USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 1 of 14
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`In the United States Court of Appeals
`for the Fourth Circuit
`
`
`No. 20-1776
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`
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`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.;
`CENTER FOR FOOD SAFETY; ANIMAL
`LEGAL DEFENSE FUND; FARM
`SANCTUARY; FOOD & WATER
`WATCH; GOVERNMENT
`ACCOUNTABILITY PROJECT; FARM
`FORWARD; and AMERICAN SOCIETY
`FOR THE PREVENTION OF CRUELTY
`TO ANIMALS
`
` Plaintiffs-Appellees, Cross-Appellants
`
` v.
`
`JOSH STEIN, in his official capacity as
`Attorney General of North Carolina, and
`DR. KEVIN GUSKIEWICZ, in his official
`capacity as Chancellor of the University of
`North Carolina-Chapel Hill,
`
` Defendants-Appellants, Cross-Appellees
`
` And
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`NORTH CAROLINA FARM BUREAU
`FEDERATION, INC.,
`
` Intervenor-Defendant-Appellants, Cross-
` Appellees
`
`
`
`
`
`
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`1
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`In the United States Court of Appeals
`for the Fourth Circuit
`
`
`No. 20-1776
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`
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`PEOPLE FOR THE ETHICAL
`TREATMENT OF ANIMALS, INC.;
`CENTER FOR FOOD SAFETY; ANIMAL
`LEGAL DEFENSE FUND; FARM
`SANCTUARY; FOOD & WATER
`WATCH; GOVERNMENT
`ACCOUNTABILITY PROJECT; FARM
`FORWARD; and AMERICAN SOCIETY
`FOR THE PREVENTION OF CRUELTY
`TO ANIMALS
`
` Plaintiffs-Appellees, Cross-Appellants
`
` v.
`
`JOSH STEIN, in his official capacity as
`Attorney General of North Carolina, and
`DR. KEVIN GUSKIEWICZ, in his official
`capacity as Chancellor of the University of
`North Carolina-Chapel Hill,
`
` Defendants-Appellants, Cross-Appellees
`
` And
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`NORTH CAROLINA FARM BUREAU
`FEDERATION, INC.,
`
` Intervenor-Defendant-Appellants, Cross-
` Appellees
`
`
`
`
`
`
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`1
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 2 of 14
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`Motion To Dismiss Intervenor’s Appeal For Lack Of Jurisdiction
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`“Plaintiffs brought this action, alleging that [N.C. Gen. Stat. § 99A-2]
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`interferes with their plans to conduct undercover investigations of government
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`facilities in North Carolina for the purpose of gathering evidence of unethical and
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`illegal animal practices and to disseminate this information to the public, in
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`violation of the First and Fourteenth Amendments to the United States Constitution
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`… . Plaintiffs sought an order declaring the Act unconstitutional and enjoining
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`[North Carolina governmental] Defendants from enforcing the Act.” People for the
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`Ethical Treatment of Animals, Inc. v. Stein, 737 Fed. App’x 122, 126 (4th Cir.
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`2018). This Court held Plaintiffs pled standing against the named State Defendants,
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`the Chancellor of the University of North Carolina—Chapel Hill and the North
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`Carolina Attorney General. Id. at 131-132. On remand, the district court held the
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`challenged provisions of N.C. Gen. Stat. § 99A-2 were unconstitutional on their
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`face or as-applied to Plaintiffs, and enjoined the State Defendants from enforcing
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`the law. People for the Ethical Treatment of Animals, Inc. v. Stein, --- F. Supp. 3d -
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`--, 2020 WL 3130158, at *25 (M.D.N.C. June 12, 2020) (also attached as Exhibit
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`A pursuant to Federal Rule of Appellate Procedure 27(a)(2)(B)(iii)).
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`Between this Court’s remand for consideration of the merits, and the district
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`court’s determination on the merits, the district court exercised its discretion to
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`allow the North Carolina Farm Bureau Federation, Inc. (“Farm Bureau”) to
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 3 of 14
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`intervene. It explained it was exercising its discretion under Federal Rule of Civil
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`Procedure 24(b) to allow the Farm Bureau to enter the case because the Farm
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`Bureau would assist the State’s defense, “arguing the same question[s]” as the
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`State Defendants. Dkt. No. 92, at 7.
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`The Farm Bureau has now filed the lead notice of appeal in this matter. Dkt.
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`No. 143 (Farm Bureau Notice of Appeal), appeal docketed No. 20-1776. The Farm
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`Bureau’s appeal is separate and apart from the State Defendants’ Notice of Appeal,
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`which the Farm Bureau did not join. Dkt. No. 145 (State Defendants’ Notice of
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`Appeal), appeal docketed No. 20-1777.
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`Controlling Supreme Court precedent makes clear the Farm Bureau lacks
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`standing to prosecute an independent appeal of this matter. See, e.g., Hollingsworth
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`v. Perry, 570 U.S. 693, 705 (2013). The district court’s injunction does not run
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`against the Farm Bureau or any of its members, only the State Defendants. The
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`Farm Bureau’s only interest in this matter is its generalized grievance that it
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`believes N.C. Gen. Stat. § 99A-2 should be held constitutional. Such a concern has
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`never provided standing. While the Farm Bureau conceivably could have
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`proceeded with the State Defendants, as only one party to an action must have
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`standing, that is not how it or the State Defendants chose to docket their appeals.
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`See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2
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`(2006) (“the presence of one party with standing is sufficient to satisfy Article III’s
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 4 of 14
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`case-or-controversy requirement”). As described below, the Farm Bureau chose to
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`proceed on its own to disrupt Plaintiffs’ and Defendants’ efforts to resolve this
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`matter without appeal. This Court lacks jurisdiction over that independent action
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`and it should be dismissed.1
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`I.
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`For An Intervenor To Appeal It Must Have Standing.
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`Article III’s standing requirements apply to appellants just as they apply to
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`district court plaintiffs. As the Supreme Court has explained, while “[m]ost
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`standing cases consider whether a plaintiff has satisfied the requirement when
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`filing suit, [] Article III demands that an actual controversy persist throughout all
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`stages of litigation. That means that standing must be met by persons seeking
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`appellate review, just as it must be met by persons appearing in courts of first
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`instance.” Hollingsworth, 570 U.S. at 705 (internal citations omitted). Thus, where
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`a district court allows individuals who are not the named defendants “to intervene
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`to defend” the challenged law, if those intervenors subsequently appeal, the court
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`of appeals “must decide whether [they] ha[ve] standing to appeal the District
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`Court’s order.” Id. at 702, 705.
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`1 Pursuant to Local Rule 27(a), Plaintiffs informed counsel for both the Farm
`Bureau and State Defendants of their intent to file this motion. The Farm Bureau
`indicated it will oppose this motion. The State Defendants indicated they did not
`wish to take a position without seeing and considering the motion.
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 5 of 14
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`Indeed, the Supreme Court, sitting as a court of appeals, relied on this
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`principle to dismiss an appeal by state legislators who intervened to defend a law
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`they passed. The Court explained the legislators “carried the laboring oar in urging
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`the constitutionality of the challenge [law] at a bench trial.” Va. House of
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`Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1950 (2019). Nonetheless, “‘[m]erely
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`because a party appears in the district court proceedings does not mean that the
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`party automatically has standing to appeal the judgment rendered by that court.’”
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`Residences at Bay Point Condo. Ass’n, Inc. v. Standard Fire Ins. Co., 641 Fed.
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`App’x 181, 183 (3d Cir. 2016) (unpublished) (quoting Rohm & Hass Tex., Inc. v.
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`Ortiz Bros. Insulation, 32 F.3d 205, 208 (5th Cir. 1994)). Therefore, when
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`intervenors “seek[] to invoke” a court of appeals’ jurisdiction, they must establish
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`they have standing “in [their] own right” to proceed. Virginia House of Delegates,
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`139 S. Ct. at 1951.
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`II. The Farm Bureau Lacks Standing To Appeal On Its Own.
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`Supreme Court authority also provides intervenors like the Farm Bureau
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`lack standing to appeal. In Hollingsworth, like here, the district court allowed the
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`private “proponent of [an] initiative [] to intervene to defend it” on the merits.
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`Hollingsworth, 570 U.S. at 702 (internal citation omitted). There, like here, the
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`plaintiffs prevailed, but the “District Court had not ordered [intervenors] to do or
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`5
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 6 of 14
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`refrain from doing anything,” it solely “enjoined the state officials named as
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`defendants from enforcing” the law. Id. at 705. There, like here, the intervenor’s
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`“only interest in having the District Court order reversed was to vindicate the
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`constitutional validity of” the law. Id. at 706.
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`On this basis, the Supreme Court held the intervenors lacked standing to
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`appeal. Their “generalized grievance” regarding the lower court’s legal analysis,
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`“no matter how sincere, is insufficient to confer standing.” Id. A party cannot
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`“state an Article III case or controversy” where their claimed injury is their
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`“interest in proper application of the Constitution and laws.” Id.
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`The Farm Bureau did not seek to establish its standing in the summary
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`judgment proceedings, and its earlier filings, as best, put forward a “generalized
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`grievance” for participating in this litigation. In fact, it represented to the district
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`court it “need not establish Article III standing” and merely addressed the issue in
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`a footnote to its motion to intervene. Dkt. No. 83, at 7 n.2. Therefore its separately
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`docketed appeal must be dismissed.
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`Lest there be any doubt, that footnote suggested that because the Farm
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`Bureau’s members—like every other business owner or operator in North
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`Carolina—could potentially wield the cause of action created by N.C. Gen. Stat.
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`§ 99A-2, its members had standing to try to preserve the law. Id. However, the
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`Supreme Court has explained that when a purported injury is “shared in
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 7 of 14
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`substantially equal measure by all or a large class of citizens, that harm alone
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`normally does not warrant exercise of jurisdiction” because it is the very definition
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`of a “generalized grievance.” Warth v. Seldin, 422 U.S. 490, 499 (1975). Indeed,
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`the Farm Bureau’s member declarants made clear they had no specific reason to
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`believe they would ever use the law, but rather sought to defend it so that they and
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`“farmers like” them can have another tool to use against advocacy groups. Dkt.
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`No. 83-2 ¶ 7; see also Dkt. No. 83-3 ¶ 6 (same). Therefore, the Farm Bureau did
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`not establish standing to proceed on behalf of its members because it did not
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`establish its members had standing.
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`The Farm Bureau also asserted in a single sentence that it had standing on
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`behalf of itself, because Plaintiffs’ constitutional claims, if successful, would cause
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`the organization to “expend[] resources,” but that contention is unsubstantiated.
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`Dkt. No. 83, at 7 n.2. The Farm Bureau’s declaration in support of its
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`organizational standing merely stated the organization “supported” the law when it
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`was enacted and subsequently “educated” its members about its existence, without
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`stating the Farm Bureau was engaged in any ongoing efforts regarding the law, or
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`that the Farm Bureau would undertake efforts regarding the law if it were struck
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`down. Dkt. No. 83-1 ¶¶ 6-7. As this Court has made clear, where an organization
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`asserts standing based on the organization’s diversion of resources in a case
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`seeking forward looking relief, the organization must establish some “burden” it
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 8 of 14
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`“would face going forward” if it failed to obtain its desired outcome. Benham v.
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`City of Charlotte, 635 F.3d 129, 139 (4th Cir. 2011); see also Nnebe v. Daus, 644
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`F.3d 147, 157-58 (2d Cir. 2011) (Farm Bureau’s authority in support of its
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`organizational standing, which held standing existed if there were ongoing
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`expenditures that would continue if the requested relief were denied). Therefore,
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`the Farm Bureau failed to establish standing on behalf of itself.
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`The Farm Bureau was allowed to intervene merely because it claimed a
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`general interest in defending the law. This is because it had no other basis on
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`which to intervene, never establishing any sort of standing to defend the law.
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`Nonetheless, the Farm Bureau noticed an appeal in this matter, No. 20-1776, on its
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`own, Dkt. No. 143. Because the Farm Bureau lacks standing, that appeal cannot
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`proceed.
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`III. The Facts Of This Case Do Not Warrant A Different Outcome.
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`The Farm Bureau is certain to point out that after it filed its notice of appeal,
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`the State Defendants appealed, and courts have allowed appeals to proceed where
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`one party has standing. But, the State Defendants’ independent appeal does not
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`allow the Farm Bureau’s separate action. This is particularly true, as the Farm
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`Bureau strategically chose not to join the State Defendants’ separate appeal. The
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`Farm Bureau is seeking to litigate its own case, which this Court has no
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`jurisdiction to entertain.
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 9 of 14
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`To the extent intervenors like the Farm Bureau have been allowed to appeal
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`that is because they have proceeded with a party who had standing. If, like here, an
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`intervenor lacks standing, it can only appeal if it employs “piggyback standing.”
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`Kane Cty. v. United States, 950 F.3d 1323, 1324-25 (10th Cir. 2020) (en banc).
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`That is, it can only proceed to the extent it does not “seek[] additional relief
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`beyond” that requested by the party with standing. Town of Chester v. Laroe
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`Estates, Inc., 137 S. Ct. 1645, 1651 (2017). Solely if a “party with appellate
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`standing asserts each challenge to the district court’s decision” can an intervenor
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`without standing pursue that claim by joining that challenge. Freedom From
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`Religion Found., Inc. v. Chino Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d
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`1132, 1142 (9th Cir. 2018).2
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`Here, in contrast, the Farm Bureau improperly seeks to create its own
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`vehicle, distinct from that of the State Defendants, to appeal the decision below.
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`Ore. Prescription Drug Monitoring Program v. U.S. Drug Enf’t Admin., 860 F.3d
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`1228, 1233 (9th Cir. 2017) (“This ineluctable requirement [of appellant standing]
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`is not vitiated simply because an intervenor is raising a new or different claim for
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`2 For these reasons, to the extent the Farm Bureau notes Plaintiffs have separately
`cross-appealed, Dkt. No. 149, that is irrelevant to the analysis. As described above,
`Plaintiffs prevailed below and merely believe there are additional bases on which
`they could have prevailed. The Farm Bureau is seeking to independently raise
`bases to reverse the district court. A party with standing must pursue those claims,
`and the Farm Bureau lacks standing.
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`9
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 10 of 14
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`relief in the context of an existing case rather than bringing an original suit.”). By
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`appealing independently from the State Defendants, the Farm Bureau has asserted
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`a right to request distinct relief, a right it does not have.
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`This is not mere formalism. Plaintiffs and the State Defendants were in talks
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`to resolve this matter without appeal when the Farm Bureau filed its notice, doing
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`so ahead of the deadline to appeal. That notice successfully disrupted those
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`discussions. Moreover, below, the Farm Bureau litigated theories the State
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`Defendants did not genuinely prosecute. Compare Dkt. No. 110, at 19-22 (Farm
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`Bureau summary judgment brief) with Dkt. No. 108, at 26 (State Defendants
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`summary judgment brief). Throughout this case, and particularly now on appeal,
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`the Farm Bureau has sought to direct this litigation when the true State Defendants
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`should be charged with doing so. Its separately docketed appeal, for which it lacks
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`standing, should be dismissed.
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`IV. Conclusion.
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`For the foregoing reasons the Court should dismiss appeal No. 20-1776, the
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`Farm Bureau’s action, for lack of standing.
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`August 7, 2020
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`Respectfully submitted,
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`/s/ David S. Muraskin
`By:
`David S. Muraskin
`PUBLIC JUSTICE, P.C.
`1620 L St. NW, Suite 630
`Washington, DC 20036
`(202) 861-5245
`dmuraskin@publicjustice.net
`Counsel for Plaintiffs
`
`Daniel K. Bryson
`N.C. Bar Number: 15781
`Jeremy Williams
`N.C. Bar Number: 48162
`Whitfield Bryson & Mason LP
`900 W. Morgan Street
`Raleigh, NC 27603
`(919) 600-5000
`dan@wbmllp.com
`jeremy@wbmllp.com
`Counsel for Plaintiffs
`
`the Ethical
`
`Matthew Strugar
`3435 Wilshire Blvd., Suite 2910
`Los Angeles, CA 90010
`(323) 696-2299
`matthew@matthewstrugar.com
`Counsel
`for People
`for
`Treatment of Animals, Inc.
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`Cristina Stella
`Kelsey Eberly
`Animal Legal Defense Fund
`525 East Cotati Avenue
`Cotati, CA 94931
`(707) 795-7533
`cstella@aldf.org
`keberly@aldf.org
`Counsel for Animal Legal Defense Fund
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`12
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 13 of 14
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`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
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`This brief or other document complies with type-volume limits because this
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`brief or other document contains 2,138 words.
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`This brief or other document complies with the typeface and type style
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`requirements because: this brief or other document has been prepared in a
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`proportionally spaced typeface using Microsoft Word 2010 with Times New
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`Roman 14 point font.
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`Date: August 7, 2020
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`/s/ David S. Muraskin
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`David S. Muraskin
`Public Justice, P.C.
`1620 L St. NW, Suite 630
`Washington, DC 20036
`(202) 861-5245
`dmuraskin@publicjustice.net
`Counsel for Plaintiffs
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`13
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`USCA4 Appeal: 20-1776 Doc: 14-1 Filed: 08/07/2020 Pg: 14 of 14
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`CERTIFICATE OF SERVICE
`I HEREBY CERTIFY that on the August 7, 2020, the foregoing document
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`was served on all parties or their counsel of record through CM/ECF system.
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`Dated: August 7, 2020
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`Respectfully submitted,
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`/s/ David S. Muraskin
`David S. Muraskin
`Public Justice, P.C.
`1620 L St. NW, Suite 630
`Washington, DC 20036
`(202) 861-5245
`dmuraskin@publicjustice.net
`Counsel for Plaintiffs
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`14
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