*1 CONCLUSION reasons, reverse foregoing
For XM’s of Sirius granting court’s district We remand compel arbitration.
motion proceed- for further the district disposition. with consistent
ings REMANDED.
REVERSED Laxson; PERUTA; Michelle
Edward Dr.; Buncher, Dodd; Leslie
James Rifle and Cleary; California
Mark Foundation, Plain- Association
Pistol
tiffs-Appellants, California, Intervenor-
Pending, DIEGO; D. William SAN
COUNTY OF individually capacity his
Gore, and in Defendants-Appellees. Sheriff,
No. 10-56971. Appeals, States Court
Ninth Circuit. 12, 2014.
Nov. *2 Neuharth, Jr.,
Paul Henry Paul Neu- harth, APC, CA, Jr. Diego, San Paul D. Clement, PLLC, Bancroft Washington, DC, Michel, D. Carl Esquire, Michel & Associates, P.C., Beach, CA, Long Plaintiffs-Appellants.
Gregory Brown, Esquire; David Deputy Attorney General, Moody, Ross Deputy General, Attorney AGCA-Office of the Attorney General, San Francis- co, CA, for Intervenor-Pending. Chapin, Esquire, James Senior Deputy County Counsel, CA, Diego, for De- fendants-Appellees.
Before: DIARMUID F. O’SCANNLAIN, THOMAS, SIDNEY R. CALLAHAN, CONSUELO M. Judges. Circuit ORDER We must rule on motions to intervene in this Second case which Amendment were filed after our judgment re- versing the District Court were filed. years filed four it was untimely when proceedings). de D. Gore Sheriff William When rehearing en rather appeal now on case is petition to file That clined suggests further of California the State the district in this than in banc untimely. to Prevent Gun are Brady Campaign to intervene motions and the that the *3 (9th 870, Jones, under Feder 873 intervene 127 F.3d moved to v. Bates Violence See 24. The Cali Union Cir.1997); Transit Amalgamated Procedure Rule of Civil al (CPCA) Donovan, F.2d 771 Int’l, v. Police Chiefs’ Association AFL-CIO fornia (“A curiam) (D.C.Cir.1985) Associa 1551, (per Peace Officers’ the California 1552 and case, at submitted (CPOA), in this allow intervention may amici appeals tion sought Howev none rehearing en banc. was stage for where petition the appellate rehearing exceptional only for in an er, petitions cannot file amici district court (internal quo- 505 F.3d Day Apoliona, v. imperative reasons.” en banc. case See Cir.2007). omitted)). (9th con therefore In this We 964 marks tation as a after petition and CPOA’s to intervene filed motions strue CPCA movants & CPCA CPOA filed. If intervention intervene. See was opinion motion to our (“To case[s],” 2 n.2 “exceptional at Reh’g En Banc Pet. for is limited to appeal and after that CPCA intervention then, logic, the Court finds by extent the same to submit opinion in order party appellate be a of an must CPOA the publication factor, request and CPOA first CPCA rare. The petition, extremely this must be to petition this therefore, construe timeliness. weighs Court against this parties.”). as to intervene request also be a B
II factor, The second on the other Intervention, by right and both The hand, of timeliness. weighs in favor timely only “[o]n can occur permission, us reason given not parties have 24(a)-(b). Timeli motion.” aas prejudice face they would believe to three reference with ness is determined mov- by the delayed intervention result “(1) at stage proceeding of the factors: ants. intervene; applicant seeks which an (3) the and parties; to other prejudice C delay.” Unit length reason for F.3d Corp., 370 v. Alisal Water factor, ed States third reasons The Cir.2004) (9th Dep’t (quoting Cal. 921 that the suggests delay, -length of v. Commer Toxic Substances Control untimely. Under are to intervene motions Inc., Realty Projects, cial precedent, “[a] longstanding our Cir.2002)). (9th 1119 as act as soon must seeking to intervene that his to know has he reason ‘knows A adversely affected might be interests ” United litigation.’ factor, the outcome first Regarding the (9th 576, 589 F.2d Oregon, age the States stage proceedings, of the Cir.1990) City States v. (quoting declaring the from discourages us case 1256; Cir. F.2d Chicago, in sought timely. The movants motions Water, at F.3d 1989)); accord Alisal this years than after more four tervention Projects, 309 Realty 922-23; Commercial (affirming a district See id. began. case at to intervene of motion court’s denial
Both California and the Brady Cam- granted the State of Hawaii’s motion to paign argue that delay their in moving to though intervene even it was filed after the They was reasonable. filed their panel published. 505 F.3d motions after shortly learning Cir.2007). that Sheriff Day’s reasoning petition Gore would file a for rehearing makes clear that represents it the excep- banc, en they which contend was the mo- tion rather than the rule. Day order they ment knew that Sheriff Gore would expressly relied on the fact that Hawaii not adequately protect their interests. had not “ignored litigation or held back IB; Cal. Mot. to Brady Intervene Cam- from participation gain tactical advan- paign Mot. to Intervene at 14. If tage.” Instead, Hawaii had “sought originally thought movants status, Sheriff amicus singlehandedly—ar- and — adequately protected interests, Gore their gued a potentially dispositive issue *4 they must have that “know[n] inter- [their] case to the district court and panel.” might ests adversely be by affected the Id. Such participation was especially help- outcome of litigation.” the Oregon, 913 ful because the existing defendants were F.2d at 589. The movants do deny not “unwilling[ ... ] position take a on that they long have been aware of this th[at] issue.” Id. at 965.
case.1 This quite case is different. Neither
Although the
may
movants
have avoided California nor the Brady Campaign partic-
some inconvenience to
by
themselves
wait-
ipated
as
amicus below or before this
ing
intervention,
to seek
such consider- Court. Brady Campaign Mot. to Inter-
justify
ations do not
delay. See Alisal
vene at 1 n.l (distinguishing between the
Water,
(“An
D Ill California and the Brady Campaign rely Considering each relevant on our Day order Apoliona, factors, in which we conclude that the movants have 1. The dissent delay -era[tion]”, claims that California's is dissent at such consideration justified "until majority opinion because began long district court before issu- issued, apparent it any was not that law ance opinion, nearly of our three a half regulation or other than the county-specific before, years in fact. good requirement cause jeopardy.” was in Moreover, explained in more detail be- (citing Dissent at 578 County Peruta v. San low, IV, infra, regulation see Part no law or Diego, F.Supp.2d 1113-17 Diego County's good other San than (S.D.Cal. cause Dec.10, 2010)). However, the dis invalidated, policy ques- been has "drawn in trict court by itself cited dissent tion,” placed panel "in jeopardy” or noted County Diego that the of San "main opinion notwithstanding Diego tains Coun- asserting Plaintiffs are a back door at — ty’s tack on the that state claim statutes were under "back of [the California Peruta, F.Supp.2d statute].” door or the at attack” dissent's insistence n. 7. that Thus, jeopardy.” if "California’s regulatory firearm state law "in is Dissent placed framework” been had under “consid- at when jeopardy” inwas requirement cause of demonstrat- heavy burden met to the Dis- challenge his presented Peruta of inter- in favor reasons” “imperative argues Court, but dissent trict Bates, F.3d at 873. on appeal. vention into another morphed the case appeal, “on length of proceedings, of the stage majority opinion entirely, as the challenge delay all reason for delay, and constitutionality of considered instead the absence In timeliness. against weigh frame- regulatory firearm unavail- California’s motion, intervention timely aof the dissent But at 576. Dissent 24(a)-(b). work.” able. somehow case assert cannot IV challenge into a new appeal “morphed” question”' “drawn into only law 28 U.S.C. when the asserts The dissent challenged at law was the appeal Proce Civil § and Federal County poli- Diego the San intervention. District Court: a basis provide 5.1 dure cy. are incorrect. assertions These 2403(b) provides:
28 U.S.C.
the San
only
challenge
Peruta’s
in a
action, suit,
proceeding
or
In
assertion
that “an
County policy
Diego
to which
States
to demonstrate
insufficient
self-defense is
”
officer,
employ-
or
any agency,
statuto-
the California
cause’ under
‘good
wherein the
party,
not a
ee thereof
*5
County
San
Peruta v.
ry scheme. See
of
that
any
constitutionality
statute of
1167-68,
of
1147-48,
Diego, 742 F.3d
interest
is
public
the
affecting
State
Cir.2014)
San
(asking “whether
shall certi-
the court
question,
in
drawn
re-
permitting
cause’
County’s ‘good
Diego
attorney general of
to the
fy such fact
to bear
right”
the
‘infringefs]’
quirement
the
State,
permit
State
and shall
in-
nature of
arms; assessing “the
evidence, if
of
presentation
County pol-
Diego
that the San
fringement
in
admissible
is otherwise
evidence
right to bear
on the
effects
icy purportedly
question
on the
argument
and for
states,
arms”).
is “a
opinion
As the
shall,
constitutionality. The
County
Diego
the San
challenge to
narrow
provisions
applicable
subject to
than
rather
carry,
concealed
on
regulations
and be
rights
party
of a
law,
have all
on
ban
challenge to the state-wide
a broad
party as to
of a
subject to all liabilities
Simply
at 1172-73.
carry[.]”
open
a
necessary for
to the extent
court costs
been chal-
has
statute
put, no California
and law
facts
presentation
proper
overturned,
constitution-
or had its
lenged,
of constitutional-
relating
question
to the
course,
Of
question.”
into
ality “drawn
ity.
the San
analyzing
added).
2403(b) (emphasis
§
U.S.C.
required “consider-
County policy
Diego
requires “[a]
5.1
Similarly,
scheme,
but
statutory
ing” the California
motion, or other
written
pleading,
files a
the “back-
as it established
only inasmuch
the constitu-
drawing
question
paper
“County’s re-
interpreting
drop” for
statute”
federal or state
tionality of a
cause’.”
interpretation
‘good
strictive
question”
of constitutional
“file a notice
1171;
id. at
Peruta,
also
see
sov-
relevant
notice
and serve such
scheme
the California
(considering
1169-70
attorney general.
ereign’s
in
to show
order
exemptions,
its
added).
(emphasis
5.1
County banned
Diego
though S an
“it is as
from this
exempted
speech, but
political
all
regu-
“law or
The dissent admits
no
[people, places,
particular
restriction
good
county-specific
other than
lation
and that
situations]”
“the severe restric-
quently quoted” nineteenth century deci-
in
tions
in San Diego County”
effect
func-
sions which “established
phrase’s]
[the
tion as “a
total-prohibition
near
bearing
meaning”); see also Kennard v. State of
[arms]”).
Nebraska,
304, 308,
186 U.S.
22 S.Ct.
(1902)
Most the opinion never federal statute was “drawn question” in “draws into question” the “constitutionali- when such statutes were by construed ty” statute —it only ques- court, state validity “the of a statute or Diego tions San County’s regu- exercise of treaty of the United States is not ‘drawn in latory authority under such state statutes. question,’ within the meaning §of (admit- [of See Mot. of CA to Intervene at 7 Code], Judicial every rights time ting Court’s directly does “not claimed under a treaty statute or are con- rul[e] on the constitutionality of state stat- troverted”), in Wright Miller, cited 16B utes” and & only challenges the Diego 4013; § Comment, The County policy (in- Judiciary regarding “good Act cause” 1937, 51 omitted)). Harv. ternal L.Rev. quotations 148-49 Though the n Supreme (“The chief purpose authority "Court interpreting [adding 2403 to the Judicial phrase is Code] “drawn in question” possi- is not of recent remove bility of vintage, it having clear: federal statute declared unconstitutional a suit to which the validity The of a statute drawn in (em- United States was party-” not a question every rights time claimed un- added)). phasis der controverted, such statute are nor is the validity of an authority, every timé Thus “[d]rawing question the validity act done such authority is disput- of a requires statute” more than “the mere ed. validity of a statute or the objection to an exercise'of authority under validity authority of an in ques- drawn statute, validity whose is not attacked.” tion existence, when the or constitution- Jett Bros. Distilling Co. v. City Carroll *6 of ality, legality of such statute or au- ton, 1, 6, 255, 252 U.S. 40 S.Ct. 64 L.Ed. denied, thority is and the denial forms (1920); 421 Cook, see also Wilson v. 327 subject the of inquiry. direct 474, 480-82, U.S. 663, 66 S.Ct. 90 L.Ed. Lynch, 280, U.S. v. 137 (1946) U.S. 11 S.Ct. 793 (explaining that suit challenging Fuller, L.Ed. 700 (per C.J.), official’s interpretation of state statute as cited Miller, in 16B C. Wright, A. E. Coo- applying to timber collected from U.S. land Freer, per, & R. Federal Practice and did not challenge validity of the statute (3d ed.) § Procedure (describing and thus the statute’s Lynch’s description of the phrase “drawn not in “drawn question”) (citing Jett Broth in question” ).2 as of “[o]ne the most fre- ers That opinion engages in analy- 2. Jett interpreted and § Brothers Wilson question” has been "drawn into here. Inter Code, of the juris- Judicial which conferred preting accompanying provision of Supreme diction on the 2403(a), Court when a suit 2403(b) § § identical except to that it "draw[s], question validity in of a statute statutes, involves federal rather than state State, ground of being on the repug- itsof explained § have 2403’s purpose is “en Constitution, treaties, nant to or laws of the suring that not rule on courts the constitu Judiciary United States.” ofAct ch. tionality Congress an Act of without first 229, 43 936 (enacting Stat. Judicial Code receiving input from the United States.” Car 237). Nakatani, roll v. Cir. 2003). More authority, recent Certainly ruling this circuit from and on the constitutional others, of, also demonstrates ity say, that no state statute regulation a federal would not requirement cause” County’s “good Diego statutes California interpretation sis and right. infringed on that unconstitutionally “objection” only change that does not morphed However, the case appeal, au- the exercise is decided and raised majority entirely, as the challenge another statutes, not the stat- such thority under the constitu- instead considered opinion right of intervention No utes themselves. regulatory firearm tionality of California’s here. exists or Rule 5.1 § 2403 under framework.
V addressed primarily That In- to hardly Motion could handguns of California’s The State regulation state majority stated DENIED. Although tervene clearer. be challenge plaintiffs “focus[ ] [their] that the Motion Brady Campaign’s The car- for concealed licensing scheme on the DENIED. to Intervene Leave complaint plaintiffs’ ry,” it construed for Rehear- Petition and CPOA’s CPCA County Diego “the San contending that as to a motion Banc, construed En licensing in of the California light policy intervene, is DENIED. Second violates the as a whole scheme “targets the constitu- Amendment” dissenting: Judge, THOMAS, Circuit Peruta scheme.” tionality of the entire prevent to majority’s decision The 1144, 1171 Diego, 742 County intervening in from State California Cir.2014) It original). (emphasis prec- circuit controlling with conflicts case plain- resolve the in order to reasoned most parties of the deprives one edent claims, whether assess “we must tiffs’ opportunity by our decision affected any individual deprives scheme California an to us argument present even rights.” Id. constitutional of his affecting question constitutional important added). Thus, majority’s in the (emphasis dissent. respectfully I of citizens. millions con- view, in the case the issue rather weapon but carrying of cealed I allows scheme] “whether [the law-abiding citizen responsible, typical began consideration with This case pur- for the lawful public arms question of bear important but the narrow majority self-defense.” pose of Amend- scope Second whether the “if outside self-defense hand- stated carry of ment concealed extended *7 ‘bear right core of part and, so, San home whether if public guns (Federal Cir.2003) (11th intervention an 1286 constitutionality of ruling on the constitute 2403(a) permissible ruling was Analogously, § on the Congress. 28 U.S.C. under Act of County policy was constitutionality does statute party argued of a that federal because constitutionality a ruling of unconstitutional); Strong Educ. constitute v. Bd. itself of v. Paper Co. Dist., See Int’l State.” [a] “statute 902 Free Sch. Union Uniondale 338, Me., Jay, 887 F.2d Town Inhabitants Cir.1990) 208, (2d (finding a statute’s n. 3 213 Cir.1989) "challeng- (1st (explaining that 341 question” when constitutionality “drawn consti- municipal does not ordinance” a argued unconsti- explicitly it was plaintiff n constitutionality of a “questioning tute English tutional); Arizonans for Official 2403(b)); y. Fed- § Gillon under state statute” 1055, 74, Arizona, 43, U.S. 117 S.Ct. Prisons, Fed.Appx. eral Bureau of state At- (explaining the L.Ed.2d Cir.2011) (explaining chal- that a under right to torney a intervene General had agency policy is not a chal- lenge to a federal provi- 2403(b) a state constitutional § when under statute” lenge "a or state to a federal challenged). directly sion Cox, 5.1); 340 F.3d Schwierv. cf.
-3 arms’ the California regulatory forded right to intervene under Rule prohibits scheme the exercise of right, 24(a).1 no amount of interest-balancing under a addition, In California also has right heightened form of means-ends scrutiny to intervene under Federal Rule of Civil justify can Diego County’s policy.” 24(a)(2), Procedure which provides that a at permit must anyone to intervene Given the majority’s opinion, the statuto- who ry command on intervention is direct. If an claims interest relating to the proper- constitutionality of a state statute is ty or transaction subject that is the question, drawn into that state must be action, and is so situated that dispos- afforded the opportunity to intervene. 28 ing of the action may practical as a 2403(b) § U.S.C. provides: impair matter impede or the movant’s action, suit, In any or proceeding a protect ability interest, its unless ex- court of the United States to which isting parties adequately represent any officer, State or agency, or employ- interest. ee thereof is not a party, wherein 24(a)(2). statute of that affecting State the public interest 24(a)(2) Generally, “Rule is construed drawn in question, the court certify shall broadly in favor of proposed intervenors.”
such fact to
attorney general
of .the United States ex rel. McGough v. Coving
State,
permit
and shall
to in-
Co.,
ton Tech.
967 F.2d
presentation
tervene for
evidence,
if Cir.1992).
policy
The “liberal
in favor of
evidence is otherwise admissible in the
intervention serves both efficient resolu
case, and for argument on
question
tion of issues and broadened access to the
of constitutionality.
shall,
The State
courts.”
City
United States v.
Los An
of.
subject
applicable
to the
provisions of geles,
(9th Cir.2002)
397-98
law,
all
rights
have
party
of a
and be
(citation omitted). As we have noted:
subject to all liabilities of a
as to
party
By allowing parties
a practical
with
in-
court costs to the extent necessary for a
terest
in the outcome of
particular
proper presentation of the facts and law
intervene,
cáse to
we
prevent
often
relating to question
constitutional-
simplify
litigation
future
involving relat-
ity.
issues;
time,
ed
at the same
an
allow
Further, Federal Rule of Civil Proce-
express
additional interested
its
24(a) provides,
dure
in relevant part, that
views before the court.
timely motion,
“[o]n
the court
permit
must
(citation omitted).
Id. at 398
anyone to intervene who ...
given
unconditional right to
a feder-
directly
issue
involves
al statute.” Given the clear language
entirety
of 28
of California’s handgun regulation
2403(b),
U.S.C.
scheme,
should
af-
be
and will greatly impact any future
*8
majority
1. The
(1890);
that
concludes
"the constitu-
S.Ct.
agreed with Hawaii 24(a), should we under Rule reversed, State of case. When *9 grant request State’s alternative for promptly’ must serve the state’s attorney permissive intervention under Federal general with notice of the pleading and the 24(b). 24(b) Rule of Civil Procedure Rule constitutional question it raises.” permits permissive intervention on (quoting 5.1(a)). When con- of a part party “who ahas claim or defense stitutional raised, issues are the rule also that shares with the main action a requires common the district court to certify to the question of law or fact.” requires The rule state’s attorney general that the constitu- (1) independent ground jurisdiction, for tionality of the state statute has been (2) motion, timely and questioned, common and permit the state to inter- question of law or fact. Blum v. Merrill vene to 5.1(b), (c). defend it. Fed.R.Civ.P. Lynch Inc., Pierce Fenner & Smith If proper certification to the attorney (9th 1349, 1353 Cir.2013). F.3d general is not court, made the district
Federal question jurisdiction exists, and then remedy on appeal is either to California is not raising any new claims. allow intervention on appeal or vacate the Therefore, the independent jurisdictional decision and remand to the district court requirement is satisfied. Freedom to allow intervention. Oklahoma ex rel. from Found., Religion Geithner, Inc. v. 644 Edmondson Pope, (9th Cir.2011). F.3d Cir.2008). As dis- Here, we do not need to cussed, the timely motion is under the go so far as to vacate the decision and presented circumstances case, remand the as the Tenth Circuit did. question there is no Instead, there are com- the proper remedy is to allow mon Therefore, issues of fact and law. California to intervene on appeal to defend California has satisfied requirements its interest. permissive Moreover, intervention. (as plaintiffs defendants) well as the do IV oppose permissive intervention. Given sum, In California’s timely, motion is ease, stakes at issue we should and it should be afforded the right to grant permissive upon deny- intervention appeal under Federal Rule of right. intervention as of 24(a). Civil Procedure Alternatively, we should grant its permissive motion for in-
Ill 24(b). tervention under Rule Finally, the Finally, additional, there is an indepen- failures plaintiffs under 5.1 of the to ground dent granting California’s mo- name the the district court to tion to In my intervene. dissent to the certify that constitutional questions were panel opinion, I expressed the view that require issue us to allow intervention on plaintiffs should have required been appeal to correct error. comply with Federal Rule of Civil Proce- I respectfully dissent.2 5.1. dure v. County Peruta San Diego, Cir.2014) (Thom- as, J., dissenting). rule, “Under that if the
state or one of agents its not a
a federal proceeding, party that ‘[a]
files a ... pleading drawing question of a ... state statute intervention, granted If California is I grant Brady would also vote Center to
v. MUJICA, behalf on Alberto Galvis Luis Corporation, Petroleum Occidental representative of as of himself and Defendant-Appellant, Hernan, Mujica Ed of Tereza Estates Defendant, Inc., AirScan Johanny Her and ilma Leal Pacheco Gelvez, Becerra; Mario Galvis nandez America, Movant. of States individually, himself, and of on behalf Mujica Tereza decedents heir of the as Mujica, behalf of on Galvis Alberto Luis and Hernandez, Leal Pacheco Edilma representative of as himself and Becerra; John Johanny Hernandez Hernan, Mujica Ed Tereza Estates of through his Mujica, Galvis Mario Johanny Her Pacheco and ilma Leal behalf litem and guardian ad Gelvez, Becerra; Mario Galvis nandez individually, heir of himself, as and individually, himself, and on behalf Mujica Hernan Tereza the decedents Mujica decedents Tereza heir of the as and Johan Leal Pacheco dez, Edilma and Hernandez, Leal Pacheco Edilma Plaintiffs-Ap Becerra, ny Hernandez Becerra; Johanny John Hernandez pellees, through Mujica, his Mario Galvis behalf of and on guardian litem ad
v. individually, heir of himself, and as Mujica Hernan Terza Defendant-Appellant, INC., the decedents AIRSCAN dez, Pacheco and Johan Edilma Leal Becerra, Plaintiffs-Ap ny Hernandez Corporation, Petroleum Occidental pellants, Defendant. America, Movant.
United States Corporation; Petroleum Occidental Inc., Defendants- AirScan Mujica, on behalf Luis Alberto Galvis Appellees, representative of the and as himself and Hernan, Mujica Ed Estates Tereza Johanny Her and ilma Leal Pacheco America, Movant. United States Gelvez, Becerra; nandez Mario Galvis 10-55516, 10-55515, 10-55587. Nos. individually, himself, and on behalf Mujica Appeals, Tereza decedents Court of heir of the as United States and Hernandez, Pacheco Edilma Leal Ninth Circuit. Becerra; Johanny John Hernandez 5, 2014. March Argued and Submitted through Mujica, his Mario Galvis 12, 2014. Nov. Filed and behalf guardian litem ad individually, heir of himself, Mujica Hernan Tereza
the decedents and Johan
dez, Leal Pacheco Edilma Plaintiffs-Ap Becerra,
ny Hernandez
pellees, as a motion Association permissive nia Peace Officers’ Gun motion Prevent Violence's grant the mo- peti- permissive intervention I would also construe intervention. by the Califor- rehearing banc en filed tion for tion. the Califor- Association and nia Police Chiefs'