In 2019, the USDA announced the optional New Swine Slaughter Inspection System (NSIS). Modernization of Swine Slaughter Inspection, 84 Fed. Reg. 52,300, 52,315 (Oct. 1, 2019). Among other things, the rule revoked maximum line speeds for swine slaughterhouses which opted into NSIS. The rule also ended the HACCP-Based Inspections Models program (HIMP) which granted line-speed waivers for some plants.

A group of labor unions at pork processing plants challenged the rule under the Administrative Procedure Act (APA). A federal district court held that the rule was arbitrary and capricious because it failed to consider worker safety. United Food and Comm. Workers Union, Local No. 663 v. USDA, 532 F.Supp.3d 741 (D. Minn. 2021). The district court only vacated the portion of the rule eliminating line speed limits. Two months later, three pork processing companies which had participated in HIMP moved to intervene and sought clarification that the district court’s order reinstated the prior HIMP waivers. The district court found the motion untimely and, thus, denied it. United Food and Comm. Workers Union, Local No. 663 v. USDA, 2021 WL 2010779 (D. Minn. May, 20, 2021). The companies appealed.

When assessing timeliness, the court will consider the litigation’s progression, the proposed intervener’s knowledge of the litigation, the reason for the delay, and any prejudice to the existing parties. Smith v. SEECO, Inc., 922 F.3d 398, 405 (8th Cir. 2019). The Eighth Circuit found that all four factors weighed in favor of denying the intervention. The litigation had concluded with the district court’s grant of summary judgment and the companies were well aware of the litigation as they had filed amicus briefs with the district court.  

The companies alleged that they had a “divergence of interests” with the USDA after the district court vacated the line speed limit portion of the rule. The court found this unpersuasive as the USDA, in defending the rule, never sought a return to the HIMP waiver system. Lastly, the court determined that allowing the companies to intervene would hinder the USDA’s ability to implement the remaining rule provisions and manage the national food system. Therefore, the Eight Circuit affirmed the denial of the companies’ motions to intervene.

United Food and Comm.. Workers Union, Local No. 663 v. USDA, 36 F.4th 777 (8th Cir. 2022).