Gretchen Stuart v. Janice Huff

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRETCHEN S. STUART, MD, on 

behalf of herself and her patients

seeking abortions; JAMES R.

DINGFELDER, MD, on behalf of

himself and his patients seeking

abortions; DAVID A. GRIMES, MD,

on behalf of himself and his

patients seeking abortions; AMY

BRYANT, MD, on behalf of herself

and her patients seeking abortions;

SERINA FLOYD, MD, on behalf of

herself and her patients seeking

abortions; DECKER & WATSON,

INC., d/b/a Piedmont Carolina  No. 12-1052

Medical Clinic; PLANNED

PARENTHOOD OF CENTRAL NORTH

CAROLINA; A WOMAN’S CHOICE OF

RALEIGH, INC.; PLANNED

PARENTHOOD HEALTH SYSTEMS,

INC.; TAKEY CRIST, M.D., on behalf

of himself and his patients seeking

abortions; TAKEY CRIST, M.D.,

P.A., d/b/a Crist Clinic for

Women,

Plaintiffs-Appellees,

v.



2 STUART v. HUFF

JANICE E. HUFF, MD, in her 

official capacity as President of

the North Carolina Medical Board

and her employees, agents and

successors; ROY COOPER, in his

official capacity as Attorney

General of North Carolina and his

employees, agents and successors;

LANIER M. CANSLER, in his official

capacity as Secretary of the North

Carolina Department of Health

and Human Services and his

employees, agents and successors; 

JIM WOODALL, in his official

capacity as District Attorney

("DA") for Prosecutorial District

("PD") 15B and his employees,

agents and successors; TRACEY E.

CLINE, in her official capacity as

DA for PD 14 and her employees,

agents and successors; DOUG

HENDERSON, in his official capacity

as DA for PD 18 and his

employees, agents and successors;



STUART v. HUFF 3

BILLY WEST, in his official 

capacity as DA for PD 12 and his

employees, agents and successors;

C. COLON WILLOUGHBY, JR., in his

official capacity as DA for PD 10

and his employees, agents and

successors; BENJAMIN R. DAVID, in

his official capacity as DA for PD

5 and his employees, agents and

successors; JIM O’NEILL, in his

official capacity as DA for PD 21

and his employees, agents and

successors; ERNIE LEE, in his



official capacity as DA for PD 4

and his employees, agents and

successors,

Defendants,

and

JOHN M. THORP, JR., MD; GREGORY

J. BRANNON, MD; MARTIN J.

MCCAFFREY, MD; CHIMERE

COLLINS; DALLENE HALLENBECK;

TRACIE JOHNSON; LANITA WILKS;

ASHEVILLE PREGNANCY SUPPORT

SERVICES; PREGNANCY RESOURCE

CENTER OF CHARLOTTE,

Appellants.



Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Catherine C. Eagles, District Judge.

(1:11-cv-00804-CCE-LPA)

4 STUART v. HUFF

Argued: December 4, 2012

Decided: January 24, 2013

Before TRAXLER, Chief Judge, and WILKINSON and

DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Chief Judge Traxler and Judge Duncan

joined.

COUNSEL

ARGUED: Samuel Brown Casey, III, JUBILEE

CAMPAIGN-LAW OF LIFE PROJECT, Washington, D.C.,

for Appellants. Anton Metlitsky, O’MELVENY & MYERS,

LLP, New York, New York, for Appellees. ON BRIEF: Ste-

ven H. Aden, ALLIANCE DEFENDING FREEDOM, Wash-

ington, D.C.; W. Eric Medlin, ROBERTSON, MEDLIN &

BLOSS, PLLC, Greensboro, North Carolina, for Appellants.

Katherine Lewis Parker, AMERICAN CIVIL LIBERTIES

UNION OF NORTH CAROLINA LEGAL FOUNDATION,

Raleigh, North Carolina; Andrew D. Beck, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION, New York,

New York; Walter Dellinger, Laura Conn, O’MELVENY &

MYERS, LLP, Washington, D.C.; Bebe J. Anderson, CEN-

TER FOR REPRODUCTIVE RIGHTS, New York, New

York; Helene T. Krasnoff, PLANNED PARENTHOOD FED.

OF AMERICA, Washington, D.C., for Appellees.

STUART v. HUFF 5

OPINION

WILKINSON, Circuit Judge:

In late 2011, plaintiffs challenged the constitutionality of

the North Carolina "Woman’s Right to Know Act," ("the

Act"), a statute that requires certain informed consent proce-

dures prior to the performance of an abortion, N.C. Gen. Stat.

§§ 90-21.80 to -21.92. Although the North Carolina Attorney

General actively sought to defend the statute, appellants—a

group of pro-life medical professionals, women who have

previously undergone abortions, and pregnancy counseling

centers—filed a motion to intervene as defendants in the suit.

The district court denied their motion. Because the court did

not abuse its discretion in doing so, we affirm.

I.

The North Carolina General Assembly enacted the

Woman’s Right to Know Act in July 2011. The Act requires

that a "physician who is to perform [an] abortion, or [a] quali-

fied technician" must provide the pregnant woman with a

real-time ultrasound display of the fetus and a "simultaneous

explanation of what the display is depicting." N.C. Gen. Stat.

§ 90-21.85(a). In addition to these real-time display and

explanation requirements, the Act contains certain other

informed consent provisions and authorizes civil remedies

against persons who violate the law. Id. §§ 90-21.82, -21.88,

-21.90.

Plaintiffs are a group of physicians and medical centers that

provide abortion services. On September 29, 2011, they filed

a complaint in the United States District Court for the Middle

District of North Carolina seeking a declaration that the Act

violates the First and Fourteenth Amendment rights of physi-

cians and their patients, along with an injunction preventing

enforcement of the Act. Plaintiffs also filed a motion for a

temporary restraining order and preliminary injunction. The

6 STUART v. HUFF

merits of plaintiffs’ claims are not at issue in this appeal, but

the procedural history of the lawsuit is relevant to our evalua-

tion of the district court’s denial of appellants’ motion to

intervene.

On October 12, the defendants in the underlying suit—a

number of state officials represented by the North Carolina

Attorney General—filed their opposition to the motion for a

preliminary injunction. The district court held a hearing on the

motion five days later, which lasted nearly three hours. Dur-

ing that hearing, the Attorney General (through a special dep-

uty) pressed numerous arguments for upholding the Act under

Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992), which upheld an abortion informed con-

sent statute against a similar challenge. In particular, the

Attorney General argued that the Act should be upheld

because Casey recognizes the state’s "profound interest in

potential life"; its "permissible purpose" of informing women

considering an abortion of the procedure’s "potential conse-

quences" for their "future psychological and emotional

health"; and its ability to require the communication of "truth-

ful and non-misleading" information to patients. The Attorney

General did not introduce factual evidence in support of the

Act, choosing instead to rely on the above legal arguments

from Casey.

The district court ruled on the motion on October 25, issu-

ing a preliminary injunction against the Act’s real-time dis-

play and explanation requirements, but denying the motion

with respect to the remainder of the Act. Stuart v. Huff, 834

F. Supp. 2d 424, 437 (M.D.N.C. 2011). Those unaffected por-

tions of the Act went into effect the next day. Deciding to liti-

gate the case to final judgment rather than appeal the

preliminary injunction, the Attorney General filed an answer

and moved to dismiss the complaint two weeks later.

Appellants in this matter are a group of pro-life doctors,

former abortion patients, and pregnancy counseling centers.

STUART v. HUFF 7

On November 8, they filed a motion to intervene as defen-

dants in the case, the subject of this appeal. Appellants sought

to intervene as a matter of right pursuant to Federal Rule of

Civil Procedure 24(a), and, alternatively, as a permissive mat-

ter pursuant to Rule 24(b).

The district court denied the motion on both grounds. With

regard to intervention as of right, the court focused on the

requirement under Rule 24(a)(2) that "the proposed interve-

nors must demonstrate that their interests are not being ade-

quately represented by the existing [d]efendants." J.A. 605.

The court noted two presumptions that cut against the appel-

lants on this point. First, the court explained that "‘[w]hen the

party seeking intervention has the same ultimate objective as

a party to the suit, a presumption arises that its interests are

adequately represented,’" which can only be rebutted by a

showing of "‘adversity of interest, collusion, or nonfea-

sance.’" Id. at 606 (quoting Virginia v. Westinghouse Elec.

Corp., 542 F.2d 214, 216 (4th Cir. 1976)). The presumption

applied in this case, the court held, because the appellants and

the existing defendants share "precisely the same goal: to

uphold the Act as constitutionally permissible." Id.

The court also explained that because the existing defen-

dant in this case is a government agency, a "very strong show-

ing of inadequacy" is needed to warrant intervention. J.A.

606. This is so, the court reasoned, because "acting in a type

of representative capacity is a basic governmental function,

and the business of the government could hardly be conducted

if, in matters of litigation, individual citizens could usually or

always intervene and assert individual points of view." Id.

After identifying the applicable legal standard, the district

court considered the appellants’ chief contention: that their

interests were not being adequately represented because the

Attorney General did not introduce evidence in opposition to

the preliminary injunction motion. The court rejected this

argument, pointing out that the Attorney General had filed a

8 STUART v. HUFF

"thorough and substantial brief" and had "argued zealously in

opposition to the motion for injunctive relief." J.A. 607. The

court explained, moreover, that while the "proposed interve-

nors may have disagreed with the [d]efendants’ tactical deci-

sions," such a disagreement does not amount to the necessary

showing of adversity of interest, collusion, or nonfeasance

that would "rebut the presumption of adequacy." Id. The court

accordingly denied the motion for intervention as of right.

The district court then addressed the appellants’ request for

permissive intervention. Citing Federal Rule of Civil Proce-

dure 24(b)(3), which requires courts to "consider whether the

intervention will unduly delay" the litigation, the court denied

permissive intervention on the ground that adding the interve-

nors would "complicate the discovery process and consume

additional resources of the court and the parties." J.A. 608.

The would-be intervenors now appeal the district court’s

decision.

II.

The Federal Rules of Civil Procedure provide two avenues

for intervention relevant to this appeal. Under Rule 24(a)(2),

a district court must permit intervention as a matter of right

if the movant can demonstrate "(1) an interest in the subject

matter of the action; (2) that the protection of this interest

would be impaired because of the action; and (3) that the

applicant’s interest is not adequately represented by existing

parties to the litigation." Teague v. Bakker, 931 F.2d 259,

260-61 (4th Cir. 1991). If intervention of right is not war-

ranted, a court may still allow an applicant to intervene per-

missively under Rule 24(b), although in that case the court

must consider "whether the intervention will unduly delay or

prejudice the adjudication of the original parties’ rights." Fed.

R. Civ. P. 24(b)(3).

It is well settled that district court rulings on both types of

intervention motions are to be reviewed for abuse of discre-

STUART v. HUFF 9

tion. In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991).

Deferential appellate review is proper here for many reasons,

the first of which is that Rule 24’s requirements are based on

dynamics that develop in the trial court and that the court is

accordingly in the best position to evaluate. Indeed, appellate

deference is customarily appropriate where trial judges are

tasked with exercising judgment based on their "‘on the

scene’ presence." Martha S. Davis, Standards of Review:

Judicial Review of Discretionary Decisionmaking, 2 J. App.

Prac. & Process 47, 49 (2000). Thus, in the intervention con-

text, it is the trial judge who is best able to determine whether,

for example, a proposed intervenor’s interests are being ade-

quately represented by an existing party pursuant to Rule

24(a)(2). Indeed, the trial court’s superior vantage point was

evident in this very case when the judge noted the Attorney

General’s "detailed, thorough, and substantial brief" and

"zealous" oral argument in opposition to the preliminary

injunction. J.A. 607.

Appellate review is necessarily limited in this setting for

another reason: "Questions of trial management are quint-

essentially the province of the district courts." United States

v. Smith, 452 F.3d 323, 332 (4th Cir. 2006); see also, e.g.,

Arnold v. E. Air Lines, Inc., 681 F.2d 186, 194 (4th Cir. 1982)

(noting that "many details of trial management" are "necessar-

ily committed to broad trial court discretion"). It is incontro-

vertible that motions to intervene can have profound

implications for district courts’ trial management functions.

Additional parties can complicate routine scheduling orders,

prolong and increase the burdens of discovery and motion

practice, thwart settlement, and delay trial. This is particularly

so where, as here, the proposed intervenors are themselves

differently situated entities. The district court thus rightly

expressed its concern that "[a]dding three groups of interve-

nors would necessarily complicate the discovery process and

consume additional resources of the court and the parties."

J.A. 608.

10 STUART v. HUFF

With these boundaries of our reviewing role in mind, we

examine the appellants’ arguments for intervention.

III.

The district court denied the appellants’ motion to intervene

as of right based on its finding that the Attorney General was

adequately representing their interests. The court’s conclusion

rested on two presumptions. First, the court reasoned that

where a proposed intervenor’s ultimate objective is the same

as that of an existing party, the party’s representation is pre-

sumptively adequate, rebuttable only by a showing of adverse

interests, collusion, or nonfeasance. Second, the court

explained that where the party who shares the intervenor’s

objective is a government agency, the intervenor has the bur-

den of making a strong showing of inadequacy.

Appellants contend that the court’s ruling was an abuse of

discretion in two regards. To begin, although they concede

that the court was correct to apply the first presumption, they

dispute the second. That is, appellants claim that the district

court was wrong to demand a strong showing of inadequacy

due to the fact that the Attorney General is a government offi-

cial. According to appellants, our precedents dictate that the

burden of demonstrating inadequate representation ought only

to be a minimal one. Appellants then argue that they satisfied

this minimal burden by demonstrating adversity of interest

with and, alternatively, nonfeasance by the Attorney General.

We consider these arguments in turn.

A.

We begin with appellants’ contention that, regardless of the

fact that the existing defendants are represented by a govern-

ment agency, the burden of "showing inadequacy of represen-

tation" ought to be "minimal," in contrast to the "very strong

showing" required by the district court.

STUART v. HUFF 11

We disagree. Although our circuit has yet to address the

question of whether a more exacting showing of inadequacy

should be required where the proposed intervenor shares the

same objective as a government party, every circuit to rule on

the matter has held in the affirmative. See, e.g., Arakaki v.

Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); Daggett v.

Comm’n on Governmental Ethics & Election Practices, 172

F.3d 104, 111 (1st Cir. 1999); Wade v. Goldschmidt, 673 F.2d

182, 186 n.7 (7th Cir. 1982). We find this position persuasive

for several reasons.

To start, it is among the most elementary functions of a

government to serve in a representative capacity on behalf of

its people. In matters of public law litigation that may affect

great numbers of citizens, it is the government’s basic duty to

represent the public interest. And the need for government to

exercise its representative function is perhaps at its apex

where, as here, a duly enacted statute faces a constitutional

challenge. In such cases, the government is simply the most

natural party to shoulder the responsibility of defending the

fruits of the democratic process. As the Supreme Court stated

in the related standing context in Diamond v. Charles,

"[b]ecause the State alone is entitled to create a legal code,

only the State has the kind of direct stake" needed to defend

"the standards embodied in that code" against a constitutional

attack. 476 U.S. 54, 65 (1986) (internal quotation marks omit-

ted).

Moreover, when a statute comes under attack, it is difficult

to conceive of an entity better situated to defend it than the

government. It is after all the government that, through the

democratic process, gains familiarity with the matters of pub-

lic concern that lead to the statute’s passage in the first place.

Thus in this case, while defending the Act in district court, the

Attorney General vigorously pressed the state’s important

interests in "protecting the woman’s future psychological

health," "promoting the potential life of the unborn child," and

ensuring that each woman has the "opportunity to fully appre-

12 STUART v. HUFF

ciate the consequences [of an abortion] to herself and to her

unborn child."

Finally, to permit private persons and entities to intervene

in the government’s defense of a statute upon only a nominal

showing would greatly complicate the government’s job.

Faced with the prospect of a deluge of potential intervenors,

the government could be compelled to modify its litigation

strategy to suit the self-interested motivations of those who

seek party status, or else suffer the consequences of a geomet-

rically protracted, costly, and complicated litigation. In short,

"the business of the government could hardly be conducted if,

in matters of litigation, individual citizens could usually or

always intervene and assert individual points of view." 6

Moore’s Federal Practice § 24.03[4][a][iv][A] (3d ed. 2011).

Appellants respond that the requirement of a "very strong

showing" of inadequacy by a government party is inconsistent

with Supreme Court precedent and the law of this circuit.

Specifically, they point to the Supreme Court’s decision in

Trbovich v. United Mine Workers, which held that Rule 24(a)

is "satisfied if the applicant shows that representation of his

interest may be inadequate; and the burden of making that

showing should be treated as minimal." 404 U.S. 528, 538

n.10 (1972) (emphasis added) (internal quotation marks omit-

ted); see also United Guar. Residential Ins. Co. of Iowa v.

Phila. Sav. Fund Soc’y, 819 F.2d 473, 475 (4th Cir. 1987).

Appellants’ argument misses the mark. For in Trbovich and

United Guaranty the proposed intervenors did not even share

the same ultimate objective as an existing party. Thus, in

Trbovich, the Supreme Court expressly noted that the Secre-

tary of Labor was compelled by statute to "serve two distinct

interests," such that the Secretary’s ultimate objective was not

the same as that of the proposed intervenor to begin with. 404

U.S. at 538. Likewise, in United Guaranty, we observed that

the existing defendant’s objectives were apparently "at cross

purposes" with the proposed intervenor. 819 F.2d at 476.

STUART v. HUFF 13

Contrary to the appellants’ claim, then, Trbovich and

United Guaranty stand for the conventional proposition that

where the existing party and proposed intervenor seek diver-

gent objectives, there is less reason to presume that the party

(government agency or otherwise) will adequately represent

the intervenor. In such circumstances, it is perfectly sensible

to require a more modest showing of inadequacy before grant-

ing intervention of right since an existing party is not likely

to adequately represent the interests of another with whom it

is at cross purposes in the first instance.

That is not so here, however, where appellants concede that

they share the same ultimate objective as the existing defen-

dants and where those defendants are represented by a gov-

ernment agency. Both the government agency and the would-

be intervenors want the statute to be constitutionally sus-

tained. In this context, for the reasons described above, we

join our fellow courts of appeals in holding that the putative

intervenor must mount a strong showing of inadequacy. To

hold otherwise would place a severe and unnecessary burden

on government agencies as they seek to fulfill their basic duty

of representing the people in matters of public litigation.

B.

Appellants next argue that they have sufficiently demon-

strated adversity of interest with and, alternatively, nonfea-

sance by the Attorney General, thereby rebutting the

presumption of adequacy that arises because they share the

same objective. The district court rejected both arguments,

and we hold that it did not abuse its discretion in doing so. For

rather than making the necessary strong showing, appellants

have demonstrated merely that they disagree with the Attor-

ney General’s reasonable litigation tactics.

1.

First as to adversity of interest. Appellants begin by point-

ing to their desire to ensure that "a pregnant woman under-

14 STUART v. HUFF

stands the potential risk and harms to the child so that she can

make the decision for the child." Appellants’ Br. 21. Appel-

lants assert that, as women who have experienced the effects

of the procedure first-hand and doctors and medical centers

who provide care to pregnant women, their interests are "sep-

arate and distinct from the State’s." Id. Far from showing

adversity with the Attorney General, however, this argument

actually underscores how the appellants and Attorney General

are motivated by the same underlying concerns. Indeed, the

Attorney General pressed this exact argument during the pre-

liminary injunction hearing, noting that the state possessed an

"interest in ensuring that the woman not undergo an abortion

without at least having an opportunity to fully appreciate the

consequences . . . to her unborn child."

Appellants next point to their interest in preserving the civil

remedies provision of the statute, N.C. Gen. Stat. § 90-21.88.

But that interest also fails to establish adversity with the

Attorney General. For one, the civil remedies provision

creates a right of action for injunctive relief not just for cer-

tain of the proposed intervenors, but also for the Attorney

General himself. See id. § 90-21.88(b). The Attorney Gener-

al’s interest in upholding the civil remedies provision is there-

fore in common with the proposed intervenors’ interest, not

adverse to it. Moreover, the alignment between the Attorney

General and the intervenors on this point is borne out by the

fact that the district court has already upheld the civil reme-

dies provision in its entirety. The Attorney General’s actions,

in other words, speak for themselves: he has successfully

defended the very civil remedies provision that appellants also

seek to uphold, belying any suggestion of adversity.

At bottom, appellants’ argument is that as the "class of ben-

eficiaries protected by the Act," their interests in defending

the Act are "stronger" and more "specific" than the state’s

general interest. But stronger, more specific interests do not

adverse interests make—and they surely cannot be enough to

establish inadequacy of representation since would-be interve-

STUART v. HUFF 15

nors will nearly always have intense desires that are more par-

ticular than the state’s (or else why seek party status at all).

Allowing such interests to rebut the presumption of adequacy

would simply open the door to a complicating host of inter-

vening parties with hardly a corresponding benefit.

In the absence of any identifiable adverse interests, appel-

lants assert that the district court should have inferred adver-

sity because, in defending the Act, the Attorney General made

certain strategic decisions with which appellants disagree. In

particular, appellants contend that the Attorney General relied

on legal arguments at the preliminary injunction stage and

chose to litigate the case to final judgment, whereas they

would have presented factual evidence and immediately

appealed the preliminary injunction. Appellants suggest that

these "divergent approaches to the conduct of the litigation"

warrant a finding of adversity because, in their view, the gov-

erning test from United Guaranty is whether the existing

party and the intervenor’s interests "may ‘always dictate pre-

cisely the same approach to the conduct of the litigation.’"

819 F.2d at 475 (quoting Trbovich, 404 U.S. at 539).

But again, United Guaranty and Trbovich are inapposite

because unlike in those cases, the appellants here concede that

they share the same objective as the existing government

defendants: upholding the constitutionality of the Act. In this

context, the relevant and settled rule is that disagreement over

how to approach the conduct of the litigation is not enough to

rebut the presumption of adequacy. See, e.g., Perry v. Prop.

8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009)

("Mere differences in litigation strategy are not enough to jus-

tify intervention as a matter of right.") (internal quotation

marks omitted); Saldano v. Roach, 363 F.3d 545, 555 (5th

Cir. 2004) ("Simply because the [intervenor] would have

made a different [litigation] decision does not mean that the

Attorney General is inadequately representing the State’s

interest."); Chiglo v. City of Preston, 104 F.3d 185, 188 (8th

Cir. 1997) ("[T]he proposed intervenor cannot rebut the pre-

16 STUART v. HUFF

sumption of representation by merely disagreeing with the lit-

igation strategy . . . of the party representing him."); see also

7C Charles Alan Wright et al., Federal Practice and Proce-

dure § 1909 (3d ed. 2007) ("A mere difference of opinion

concerning the tactics with which the litigation should be han-

dled does not make inadequate the representation of those

whose interests are identical with that of an existing party.").

Nor could it be any other way. There will often be differ-

ences of opinion among lawyers over the best way to

approach a case. It is not unusual for those who agree in prin-

ciple to dispute the particulars. To have such unremarkable

divergences of view sow the seeds for intervention as of right

risks generating endless squabbles at every juncture over how

best to proceed. There is much to be said, frankly, for simpli-

fying rather than complicating the litigation process. We thus

hold that the district court did not err in concluding that the

appellants failed to establish adversity of interest with the

Attorney General.

2.

Appellants next attempt to rebut the presumption of ade-

quacy by repackaging their disagreements with the Attorney

General’s litigation decisions as "evidence of nonfeasance."

According to appellants, the district court abused its discre-

tion when it rejected this argument, concluding instead that

the Attorney General’s choice to rely on legal arguments

under Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992), was a reasonable "tactical deci-

sion," J.A. 607.

Again we find the appellants’ position unavailing. The

Attorney General’s decision to concentrate his argument on

Casey was hardly nonfeasance given that Casey upheld a

Pennsylvania informed consent law that bears many similari-

ties to the statute at bar. See 505 U.S. at 881-87. Both statutes,

for example, require abortion providers to make certain infor-

STUART v. HUFF 17

mation available to pregnant women at least twenty-four

hours before the procedure, such as the probable gestational

age of the unborn child, the medical risks associated with the

procedure, and the medical risks of carrying the child to term.

Compare N.C. Gen. Stat. § 90-21.82, with 18 Pa. Cons. Stat.

§ 3205. The reasonableness of the Attorney General’s choice

is particularly manifest given that it was largely successful:

the district court upheld every provision of the Act except for

its real-time display and explanation requirements. Moreover,

the Fifth Circuit recently upheld a nearly identical real-time

fetal display and explanation statute against a motion for a

preliminary injunction using reasoning under Casey that

closely tracks the arguments made by the Attorney General in

this case. See Tex. Med. Providers Performing Abortion

Servs. v. Lakey, 667 F.3d 570, 574-80 (5th Cir. 2012).

Nor was it nonfeasance for the Attorney General to choose

to litigate the merits of the Act through to final judgment

rather than appeal the preliminary injunction. It was emi-

nently reasonable for the Attorney General to believe that the

interests of North Carolina’s citizens would best be served by

an expeditious final ruling on the constitutionality of the Act,

as opposed to prolonged intermediate litigation over the pre-

liminary injunction. Federal case law is in accord. See, e.g.,

Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 378 F.3d

774, 781 (8th Cir. 2004) (finding representation by govern-

ment defendant to be adequate even though it declined to

appeal an adverse district court order); Saldano, 363 F.3d at

554 (holding that the Texas Attorney General’s decision not

to appeal an adverse decision did not make him "an inade-

quate representative of the State’s interest"); see also Wright

et al., supra, at § 1909 ("[A] decision not to take an appeal is

ordinarily within the discretion of the representative.").

In sum, appellants have done little more than identify rea-

sonable litigation decisions made by the Attorney General

with which they disagree. Such differences of opinion cannot

be sufficient to warrant intervention as of right, for, as already

18 STUART v. HUFF

discussed, the harms that the contrary rule would inflict upon

the efficiency of the judicial system and the government’s

representative function are all-too-obvious. The damage

wrought by such a ruling would be especially senseless in a

case such as this one, where as the district court found, the

existing defendants are "zealously" and "vigorously" defend-

ing the Act. J.A. 607. We therefore hold that the district court

did not abuse its discretion in rejecting appellants’ claim of

nonfeasance.

C.

Appellants next challenge the district court’s denial of their

request for permissive intervention under Rule 24(b)(1)(B),

which provides that a district court "may permit" intervention

if the applicant has "a claim or defense that shares with the

main action a common question of law or fact." Critically, the

rule also states that "[i]n exercising its discretion" to permit

intervention, a district court "must consider whether the inter-

vention will unduly delay . . . the adjudication." Fed. R. Civ.

P. 24(b)(3).

In this case, the district court noted that "[a]dding three

groups of intervenors would necessarily complicate the dis-

covery process and consume additional resources of the court

and the parties." J.A. 608. The court further reasoned that per-

mitting intervention would likely "result in undue delay in

adjudication of the merits, without a corresponding benefit to

existing litigants, the courts, or the process" because "the

existing [d]efendants are zealously pursuing the same ultimate

objectives" as the appellants. Id. The court denied permissive

intervention for that reason, and we find no error in its ruling.

IV.

Our decision today does not leave appellants without

recourse. Appellants retain the ability to present their views

in support of the Act by seeking leave to file amicus briefs

STUART v. HUFF 19

both in the district court and in this court. See Francis v.

Chamber of Commerce, 481 F.2d 192, 194-96 (4th Cir. 1973)

(affirming district court’s decision to deny a motion to inter-

vene and instead permit the would-be intervenor to file an

amicus brief); Fed. R. App. P. 29 (describing the procedure

for filing amicus briefs in the courts of appeal). Indeed, when

asked at oral argument whether amicus participation would be

a viable alternative to intervenor status, appellants’ counsel

noted that he files amicus briefs in cases like this "all the

time." While a would-be intervenor may prefer party status to

that of friend-of-court, the fact remains that amici often make

useful contributions to litigation. The availability of such

alternative avenues of expression reinforces our disinclination

to drive district courts into multi-cornered lawsuits by indis-

criminately granting would-be intervenors party status and all

the privileges pertaining thereto.

V.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED