United Food v. United States Department of Agriculture

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2220
___________________________
United Food and Commercial Workers Union, Local No. 663; United Food and
Commercial Workers Union, Local No. 2; United Food and Commercial Workers
Union, AFL-CIO, CLC; United Food and Commercial Workers Union, Local No.
222, formerly known as United Food and Commercial Workers Union, Local No.
440
Plaintiffs - Appellees
v.
United States Department of Agriculture
Defendant - Appellee
------------------------------
Seaboard Foods LLC
Movant
Quality Pork Processors, Inc.; WholeStone Farms Cooperative, Inc.; Clemens Food
Group, LLC
Movants - Appellants
____________
Appeal from United States District Court
for the District of Minnesota
____________

-- 1 of 8 --

-2-
Submitted: March 16, 2022
Filed: June 7, 2022
____________
Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
____________
BENTON, Circuit Judge.
The United States Department of Agriculture (“USDA”) adopted a rule
eliminating processing-line-speed limits in pork plants. Plaintiffs, unions
representing pork-processing-plant workers, sued to vacate the rule as arbitrary and
capricious. The district court1 granted summary judgment for Plaintiffs and vacated
the rule. Two months later, Appellants—pork-processing companies affected by the
rule and vacatur—moved to intervene. The district court denied the motion as
untimely, noting that Appellants had participated in the summary judgment briefing
eight months earlier. Having jurisdiction under 28 U.S.C. § 1291, this Court affirms.
I.
Under the Federal Meat Inspection Act, 21 U.S.C. § 604, Food Safety and
Inspection Service (“FSIS”) inspectors with the USDA monitor pork-processing
plants, examining hogs before and after slaughter. FSIS regulates the speed of
evisceration-processing lines to ensure adequate post-mortem inspections.
Historically, inspectors directly assessed each hog, separating normal and abnormal
carcasses and parts, which required a rule limiting the speed of evisceration lines.
See 9 C.F.R. § 310.1(b)(3), tbl.4 (listing swine “[m]aximum inspection rates”).
Over 20 years ago, USDA promulgated the Pathogen Reduction/Hazard
Analysis and Critical Control Points (“HACCP”) final rule. That rule updated its
approach to swine inspection to better combat foodborne pathogens, including
1 The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

-- 2 of 8 --

-3-
salmonella and E. coli. See 61 Fed. Reg. 38,806 (July 25, 1996). USDA then
launched the HACCP-Based Inspections Models (“HIMP”) program. It granted
waivers that removed the limits on line speeds for some plants, and allowed workers
to separate abnormal carcasses and parts themselves under set standards, with
inspectors verifying compliance and inspecting randomly sampled carcasses. See
generally 83 Fed. Reg. 4780, 4780, 4783-84 (Feb. 1, 2018) (reviewing history of
program); Am. Fed’n of Gov’t Emps., AFL-CIO v. Veneman, 284 F.3d 125, 126-
27 (D.C. Cir. 2002) (same). Only five plants participated in HIMP, including those
of appellants Clemens Food Group, LLC (“Clemens”), Wholestone Farms
Cooperative, Inc. (“Wholestone”), and Quality Pork Processors, Inc. (“QPP”).
In October 2019, USDA promulgated the optional New Swine Inspection
System (“NSIS”) rule, which supplanted much of HIMP and allowed plant workers
to do much of the carcass-separating work and inspection. See 84 Fed. Reg. 52,300
(Oct. 1, 2019). For plants opting into NSIS, USDA eliminated the line-speed limits
of the traditional, non-HIMP system. According to the final NSIS rule, the existing
HIMP line-speed waivers, including those of Appellants, would end. Those waivers
ended on March 30, 2020, with Appellants’ plants converting to NSIS then.
Plaintiffs, labor unions at pork plants, sued USDA. They challenged, among
other things, the part of the NSIS rule that eliminated line-speed limits. Plaintiffs
urged the district court to vacate the final rule, arguing it failed to consider worker
safety. Their proposed relief did not include reverting to the HIMP waiver system.
Thus, if the district court granted the relief sought, then the original, pre-HIMP line-
speed limits would return for all plants.
In July 2020, Plaintiffs and USDA filed cross-motions for summary judgment.
USDA urged that if the district court found for Plaintiffs on the merits, the proper
relief was remand to USDA without vacating the NSIS rule. USDA argued that
vacatur would disrupt plants that opted into NSIS, causing them to “incur significant
costs to revert to the traditional inspection system.” USDA argued, alternatively,

-- 3 of 8 --

-4-
that the court should vacate only the part of the NSIS rule eliminating line-speed
limits. It did not urge reinstatement of the HIMP waivers.
In August 2020, the North American Meat Institute—an industry group
including all Appellants—and the National Pork Producers Council filed an amicus
brief arguing the court should “uphold the NSIS rule.” The amici argued full vacatur
would be “disruptive” and all but one of the plants that opted into NSIS had
“operated without line speeds for many years under HIMP or a similar waiver.” In
support, the amici filed declarations about the expected impact of vacatur from
executives at appellants Clemens and Wholestone. The amici did not argue that, if
the court vacated the NSIS rule, it should reinstate the HIMP waiver system.
On March 31, 2021, the district court granted summary judgment for Plaintiffs
on the NSIS rule, finding the elimination of line speeds without considering worker
safety was arbitrary and capricious. The court found severable the line-speed part
of the rule, vacated it, and stayed entry of judgment 90 days for “the agency to decide
how to proceed in light of [its] opinion and [to] give regulated entities time to prepare
for any operational change.”
On May 7, 2021—eight months after Clemens and Wholestone executives
participated in the amicus brief—Appellants moved to intervene. They argued they
had converted their plants to comply with NSIS. They sought to intervene to ask the
district court to clarify that vacatur reinstated their prior HIMP waivers, and to stay
the order pending appeal if the court did not issue a clarification.
The district court denied intervention as untimely, reasoning that it came too
late; the Appellants knew about the litigation for a long period; delay based on
surprise at the judgment was unwarranted because Plaintiffs had always sought
vacatur; and intervention would prejudice USDA’s efforts to revise its policies.
Both the district court and this Court denied a stay of judgment pending appeal.

-- 4 of 8 --

-5-
USDA advised plants that the original line-speed limits would be reinstated at
the end of June 2021 when the court’s stay of judgment ended. The district court
entered judgment on June 30, 2021.
In November 2021, USDA invited plants to apply for a temporary permit to
increase line-speeds. In early March 2022, USDA approved permits for three of the
four plants operated by Clemens, Wholestone, and QPP. In April 2022, USDA
approved a permit for the one remaining plant, operated by Clemens.
II.
When a district court denies a motion to intervene as untimely, this Court
reviews for abuse of discretion. Smith v. SEECO, Inc., 922 F.3d 398, 405 (8th Cir.
2019).
Federal Rule of Civil Procedure 24(a)(2) allows an interested party to
intervene in a suit “[o]n a timely motion.” Fed. R. Civ. P. 24(a)(2). “[T]imeliness
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) (“Ritchie”). To assess timeliness,
courts consider four factors: “(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.” Smith, 922 F.3d
at 405 (quotations omitted).
Turning to the first factor: the litigation has progressed to the end-game.
Although no one factor is dispositive, Ritchie, 620 F.3d at 832, this Court disfavors
intervention late in litigation. See, e.g., Arrow v. Gambler’s Supply, Inc., 55 F.3d
407, 409 (8th Cir. 1995) (affirming denial of intervention where movant
“monitored” the suit “for nearly two years and then moved to intervene” only when
the parties settled shortly before trial). Appellants sought to intervene over a month
after the court entered summary judgment and the full vacatur Plaintiffs-Appellees

-- 5 of 8 --

-6-
had sought. This is a “ninth-inning-with-two-outs intervention attempt.” In re
Uponor, Inc., F1807 Plumbing Fittings Prod. Liab. Litig., 716 F.3d 1057, 1066
(8th Cir. 2013) (quotations omitted) (affirming denial of motion to intervene). And
this court “ha[s] denied motions to intervene in cases with far less docket activity.”
Ritchie, 620 F.3d at 832 (denying motion to intervene in bankruptcy proceeding and
citing Ark. Elec. Energy Consumers v. Middle S. Energy, Inc., 772 F.2d 401, 403
(8th Cir. 1985), which “den[ied] [a] motion for intervention filed 12 days after
commencement of action where a hearing already had been held and temporary
restraining order issued”). Given the extremely late time when Appellants sought to
intervene, this factor weighs strongly against intervention.
Turning to the second factor: Appellants had knowledge of the case and
proposed relief well before the court entered summary judgment. This factor
“weighs heavily . . . where the would-be intervenor was aware of the litigation for a
significant period of time before attempting to intervene.” In re Wholesale Grocery
Prod. Antitrust Litig., 849 F.3d 761, 767 (8th Cir. 2017). The relief Appellants
seek—a return to the HIMP waiver system—was an outcome no party advocated at
summary judgment, so Appellants’ interests were never advanced by an actual party.
Even the amici did not advocate reverting to the HIMP waivers. Appellants knew
the risk of full vacatur with reversion to the pre-HIMP system when they filed their
amicus brief and declarations—long before they sought to intervene. No Appellant
avers that it lacked knowledge of the case or of the summary judgment motions.
Thus, the second factor weighs heavily against Appellants. See id.
Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 (2022),
reinforces this conclusion. A district court there entered judgment against the
Kentucky Secretary for Health and Family Services, enjoining a Kentucky law. The
Secretary appealed, and the Sixth Circuit affirmed—but then the Secretary did not
seek further review. Id. at 1008. The Kentucky Attorney General then moved to
intervene. Id. The Sixth Circuit denied the motion, and the Attorney General
appealed. Id. The Supreme Court ruled that the Attorney General should be allowed
to intervene, stating, “[T]he most important circumstance relating to timeliness is

-- 6 of 8 --

-7-
that the attorney general sought to intervene as soon as it became clear that
[Kentucky’s] interests would no longer be protected by the parties in the case.” Id.
at 1012. Until the Secretary declined to seek further review of the Sixth Circuit’s
decision, the Secretary adequately protected Kentucky’s interests and thus the
Kentucky Attorney General’s decision not to intervene earlier was justified. Id.
Moreover, the Attorney General “sought to intervene two days after learning that the
secretary would not continue to” seek review. Id. That two-day interval is a far cry
from the eight-month-long period here. Appellants knew no party was seeking
reinstatement of the HIMP waivers if the NSIS rule were vacated, so no party was
protecting Appellants’ interests.
Turning to the third factor: Appellants’ reason for delay is unpersuasive.
Their proffered reason—that USDA’s interests in defending NSIS aligned with
theirs—fails because, as discussed above, USDA’s interests did not align:
Appellants’ core concern is having the district court return them to the HIMP waiver
system. But neither Plaintiffs nor USDA ever pursued this. Because Appellants’
justification is insufficient, this factor also favors denying intervention. See Ritchie,
620 F.3d at 833-34 (affirming denial of intervention as untimely where appellant did
“not identify any change” relevant to intervention “in the six months between
issuance” of an injunction and appellant’s motion to intervene, so his “justification
for delay [wa]s insufficient”); id. at 833 (“When a party had knowledge of all the
facts—as [appellant] did—and failed to raise the issue when first presented with an
opportunity to do so, subsequent intervention is untimely.”); Wholesale Grocery,
849 F.3d at 767-68 (affirming denial of intervention as untimely where “appellants
do not adequately explain why [one] thought its interests were protected” before
motion to intervene, leaving the court “with more questions than answers” about the
“reason for any delay”); Nevilles v. EEOC, 511 F.2d 303, 306 (8th Cir. 1975)
(affirming denial of intervention after entry of judgment as untimely where proposed
intervenors did not show they lacked “knowledge of the suit during its pendency
which would justify the delay in filing their motion”).

-- 7 of 8 --

-8-
Turning to the final factor: USDA argued the delayed intervention would
frustrate its ability to manage the food safety system and implement new regulation.
The district court agreed, and Appellants have not meaningfully contested its
conclusion. Further, Appellants appear to suffer little prejudice now that all four of
their relevant plants have received line-speed permits. This factor also weighs
against intervention. See Ritchie, 620 F.3d at 834 (affirming denial of intervention
motion as untimely where denying it “would not significantly prejudice [proposed
intervenor], while granting it would significantly prejudice the other parties”); see
also Wholesale Grocery, 849 F.3d at 768 (affirming denial of intervention motion
as untimely without deciding how prejudice weighed).
In sum, all factors weigh in favor of denying the motion to intervene. This
Court affirms the district court’s denial of that motion.
* * * * * * *
The judgment is affirmed.
______________________________

-- 8 of 8 --