor” weighing in favor of allowing

intervention. Id. at 8 n.6. Lastly, the district court found that

granting the Tribe’s motion will “further delay resolution of the

merits to the detriment of the existing parties,” since the case

was otherwise ready for a decision on the merits. Id. at 8.

Weighing all these factors, the district court found that the

Tribe’s motion was untimely. Having considered “all the

circumstances,” we conclude that the district court did not abuse

its discretion.

Nevertheless, the Tribe offers multiple arguments for

reversing the judgment. First, the Tribe asserts that the district

court “undervalue[d]” the Tribe’s purpose for intervention, that

is, to seek dismissal of the action on the basis of the Tribe’s

sovereign immunity. Appellant’s Br. 31–37. The Tribe, relying

on Acree v. Republic of Iraq, 370 F.3d 41, 50–51 (D.C. Cir.

2004), abrogated on other grounds by Republic of Iraq v. Beaty,

556 U.S. 848, 859–60 (2009), argues that because sovereign

immunity is jurisdictional, or at least quasi-jurisdictional, the

district court had a “heightened duty” to “weigh[] heavily” the

Tribe’s purpose for intervention. Appellant’s Br. 31–33.

The Tribe’s argument fails. We have never held that a

district court must give extra weight or special consideration to

a sovereign’s purpose for intervention. We have held that a

decision maker abuses its discretion if it fails to consider a

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relevant factor. See Peyton v. DiMario, 287 F.3d 1121, 1126

(D.C. Cir. 2002). Such is the holding of Acree, where this court

reversed a district court’s finding of untimeliness because it

“failed to weigh . . . the purposes for which the Government

sought to intervene.” Acree, 370 F.3d at 50. In this case, the

district court considered all the relevant factors, including the

Tribe’s purpose for intervention, and we will not disturb its

judgment.

Next, the Tribe argues that the district court abused its

discretion by using the wrong date in computing the elapsed

time. Appellant’s Br. 22. As the Tribe correctly notes, and as

the district court acknowledged, courts measure elapsed time

from when the “potential inadequacy of representation [comes]

into existence.” See Smoke, 252 F.3d at 471 (internal quotation

marks and citation omitted). The Tribe contends that a conflict

of interest did not arise until 2011, when the government, in a

separate but related proceeding, acknowledged that a Rule 19

defense was available but refused to assert it because of the

United States’ interest in seeking a resolution to this case on the

merits. Appellant’s Br. 27–28. Accordingly, the Tribe argues

that the district court should have used 2011, instead of 2005,

when weighing the elapsed time factor. We disagree.

Nothing changed in 2011 that warrants using that date in

computing the elapsed time. In 2005, the Tribe, in the amicus

curiae brief it proffered to the district court, argued that it was

an indispensable party to the litigation, that the suit should be

dismissed under Rule 19, and the government’s representation

of the Tribe’s interests may be inadequate. Thus, at a minimum,

the Tribe and the government knew as early as 2005 that a Rule

19 defense was available. Yet the government never asserted

this defense, even though it had the opportunity to do so in its

2008 motion to dismiss. That record belies the notion that the

Tribe could have expected inadequate representation from the

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government after, but not before, 2011. Indeed, the Tribe all but

admits as much by stating it had “earlier concerns about a

potential conflict of interest in the United States’

representation.” Appellant’s Br. 22.

The Tribe seeks to avoid this conclusion by arguing that it

was not until 2011 that its suspicion of inadequate representation

became a reality. Appellant’s Br. 28. Yet the Tribe argued in

2005 that “[t]he presence of the United States in this case does

not fully protect the Tribe’s interests.” Proposed Amicus Curiae

Br. at 13, No. 05-cv-658 (D.D.C. Aug. 23, 2005). The record

demonstrates that the Tribe knew in 2005 as well that the United

States might not adequately represent the Tribe’s interest.

Therefore, the district court did not abuse its discretion in using

2005 as the relevant date in its elapsed time analysis.

Lastly, the Tribe argues that even if the district court

used the correct date in the elapsed time analysis, the district

court erred because it treated the elapsed time analysis as

determinative. According to the Tribe, the district court

conflated the elapsed time with the prejudice analysis by

focusing exclusively on the delay the motion for intervention

will cause, instead of further analyzing how the delay will

prejudice the parties.

As we recently stated, the length of time passed “‘is not in

itself the determinative test.’” Roane v. Leonhart, 741 F.3d 147,

151 (D.C. Cir. 2014) (quoting Hodgson v. United Mine Workers

of Am., 473 F.2d 118, 129 (D.C. Cir. 1972)). This is because

“we do not require timeliness for its own sake.” Id.; see also 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 . . . .”). Rather, “the

requirement of timeliness is aimed primarily at preventing

potential intervenors from unduly disrupting litigation, to the

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unfair detriment of the existing parties.” Roane, 741 F.3d at

151. Accordingly, in assessing timeliness, a district court must

weigh whether the intervention will “‘unfairly disadvantage[]

the original parties.’” Id. (quoting NRDC v. Costle, 561 F.2d

904, 908 (D.C. Cir. 1977)) (emphasis added).

In Roane, the district court declined to give any weight to

the prejudice factor. The district court in this case found that the

case was ready for a decision on the merits, and that the Tribe’s

intervention would delay resolution of the merits. We have

previously concluded that the delay caused by a potential

intervenor was sufficient to constitute prejudice where a

decision on the merits was pending. See British Am. Tobacco,

437 F.3d at 1238–39 (upholding finding of prejudice where the

intervention would further delay a “massive trial”); see also

NAACP, 413 U.S. at 367–69 (affirming denial of intervention

for untimeliness where intervention would delay the consent

judgment from taking effect); Stewart v. Rubin, 948 F. Supp.

1077, 1104 (D.D.C. 1996) (finding prejudice where intervention

would delay implementation of the settlement), aff’d 1997 WL

369455 (D.C. Cir. 1997).

In this case, the County filed the complaint over nine years

ago. In November 2011, the County and Interior agreed that the

case was “ready for oral argument and decision on the merits.”

Joint Status Report at 2, No. 05-cv-658 (D.D.C. Nov. 7, 2011).

The Tribe’s motion for intervention and the subsequent appeal

have delayed a decision on the merits for three years. If the

Tribe’s motion were granted, a resolution of this case would be

further delayed as the district court at the very least would need

to accept briefing on the Tribe’s Rule 19 motion, hear argument,

and rule on the motion. On such facts, we cannot say that the

district court abused its discretion in finding that the Tribe’s

intervention would cause prejudicial delay.

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Because we conclude that the district court did not abuse

its discretion on the threshold question of timeliness, we need

not reach the Tribe’s argument that the United States does not

adequately represent its interest. See NAACP, 413 U.S. at 369.

CONCLUSION

The district court set forth the proper test, analyzed the

relevant factors, and concluded that the Tribe’s motion to

intervene did not satisfy Rule 24(a)’s timeliness requirement.

On this record, we conclude that the district court did not abuse

its discretion. The judgment below is therefore

Affirmed.

RANDOLPH, Senior Circuit Judge, concurring: I agree that

the Tribe’s motion to intervene pursuant to Rule 24 of the

Federal Rules of Civil Procedure was untimely. I write

separately to mention another basis for denying the motion.

Under Rule 24(a)(2), the motion to intervene must not only

be timely, but also the movant must claim

an interest relating to the property or transaction that is

the subject of the action, and [be] so situated that

disposing of the action may as a practical matter impair

or impede the movant’s ability to protect its interest,

unless existing parties adequately represent that

interest.

Fed. R. Civ. P. 24(a)(2).

The Tribe wanted to intervene in order to assert that it was

an indispensable party under Rule 19(a). The idea being that the

Tribe could then invoke its sovereign immunity and have the

court dismiss Amador County’s action against the Department

of the Interior. In terms of Rule 24(a)(2), the Tribe claimed that

the United States did not “adequately represent” the Tribe’s

“interest” – which the Tribe defined as its sovereign immunity.

Appellant’s Brief at 46.

The strategy was clever but it would not have worked. The

Tribe’s interest in its sovereign immunity was not – in the words

of Rule 24(a)(2) – “an interest relating to the property or

transaction that is the subject of the action.” The very point of

the Tribe’s motion was to inject sovereign immunity into the

case. The Tribe therefore would not have qualified for

intervention as of right even if it had timely filed its motion.