Planned Parenthood v. Nebraskans United for Life , 664 F.3d 716 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3298
___________
Planned Parenthood of the Heartland; *
Dr. Jill L. Meadows, *
*
Plaintiffs – Appellees, *
*
v. *
*
Dave Heineman, Governor of * Appeal from the United States
Nebraska, in his official capacity; Jon * District Court for the
Bruning, Attorney General of Nebraska, * District of Nebraska.
in his official capacity; Kerry Winterer, *
Chief Executive Officer, Nebraska *
Department of Health and Human *
Services in his official capacity; Dr. *
Joann Schaefer, Director of the *
Division of Public Health, Nebraska *
Department of Health and Human *
Services, in her official capacity; *
Crystal Higgins, President, Nebraska *
Board of Nursing, in her official *
capacity; Brenda Bergman-Evans, *
President, Nebraska Board of Advanced *
Practice Registered Nurses, in her *
official capacity, *
*
Defendants – Appellees, *
*
v. *
*
Eagle Forum Education and Legal *
Defense Fund; Coalition on Abortion *
and Breast Cancer; Creighton Students *
for Life; Students for Life of America, *
*
Movants, *
*
Nebraskans United for Life, doing *
business as NuLife Pregnancy Resource *
Center, *
*
Movant – Appellant. *
___________
Submitted: October 19, 2011
Filed: December 16, 2011
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
BYE, Circuit Judge.
Planned Parenthood of the Heartland and Dr. Jill Meadows (collectively,
“Planned Parenthood”) brought suit against various state officials in Nebraska
challenging new requirements to the State’s informed consent procedures for
abortions. After the district court1 granted preliminary injunctive relief against the
law, Nebraskans United for Life (“NuLife”) moved to intervene for the limited
purpose of appealing the preliminary injunction. The court denied the motion, and
the next day the parties filed a stipulation from a settlement they reached. The court
thereafter issued a final judgment declaring the law unconstitutional and permanently
enjoining its enforcement. NuLife again moved to intervene—this time as a
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
-2-
defendant—and moved for reconsideration of the court’s final judgment. The court
denied both motions, from which NuLife now appeals. We affirm.
I
The underlying case concerns the constitutionality of recent changes to
Nebraska’s abortion laws. See L.B. 594, 101st Leg. Reg. Sess. (Neb. 2010) (“the
Act”). Among other requirements, the Act expanded Nebraska’s voluntary and
informed consent provisions and established a private cause of action for a woman
for the wrongful death of her unborn child. Id. Planned Parenthood brought suit
seeking declaratory and injunctive relief against the Act. On July 14, 2010, the
district court granted a preliminary injunction, concluding Planned Parenthood was
likely to succeed on its claim the Act was unconstitutional because the Act imposed
impossible requirements on medical providers, was unduly vague, and required
providers to provide untruthful, misleading, and irrelevant information to patients.
One month later, on the last day to file a notice of appeal, NuLife moved to
intervene “for the limited purpose of appealing and seeking reconsideration” of the
preliminary injunction. NuLife provides services to women, including pregnancy
tests, peer counseling, and self-help classes, as well as goods such as clothing,
furniture, diapers, and formula. On August 17, 2010, the court denied NuLife’s
motion to intervene. The next day, the parties filed a stipulation to the entry of
judgment, and an order granting final declaratory and injunctive relief. On August
24, 2010, the court issued its final judgment declaring the Act unconstitutional and
permanently enjoining the defendants from enforcing the Act.
On September 21, 2010, NuLife again moved to intervene, this time as a
defendant, and it filed a motion for reconsideration of the final judgment. The court
denied NuLife’s motion to intervene, concluding NuLife lacked standing, the motion
was untimely under Federal Rule of Civil Procedure 24(a), and the parties would be
-3-
prejudiced by permitting intervention under Rule 24(b); the court also denied
NuLife’s motion for reconsideration of the final judgment as moot. NuLife appeals.
II
Rule 24 provides for intervention as a matter of right and on a permissive basis.
In either circumstance, NuLife’s motion to intervene must be timely. Am. Civil
Liberties Union, 643 F.3d at 1093. We review a district court’s timeliness
determination for abuse of discretion, directing courts to consider:
(1) the extent the litigation has progressed at the time of the motion to
intervene; (2) the prospective intervenor’s knowledge of the litigation;
(3) the reason for the delay in seeking intervention; and (4) whether the
delay in seeking intervention may prejudice the existing parties.
Id. at 1094.
“The issue of the timeliness of a motion to intervene is a threshold issue.”
United States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 832 (8th Cir. 2010).
“The general rule is that motions for intervention made after entry of final judgment
will be granted only upon a strong showing of entitlement and of justification for
failure to request intervention sooner.” United States v. Associated Milk Producers,
Inc., 534 F.2d 113, 116 (8th Cir. 1976). This case is slightly different from the
general rule, however, because NuLife moved to intervene twice—once after the
preliminary injunction was entered, and once after final judgment was entered.
Nonetheless, in similar circumstances we have affirmed the untimeliness of a motion
to intervene. See Ritchie, 620 F.3d at 833 (“When a party had knowledge of all the
facts—as [the movant] did—and failed to raise the issue when first presented with an
opportunity to do so, subsequent intervention is untimely.”).
-4-
The record demonstrates the district court considered the proper factors,
including the fact the litigation was terminated procedurally, NuLife failed to justify
its delay in light of its prior knowledge of the case, and the parties would be
prejudiced because final judgment on their settlement had already been entered. See
Am. Civil Liberties Union, 643 F.3d at 1094 (noting the district court considered the
movants’ knowledge of the suit from its inception, their failure to offer an adequate
explanation for the delay, and the prejudice to the parties); Minn. Milk Producers
Ass’n v. Glickman, 153 F.3d 632, 646 (8th Cir. 1998) (“[The district court] noted that
the movants had not sought to intervene until the latest opportunity, and that their
delayed entry would prejudice the [plaintiffs], who would be forced to respond to the
movants’ arguments.”). Given these findings, the district court did not abuse its
discretion by denying NuLife’s motion as untimely.2 Indeed, “[w]e have denied
motions to intervene in cases with far less docket activity.” Ritchie, 620 F.3d at 832.
III
We affirm the district court’s denial of NuLife’s motion to intervene as
untimely. Given this holding, we need not reach the alternative bases relied upon by
the district court to deny NuLife’s motion to intervene.3
______________________________
2
NuLife relies on Planned Parenthood Minn., N.D., S.D. v. Alpha Center, 213
F. App’x 508, 509 (8th Cir. 2007) (unpublished) (per curiam), which involved an
intervenors’ appeal from a district court’s decision to terminate its status in the case.
Even without regard to the procedural differences, Alpha Center is of little import
because it contained no discussion of timeliness—the dispositive issue in this case.
3
Because we conclude the district court properly denied NuLife’s motion to
intervene, we also do not reach NuLife’s arguments concerning the district court’s
jurisdiction. See Bauer v. Transitional Sch. Dist. of City of St. Louis, 255 F.3d 478,
480 (8th Cir. 2001) (“Because we conclude that we lack appellate jurisdiction, we do
not reach the underlying federal subject matter jurisdiction questions.”).
-5-