Concept
Intervention of Right
Intervention
Intervention of Right
Rule 24(a)(2) lets an outsider enter a pending suit as of right, and it describes that outsider in one long clause: a person who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.”1 The clause hangs from the command that opens Rule 24(a): on timely motion, the court “must permit” anyone who fits it to intervene.2
A mandatory command turns the clause into a checklist, and the courts have written the checklist out. The Third Circuit requires a timely application, a sufficient interest in the litigation, a threat that the disposition of the action will impair or affect that interest as a practical matter, and inadequate representation of the interest by the existing parties.3 The Ninth Circuit states the same four elements in a different order and places the burden of showing all of them on the applicant.4 The lists follow the grammar of the rule. Timeliness comes from the opening command, interest and impairment from the body of the clause, and inadequate representation from the exception that begins with unless. An applicant who fails any one element loses, and the court keeps room for judgment on two of them, since it may deny intervention when an applicant arrives too late or when an existing party will make the same arguments the applicant would.5
The checklist is demanding because every added party raises the price of the case. Where two lawyers would have attended a deposition, five may; intervenors can add crossclaims and counterclaims; every motion and notice reaches more parties; and the court hears from more lawyers at argument. An application to intervene therefore poses a dilemma for the court.6
English courts met the same dilemma. They saw the main justification for intervention as a device that lets litigation continue without prejudice to the rights of nonparties,7 and the device developed furthest where outsiders were most likely to be hurt. A judgment in an admiralty in rem proceeding bound the world, for example, so a nonparty with an interest in property held by the court would lose its claim unless it could take part.8 Against that stood the belief that the plaintiff should control the shape and direction of the action, because the wider the intervention allowed, the greater the risk that the original parties would suffer delay, expense, and complexity.9 Intervention evolved gradually as a result, taking different forms in the ecclesiastical, admiralty, common-law, and chancery courts.10
The 1966 amendment moved Rule 24(a) toward practical judgment. It was meant to substitute a practical emphasis for a conceptual one, to tie the intervention rule more closely to Rule 19 on compulsory joinder and Rule 23 on class actions, and to replace the old rule's two categories with the single category of Rule 24(a)(2).11 The kinship with Rule 19 shows in the “impair or impede” language, which serves the same purpose in both rules: protecting the absentee's interests. The difference lies in who invokes it. Intervention is the absentee's own device for entering the case, while compulsory joinder is usually invoked by the defendant or the court.12 Decisions under the older text, among them Sam Fox Publishing Co. v. United States, applied a more conceptual test, and the amended rule departs from them even on the effect of precedent: the stare decisis effect of a judgment may now, in proper circumstances, create enough practical disadvantage to warrant intervention of right.13
Because the elements interlock, courts apply them as related factors and not as separate hurdles. Courts have not succeeded in defining the requisite interest, and the better approach is probably a flexible one, in light of the functions of intervention and in conjunction with the impairment and representation requirements.14 The Third Circuit makes the same observation from the other side: whether an interest is significantly protectable is often colored to some extent by the practical impairment inquiry.15 Opponents of intervention accordingly attack the elements together. In Hecox v. Little, the plaintiffs argued that the proposed intervenors claimed interests that were neither cognizable under the law nor potentially impaired by the lawsuit, and that the defendants already represented those interests adequately.16
Timely Motion
Timeliness is the one requirement both tracks of Rule 24 share. Rule 24(a) directs the court to permit intervention “on timely motion,” and Rule 24(b) gives the court discretion to permit it “on timely motion” too.18 Every applicant must satisfy it, though courts apply it more gently to an applicant of right than to a permissive applicant.19
The rule's only measure is the word timely, so courts evaluate the time element in light of all the circumstances of the case and weigh most carefully whether the delay in moving has prejudiced the existing parties.20 Two failures recur. An applicant may try to get in long after it became aware of its interest, or it may seek entry at a point where adding parties would significantly disrupt the litigation. Either gives the court discretion to deny intervention.21 The stage of the case helps set the price of admitting a newcomer. Intervention may be disallowed when trial is about to begin, yet it may not be too late even after final judgment if intervention is necessary to preserve a right that cannot otherwise be protected.22
Calendar days alone do not answer the question, which is why timely is easy to misread as early. Two applicants show the difference.
The first applicant's year on the calendar was innocent and cost nobody anything, while the second applicant's wait was a choice that makes its entry expensive. That contrast is why prejudice to the existing parties carries the most weight.
The track an applicant travels changes how harshly the requirement is applied. Courts are especially reluctant to dismiss an application of right as untimely, because an applicant who cannot intervene may be seriously harmed.24 A permissive applicant meets a different instruction: the court must consider whether intervention will unduly delay or prejudice the adjudication of the original parties' rights.25
At the far end of the calendar, intervention after judgment is unusual but not rare. The court in Jochims v. Isuzu Motors, Ltd. observed that post-judgment intervention is not a rare occurrence, collecting decisions in which nonparties intervened to modify a protective order, challenge the sealing of records, or unseal records.26 Applicants like these ordinarily ask about the court's own orders and records and not for a rehearing of the merits, so the prejudice that drives the timeliness inquiry is slight.
Protectable Interest
The interest element asks what the applicant has riding on the lawsuit, and the answer matters more than a short phrase suggests, because an applicant who satisfies it is entitled to enter: on timely motion the court “must permit” intervention.28 Rule 24(a)(2) requires “an interest relating to the property or transaction that is the subject of the action.”29 The words leave two questions open: what kind of stake counts, and how closely it must tie to the property or transaction in suit.
The Supreme Court's gloss helps less than one would hope. Donaldson v. United States said that the applicant's interest must be “a significantly protectable interest,”30 but the phrase has never become a term of art, and it offers little more guidance than the bare word “interest” in the rule. Some courts look back to the pre-1966 decisions and still call for “a direct substantial, legally protectable interest,” while others have permitted intervention on interests that hardly seem to satisfy those adjectives.31 The Third Circuit describes the same landscape. Some courts treat the interest test as a pragmatic process that qualifies as many concerned parties as is compatible with efficiency, and others reject interests that are speculative. Its own decisions show how fact-bound the inquiry is: a union could intervene to contest a proposed consent decree between the government and an employer that could have affected the union's collective bargaining agreement, but a would-be purchaser of collateral could not intervene in a declaratory judgment action over the commercial reasonableness of the sale price.32
The boundary matters because of whom it keeps out. The Supreme Court made a related point about interpleader, warning that the device was never meant to be an all-purpose “bill of peace,” and that a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights.33 One of those rights is the right to choose the forum in which to establish their claims, subject to generally applicable rules of jurisdiction, venue, service of process, removal, and change of venue.34 The interest requirement applies the same instinct to intervention, keeping an applicant with a thin stake from taking over a dispute that belongs to the parties.
The stricter camp reads Donaldson's key word literally. In New Orleans Public Service Inc. v. United Gas Pipe Line Co., the Fifth Circuit reasoned that the Supreme Court used “protectable” in the sense of legally protectable, since it is difficult to conceive of any other sense in which the Court could have meant it.35 Courts applying this view state the test directly: the applicant's interest in the subject matter of the litigation must be direct, substantial, and legally protectable.36 A separate opinion in Diamond v. Charles, which concerned the Illinois Abortion Law, read Donaldson to call for a direct and concrete interest accorded some degree of legal protection. It found nothing in the statute suggesting that Illinois meant to vest physicians, parents, or daughters with significantly protectable interests. Illinois had enacted a criminal law that it would itself enforce, making violators liable to the public as a whole and not to the members of the public who might benefit from enforcement. Absent a sign that the state meant to confer legally protectable interests on particular beneficiaries, only the state held a significantly protectable interest in defending its criminal law.37 Two lessons follow. The applicant's stake must be concrete, because caring about the result is common to every bystander, and it must be one the law itself recognizes.
The other camp reads interest more generously, and Grutter v. Bollinger shows it reaching a result the stricter formulation could resist. The intervenors were seventeen African-American and Latino/a individuals who had applied or intended to apply to the University of Michigan, and a nonprofit organization devoted to preserving opportunities in higher education for African-American and Latino/a students in Michigan. They claimed that the case threatened their access to public higher education and that the University would not adequately represent their interest in educational opportunity. The district court denied intervention of right.38 The Sixth Circuit reversed. It explained that it subscribes to a “rather expansive notion of the interest sufficient to invoke intervention of right,” that an intervenor need not have the standing needed to start a lawsuit, and that Rule 24(a)(2) does not require a specific legal or equitable interest.39 The students' interest in gaining admission was considerably more direct and substantial than the Chamber of Commerce's general interest in an earlier Sixth Circuit case, and the court added that close cases should be resolved in favor of recognizing an interest.40 It consolidated Grutter with the companion suit, Gratz v. Bollinger, brought by two white applicants challenging another Michigan college's admissions policy, and found in both that the district courts erred in denying intervention under Rule 24(a).41 The Supreme Court has been receptive to applicants of this kind as well: in Cascade Natural Gas Corp. v. El Paso Natural Gas Co., a gas distributor was allowed to intervene in the government's antitrust case to press its stake in the remedy.
Economic stakes show where both camps draw the line. In the Ninth Circuit's formulation, an economic interest must be concrete and related to the underlying subject matter of the action.42 Consumers and creditors sit at the weak end. Ratepayers certainly have an interest in the cost of the gas they buy, and some would very likely be entitled to intervene in a proceeding to set the gas company's rates, but it is more attenuated to claim that the interest supports intervention in a dispute between the gas company and a third party that might indirectly lead to higher rates, and the court in New Orleans Public Service held that such an interest did not suffice.43 In United States v. Alisal Water Corp., a creditor of the defendant had an interest in the defendant's solvency but not in the underlying transaction. A contrary rule would let the creditors of any defendant jump into any litigation that might reduce the defendant's assets.44
Economic stakes that sit inside the dispute fare better. An inventor who receives royalty payments from a licensee has an interest in the patent when a third party sues the licensee to invalidate it, because a ruling of invalidity would end the payments.45 In Sierra Club v. Espy, timber associations whose members held current and future contracts to harvest timber in the forests at issue had “legally protectable property interests” in the dispute, since those contracts would be affected.46 A commercial applicant can also qualify when the suit threatens the regime that governs its business. In a challenge to a federal-state agreement delegating uranium mill licensing to New Mexico, the plaintiffs in effect sought to keep the agreement from being used to avoid an environmental impact statement.47 The court held that a mill operator with a license renewal pending had an interest within the meaning of Rule 24(a)(2), because a ruling for the plaintiffs could require an impact statement before any uranium mill license issued in the state, or could end the agreement, and either result would reach the operator.48 What the ratepayers and the creditor lack, and the inventor, the timber associations, and the mill operator have, is a hold on the very thing being litigated.
An applicant who cannot show this interest is not necessarily out of the case. Rule 24(b) requires no significant protectable interest; all that permissive intervention needs is that the intervenor's claim or defense and the main action share a question of law or fact, and the rule “plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation.”49
Because no bright line exists, an answer on this element should identify which formulation the controlling court follows and then argue from the facts: how direct the applicant's tie to the subject of the suit is, and whether the law protects it. The next element often travels with this one, since courts frequently decide interest and impairment together.50
Practical Impairment
After the interest comes the threat to it. The applicant must be “so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest.”52 Two phrases do the work. May asks about a possible consequence of the judgment, so the applicant need not prove that the harm will happen. As a practical matter sends the court to the world outside the courtroom, where a judgment can damage someone it does not formally bind.
An outsider's escape from res judicata, the doctrine that stops a person from relitigating what a judgment has already settled, therefore does not end the inquiry. Return to the inventor who receives royalties from a licensee. If the court holds in a suit against the licensee that the patent is invalid, the licensee stops paying. Res judicata would not bar the inventor from suing separately to uphold the patent, but as a practical matter the first judgment would affect the inventor's patent rights, so the inventor probably has an interest that supports intervention.53
That result follows from the 1966 amendment, which substituted a practical emphasis for a conceptual one.54 The drafters also kept the standard soft. An earlier draft would have required that the judgment substantially impair the applicant's ability to protect its interest, and the rule as adopted omits the word. Contrary to decisions under the old rule, even the stare decisis effect of a judgment may, in proper circumstances, create enough practical disadvantage to warrant intervention of right.55
The standard also reflects a preference for deciding the question once. The Third Circuit describes a policy preference that, as a matter of judicial economy, favors intervention over later collateral attacks.56 The Michigan applicants show the reasoning. Had the court struck down the University's affirmative action programs without them in the case, they would likely have sued to compel the University to continue the programs. That probability is a good reason to let them into the first suit, which resolves the issues and binds both the original parties and the intervenors.57
The burden on this element is light. A would-be intervenor “must show only that impairment of its substantial legal interest is possible if intervention is denied,” and “[t]his burden is minimal.”58 In Gratz, the district court reasoned that applicants who failed to articulate a substantial legal interest necessarily could not show impairment of any interest, while the applicants argued that a decision for the plaintiff would diminish their likelihood of admission and reduce the number of African-American and Latino/a students at the University.59 The Sixth Circuit found that the district courts erred in denying intervention.60 The lesson for an exam answer is that a court that finds no interest will often treat impairment as failing automatically, so an applicant who loses on interest should not expect this element to rescue it.
Practical harm can also fall on a person who has not yet sued anyone. In a dispute over whether an insurance policy was valid, persons holding claims that the policy would cover were allowed to intervene as defendants alongside the insured, to argue that the policy was valid and provided coverage for their claims.61
The hardest edge of the element is the effect of a precedent. A ruling on a legal question in the pending case becomes authority in the next, and courts have applied the impairment requirement leniently enough to allow intervention of right by an unrepresented person concerned only with the stare decisis effect on a very direct economic interest.62 Atlantis Development Corp. v. United States falls on the permitted side of that line: the applicant claimed title to the very reefs the government's suit concerned, so the legal questions decided in that suit would control its own claim. A bare interest in precedent falls on the other side. Suppose A and B were both injured in a fireworks display at a stadium, and A sues the stadium. B seeks to intervene, asserting as her interest only her hope of establishing a favorable precedent. Intervention will be denied, because the mere interest in favorable precedent cannot be the basis for intervention.63 The boundary protects the original parties, because if precedent alone sufficed, everyone with a similar claim could crowd into each test case.
Courts also ask whether the applicant has another way to protect its interest. The inquiry is whether, absent intervention, the suit will foreclose the applicant's ability to protect its interest, so courts look at whether other proceedings and forums are open to the applicant and whether it can make its position heard simply by filing an amicus brief.64 An amicus brief lets a nonparty put arguments before the court without becoming a party, and a later section returns to it. An applicant who wants only to be heard may be told that a brief is enough; an applicant whose interest turns on the court's disposition of particular property, as in the insurance and reef examples, gains little from that offer.
Adequate Representation
The last clause of Rule 24(a)(2) works as an exception: even an applicant with a protectable interest that a judgment may impair gets no right to intervene “unless existing parties adequately represent that interest.”66 The first two elements ask what the applicant stands to lose, and this one asks who already speaks for it. An applicant whose position an existing party is already pressing adds little but cost, and the expense, delay, and complexity fall on the original parties.67
The applicant's showing on this element is minimal. In Trbovich v. United Mine Workers of America, the Supreme Court said that the requirement is satisfied if the applicant shows that representation of its interest “may be” inadequate, and that the burden of making that showing should be treated as minimal.68 Commentators note that who bears the burden on this element is unclear and argue that the opponent of intervention should have to show clearly that the interest is adequately represented.69 The standard is low for a practical reason. An applicant with a serious possibility of inadequate representation should be allowed in, and should not be made to test the judgment's validity by a later collateral attack.70
Courts apply that standard along a spectrum, and locating the applicant's facts on it predicts the result better than the word “adequately” does.71
- Applicants whom no existing party represents, or whose interests the existing parties oppose, must be allowed to intervene.
- Applicants whose interest is identical to that of an existing party, or who are represented by a party charged by law with representing them, are presumed adequately represented unless special circumstances appear.
- Applicants whose interest differs from that of the party said to represent them, though it may resemble it, should be admitted when there is a serious possibility that the representation is inadequate.
The first zone is the clearest. In Fiandaca v. Cunningham, the original parties negotiated a settlement contrary to the interests of the prospective intervenors, the Garrity class, and affirmatively sought to block the attempted intervention. In that setting, adequate representation could not legitimately justify denying intervention. It was also no answer that the trial court meant to protect the class, because a court must remain impartial and detached and cannot serve as an advocate for an absent party.72 The same zone includes an applicant whose interest no existing party shares. In Georgia v. United States Army Corps of Engineers, Florida drew water from the reservoir whose releases Georgia wanted increased, and the court held that the Corps, which controlled the releases, did not adequately represent Florida's interest, because the Corps had no stake in any particular formula for allocating releases.73
At the opposite end, an applicant whose position an existing party already holds as its own gains nothing from intervening except another lawyer. An entity with a right to be reimbursed out of a plaintiff's recovery wants the same result the plaintiff wants, the largest possible recovery, and would raise no different claim or argument but would only make sure the plaintiff's lawyer does a good job. A court is likely to find its interest adequately represented, and routine intervention by such entities would give plaintiffs two lawyers where they chose one.74 In Butler, Fitzgerald & Porter v. Sequa Corp., a discharged law firm that held a lien on any recovery sought to intervene to ensure aggressive litigation of the claim, and the court denied intervention because the client and the new firm could be expected to prosecute the action vigorously, even though the original firm had an interest in the recovery.75 A town's defense of its own ordinance against a challenge, as in Great Atlantic & Pacific Tea Co. v. Town of East Hampton, similarly left a citizens' group that shared the town's goal without a right to join.
The presumption is strongest when the existing representative is a government charged with representing the absentee, because courts usually presume adequacy in that setting. Its limit is a personal interest. When the applicant asserts a personal interest, as opposed to one common to the public, a court may find that even a governmental representative is inadequate.76 In Utahns for Better Transportation v. U.S. Department of Transportation, an environmental group sued to vacate approval of a regional transportation plan, and a trade organization representing builders, transportation companies, and other development interests moved to intervene to uphold it. Both the government and the organization wanted the plan upheld, but the court allowed intervention because a government that represents the interests of the public as a whole might not adequately represent the organization's private interests.77
Grutter shows the minimal burden at work when the existing party shares the applicant's immediate goal. The student and organization applicants wanted to defend the University of Michigan's race-conscious admissions policies, as did the University. The Sixth Circuit held that the applicants need show only a potential for inadequate representation. It found persuasive their argument that the University was unlikely to present evidence of its own past discrimination or of the disparate impact of some current admissions criteria, and that those may be important factors in judging a race-conscious policy.78 The gap was plausible because very few defendants in reverse discrimination cases defend their programs by condemning their own past conduct. The University was more likely to declare proudly the importance of its academic freedom without admitting prior discrimination.79
The soft burden does not rescue an applicant who merely echoes an existing party. If the proposed intervenor would offer arguments and theories that the existing parties would not, the criterion is typically satisfied; if an existing party clearly has the same interests and would likely make the same legal arguments, it is not.80 The pleading that Rule 24(c) requires with the motion, which sets out the claim or defense for which intervention is sought, helps the court tell the two apart, because it shows whether the applicant wants to reiterate an original party's arguments or add a truly different perspective.81
In both versions the association wants the ordinance upheld, so a shared goal cannot decide the question. What decides it is whether the applicant brings a distinct interest and a distinct argument.