USCA4 Appeal: 20-1776 Doc: 24 Filed: 08/24/2020 Pg: 1 of 14
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`No. 20-1776
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`In the
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`for the
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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
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`v.
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`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
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`and
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`NORTH CAROLINA FARM BUREAU FEDERATION, INC.
`Intervenor-Defendant/Appellant, Cross-Appellee
`______________________________
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` NORTH CAROLINA FARM BUREAU FEDERATION, INC.’S
`RESPONSE TO PLAINTIFFS’ MOTION TO DISMISS INTERVENOR’S
`APPEAL FOR LACK OF JURISDICTION
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`USCA4 Appeal: 20-1776 Doc: 24 Filed: 08/24/2020 Pg: 2 of 14
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`INTRODUCTION
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`This Court should deny the motion to dismiss Defendant/Appellant North
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`Carolina Farm Bureau Federation, Inc.’s (“NCFB”) appeal filed by Plaintiffs/
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`Appellees-Cross-Appellants People for the Ethical Treatment of Animals et al.
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`(“PETA” or “Plaintiffs”). The basis for Plaintiffs’ motion is that NCFB lacks standing
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`to pursue the appeal, but the law is clear that NCFB need not establish its independent
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`standing to do so. In any event, NCFB has standing in its own right.
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`This case concerns the constitutionality of the North Carolina Property
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`Protection Act, N.C. Gen. Stat. § 99A-2 (2016). Plaintiffs contend that NCFB lacks
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`standing to appeal from the district court’s judgment enjoining enforcement of the
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`Act. But as Plaintiffs admit, intervenors do not need to show standing to appeal when
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`“proceed[ing] with a party who ha[s] standing.” Mot. 9 (emphasis omitted). Here,
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`Defendants/Appellants-Cross-Appellees Josh Stein and Kevin Guskiewicz (the “State
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`Defendants”) have also appealed from the same district court judgment, and this Court
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`has consolidated both appeals and Plaintiffs’ cross-appeal into a single proceeding.
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`Plaintiffs’ motion thus fails at the threshold.
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`Setting aside the presence of the State Defendants, NCFB has standing to
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`appeal in its own right. When this case was last before the Court, Plaintiffs argued
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`successfully that they had standing to challenge the Property Protection Act because
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`they had “targeted” a “comprehensive list of animal facilities” in North Carolina for
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`investigation—“including farms”—but were dissuaded from doing so because of the
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`civil liability protections the Property Protection Act affords property owners. People
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`1
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`USCA4 Appeal: 20-1776 Doc: 24 Filed: 08/24/2020 Pg: 3 of 14
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`for Ethical Treatment of Animals, Inc. v. Stein, 737 F. App’x 122, 127 (4th Cir. 2018)
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`(“Stein I”) (emphasis added). There is thus a substantial likelihood that if the district
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`court’s judgment is upheld, NCFB and its members will suffer the very harms the
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`Property Protection Act is designed to prevent. Put another way, NCFB’s interest in
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`this lawsuit is simply the flip side of Plaintiffs’ claimed “invasion of legally protected
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`interest” in engaging in conduct that they claim is protected by the First Amendment.
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`Id. at 128.
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`Plaintiffs’ real concern in seeking to dismiss NCFB’s appeal appears to be that
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`they were hoping to settle the case with the State, but that NCFB filing a notice of
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`appeal “disrupted” that hope in some way. See Mot. 10. That Plaintiffs’ hopes of
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`settlement were disappointed has nothing to do with NCFB’s right to file a notice of
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`appeal. The State Defendants filed their own notice of appeal to defend the Property
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`Protection Act; as a co-appellant NCFB does not need to establish standing; and in
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`any event NCFB has shown it has standing. Plaintiffs cannot explain how their dashed
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`settlement hopes affect the parties’ rights to appeal.
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`I.
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`NCFB DOES NOT NEED INDEPENDENT STANDING.
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`Chief Judge Schroeder allowed NCFB permissive intervention in the district
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`court in May 2019. See Dkt. 92. As Intervenor, NCFB filed joint briefs with the State
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`Defendants to defend the Property Protection Act’s constitutionality and orally argued
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`the cross-motions to dismiss alongside the State Defendants at the motion hearing.
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`After the district court denied NCFB and the State Defendants’ motions for summary
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`judgment and granted Plaintiffs’ cross-motion in substantial part, NCFB and the State
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`2
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`Defendants both filed timely notices of appeal and Plaintiffs filed a cross-appeal.
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`Dkt. 143, 145, Dkt. 149. The Court consolidated the appeals on August 4, 2020. The
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`Court’s order stated that “[t]he appellant(s) in Case No. 20-1776 [NCFB] and Case
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`No. 20-1777 [the State Defendants] shall be considered the appellants for purposes of
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`the consolidated appeals and shall proceed first at briefing and at oral argument.”
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`Plaintiffs concede that an intervenor does not need to establish independent
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`standing if it “proceed[s] with a party who ha[s] standing.” Mot. 9. The Supreme
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`Court confirmed that proposition recently in Virginia House of Delegates v. Bethune-
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`Hill, 139 S. Ct. 1945 (2019), where it examined a state court case in which a party
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`“intervened in support of defendants in the trial court,” and concluded that the
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`intervenor there was required to “independently demonstrate standing” only because
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`the “primary party” did not file an appeal. Id. at 1951; see also Texas v. United States,
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`945 F.3d 355, 375 (5th Cir. 2019) (“Even if only one of these parties had standing to
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`appeal, that would be enough to sustain the court’s jurisdiction. An intervenor needs
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`standing only ‘in the absence of the party on whose side the intervenor intervened.’”).
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`Plaintiffs do not—and cannot—dispute the State Defendants’ standing to
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`appeal. However, Plaintiffs assert that NCFB lacks standing because it filed an
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`“independent” appeal and “strategically chose not to join the State Defendants’
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`separate appeal.” Mot. 8. That argument is contrary to Supreme Court authority and
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`mischaracterizes NCFB’s actions.
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`1. Just last month, the Supreme Court held in Little Sisters of the Poor Saints
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`Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), that that the fact that
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`3
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`an intervenor files an “independent” appeal is not grounds for dismissal where another
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`party to the consolidated appeals has standing and seeks the same relief. Little Sisters
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`addressed appeals from a preliminary injunction against the implementation of
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`government regulations that exempted certain employees from the Affordable Care
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`Act’s contraceptive mandate. The Little Sisters of the Poor intervened and appealed
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`from the district court’s preliminary injunction, as did the federal government. Id. at
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`2379. The two appeals were then consolidated. Id. Because the Little Sisters sought
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`relief no “broader than or different from” the federal government, the Supreme Court
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`held that the Third Circuit “erred” by questioning the intervenors’ independent
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`standing on appeal. Id. at 2379 n.6 (citing Town of Chester v. Laroe Estates, Inc., 137
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`S. Ct. 1645, 1651 (2017)).
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`Little Sisters applies here with full force. The State Defendants “clearly ha[ve]
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`standing” to invoke this Court’s “appellate jurisdiction,” id. and both the State
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`Defendants and NCFB ask the court to reverse the judgment below and enter
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`judgment in their favor. It is therefore improper to “inquir[e] into” NCFB’s
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`“independent Article III standing,” as Plaintiffs’ motion requests. Id.
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`2. Even if Little Sisters were not dispositive, the argument that NCFB acted
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`“strategically” by not joining the State Defendants’ appeal is mere rhetoric—and
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`unmerited at that. There was no need for NCFB to join the State Defendants’ appeal
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`because NCFB had already filed its own notice of appeal, seeking the same relief.
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`NCFB identified the State’s related appeal in its docketing statement, and fully
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`4
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`expected this Court to consolidate the two appeals from the same judgment—as the
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`Court did.1
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`Plaintiffs contend that by filing separately NCFB “has asserted a right to request
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`distinct relief.” Mot. 10. That is not correct. There is no daylight between the relief
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`NCFB and the State Defendants seek. The State Defendants and NCFB filed fully
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`compatible motions for summary judgment, Dkt. 107 & Dkt. 110; filed a joint reply
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`brief in support of their motions, Dkt. 121; and later stated jointly that their positions
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`in this litigation are the same: “the First Amendment does not license an individual
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`seeking to gather information to violate generally applicable laws such as those
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`against trespass, invasion of privacy, and breach of duty of loyalty.” Dkt. 124 at 2.
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`Plaintiffs also assert that NCFB has advanced distinct “theories” that the State
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`Defendants did not “genuinely prosecute.” Mot. 10. That is untrue, but more
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`importantly, irrelevant. What matters is not whether the parties make the same
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`1 Although it is axiomatic that the Federal Rules do not supersede Article III, it bears
`mention that Federal Rule of Appellate Procedure 3(b) does not require parties to file a joint
`notice in the district court. See Fed. R. App. P. 3(b)(1) (stating that parties “may file a joint
`notice of appeal”) (emphasis added). And even if a joint notice of appeal were required—it is
`not—this Court has the authority to join or consolidate NCFB’s and the State Defendants’
`appeal itself. See Fed. R. App. P. 3(b)(2) (“When the parties have filed separate timely
`notices of appeal, the appeals may be joined or consolidated by the court of appeals.”).
`Indeed, it would be extraordinarily unusual for a court not to consolidate separate appeals
`from parties defending the exact same statute in the exact same action and appealing the
`exact same judgment.
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`5
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`arguments for reversal; it is whether the parties seek the same relief. Little Sisters, 140
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`S. Ct. at 2379 n.6; Town of Chester, 137 S. Ct. at 1651.2
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`3. Finally, were all this not enough, Plaintiffs’ argument is premature. This
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`Court has previously deferred challenges to appellate standing until after briefing is
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`complete. See Doe v. Public Citizen, 749 F.3d 247, 257 (4th Cir. 2014) (“A prior
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`motions panel deferred ruling on the motion to the merits panel.”); cf. also Town of
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`Chester, 137 S. Ct. at 1651-52 (remanding for further proceedings where it was
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`“unclear” whether an intervenor “seeks the same relief” as another plaintiff “or instead
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`seeks different relief”). The completely speculative possibility that NCFB might seek
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`“distinct relief” in its appeal can hardly be grounds for dismissing the appeal now,
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`before the Court has even issued a briefing order.
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`II. NCFB HAS INDEPENDENT STANDING.
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`Even if NCFB could not rely on the State Defendants’ standing, Plaintiffs’
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`motion should still be denied because NCFB “ha[s] standing ‘in [its] own right’ to
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`proceed.” Mot. 5 (quoting Bethune-Hill, 139 S. Ct. at 1951). This follows
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`straightforwardly from Plaintiffs’ own showing of standing, which the court
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`previously accepted in 2018. Stein I, 737 F. App’x at 127-31.
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`2 This case is nothing like Oregon Prescription Drug Monitoring Program v. U.S. Drug
`Enforcement Administration, 860 F.3d 1228 (9th Cir. 2017) (cited at Mot. 9). There, the
`plaintiff sought only a “declaratory judgment” and disclaimed reliance on the Fourth
`Amendment, while the intervenors sought different relief expressly “founded on the Fourth
`Amendment.” Id. at 1234. Here, both the State Defendants and NCFB seek exactly the same
`thing: reversal of the district court judgment declaring that the Property Protection Act is
`unconstitutional.
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`6
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`1. In Stein I, the Court found that Plaintiffs had plausibly alleged standing to
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`challenge the Property Protection Act because Plaintiffs wished to conduct undercover
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`investigations that they reasonably feared would lead to liability under the Act. The
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`Court noted that “[t]wo of the Plaintiffs in this action . . . engage in undercover
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`investigations of public and private facilities for the purpose of uncovering acts of
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`animal cruelty,” while the remaining Plaintiffs, which include several organizations
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`expressly aimed at farming practices, “rely upon and use information from
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`whistleblowers and undercover investigations . . . to accomplish their distinct
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`missions.” 737 F. App’x at 126. ALDF in particular had drawn up a “comprehensive
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`list” of animal facilities in North Carolina, “including farms,” that it was “target[ing]
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`for investigation.” Id. at 127 (emphasis added). Based solely on these allegations, it is
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`substantially likely that at least some of NCFB’s members are threatened with an
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`invasion of their legally protected interest under the Property Protection Act.
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`Cf. Bryant v. Yellen, 447 U.S. 352, 366-68 (1980) (holding that intervenor-defendant
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`farmworkers had standing to appeal where it was “highly improbable” the all land
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`owners would choose to withdraw their land from agricultural activities to avoid the
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`challenged statute and thus “likely” that the farmworkers could buy the land at lower
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`prices if the judgment were reversed).3
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`2. Plaintiffs’ operative complaint contains additional pertinent allegations. For
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`example, Plaintiffs allege that a “PETA investigator obtained employment at a North
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`3 As Plaintiffs do not dispute, NCFB has organizational standing to appeal on behalf of its
`members. See Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 99 (4th Cir. 2011).
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`Carolina hog farm that supplies Smithfield Foods” and secretly recorded video in non-
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`public areas. Dkt. 21 ¶ 20. Plaintiffs also allege that ALDF “has recruited specific
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`investigators who are ready, willing, and able to conduct undercover investigations at
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`animal facilities in North Carolina” and has “spent several thousand dollars to run
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`radio advertisements in North Carolina in an effort to recruit further investigators.”
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`Id. ¶ 30. And Plaintiffs allege that ALDF has “conducted farm animal investigations,
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`in which its investigators have either entered onto properties or obtained employment
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`in order to access non-public areas and gather evidence.” Id. ¶ 35.
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`NCFB has submitted corroborating evidence that North Carolina farmers “have
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`had or are at risk of having their business disrupted and unfairly depicted by
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`fraudulent employees who seek employment for the purpose of being disloyal and to
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`act in ways that are incompatible with the interests of their employer. Dkt. 83-1 ¶ 5.
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`Two of NCFB’s members have submitted declarations stating that they are personally
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`aware of this risk and rely on the Property Protection Act to protect them from
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`unwittingly hiring employees under false pretenses. Dkt. 83-2 ¶¶ 5-7; Dkt. 83-3 ¶¶ 4-
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`6. Finally, evidence Plaintiffs submitted in support of their motion for summary
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`judgment confirms that NCFB’s members are likely targets of Plaintiffs’ or their
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`associates’ illegal activities.4
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`4 See, e.g., Dkt. 101-1, Ex. Q ¶ 9(b) (describing ASPCA undercover investigation of a North
`Carolina chicken operation); Dkt. 101-3, Ex. S ¶ 10 (“Farm Forward would like to continue
`to rely on information obtained from . . . undercover investigations performed in North
`Carolina”); Dkt. 101-4, Ex. T ¶ 9 (“Farm Sanctuary’s ongoing efforts would be enhanced by
`information obtained from undercover investigations in North Carolina”); Dkt. 101-5, Ex. U
`¶ 9 (same for Food and Water Watch). The extreme lengths to which animal liberation
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`3. Despite admitting that they intend to investigate farms and other private
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`facilities if the Property Protection Act is declared unconstitutional, Plaintiffs
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`denigrate NCFB’s and its members’ concerns as a mere “generalized grievance”
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`stemming from an “interest in proper application of the Constitution and laws.” Mot. 6
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`(citing Hollingsworth v. Perry, 570 U.S. 693, 706 (2013)). Hollingsworth is not
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`remotely apposite. There, the Supreme Court held that the proponents of a California
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`proposition banning same-sex marriage did not have standing to defend the
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`constitutionality of the law once it had been enacted by popular referendum because
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`the proponents had “no role—special or otherwise—in [the Proposition’s]
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`enforcement.” 570 U.S. at 707. In contrast, the Property Protection Act gives NCFB’s
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`members a private cause of action related to the activities Plaintiffs say they are
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`preparing to undertake. N.C. Stat. § 99A-2.
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`The claim that NCFB’s members’ interest in the Property Protection Act is “like
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`every other business owner or operator in North Carolina” (Mot. 6) is similarly
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`misplaced. First, as shown above, NCFB’s members are uniquely situated because
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`Plaintiffs have declared in public filings that they intend to investigate North Carolina
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`farms if the Property Protection Act is repealed. Second, requiring farmers to give
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`“specific reason[s] to believe they would ever use the law” (Mot. 7) is inappropriate
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`here. Plaintiffs and others conduct their illegal activities covertly and take steps to
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`disguise their true intentions from employers. That is why the Property Protection
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`organizations will go in North Carolina, including engaging in outright break-ins and theft,
`are illustrated in a recent newspaper article. See Andrew Jacobs, N.Y. Times, Stealing Lauri
`(Aug. 4, 2019), https://www.nytimes.com/2019/08/04/science/stealing-lauri.html.
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`9
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`Act’s additional protections are necessary. Plaintiffs are the only ones who know for
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`certain whether they intend to violate NCFB’s members’ property rights—and they
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`have stated multiple times in this litigation that they intend to do so if the Property
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`Protection Act is struck down.
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`CONCLUSION
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`NCFB does not need to show its own standing to bring this appeal, and it has
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`standing regardless. The Court should deny Plaintiffs’ motion now, or defer its
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`consideration to the merits panel.
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`Dated: August 24, 2020
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`Respectfully submitted,
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`MAYER BROWN LLP
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`/s/ John S. Hahn
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`John S. Hahn
`N.C. Bar No. 43430
`MAYER BROWN LLP
`1999 K Street, N.W.
`Washington, D.C. 20
`Tel. (202) 263-3346
`E mail: jhahn@mayerbrown.com
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`Timothy S. Bishop
`Brett E. Legner
`MAYER BROWN LLP
`71 S. Wacker Dr.
`Chicago, IL 60606
`Tel. (312) 701-7829
`E-mail: tbishop@mayerbrown.com
` blegner@mayerbrown.com
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`10
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`Phillip Jacob Parker, Jr.
`N.C. Bar No. 41504
`Secretary and General Counsel
`North Carolina Farm Bureau Federation, Inc.
`PO Box 27766
`Raleigh, NC 27611
`Tel. (919) 782-1705
`E-mail: jake.parker@ncfb.org
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`Counsel for Intervenor-Defendant/Appellant-
`Cross-Appellee North Carolina Farm Bureau
`Federation, Inc.
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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 it
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`contains 2,594 words.
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`This brief or other document complies with the typeface and type style
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`requirements because it has been prepared in a proportionally spaced typeface using
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`Microsoft Word 2016 with Times New Roman 14 point font.
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`Dated: August 24, 2020
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`/s/ John S. Hahn
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`CERTIFICATE OF SERVICE
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`I hereby certify that that on August 24, 2020, the forgoing document was filed
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`via the Court’s CM/ECF system, which accomplished electronic service upon all
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`counsel of record.
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`Dated: August 24, 2020
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`/s/ John S. Hahn
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