 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 18, 2013            Decided January 24, 2014

                       No. 12-5020

                 JAMES H. ROANE, ET AL.,
                       APPELLEES

                      JEFFREY PAUL,
                        APPELLANT

         BRUCE WEBSTER AND ANTHONY BATTLE,
                     APPELLEES

                             v.

      MICHELE M. LEONHART, ADMINISTRATOR, DRUG
         ENFORCEMENT ADMINISTRATION, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:05-cv-02337)


    Keith M. Rosen argued the cause for appellant. With him
on the briefs was Abbe David Lowell. Gary Proctor entered
an appearance.

    Benton Peterson, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Ronald C.
                                  2
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

   Before: TATEL and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

     Opinion for the Court filed by Circuit Judge GRIFFITH.

     GRIFFITH, Circuit Judge: Federal death row inmate
Jeffrey Paul moved to intervene in this lawsuit, which
challenges the government’s method of carrying out lethal
injections and its failure to disclose its execution procedures.
The district court denied his motion. For the reasons set forth
below, we reverse.

                                  I

    Three federal death row inmates filed this lawsuit in
December 2005 against various officials responsible for
designing and implementing the federal lethal injection
protocol. * Although their primary claim alleged that the three-
drug cocktail called for in the protocol violated the Eighth

     *
        These defendants were (a) the Attorney General, who has
final responsibility for carrying out executions; (b) the Director of
the Bureau of Prisons, who is tasked with promulgating rules and
regulations governing federal executions; (c) the Medical Director
of the Bureau of Prisons, who is responsible for overseeing the
provision of medical care to federal inmates; (d) the Warden of the
United States Penitentiary at Terre Haute, Indiana, who is charged
with management of the federal prison where all executions are
carried out; (e) the Clinical Director at Terre Haute, who is the
chief medical officer at that prison; and (f) the Administrator of the
Drug Enforcement Agency, who is responsible for regulating the
manufacture, distribution, and possession of controlled substances,
including the drugs used in carrying out executions.
                              3
Amendment’s bar against cruel and unusual punishment, the
inmates also brought a due process challenge to the
government’s refusal to disclose the procedures that would be
used to execute them. The district court stayed their
executions pending the resolution of these claims.

    The inmates’ lawsuit has not proceeded quickly. The suit
was stayed in February 2006 pending the outcome of Hill v.
McDonough, 547 U.S. 573 (2006), which raised the question
of whether a challenge to a state lethal injection protocol
could proceed under 42 U.S.C. § 1983. In June 2006, the
Supreme Court announced that it could. In the wake of the
decision in Hill, the government successfully sought
extensions of time in August 2006 and October 2006 to
answer the inmates’ complaint, finally doing so in November
2006. By the time of the original discovery deadline in June
2007, little discovery had been conducted and not a single
deposition had been taken. That same month, the district court
allowed three other death row inmates to intervene in the suit
and ordered that discovery be extended until January 2008.
But in December 2007, the suit was stayed once again
pending the resolution of Baze v. Rees, 553 U.S. 35 (2008), an
Eighth Amendment challenge to Kentucky’s lethal-injection
protocol. When the Supreme Court upheld Kentucky’s
protocol, the litigation in this case resumed, though activity
was limited to some additional discovery and motions.

     In April 2011, the government notified the district court
that sodium thiopental, one of the three drugs used to carry
out executions as called for by the federal protocol, was no
longer available. (The record does not explain the reason
why.) In July 2011, the government informed the court that in
light of the unavailability of sodium thiopental it had decided
to alter the drug mixture used in its executions. Since then,
activity in this case has been limited to the government filing
                              4
monthly status reports as it continues the still-uncompleted
process by which it will eventually determine what drug
combination will be used. In the meantime, the inmates’
claims remain unresolved.

     Paul, who had already been convicted of murder and
sentenced to death, see United States v. Paul, 217 F.3d 989,
995 (8th Cir. 2000), moved to intervene, both permissively
and as of right, on October 6, 2009, the day after his
unsuccessful post-conviction proceedings came to a close.
Paul’s motion stipulated that he would not seek to revisit any
of the issues already decided by the district court, the same
concession made by three other death row inmates who the
district court allowed to intervene in 2007.

     Paul pointed to this concession and the fact that the
litigation was still in its early stages to argue that his
intervention motion was timely because granting it would not
disrupt or delay the current litigation to the detriment of the
existing parties. But the district court denied his motion as
untimely, characterizing Paul’s argument that the litigation
would not be disrupted as “speculation” and emphasizing the
significant amount of time that had elapsed since the suit was
filed in 2005. Paul unsuccessfully moved for reconsideration
by the district court. When his motion was denied, he
appealed to this court. We have jurisdiction under 28 U.S.C.
§ 1291.

                              II

    According to the government, we need not reach the
merits of Paul’s appeal because it has been rendered moot by
the unavailability of sodium thiopental. Even though it was
not raised below, we consider the suggestion of mootness
                               5
because it “implicates our jurisdiction.” St. Paul Fire &
Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978).

     The mootness doctrine is rooted in the constitutional
requirement that “limits federal courts to deciding actual,
ongoing controversies.” Am. Bar Ass’n v. FTC, 636 F.3d 641,
645 (D.C. Cir. 2011) (internal quotation marks omitted). “A
case becomes moot . . . when the issues presented are no
longer live or the parties lack a legally cognizable interest in
the outcome.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726
(2013) (internal quotation marks omitted). Accordingly, even
if “litigation poses a live controversy when filed,” a court is
required to “refrain from deciding it if events have so
transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future.” Am. Bar Ass’n, 636 F.3d at 645
(internal quotation marks omitted).

     The government argues this suit is moot because it has
ceased using the three-drug mixture that the inmates
challenge. But this argument falters under the "voluntary
cessation" exception to mootness, which states that a lawsuit
is not mooted by a defendant's voluntary cessation of
challenged activity unless that defendant "demonstrat[es] that
there is no reasonable expectation that the wrong will be
repeated." Id. at 648 (internal quotation marks omitted). Here,
the government cannot meet that heavy burden because it has
merely suspended executions using the three-drug cocktail
called for by the current protocol and has not yet issued a new
protocol. The government further argues that the
unavailability of sodium thiopental removes the very reason
Paul seeks to join the lawsuit. Without sodium thiopental, no
one can be executed using the three-drug cocktail Paul seeks
to challenge. But the government’s argument overlooks the
fact that not all of the claims in this lawsuit are tied to that
                                6
cocktail. The inmates’ due process challenge, which attacks a
refusal to disclose the procedures that will be used to execute
them, is an independent claim that remains live regardless of
whether the government can use the particular combination of
drugs it has used in the past. This suit still presents a live
controversy, and we must consider the merits of Paul’s
argument that he is entitled to intervene. See Knox v. Serv.
Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012)
(“[A]s long as the parties have a concrete interest, however
small, in the outcome of the litigation, the case is not moot.”
(alteration in original) (internal quotation marks omitted)).

                               III

     A district court must grant a timely motion to intervene
that seeks to protect an interest that might be impaired by the
action and that is not adequately represented by the parties.
See FED. R. CIV. P. 24(a)(2); Karsner v. Lothian, 532 F.3d
876, 885 (D.C. Cir. 2008). The district court determined that
although Paul had a legally protected interest in this lawsuit, it
would not be impaired by this suit and would be adequately
represented by the other inmates. Most importantly for this
appeal, the district court ruled that Paul’s motion to intervene
was simply brought too late in a lawsuit that already had
taken too much time.

    On appeal, Paul challenges each of those determinations.
Significantly, the government defends only one: that Paul’s
motion was untimely. We see no reason to question the
government’s apparent concession that in all other ways
Paul’s motion was adequate. At a minimum, if the suit
proceeds without Paul, a decision rejecting the inmates’
claims could establish unfavorable precedent that would make
it more difficult for Paul to succeed on similar claims if he
brought them in a separate lawsuit of his own, which is
                               7
sufficient to support intervention under our caselaw. See Fund
for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir.
2003); see also Nuesse v. Camp, 385 F.2d 694, 702 (D.C. Cir.
1967). Likewise, it seems obvious that the existing parties to
the suit may be inadequate representatives of Paul. See
Hodgson v. United Mine Workers of Am., 473 F.2d 118, 130
(D.C. Cir. 1972). Unlike him, they have little reason to press
for the rapid resolution of the suit because their executions
have been stayed. Therefore, we focus the remainder of our
discussion on the disputed question of whether Paul’s motion
was timely. We review a district court’s assessment of
timeliness for abuse of discretion. See Natural Res. Def.
Council v. Costle, 561 F.2d 904, 907 (D.C. Cir. 1977).

     The timeliness of a motion to intervene is “to be judged
in consideration of all the circumstances.” Smoke v. Norton,
252 F.3d 468, 471 (D.C. Cir. 2001) (internal quotation marks
omitted). Though the “time elapsed since the inception of the
suit” is relevant, id. (internal quotation marks omitted),
measuring the length of time passed “is not in itself the
determinative test,” Hodgson, 473 F.2d at 129, because we do
not require timeliness for its own sake. See 7C CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 1916, at 532 (3d ed. 2007) (“The timeliness requirement is
not intended as a punishment for the dilatory . . . .”). Instead,
the requirement of timeliness is aimed primarily at preventing
potential intervenors from unduly disrupting litigation, to the
unfair detriment of the existing parties. See id. at 541 (“The
most important consideration in deciding whether a motion
for intervention is untimely is whether the delay in moving for
intervention will prejudice the existing parties to the case.”);
cf. Hodgson, 473 F.2d at 128-29. Thus, even where a would-
be intervenor could have intervened sooner, in assessing
timeliness a court must weigh whether any delay in seeking
                               8
intervention “unfairly disadvantage[d] the original parties.”
Costle, 561 F.2d at 908.

     The district court lost sight of this fundamental principle.
Though acknowledging Paul’s argument that no existing party
would be prejudiced by his intervention, and even recognizing
that his argument might have merit, the court declined to give
any weight to the point, believing that speculating as to
whether other parties would be prejudiced was “risky.” The
court focused instead on the amount of time that had elapsed
since the suit had been filed. Because Paul could have
intervened earlier, the court ruled that he should have
intervened earlier. In the district court’s view, Paul’s undue
delay rendered his motion to intervene untimely.

     That determination was an abuse of the court’s discretion.
In focusing on the amount of time that had elapsed between
the filing of the lawsuit and Paul’s motion to intervene, the
district court overlooked what the relevant caselaw says is the
most important consideration: the fact that granting Paul
intervention was highly unlikely to disadvantage the existing
parties. See Costle, 561 F.2d at 907-08. Paul both foreswore
reopening discovery and stipulated that he would not seek to
revisit issues that had already been decided. See id. at 908
(explaining that the risk of prejudice to existing parties was
minimal since the putative intervenor did not seek to upset
prior decisions in the case). Furthermore, adding Paul as a
party would have required no additional factual development.
The claims in this litigation are legal challenges to the federal
government’s execution protocol. Cf. United States v. Am.
Tel. & Tel. Co., 642 F.2d 1285, 1294 (D.C. Cir. 1980)
(explaining that intervention motion, which would have been
untimely if made for the purpose of “presenting evidence or
argument,” was timely because made for a more “limited
purpose”). Other death row inmates had been permitted to
                              9
intervene in 2007, apparently without prejudicing the existing
parties, and nothing indicated that the posture of the case had
changed meaningfully before Paul sought to intervene. Cf.
EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1048
(D.C. Cir. 1998) (discussing whether other parties had been
permitted to intervene). Paul’s intervention carried no risk of
prejudicing the existing parties. The government does not
suggest otherwise. Its briefing makes the same mistake as the
district court, focusing solely on the substantial amount of
time that elapsed before Paul sought to intervene without ever
explaining how any party would be prejudiced by Paul’s
intervention. But in the absence of any indication that Paul’s
intervention would give rise to such prejudice, his motion was
timely and he was entitled to intervene as of right. Given that
he was, we need not determine whether the district court also
erred in denying his motion for permissive intervention.

                              IV

     Because this appeal is not moot and Paul’s intervention
motion was timely, we reverse and remand with a direction
that the district court grant Paul’s motion to intervene as of
right. See Fund for Animals, Inc., 322 F.3d at 737-38.

                                                   So ordered.
