252 F.3d 468 (D.C. Cir. 2001)
Edward D. Smoke, et al., Appellantv.Gale A. Norton, Secretary of the Interior, et al., Alma Ransom, et al., Appellees
No. 00-5061 Consolidated with 00-5062
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2001Decided June 15, 2001

Appeals from the United States District Court  for the District of Columbia (No. 98cv01422)
Michael Rhodes-Devey argued the cause and filed the  briefs for appellants.  Phillip H. Tarbell, appearing pro se,  entered an appearance.
Peter B. Work argued the cause for appellees.  With him  on the brief was Bradley S. Waterman.
Before:  Ginsburg and Henderson, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Henderson.
Ginsburg, Circuit Judge:


1
The appellants moved to intervene in this case after the district court granted summary  judgment against the Government -which had represented  their interests in the proceedings below -and the Government indicated it might not appeal.  The district court denied  the appellants' motion as untimely.  We reverse.  The appellants had no occasion to intervene in order to protect their  interests until after the judgment was entered.  Hence, their  motion was timely when made.

I. Background

2
The appellants in this case claim to be officers of the Saint  Regis Mohawk Tribal Government under a constitution they  allege was adopted in 1995 to replace the Tribe's traditional  Three Chief System of government.  The appellees, who  claim office pursuant to the Three Chief System, sought  review under the Administrative Procedure Act, 5 U.S.C.           551 et seq., of decisions of the Bureau of Indian Affairs  (BIA) recognizing the new constitution as having been validly  adopted by the Tribe, and of the Interior Board of Indian  Affairs (IBIA) affirming that determination.  In Ransom v.  Babbitt, 69 F. Supp. 2d 141 (1999), the district court recounts  the history of the dispute that arose over which government  and which slate of electors -those of the 1995 Constitution  or those of the Three Chief System -were entitled to  recognition.  Ultimately, the court granted summary judgment for the appellees on the ground that the agencies'  recognition of the 1995 Constitution was arbitrary, capricious,  and contrary to law.  See id. at 155.


3
As long as the United States was resolved to defend the  decisions of the BIA and the IBIA in the district court, the  appellants did not seek to intervene.  After the district court  granted summary judgment for the appellees, however, and  before the Government decided not to appeal, the appellants  moved to intervene "in order to ensure that the appeal from  th[at] court's decision take place."


4
The district court, noting that the appellants did not specify  what type of intervention -as of right, or permissive -they  sought, observed that a motion for either type of intervention  must be "timely."  Fed. R. Civ. P. 24(a) & (b).  The court then  denied the appellants' motion as untimely because, "[h]aving  foregone an opportunity to pursue intervention during the  pendency of the action, the proposed intervenors now seek to  inject additional arguments and materials into a very narrow  review of agency action that had already proceeded to the  next stage."  The appellants here seek reversal of the district  court's order denying their motion to intervene so they may  appeal from the underlying judgment.

II. Analysis

5
The district court did not expressly decide whether the  appellants' motion sought intervention as of right under Rule  24(a) or by permission under Rule 24(b).  The court did,  however, correctly enumerate the "four requirements for  intervention [as of right] under Rule 24(a)(2):  (1) timeliness; (2) a cognizable interest;  (3) impairment of that interest;  and  (4) lack of adequate representation by existing parties."  See,  e.g., Williams & Humbert, Ltd. v. W. & H. Trade Marks,  Ltd., 840 F.2d 72, 74 (D.C. Cir. 1988).  Because the appellants' motion to intervene and the affidavits filed in support of  that motion focus upon the lack of adequate representation of  their interests -a defining feature of intervention as of  right -we consider the motion to have been made under  Rule 24(a).  Compare Rule 24(a)(2) with 24(b)(2).


6
The settled rule is that the "[d]enial of intervention as of  right is an appealable final order" because it is conclusive  with respect to the distinct interest asserted by the movant. See Railroad Trainmen v. Baltimore & Ohio R.R. Co., 331  U.S. 519, 524 (1947) ("since [a would-be intervenor as of right]  cannot appeal from any subsequent order or judgment in the  proceeding unless he does intervene, the order denying intervention has the degree of definitiveness which supports an  appeal therefrom").*  We review the district court's denial of  a motion to intervene as of right for clear error.  See Foster  v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981).  The district  court has much latitude in assessing the timeliness of a  motion, but it must properly take account of the considerations relevant to that determination.  In particular,


7
timeliness is to be judged in consideration of all the circumstances, especially weighing the factors of time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant's rights, and the probability of prejudice to those already parties in the case.


8
United States v. AT&T, 642 F.2d 1285, 1295 (D.C. Cir. 1980).


9
Here the appellants claim that in moving to intervene they  were prompted by the post-judgment prospect that the Government might not appeal.  Prior to the entry of judgment,  the appellants say, they had no reason to intervene;  their  interests were fully consonant with those of the Government,  and those interests were adequately represented by the Government's litigation of the case.  We agree.  In these circumstances a post-judgment motion to intervene in order to  prosecute an appeal is timely (if filed within the time period  for appeal) because "the potential inadequacy of representation came into existence only at the appellate stage."  Dimond v. District of Columbia, 792 F.2d 179, 193 (D.C. Cir.  1986);  see United Airlines, Inc. v. McDonald, 432 U.S. 385,  395-96 (1977).


10
The appellees do not convincingly defend the district  court's ruling that the appellants' motion was untimely.  They  argue only that, because the Government "effectively conceded the factual premises underlying Plaintiffs' motion for  summary judgment," the Government's representation of the  appellants' interests was manifestly inadequate at an earlier  point in the litigation.  That the facts of this case were not in  dispute is irrelevant, however;  the case involved review of an  administrative record the facts of which were settled before  the agency.  We have no reason to doubt the adequacy of the  Government's commitment to resisting the appellees' motion  for summary judgment.  The Government's representation of  the appellants' interests became potentially inadequate only  when it equivocated about whether it would appeal the adverse ruling of the district court.


11
Although the district court perceived the appellants as  "seek[ing] to inject additional arguments and materials into a  very narrow review of agency action that had already proceeded to the next stage," the legally relevant purpose of  their motion was simply to enable them to prosecute an  appeal.  Policing the limits upon what the appellants may  argue on appeal is properly left to this court.

III. Conclusion

12
For the foregoing reasons, we hold that the district court  erred in denying the appellants' motion to intervene as untimely.  Accordingly, we remand this case to the district  court for it to address in the first instance the other requirements for intervention as of right.


13
Reversed and remanded.



Notes:


*
 Although we initially directed the parties to brief the question  whether the summary judgment entered in this case is itself an  appealable, final order (and the appellees argue it is not because it  remands the case to the BIA for further proceedings requiring the  exercise of discretion), we conclude that the answer to that question  does not bear upon the narrow issue before us, namely, the timeliness of the appellants' motion to intervene.  Whether the underlying judgment of the district court is final and, if final, is correct are  questions that will not be before us unless the district court grants  the appellants' motion to intervene and they appeal from the  judgment.



14
Karen LeCraft Henderson, Circuit Judge, concurring:


15
I join the court's opinion because I agree that the district  court incorrectly denied the appellants' motion to intervene  on the ground of untimeliness.  I write separately, however,  to express my view that the district court will no doubt reach  the same result on remand and I therefore question the  "judicial efficiency" of remanding.


16
The court correctly sets forth the "four requirements for  intervention [as of right] under Rule 24(a)(2):  (1) timeliness; (2) a cognizable interest;  (3) impairment of that interest;  and  (4) lack of adequate representation by existing parties."  See  Majority Opinion at 3 (citing Williams & Humbert, Ltd. & W.  & H. Trade Marks, Ltd., 840 F.2d 72, 74 (D.C. Cir. 1998)). The court also correctly concludes that under our precedent  the appellants' motion was timely.  That conclusion does not  by itself, however, necessitate a different result on remand  because failure to satisfy any of the remaining three requirements is a sufficient ground for denying intervention.  See  SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir.  1998).


17
The appellants tell us their sole goal in seeking intervention  is "to ensure that the appeal from [the district court's]  decision take place."  Plaintiffs'-Appellees' Appendix 276. They also insist that the government's decision not to pursue  an appeal amply demonstrates their lack of adequate representation in this proceeding.  I am not persuaded.  In assessing whether a proposed intervenor's interest is adequately  represented by an existing party, a court must consider  whether the proposed intervenor itself has a right to pursue  whatever it claims it is inadequately represented in pursuing. If no such right exists, it cannot seriously be maintained that  the proposed intervenor lacks adequate representation.  In  this case, I believe an evaluation of the adequacy of representation issue turns on whether the appellants could have  pursued an appeal from the district court order had they been  parties to the district court proceeding.  If so, a court could  conclude they lack adequate representation because the government's decision not to pursue an appeal deprives them of  recourse to which they would otherwise be entitled.  If not,  however, the government's decision not to appeal has no  impact on the adequacy of representation of the appellants  inasmuch as they are left no worse off than if they had in fact  been parties to the litigation all along.


18
The dispositive question then becomes whether the appellants could have taken an appeal from the district court order  had they been parties before the district court ruled.  In my  view, they could not have done so.  "The jurisdiction of the  courts of appeals to review district court actions is limited to  'final orders.' "  Pueblo of Sandia v. Babbitt, 231 F.3d 878,  880 (D.C. Cir. 2000) (quoting 28 U.S.C.          1291).  Section 1291  entitles a party to appeal "from a district court decision that  ends the litigation on the merits and leaves nothing more for  the court to do but execute the judgment."  Id. (citations and  internal quotation marks omitted).  However, " '[i]t is well  settled that, as a general rule, a district court order remanding a case to an agency for significant further proceedings is  not final,' " id. (quoting In re St. Charles Preservation Investors, Ltd., 916 F.2d 727, 729 (D.C. Cir. 1990);  citing American  Hawaii Cruises v. Skinner, 893 F.2d 1400, 1403 (D.C. Cir.  1990)), unless the remand to the agency is for solely "ministerial" action.  See id. at 881.  In my view, the district court's  order here was not merely "ministerial" but rather left "significant further proceedings" for the agency.  And the appellants have no right to appeal a non-final order.1  Accordingly,  even if they get no representation in seeking to appeal the  district court's remand order, they cannot claim"inadequate"  representation to take action they themselves could not take.



Notes:


1
 The agency's right to appeal such an order is based on the fact  that if it were limited to an appeal only after remand proceedings, it  would lose the opportunity to appeal in the event the decision to  remand was in error.  See, e.g., County of Los Angeles v. Shalala,  192 F.3d 1005, 1012 (D.C. Cir. 1999) (citing Occidental Petroleum  Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir. 1989)), cert. denied, 530  U.S. 1204 (2000).  But the appellants do not succeed to the agency's  right to appeal which is unique to itself.


