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Civil Procedure Fall 2014

Cohen Cheat Sheet on Intervention [OPTIONAL]

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NB: I will not test you on this material or really cover it in any depth in class but you should read it. It is on the line of "Civ Pro" and "Advanced Civ Pro" (if that course ever exists) and I want you to know about this for your practice.

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Intervention.

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This is for a 3rd party who is not brought in by the other parties, but just wants to “parachute in.” The person does not have a death wish; usually it is because some of their rights are at risk of being violated. A good example comes from the recent Proposition 8 litigation where none of the parties (the challengers, California) wanted to defend the constitutionality of Proposition 8, so it fell to an outside party – the Proposition 8 sponsors – to defend the constitutionality of the statute, and they entered the fray through intervention. Even though we distinguish “permissive” from “as of right” both are voluntary, nothing forces an FRCP 24 intervenor to come in.

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(Note: Just to make matters more complicated, the fact that you can intervene in the district court does not mean you can necessarily take an appeal when the initial parties do not want to. This was one of the key issues in the Proposition 8 case in the Supreme Court.)

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There are two kinds of intervention in the federal system, covered by Rule 24.

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1.    Intervention as of Right.

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When you meet the requirements, you have a right to intervene. The Rule says you can have intervention as of right when (a) a federal statute says so; Or (b) you can have intervention as of right when the lawsuit is about an interest or property, and the disposition of the action may, as a practical matter, impair or impede the intervenor's ability to protect himself, and existing parties do not adequately represent that interest (3 conjunctive requirements).

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The middle requirement of (b) is really the flip side of FRCP 19(a)(1)(B)(i) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest.” But here the indispensable party is seeking to get in not someone already in the litigation who has to join them.

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In terms of the third requirement that “existing parties do not adequately represent that interest,” there is a whole complex jurisprudence about this. The basic idea is that this litigant needs to bring to the table something that is overlooked or ignored if only existing litigants were allowed in. This is supposed to be a minimal bar.

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Even though this is “as of right” it still has to be “timely” and if you try to intervene too late you will be blocked.

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Examples of intervention as of right:

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  • By statute: 42 USC 3612(o)(2) allows an aggrieved party to intervene in Fair Housing Act case brought by attorney general, also lots of statutes allow the government to intervene.
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  • Not by Statute: Smuck v. Hobson, 408 F.2d 175 (DC Cir. 1969): Constitutional challenge claiming that DC Board of Education had violated constitution by being operated in a racially and economically discriminatory way. Board of Education did not want to appeal. A group of parents sought to leave to intervene to take an appeal, and the court gave them intervention by right.
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    2.    Permissive Intervention.

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    The Rule says permissive intervention when (1) the statute gives you a conditional right to intervene, or (2) intervenor's claim or defense has a common question of law or fact with the main action. [FRCP 24(b)]

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    Permissive intervention is always discretionary. Among the reasons it will be denied is that it causes undue delay or prejudice, for example it would require reopening discovery.

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    The court can also allow intervention for only limited purposes rather than general purpose intervention.

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    Examples of permissive intervention:

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  • Statute giving a conditional right: Kootenain Tribe v. Veneman, 313 F.3d 1094 (9th Cir.): environmental organizations allowed to intervene in suit by Indian Tribe seeking to enjoin department of agriculture from requiring that there be no roads allowed in large areas of national forest.
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  • The other kind: McNeill v. NYC Housing Authority, 719 F. Supp. 233 (SDNY 1999), low income tenants facing eviction challenged policies of city housing authorities, allowed other tenants to intervene as co-plaintiffs because they were pressing similar claims and it was more efficient.
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    You cannot intervene if it would destroy SMJ, for example by destroying diversity. Can you use supplemental jurisdiction? In some cases, no, look at § 1367(b), which for diversity cases explicitly prevents supplemental jurisdiction for Rule 24. Statute says it does not reach “claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules.” So you cannot reach a claim by Pl against intervenor, or a claim by intevenor as Pl in this circumstance.

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    Because intervenor is coming in voluntarily, there is no PJ problem (she has waived it).

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    Intevenors are NOT amici, who are merely friends of the court and not parties to the lawsuit.

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