Gretchen Stuart v. Janice Huff , 706 F.3d 345 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GRETCHEN S. STUART, MD, on 
behalf of herself and her patients
seeking abortions; JAMES R.
DINGFELDER, MD, on behalf of
himself and his patients seeking
abortions; DAVID A. GRIMES, MD,
on behalf of himself and his
patients seeking abortions; AMY
BRYANT, MD, on behalf of herself
and her patients seeking abortions;
SERINA FLOYD, MD, on behalf of
herself and her patients seeking
abortions; DECKER & WATSON,
INC., d/b/a Piedmont Carolina  No. 12-1052
Medical Clinic; PLANNED
PARENTHOOD OF CENTRAL NORTH
CAROLINA; A WOMAN’S CHOICE OF
RALEIGH, INC.; PLANNED
PARENTHOOD HEALTH SYSTEMS,
INC.; TAKEY CRIST, M.D., on behalf
of himself and his patients seeking
abortions; TAKEY CRIST, M.D.,
P.A., d/b/a Crist Clinic for
Women,
Plaintiffs-Appellees,
v.

2 STUART v. HUFF
JANICE E. HUFF, MD, in her 
official capacity as President of
the North Carolina Medical Board
and her employees, agents and
successors; ROY COOPER, in his
official capacity as Attorney
General of North Carolina and his
employees, agents and successors;
LANIER M. CANSLER, in his official
capacity as Secretary of the North
Carolina Department of Health
and Human Services and his
employees, agents and successors; 
JIM WOODALL, in his official
capacity as District Attorney
("DA") for Prosecutorial District
("PD") 15B and his employees,
agents and successors; TRACEY E.
CLINE, in her official capacity as
DA for PD 14 and her employees,
agents and successors; DOUG
HENDERSON, in his official capacity
as DA for PD 18 and his
employees, agents and successors;

STUART v. HUFF 3
BILLY WEST, in his official 
capacity as DA for PD 12 and his
employees, agents and successors;
C. COLON WILLOUGHBY, JR., in his
official capacity as DA for PD 10
and his employees, agents and
successors; BENJAMIN R. DAVID, in
his official capacity as DA for PD
5 and his employees, agents and
successors; JIM O’NEILL, in his
official capacity as DA for PD 21
and his employees, agents and
successors; ERNIE LEE, in his

official capacity as DA for PD 4
and his employees, agents and
successors,
Defendants,
and
JOHN M. THORP, JR., MD; GREGORY
J. BRANNON, MD; MARTIN J.
MCCAFFREY, MD; CHIMERE
COLLINS; DALLENE HALLENBECK;
TRACIE JOHNSON; LANITA WILKS;
ASHEVILLE PREGNANCY SUPPORT
SERVICES; PREGNANCY RESOURCE
CENTER OF CHARLOTTE,
Appellants.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Catherine C. Eagles, District Judge.
(1:11-cv-00804-CCE-LPA)
4 STUART v. HUFF
Argued: December 4, 2012
Decided: January 24, 2013
Before TRAXLER, Chief Judge, and WILKINSON and
DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Duncan
joined.
COUNSEL
ARGUED: Samuel Brown Casey, III, JUBILEE
CAMPAIGN-LAW OF LIFE PROJECT, Washington, D.C.,
for Appellants. Anton Metlitsky, O’MELVENY & MYERS,
LLP, New York, New York, for Appellees. ON BRIEF: Ste-
ven H. Aden, ALLIANCE DEFENDING FREEDOM, Wash-
ington, D.C.; W. Eric Medlin, ROBERTSON, MEDLIN &
BLOSS, PLLC, Greensboro, North Carolina, for Appellants.
Katherine Lewis Parker, AMERICAN CIVIL LIBERTIES
UNION OF NORTH CAROLINA LEGAL FOUNDATION,
Raleigh, North Carolina; Andrew D. Beck, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York,
New York; Walter Dellinger, Laura Conn, O’MELVENY &
MYERS, LLP, Washington, D.C.; Bebe J. Anderson, CEN-
TER FOR REPRODUCTIVE RIGHTS, New York, New
York; Helene T. Krasnoff, PLANNED PARENTHOOD FED.
OF AMERICA, Washington, D.C., for Appellees.
STUART v. HUFF 5
OPINION
WILKINSON, Circuit Judge:
In late 2011, plaintiffs challenged the constitutionality of
the North Carolina "Woman’s Right to Know Act," ("the
Act"), a statute that requires certain informed consent proce-
dures prior to the performance of an abortion, N.C. Gen. Stat.
§§ 90-21.80 to -21.92. Although the North Carolina Attorney
General actively sought to defend the statute, appellants—a
group of pro-life medical professionals, women who have
previously undergone abortions, and pregnancy counseling
centers—filed a motion to intervene as defendants in the suit.
The district court denied their motion. Because the court did
not abuse its discretion in doing so, we affirm.
I.
The North Carolina General Assembly enacted the
Woman’s Right to Know Act in July 2011. The Act requires
that a "physician who is to perform [an] abortion, or [a] quali-
fied technician" must provide the pregnant woman with a
real-time ultrasound display of the fetus and a "simultaneous
explanation of what the display is depicting." N.C. Gen. Stat.
§ 90-21.85(a). In addition to these real-time display and
explanation requirements, the Act contains certain other
informed consent provisions and authorizes civil remedies
against persons who violate the law. Id. §§ 90-21.82, -21.88,
-21.90.
Plaintiffs are a group of physicians and medical centers that
provide abortion services. On September 29, 2011, they filed
a complaint in the United States District Court for the Middle
District of North Carolina seeking a declaration that the Act
violates the First and Fourteenth Amendment rights of physi-
cians and their patients, along with an injunction preventing
enforcement of the Act. Plaintiffs also filed a motion for a
temporary restraining order and preliminary injunction. The
6 STUART v. HUFF
merits of plaintiffs’ claims are not at issue in this appeal, but
the procedural history of the lawsuit is relevant to our evalua-
tion of the district court’s denial of appellants’ motion to
intervene.
On October 12, the defendants in the underlying suit—a
number of state officials represented by the North Carolina
Attorney General—filed their opposition to the motion for a
preliminary injunction. The district court held a hearing on the
motion five days later, which lasted nearly three hours. Dur-
ing that hearing, the Attorney General (through a special dep-
uty) pressed numerous arguments for upholding the Act under
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992), which upheld an abortion informed con-
sent statute against a similar challenge. In particular, the
Attorney General argued that the Act should be upheld
because Casey recognizes the state’s "profound interest in
potential life"; its "permissible purpose" of informing women
considering an abortion of the procedure’s "potential conse-
quences" for their "future psychological and emotional
health"; and its ability to require the communication of "truth-
ful and non-misleading" information to patients. The Attorney
General did not introduce factual evidence in support of the
Act, choosing instead to rely on the above legal arguments
from Casey.
The district court ruled on the motion on October 25, issu-
ing a preliminary injunction against the Act’s real-time dis-
play and explanation requirements, but denying the motion
with respect to the remainder of the Act. Stuart v. Huff, 834
F. Supp. 2d 424, 437 (M.D.N.C. 2011). Those unaffected por-
tions of the Act went into effect the next day. Deciding to liti-
gate the case to final judgment rather than appeal the
preliminary injunction, the Attorney General filed an answer
and moved to dismiss the complaint two weeks later.
Appellants in this matter are a group of pro-life doctors,
former abortion patients, and pregnancy counseling centers.
STUART v. HUFF 7
On November 8, they filed a motion to intervene as defen-
dants in the case, the subject of this appeal. Appellants sought
to intervene as a matter of right pursuant to Federal Rule of
Civil Procedure 24(a), and, alternatively, as a permissive mat-
ter pursuant to Rule 24(b).
The district court denied the motion on both grounds. With
regard to intervention as of right, the court focused on the
requirement under Rule 24(a)(2) that "the proposed interve-
nors must demonstrate that their interests are not being ade-
quately represented by the existing [d]efendants." J.A. 605.
The court noted two presumptions that cut against the appel-
lants on this point. First, the court explained that "‘[w]hen the
party seeking intervention has the same ultimate objective as
a party to the suit, a presumption arises that its interests are
adequately represented,’" which can only be rebutted by a
showing of "‘adversity of interest, collusion, or nonfea-
sance.’" Id. at 606 (quoting Virginia v. Westinghouse Elec.
Corp., 542 F.2d 214, 216 (4th Cir. 1976)). The presumption
applied in this case, the court held, because the appellants and
the existing defendants share "precisely the same goal: to
uphold the Act as constitutionally permissible." Id.
The court also explained that because the existing defen-
dant in this case is a government agency, a "very strong show-
ing of inadequacy" is needed to warrant intervention. J.A.
606. This is so, the court reasoned, because "acting in a type
of representative capacity is a basic governmental function,
and the business of the government could hardly be conducted
if, in matters of litigation, individual citizens could usually or
always intervene and assert individual points of view." Id.
After identifying the applicable legal standard, the district
court considered the appellants’ chief contention: that their
interests were not being adequately represented because the
Attorney General did not introduce evidence in opposition to
the preliminary injunction motion. The court rejected this
argument, pointing out that the Attorney General had filed a
8 STUART v. HUFF
"thorough and substantial brief" and had "argued zealously in
opposition to the motion for injunctive relief." J.A. 607. The
court explained, moreover, that while the "proposed interve-
nors may have disagreed with the [d]efendants’ tactical deci-
sions," such a disagreement does not amount to the necessary
showing of adversity of interest, collusion, or nonfeasance
that would "rebut the presumption of adequacy." Id. The court
accordingly denied the motion for intervention as of right.
The district court then addressed the appellants’ request for
permissive intervention. Citing Federal Rule of Civil Proce-
dure 24(b)(3), which requires courts to "consider whether the
intervention will unduly delay" the litigation, the court denied
permissive intervention on the ground that adding the interve-
nors would "complicate the discovery process and consume
additional resources of the court and the parties." J.A. 608.
The would-be intervenors now appeal the district court’s
decision.
II.
The Federal Rules of Civil Procedure provide two avenues
for intervention relevant to this appeal. Under Rule 24(a)(2),
a district court must permit intervention as a matter of right
if the movant can demonstrate "(1) an interest in the subject
matter of the action; (2) that the protection of this interest
would be impaired because of the action; and (3) that the
applicant’s interest is not adequately represented by existing
parties to the litigation." Teague v. Bakker, 931 F.2d 259,
260-61 (4th Cir. 1991). If intervention of right is not war-
ranted, a court may still allow an applicant to intervene per-
missively under Rule 24(b), although in that case the court
must consider "whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights." Fed.
R. Civ. P. 24(b)(3).
It is well settled that district court rulings on both types of
intervention motions are to be reviewed for abuse of discre-
STUART v. HUFF 9
tion. In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991).
Deferential appellate review is proper here for many reasons,
the first of which is that Rule 24’s requirements are based on
dynamics that develop in the trial court and that the court is
accordingly in the best position to evaluate. Indeed, appellate
deference is customarily appropriate where trial judges are
tasked with exercising judgment based on their "‘on the
scene’ presence." Martha S. Davis, Standards of Review:
Judicial Review of Discretionary Decisionmaking, 2 J. App.
Prac. & Process 47, 49 (2000). Thus, in the intervention con-
text, it is the trial judge who is best able to determine whether,
for example, a proposed intervenor’s interests are being ade-
quately represented by an existing party pursuant to Rule
24(a)(2). Indeed, the trial court’s superior vantage point was
evident in this very case when the judge noted the Attorney
General’s "detailed, thorough, and substantial brief" and
"zealous" oral argument in opposition to the preliminary
injunction. J.A. 607.
Appellate review is necessarily limited in this setting for
another reason: "Questions of trial management are quint-
essentially the province of the district courts." United States
v. Smith, 452 F.3d 323, 332 (4th Cir. 2006); see also, e.g.,
Arnold v. E. Air Lines, Inc., 681 F.2d 186, 194 (4th Cir. 1982)
(noting that "many details of trial management" are "necessar-
ily committed to broad trial court discretion"). It is incontro-
vertible that motions to intervene can have profound
implications for district courts’ trial management functions.
Additional parties can complicate routine scheduling orders,
prolong and increase the burdens of discovery and motion
practice, thwart settlement, and delay trial. This is particularly
so where, as here, the proposed intervenors are themselves
differently situated entities. The district court thus rightly
expressed its concern that "[a]dding three groups of interve-
nors would necessarily complicate the discovery process and
consume additional resources of the court and the parties."
J.A. 608.
10 STUART v. HUFF
With these boundaries of our reviewing role in mind, we
examine the appellants’ arguments for intervention.
III.
The district court denied the appellants’ motion to intervene
as of right based on its finding that the Attorney General was
adequately representing their interests. The court’s conclusion
rested on two presumptions. First, the court reasoned that
where a proposed intervenor’s ultimate objective is the same
as that of an existing party, the party’s representation is pre-
sumptively adequate, rebuttable only by a showing of adverse
interests, collusion, or nonfeasance. Second, the court
explained that where the party who shares the intervenor’s
objective is a government agency, the intervenor has the bur-
den of making a strong showing of inadequacy.
Appellants contend that the court’s ruling was an abuse of
discretion in two regards. To begin, although they concede
that the court was correct to apply the first presumption, they
dispute the second. That is, appellants claim that the district
court was wrong to demand a strong showing of inadequacy
due to the fact that the Attorney General is a government offi-
cial. According to appellants, our precedents dictate that the
burden of demonstrating inadequate representation ought only
to be a minimal one. Appellants then argue that they satisfied
this minimal burden by demonstrating adversity of interest
with and, alternatively, nonfeasance by the Attorney General.
We consider these arguments in turn.
A.
We begin with appellants’ contention that, regardless of the
fact that the existing defendants are represented by a govern-
ment agency, the burden of "showing inadequacy of represen-
tation" ought to be "minimal," in contrast to the "very strong
showing" required by the district court.
STUART v. HUFF 11
We disagree. Although our circuit has yet to address the
question of whether a more exacting showing of inadequacy
should be required where the proposed intervenor shares the
same objective as a government party, every circuit to rule on
the matter has held in the affirmative. See, e.g., Arakaki v.
Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003); Daggett v.
Comm’n on Governmental Ethics & Election Practices, 172
F.3d 104, 111 (1st Cir. 1999); Wade v. Goldschmidt, 673 F.2d
182, 186 n.7 (7th Cir. 1982). We find this position persuasive
for several reasons.
To start, it is among the most elementary functions of a
government to serve in a representative capacity on behalf of
its people. In matters of public law litigation that may affect
great numbers of citizens, it is the government’s basic duty to
represent the public interest. And the need for government to
exercise its representative function is perhaps at its apex
where, as here, a duly enacted statute faces a constitutional
challenge. In such cases, the government is simply the most
natural party to shoulder the responsibility of defending the
fruits of the democratic process. As the Supreme Court stated
in the related standing context in Diamond v. Charles,
"[b]ecause the State alone is entitled to create a legal code,
only the State has the kind of direct stake" needed to defend
"the standards embodied in that code" against a constitutional
attack. 476 U.S. 54, 65 (1986) (internal quotation marks omit-
ted).
Moreover, when a statute comes under attack, it is difficult
to conceive of an entity better situated to defend it than the
government. It is after all the government that, through the
democratic process, gains familiarity with the matters of pub-
lic concern that lead to the statute’s passage in the first place.
Thus in this case, while defending the Act in district court, the
Attorney General vigorously pressed the state’s important
interests in "protecting the woman’s future psychological
health," "promoting the potential life of the unborn child," and
ensuring that each woman has the "opportunity to fully appre-
12 STUART v. HUFF
ciate the consequences [of an abortion] to herself and to her
unborn child."
Finally, to permit private persons and entities to intervene
in the government’s defense of a statute upon only a nominal
showing would greatly complicate the government’s job.
Faced with the prospect of a deluge of potential intervenors,
the government could be compelled to modify its litigation
strategy to suit the self-interested motivations of those who
seek party status, or else suffer the consequences of a geomet-
rically protracted, costly, and complicated litigation. In short,
"the business of the government could hardly be conducted if,
in matters of litigation, individual citizens could usually or
always intervene and assert individual points of view." 6
Moore’s Federal Practice § 24.03[4][a][iv][A] (3d ed. 2011).
Appellants respond that the requirement of a "very strong
showing" of inadequacy by a government party is inconsistent
with Supreme Court precedent and the law of this circuit.
Specifically, they point to the Supreme Court’s decision in
Trbovich v. United Mine Workers, which held that Rule 24(a)
is "satisfied if the applicant shows that representation of his
interest may be inadequate; and the burden of making that
showing should be treated as minimal." 404 U.S. 528, 538
n.10 (1972) (emphasis added) (internal quotation marks omit-
ted); see also United Guar. Residential Ins. Co. of Iowa v.
Phila. Sav. Fund Soc’y, 819 F.2d 473, 475 (4th Cir. 1987).
Appellants’ argument misses the mark. For in Trbovich and
United Guaranty the proposed intervenors did not even share
the same ultimate objective as an existing party. Thus, in
Trbovich, the Supreme Court expressly noted that the Secre-
tary of Labor was compelled by statute to "serve two distinct
interests," such that the Secretary’s ultimate objective was not
the same as that of the proposed intervenor to begin with. 404
U.S. at 538. Likewise, in United Guaranty, we observed that
the existing defendant’s objectives were apparently "at cross
purposes" with the proposed intervenor. 819 F.2d at 476.
STUART v. HUFF 13
Contrary to the appellants’ claim, then, Trbovich and
United Guaranty stand for the conventional proposition that
where the existing party and proposed intervenor seek diver-
gent objectives, there is less reason to presume that the party
(government agency or otherwise) will adequately represent
the intervenor. In such circumstances, it is perfectly sensible
to require a more modest showing of inadequacy before grant-
ing intervention of right since an existing party is not likely
to adequately represent the interests of another with whom it
is at cross purposes in the first instance.
That is not so here, however, where appellants concede that
they share the same ultimate objective as the existing defen-
dants and where those defendants are represented by a gov-
ernment agency. Both the government agency and the would-
be intervenors want the statute to be constitutionally sus-
tained. In this context, for the reasons described above, we
join our fellow courts of appeals in holding that the putative
intervenor must mount a strong showing of inadequacy. To
hold otherwise would place a severe and unnecessary burden
on government agencies as they seek to fulfill their basic duty
of representing the people in matters of public litigation.
B.
Appellants next argue that they have sufficiently demon-
strated adversity of interest with and, alternatively, nonfea-
sance by the Attorney General, thereby rebutting the
presumption of adequacy that arises because they share the
same objective. The district court rejected both arguments,
and we hold that it did not abuse its discretion in doing so. For
rather than making the necessary strong showing, appellants
have demonstrated merely that they disagree with the Attor-
ney General’s reasonable litigation tactics.
1.
First as to adversity of interest. Appellants begin by point-
ing to their desire to ensure that "a pregnant woman under-
14 STUART v. HUFF
stands the potential risk and harms to the child so that she can
make the decision for the child." Appellants’ Br. 21. Appel-
lants assert that, as women who have experienced the effects
of the procedure first-hand and doctors and medical centers
who provide care to pregnant women, their interests are "sep-
arate and distinct from the State’s." Id. Far from showing
adversity with the Attorney General, however, this argument
actually underscores how the appellants and Attorney General
are motivated by the same underlying concerns. Indeed, the
Attorney General pressed this exact argument during the pre-
liminary injunction hearing, noting that the state possessed an
"interest in ensuring that the woman not undergo an abortion
without at least having an opportunity to fully appreciate the
consequences . . . to her unborn child."
Appellants next point to their interest in preserving the civil
remedies provision of the statute, N.C. Gen. Stat. § 90-21.88.
But that interest also fails to establish adversity with the
Attorney General. For one, the civil remedies provision
creates a right of action for injunctive relief not just for cer-
tain of the proposed intervenors, but also for the Attorney
General himself. See id. § 90-21.88(b). The Attorney Gener-
al’s interest in upholding the civil remedies provision is there-
fore in common with the proposed intervenors’ interest, not
adverse to it. Moreover, the alignment between the Attorney
General and the intervenors on this point is borne out by the
fact that the district court has already upheld the civil reme-
dies provision in its entirety. The Attorney General’s actions,
in other words, speak for themselves: he has successfully
defended the very civil remedies provision that appellants also
seek to uphold, belying any suggestion of adversity.
At bottom, appellants’ argument is that as the "class of ben-
eficiaries protected by the Act," their interests in defending
the Act are "stronger" and more "specific" than the state’s
general interest. But stronger, more specific interests do not
adverse interests make—and they surely cannot be enough to
establish inadequacy of representation since would-be interve-
STUART v. HUFF 15
nors will nearly always have intense desires that are more par-
ticular than the state’s (or else why seek party status at all).
Allowing such interests to rebut the presumption of adequacy
would simply open the door to a complicating host of inter-
vening parties with hardly a corresponding benefit.
In the absence of any identifiable adverse interests, appel-
lants assert that the district court should have inferred adver-
sity because, in defending the Act, the Attorney General made
certain strategic decisions with which appellants disagree. In
particular, appellants contend that the Attorney General relied
on legal arguments at the preliminary injunction stage and
chose to litigate the case to final judgment, whereas they
would have presented factual evidence and immediately
appealed the preliminary injunction. Appellants suggest that
these "divergent approaches to the conduct of the litigation"
warrant a finding of adversity because, in their view, the gov-
erning test from United Guaranty is whether the existing
party and the intervenor’s interests "may ‘always dictate pre-
cisely the same approach to the conduct of the litigation.’"
819 F.2d at 475 (quoting Trbovich, 404 U.S. at 539).
But again, United Guaranty and Trbovich are inapposite
because unlike in those cases, the appellants here concede that
they share the same objective as the existing government
defendants: upholding the constitutionality of the Act. In this
context, the relevant and settled rule is that disagreement over
how to approach the conduct of the litigation is not enough to
rebut the presumption of adequacy. See, e.g., Perry v. Prop.
8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009)
("Mere differences in litigation strategy are not enough to jus-
tify intervention as a matter of right.") (internal quotation
marks omitted); Saldano v. Roach, 363 F.3d 545, 555 (5th
Cir. 2004) ("Simply because the [intervenor] would have
made a different [litigation] decision does not mean that the
Attorney General is inadequately representing the State’s
interest."); Chiglo v. City of Preston, 104 F.3d 185, 188 (8th
Cir. 1997) ("[T]he proposed intervenor cannot rebut the pre-
16 STUART v. HUFF
sumption of representation by merely disagreeing with the lit-
igation strategy . . . of the party representing him."); see also
7C Charles Alan Wright et al., Federal Practice and Proce-
dure § 1909 (3d ed. 2007) ("A mere difference of opinion
concerning the tactics with which the litigation should be han-
dled does not make inadequate the representation of those
whose interests are identical with that of an existing party.").
Nor could it be any other way. There will often be differ-
ences of opinion among lawyers over the best way to
approach a case. It is not unusual for those who agree in prin-
ciple to dispute the particulars. To have such unremarkable
divergences of view sow the seeds for intervention as of right
risks generating endless squabbles at every juncture over how
best to proceed. There is much to be said, frankly, for simpli-
fying rather than complicating the litigation process. We thus
hold that the district court did not err in concluding that the
appellants failed to establish adversity of interest with the
Attorney General.
2.
Appellants next attempt to rebut the presumption of ade-
quacy by repackaging their disagreements with the Attorney
General’s litigation decisions as "evidence of nonfeasance."
According to appellants, the district court abused its discre-
tion when it rejected this argument, concluding instead that
the Attorney General’s choice to rely on legal arguments
under Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992), was a reasonable "tactical deci-
sion," J.A. 607.
Again we find the appellants’ position unavailing. The
Attorney General’s decision to concentrate his argument on
Casey was hardly nonfeasance given that Casey upheld a
Pennsylvania informed consent law that bears many similari-
ties to the statute at bar. See 505 U.S. at 881-87. Both statutes,
for example, require abortion providers to make certain infor-
STUART v. HUFF 17
mation available to pregnant women at least twenty-four
hours before the procedure, such as the probable gestational
age of the unborn child, the medical risks associated with the
procedure, and the medical risks of carrying the child to term.
Compare N.C. Gen. Stat. § 90-21.82, with 18 Pa. Cons. Stat.
§ 3205. The reasonableness of the Attorney General’s choice
is particularly manifest given that it was largely successful:
the district court upheld every provision of the Act except for
its real-time display and explanation requirements. Moreover,
the Fifth Circuit recently upheld a nearly identical real-time
fetal display and explanation statute against a motion for a
preliminary injunction using reasoning under Casey that
closely tracks the arguments made by the Attorney General in
this case. See Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 574-80 (5th Cir. 2012).
Nor was it nonfeasance for the Attorney General to choose
to litigate the merits of the Act through to final judgment
rather than appeal the preliminary injunction. It was emi-
nently reasonable for the Attorney General to believe that the
interests of North Carolina’s citizens would best be served by
an expeditious final ruling on the constitutionality of the Act,
as opposed to prolonged intermediate litigation over the pre-
liminary injunction. Federal case law is in accord. See, e.g.,
Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 378 F.3d
774, 781 (8th Cir. 2004) (finding representation by govern-
ment defendant to be adequate even though it declined to
appeal an adverse district court order); Saldano, 363 F.3d at
554 (holding that the Texas Attorney General’s decision not
to appeal an adverse decision did not make him "an inade-
quate representative of the State’s interest"); see also Wright
et al., supra, at § 1909 ("[A] decision not to take an appeal is
ordinarily within the discretion of the representative.").
In sum, appellants have done little more than identify rea-
sonable litigation decisions made by the Attorney General
with which they disagree. Such differences of opinion cannot
be sufficient to warrant intervention as of right, for, as already
18 STUART v. HUFF
discussed, the harms that the contrary rule would inflict upon
the efficiency of the judicial system and the government’s
representative function are all-too-obvious. The damage
wrought by such a ruling would be especially senseless in a
case such as this one, where as the district court found, the
existing defendants are "zealously" and "vigorously" defend-
ing the Act. J.A. 607. We therefore hold that the district court
did not abuse its discretion in rejecting appellants’ claim of
nonfeasance.
C.
Appellants next challenge the district court’s denial of their
request for permissive intervention under Rule 24(b)(1)(B),
which provides that a district court "may permit" intervention
if the applicant has "a claim or defense that shares with the
main action a common question of law or fact." Critically, the
rule also states that "[i]n exercising its discretion" to permit
intervention, a district court "must consider whether the inter-
vention will unduly delay . . . the adjudication." Fed. R. Civ.
P. 24(b)(3).
In this case, the district court noted that "[a]dding three
groups of intervenors would necessarily complicate the dis-
covery process and consume additional resources of the court
and the parties." J.A. 608. The court further reasoned that per-
mitting intervention would likely "result in undue delay in
adjudication of the merits, without a corresponding benefit to
existing litigants, the courts, or the process" because "the
existing [d]efendants are zealously pursuing the same ultimate
objectives" as the appellants. Id. The court denied permissive
intervention for that reason, and we find no error in its ruling.
IV.
Our decision today does not leave appellants without
recourse. Appellants retain the ability to present their views
in support of the Act by seeking leave to file amicus briefs
STUART v. HUFF 19
both in the district court and in this court. See Francis v.
Chamber of Commerce, 481 F.2d 192, 194-96 (4th Cir. 1973)
(affirming district court’s decision to deny a motion to inter-
vene and instead permit the would-be intervenor to file an
amicus brief); Fed. R. App. P. 29 (describing the procedure
for filing amicus briefs in the courts of appeal). Indeed, when
asked at oral argument whether amicus participation would be
a viable alternative to intervenor status, appellants’ counsel
noted that he files amicus briefs in cases like this "all the
time." While a would-be intervenor may prefer party status to
that of friend-of-court, the fact remains that amici often make
useful contributions to litigation. The availability of such
alternative avenues of expression reinforces our disinclination
to drive district courts into multi-cornered lawsuits by indis-
criminately granting would-be intervenors party status and all
the privileges pertaining thereto.
V.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED