262 F.3d 406 (D.C. Cir. 2001)
Alternative Research and Development Foundation, et al., Appelleesv.Ann M. Veneman, Secretary, U.S. Department of Agriculture, et al., AppelleesNational Association for Biomedical Research, Appellant
No. 00-5438
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided September 7, 2001

Appeal from the United States District Court  for the District of Columbia (No. 99cv0581)
Joseph Mendelson, III, was on the motion to dismiss filed by  plaintiffs-appellees Alternative Research and Development  Foundation, et al.
Michael Jay Singer and John S. Koppel, Attorneys, U.S.  Department of Justice, for federal appellees, were on a  pleading in support of the motion to dismiss.
Michael P. Socarras and Elliot H. Scherker, for appellant  National Association for Biomedical Research, were on the  response to appellees' motion to dismiss.
Before:  Ginsburg, Chief Judge;  Williams and Randolph,  Circuit Judges.
Opinion for the Court filed Per Curiam.

On Motion to Dismiss
Per Curiam:

1
Alternative Research and Development Foundation filed a petition for rulemaking requesting that the  Secretary of Agriculture amend the definition of "animal" in  regulations promulgated pursuant to the Animal Welfare Act  ("Act") to remove the current exclusion of birds, mice, and  rats bred for use in research.  Under the Act, the Secretary  of Agriculture is authorized to promulgate standards and  other requirements to govern the handling, care, and treatment of animals by dealers, research facilities, and exhibitors. 7 U.S.C. S 2143(a)(1).  On January 28, 1999, the United  States Department of Agriculture ("USDA") published the  petition and requested comments.  See 64 Fed. Reg. 4356  (1999).  While its agency petition was pending, Alternative  Research and Development Foundation, as well as In Vitro  International, and Kristine Gausz (collectively, "Alternative  Research") filed a complaint for declaratory and injunctive  relief in the district court, alleging that the USDA's exclusion  of birds, rats, and mice from the definition of "animal" in 9  C.F.R. S 1.1 violates the Act.  It sought an order enjoining  the exclusion and directing USDA to amend the regulation by  eliminating the exclusion.


2
After the district court denied a motion to dismiss filed by  USDA, see Alternative Research v. Glickman, 101 F. Supp.  2d 7, 11-14 (D.D.C. 2000), the National Association for  Biomedical Research ("NABR"), an association engaged in  research using birds, rats, and mice, sought intervention as of  right or, alternatively, permissive intervention.  Subsequently, Alternative Research and USDA entered into a stipulation of dismissal without prejudice under Federal Rule of Civil  Procedure 41(a)(1).  The stipulation provides, in pertinent  part, that USDA will grant Alternative Research's petition for  rulemaking to amend the USDA regulation, and USDA  agrees to initiate and complete a rulemaking on the regulation of birds, rats, and mice within a reasonable time.  NABR  then filed a motion to vacate the stipulation under Rule  60(b)(4).  After a hearing, the district court filed the stipulation of dismissal and denied the motions to intervene and to  vacate the stipulation under Rule 60(b), concluding that it  lacked jurisdiction to decide the motions in light of the  stipulated dismissal.  Alternatively, the district court denied  the motion to intervene as of right on the merits, concluding  that NABR's interests would not be impaired by the proposed  rulemaking.


3
NABR appeals from the stipulated dismissal and the order  denying intervention and Rule 60(b) relief.  Alternative Research moves to dismiss the appeal for lack of jurisdiction. The district court's order denying intervention is appealable,  but was not in error;  we therefore grant summary affirmance  of that ruling.  Because intervention was properly denied,  NABR is not a party to the action and lacks standing to  appeal from the stipulated dismissal and from the order  denying relief under Rule 60(b);  we therefore grant the  motion to dismiss as to those appeals.


4
* * *


5
Appealability of denial of intervention as of right. In  considering whether it had jurisdiction to review an order of  the district court denying intervention to a would-be intervenor, the Supreme Court in Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 524 (1947),  stated:


6
Our jurisdiction to consider an appeal from an order denying intervention ... depends upon the nature of the applicant's right to intervene.  If the right is absolute, the order is appealable and we may judge it on its merits....  [O]ur jurisdiction is identified by the necessary incidents of the right to intervene in each particular  instance.  We must therefore determine the question of our jurisdiction in this case by examining the character of the [would-be intervenor's] right to intervene in the proceeding....


7
Id. at 524-25.


8
In Brotherhood, and certain subsequent cases, the Supreme  Court postponed consideration of whether the denial of intervention as of right was appealable until it decided the appeal  on the merits, thus suggesting that the appealability of the  denial turned on the merits of the applicant's right to intervene.  See Sam Fox Publishing Co. v. United States, 366  U.S. 683, 687-88 (1961) (noting that answer to question  whether court has jurisdiction to review order denying intervention as of right also determines merits of appeal from  denial);  Brotherhood, 331 U.S. at 524-32;  see also Sutphen  Estates v. United States, 342 U.S. 19, 20-21 (1951).  Upon  concluding that intervention as of right was properly denied,  the Court in Sam Fox Publishing and Sutphen Estates  dismissed the appeals.  See Sam Fox Publishing, 366 U.S. at  695;  Sutphen Estates, 342 U.S. at 22-23.  More recently,  however, the Supreme Court assumed jurisdiction over an  appeal from the denial of intervention as of right without first  determining the merits of the applicant's right to intervene,  and, after concluding that a lower court's denial of intervention was correct, affirmed the decision.  Donaldson v. United  States, 400 U.S. 517, 530-31 (1971).


9
The Court's inconsistent treatment is mirrored in the federal courts of appeals.  Some decisions make appealability of  the denial of intervention automatic once the district court  issues its denial;  that is, the denial is held to be a final order  that is immediately appealable.  This approach is followed by  a majority of the circuit courts.  See Cotter v. Massachusetts  Ass'n of Minority Law Enforcement Officers, 219 F.3d 31, 33  (1st Cir. 2000);  League of United Latin American Citizens v.  Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997);  Development  Finance Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d  156, 158 (3d Cir. 1995);  Shea v. Angulo, 19 F.3d 343, 344-45  (7th Cir. 1994);  Corby Recreation, Inc. v. General Electric Co., 581 F.2d 175,176 n.1 (8th Cir. 1978) (per curiam); Securities and Exchange Comm'n v. Everest Management  Corp., 475 F.2d 1236, 1238 n.2 (2d Cir. 1972).  Having concluded that this type of order is appealable, these courts  review the order denying intervention on the merits and will  affirm the district court's ruling if they find no error.


10
The second approach makes appealability turn on the merits of the motion for intervention as of right, and the denial of  intervention is not automatically an appealable, final order. This approach is followed by the Eleventh Circuit.  See  EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 637 (11th Cir.  1984).  Under its self-styled "anomalous rule," the Eleventh  Circuit has jurisdiction only to decide whether the district  court was correct in denying intervention.  Under this rule, if  the circuit court concludes that the district court's order was  correct, the circuit court's jurisdiction evaporates because the  ruling was not a final order, and the circuit court must  dismiss the appeal for want of jurisdiction.  See id. Conversely, if the circuit court concludes that the district court erred,  the circuit court retains jurisdiction and reverses the district  court ruling.  Either way, the circuit court first decides  whether the motion to intervene was properly denied before  determining whether the order is appealable.  See id. at 641  (concluding that trial court's denial of intervention was correct and that denial was thus not an appealable final order,  and dismissing appeal);  see United States v. Georgia, 19 F.3d  1388, 1393 (11th Cir. 1994) (same).


11
Our circuit has not been entirely consistent in its approach. In Hodgson v. United Mine Workers of America, 473 F.2d  118, 127 (D.C. Cir. 1972), this court concluded that a district  court's denial of intervention as of right was "amenable to  review on the merits" and reversed the district court's denial. The court stated that where intervention is sought as of right,  a denial of the application may be appealed, and that where  permissive intervention is sought, a denial may only be appealed where the trial court has clearly abused its discretion. See id. And in Moten v. Bricklayers, Masons and Plasterers  International Union of America, 543 F.2d 224, 228-32 (D.C.  Cir. 1976), a would-be intervenor challenged the district court's orders denying a motion to intervene and approving a  settlement between the parties.  On appeal, this court noted  that denial of intervention as of right is an appealable final  order and affirmed the district court's denial of intervention  as of right under Rule 24.


12
In United States v. American Telephone and Telegraph  Co., 642 F.2d 1285 (D.C. Cir. 1980), on the other hand, we  suggested that the appealability of a district court order  denying intervention as of right depends on whether the  applicant had a "valid claim" for intervention as of right.  See  id. at 1290-91.  But in that case the court determined that  appellant had a right to intervene, and therefore the court did  not need to reach the issue whether the district court's order  denying intervention would be appealable in the absence of a  valid claim.  Id. at 1290-91.


13
This court now clarifies that the denial of intervention as of  right is an appealable, final order regardless of the merits of  the claim for intervention as of right.  This approach is in  accord with the majority of circuits and is consistent with two  recent rulings from this circuit.  In Smoke v. Norton, 252  F.3d 468, 470 (D.C. Cir. 2001), this court considered an appeal  from a district court order denying a motion to intervene as  of right under Rule 24(a).  Appellants moved to intervene  after the district court granted summary judgment in order  to appeal from the underlying judgment, which remanded the  case to the agency.  The district court denied the motion to  intervene as untimely.  In reversing the district court's denial, this court stated that the denial 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  id. (quoting Brotherhood, 331 U.S. at 524).  The court treated  the denial of intervention as immediately appealable and  independent from the underlying judgment, noting that the  question whether the underlying judgment is final would not  be before the court unless appellants were allowed to intervene and they appealed from that judgment.  See id. at 470  n.1.


14
Similarly, in In re:  Vitamins Antitrust Class Actions, 215  F.3d 26 (D.C. Cir. 2000), we also considered an appeal from  the district court's denial of intervention as of right under  Rule 24(a).  Appellants, who were presumptive members of  the class but who had opted out, moved to intervene under  Rule 24(a) for the limited purpose of opposing a clause in the  proposed settlement of class claims.  While the appeal from  the denial of intervention was pending, the district court  approved the settlement, which was not appealed.  See id. at  28.  This court affirmed the district court's denial of intervention, concluding that appellants were not entitled to intervene  as of right because their asserted interest in being able to opt  out of the class was insufficient to give them standing to  challenge the settlement agreement.  Id.


15
Although In re:  Vitamins does not directly address whether the denial of intervention as of right is appealable, the  court's statement that it may exercise pendent jurisdiction to  reach the issue of permissive intervention because it is inextricably intertwined with the issue of intervention as of right,  see 215 F.3d at 31, and the court's affirmance of the district  court's denial of intervention (rather than dismissal of the  appeal), indicate it considered the denial of intervention as of  right independently appealable.  Thus we conclude that the  district court's denial of NABR's motion to intervene as of  right is an independently appealable, final order.  See Hodgson, 473 F.2d at 124 & n.29 (entry of final order starts time  period for filing notice of appeal as to that order under  Federal Rule of Appellate Procedure 4(a)).


16
Furthermore, our jurisdiction to review that denial is not  affected by the fact that the district court denied intervention  after the stipulated dismissal was entered;  the dismissal does  not render the appeal moot.  See Massachusetts School of  Law at Andover, Inc. v. United States, 118 F.3d 776, 780-81  (D.C. Cir. 1997) (where would-be intervenor sought to challenge consent decree, appeal from denial of intervention as of  right reviewable even though district court denied intervention after it entered consent judgment).  NABR appeals from  both the denial of intervention and the denial of its Rule 60(b)  motion, which challenged the dismissal.  If this court were to conclude that NABR was entitled to intervene in the litigation, NABR would have standing to appeal the district court's  denial of the Rule 60(b) motion attacking the stipulated  dismissal, and we would review that Rule 60(b) denial.  See  Purcell v. Bank Atlantic Fin. Corp., 85 F.3d 1508, 1511 n.3  (11th Cir. 1996) (appeal from denial of intervention not mooted by district court's entry of judgment in underlying case); see also League of United Latin American Citizens, 131 F.3d  at 1301 n.1 (appeal from denial of intervention not mooted  despite district court issuance of memorandum disposing of  claims).  Because we can potentially grant NABR effective  relief, this appeal is not moot.  See Purcell, 85 F.3d at 1511  n.3.


17
* * * Entitlement to intervention as of right. An applicant seeking to intervene as of right must show, among other things,  that it is "so situated that the disposition of the action may as  a practical matter impair or impede [its] ability to protect interest."  Mova Pharmaceutical Corp. v. Shalala, 140 F.3d  1060, 1074 (D.C. Cir. 1998).  The relevant inquiry here is  whether NABR's concerns about the terms of the stipulated  dismissal were sufficient to constitute an interest requiring  intervention.  See Moten, 543 F.2d at 229, 232-34;  see also  Natural Resources Defense Council v. Costle, 561 F.2d 904,  908-11 (D.C. Cir. 1977).  NABR asserts that "USDA's collusive stratagem with [Alternative Research] to expand USDA's  regulatory jurisdiction without public comment or judicial  review" shows that USDA was not adequately representing  NABR's interest.


18
But NABR's rights were not impaired by the initiation of a  rulemaking.  NABR is a non-profit association whose members are engaged in biomedical research that involves the use  of birds, rats, and mice.  NABR's position is that the exclusion for birds, rats, and mice should be removed only if  regulations can be developed that take into account enforcement needs, current scientific practices, standards already  established in other policy statements, and administrative and  financial burdens on research facilities.  As the district court noted during the hearing on the motion to intervene, NABR  will not be precluded from participating in the rulemaking  and, if USDA decides to issue a final rule, NABR is not  precluded from challenging that rule.  Significantly, the stipulated dismissal does no more than what the agency could  have done by granting Alternative Research's pending agency  petition for rulemaking, and the stipulated dismissal does not  bind the agency in its rulemaking.  Cf. Massachusetts School  of Law at Andover, 118 F.3d at 780-81 (noting that consent  decree "with res judicata, collateral estoppel, or stare decisis  effect might very well affect MSL's ability to protect its  interests," but because the consent decree had no such effect,  MSL's interest was not impaired).  Accordingly, NABR's  concerns about the terms of the stipulated dismissal are  insufficient to constitute an interest requiring intervention  before the district court under Rule 24(a)(2).


19
* * *


20
Appeal from stipulated dismissal and denial of Rule 60(b)  motion. Finally, because the district court correctly denied  intervention, NABR is not a party to the action and lacks  standing to appeal from either the stipulation of dismissal or  the order denying its Rule 60(b) motion, which challenged the  stipulated dismissal.  See Fed. R. Civ. P. 60(b) (relief limited  to a party);  Farmland Dairies v. Commissioner of the New  York State Department of Agriculture and Markets, 847 F.2d  1038, 1045 (2d Cir. 1988) (concluding that because court was  affirming district court order denying intervention, appellants  had no standing to appeal any other order entered by district  court, and court dismissed their appeals from those orders).


21
* * *


22
For the preceding reasons, we conclude this court has  jurisdiction to review the denial of intervention as of right  and affirm the denial because NABR has not shown that the  stipulated dismissal may impair its ability to protect its  interest.  Because the district court correctly denied intervention, NABR is not a party to the action and does not have  standing to appeal from either the stipulated dismissal or the order denying its Rule 60(b) motion;  the court dismisses the  appeal from those rulings.

