Concept
Permissive Intervention
Intervention
Permissive Intervention
An applicant who cannot satisfy Rule 24(a) has a second route, but it ends at the judge's discretion and not at a right. Under Rule 24(b)(1), the court, on timely motion, “may permit” anyone to intervene who is given a conditional right to intervene by a federal statute or who has a claim or defense that shares with the main action a common question of law or fact.1
The verbs mark the line between the two tracks. When an applicant meets the requirements of Rule 24(a), intervention must be granted, and the court may not deny it simply because it would delay the action or prejudice the existing parties.2 Under Rule 24(b) the court only “may” permit intervention, so an applicant who fits a listed ground has earned consideration and has not yet earned entry.3
The tracks also allocate burdens in opposite ways. Rule 24(a)(2) demands an interest, practical impairment, and inadequate representation, yet courts apply those demands with some leniency: they approach the interest requirement flexibly, apply impairment leniently, and treat inadequate representation as “not too high a hurdle,” since the applicant need show at most that her interest may be inadequately represented.4 Rule 24(b)(1) demands almost nothing of the applicant beyond a statute or a shared question, and then gives the court the last word.
The judge holds that word for reasons rooted in the history of intervention. English courts saw the primary justification for intervention as the need to let litigation continue without prejudice to the rights of nonparties, and the device developed furthest where a judgment would reach outsiders. A judgment in an admiralty in rem proceeding bound the world, for example, so a nonparty with an interest in the property held by the court would be precluded from presenting a claim unless allowed to participate.5 The same system also held that the plaintiff should control the shape and direction of the action, and the concern persists: the wider the permissible range of intervention, the greater the chance that delay, expense, and complexity will prejudice the original parties.6
The costs are concrete. Instead of two lawyers at every deposition there may be five, several lawyers may cross-examine the plaintiff's witnesses at trial, intervenors may add crossclaims or counterclaims, and every motion, notice, brief, and oral argument multiplies.7 Applications to intervene therefore put a dilemma to the court, and Rule 24(b) leaves the choice with the judge.
The four subsections that follow take the grounds in the order the rule states them and then turn to the judge's side of the ledger. They cover the conditional statutory right of Rule 24(b)(1)(A), the common-question ground of Rule 24(b)(1)(B), the separate provision of Rule 24(b)(2) for governmental officers and agencies, and the limit that Rule 24(b)(3) places on all of them.
Conditional Statutory Right
Rule 24(b)(1)(A) names the first ground: a person who “is given a conditional right to intervene by a federal statute.”9 One adjective separates this ground from the statutory ground for intervention of right. A federal statute that gives an unconditional right to intervene sends the applicant to the mandatory track, where the court must admit the applicant, while a statute that gives only a conditional right sends the applicant to the discretionary track, where the court may.10 In either case the statute supplies the reason for intervening, and the applicant need not separately prove the interest, impairment, and inadequate-representation elements that Rule 24(a)(2) requires.
A conditional right works as a ticket to consideration. The statute makes the applicant eligible, but the court decides whether to admit. Statutes conferring a conditional right include the Fair Labor Standards Act, 29 U.S.C. § 216(b), and the Equal Educational Opportunities Act, 20 U.S.C. § 1717, and even where one of them applies, the court determines whether permissive intervention is justified.11 Those two statutes illustrate the ground and do not exhaust it, so the safer habit is to read the statute a problem supplies and ask what it actually promises. The statute must also be federal, because the rule speaks of “a federal statute,” and a right that rests on state law alone does not open this door. The allocation makes sense: a statute can describe a category of cases, but only the judge can see what entry would cost in the case at hand.
The two applicants stand at different points on the same rule. Okafor has cleared eligibility and faces only the judge's discretion. Lindqvist never reaches discretion, because neither permissive ground describes her. An answer about a statutory applicant should therefore ask two questions in order: does a federal statute give the applicant any right to intervene, and, if so, is that right unconditional (mandatory entry under Rule 24(a)(1)) or conditional (eligibility under Rule 24(b)(1)(A), with the decision left to the court)?
Common Question of Law or Fact
Rule 24(b)(1)(B) lets the court permit anyone to intervene who “has a claim or defense that shares with the main action a common question of law or fact.”13 This ground does most of the work on the permissive track, because unlike Rule 24(b)(1)(A) it needs no statute, and a single shared question is enough. The reasoning is efficiency: an outsider whose own claim or defense raises an issue the case already raises gives the court a chance to decide that issue once, on one record, instead of twice, with the risk of conflicting answers.
The ground asks about overlap and not about injury. Unlike Rule 24(a), Rule 24(b) does not require a “significant protectable interest”; all that is necessary is that the intervenor's “claim or defense and the main action have a question of law or fact in common.”14 The rule “plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation,” as the Supreme Court said in SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 459 (1940).15
Kootenai Tribe v. Veneman shows how far the ground reaches. Organizations that wanted to support a rule moved to intervene alongside the Department that was defending it. Whatever their position under Rule 24(a), which demands a significant protectable interest, Rule 24(b) imposes no such requirement. The organizations' defenses raised questions of law or fact common to those the Department asserted, so the district court properly allowed them to intervene in support of the rule.16
The ground reaches claims as well as defenses. In McNeill v. New York City Housing Authority, low-income tenants facing eviction sued to challenge certain policies of the city housing authority, and other tenants also facing eviction moved to intervene as co-plaintiffs against the same policies. The court upheld permissive intervention because the newcomers' claims raised the same issues about the constitutionality of the policies as the main claim, and litigating them together would not delay the case.17
The two cases sit on opposite sides of the caption, with defenders raising defenses in one and challengers raising claims in the other, yet they share a feature. The newcomers would not have been directly affected had the court kept them out, but they shared an interest that made it efficient and helpful to have them participate as parties.18
The ground also asks nothing about whether the applicant's claim arises from the same transaction or occurrence as the main claim, the test that governs original joinder of parties. Weninger sues Apex, claiming that the drug Sindox caused a side effect he suffered. Garriega suffered the same side effect and has his own claim against Apex. If Weninger sues, Garriega could move to intervene under Rule 24(b)(1)(B), because his claim shares a common question of fact with Weninger's: did Sindox cause the side effect they both suffered?19 The standard thus gives the judge authority to allow joinder of parties with similar claims that do not meet the same-transaction-or-occurrence test.20 It would seem to follow that an intervenor need not be a person who would have been a proper party at the start of the suit.21
That breadth is tolerable because the judge remains the gatekeeper. Garriega's entry could save litigating the Sindox question twice, but it could also slow Weninger's case, and the rule leaves that tradeoff to the court, which weighs the added time that additional parties always take against the advantages of resolving all the claims in one litigation.22
The shared question must belong to the claim or defense the applicant actually wants to assert, so one applicant can clear the test on one theory and miss on another.
The court is not forced into all-or-nothing. It may deny intervention in its discretion, or it may allow an absentee to intervene to litigate only a single claim or defense.23
Meeting the common-question test makes the applicant eligible and does not make the applicant a party. The word “may” leaves the court free to refuse an applicant whose claim or defense overlaps with the main action, and an appellate court reviews a denial of permissive intervention only for abuse of discretion.24 The factors that guide that choice are the subject of the last subsection of this part.
Government Officers and Agencies
Governmental officers and agencies have a permissive route of their own. On timely motion, the court “may permit a federal or state governmental officer or agency to intervene” if a party's claim or defense is based on a statute or executive order the officer or agency administers, or on any regulation, order, requirement, or agreement issued or made under that statute or executive order.26 The trigger sits in a party's claim or defense. An agency's own concern about a subject starts nothing, but a litigant's reliance on the agency's law does.
The rule's premise is evident: a case that rests on a statute or regulation may turn on what that law means, and the agency that administers it has an obvious stake in the answer. As one treatise puts it, permissive intervention may be allowed when a governmental officer or agency wishes to come into a case involving a statute or regulation, although the more common ground is a shared question of law or fact.27
Eligibility under this provision is only eligibility. The rule says the court “may permit” the agency to intervene, and an agency adds one more party to the case. The wider the permissible range of intervention, the greater the chance of prejudice to the original parties through delay, expense, and complexity.28 The delay instruction therefore applies to an agency as it applies to any permissive applicant. Earlier wording of the rule, quoted by a court of appeals, placed the agency sentence directly beside that instruction: the agency “upon timely application may be permitted to intervene,” and “[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”29 Current Rule 24(b)(3) preserves the instruction.30
An agency that holds an unconditional statutory right to intervene does not need this provision, because that right belongs to Rule 24(a)(1), where entry is mandatory.31 Rule 24(b)(2) serves the agency whose only footing is a party's reliance on a statute, order, or regulation it administers, and there the court decides.32
Because the trigger is a party's reliance on the agency's law, an agency with only a general interest in a subject area has no footing under this provision.
An answer about an agency applicant should therefore ask first what the party's claim or defense actually rests on, and only then whether the agency administers that statute, order, or regulation.
Delay, Prejudice, and Discretion
Rule 24(b)(3) supplies the counterweight to the generous grounds for permissive intervention: “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.”34 An applicant who shares a common question has cleared only the eligibility step, and this sentence tells the judge what to examine next.35 Two words carry the weight. “Original” identifies whose burden counts, namely that of the litigants who began the case and bear the cost of each added lawyer, deposition, and brief. “Unduly” concedes that every added party takes some extra time and targets only the delay that exceeds what the applicant contributes.
Intervention of right contains no comparable instruction, and that difference shows what discretion adds. Once an applicant satisfies the standard for intervention of right, the court cannot deny intervention simply because it would delay the action or prejudice the existing parties.36 In effect, Rule 24(a) treats the applicant's need as outweighing the original parties' inconvenience, while Rule 24(b) leaves that weighing to the judge. The same delay that is irrelevant to an applicant of right therefore counts against a permissive applicant, and an answer should say which track the applicant is on before it says whether delay matters.
The court's task is a balance. The decision turns on weighing the needs or interests of the intervenor against the possible burdens on the existing parties if intervention is permitted.37 Because additional parties always take additional time, the judge sets that cost against the advantage of disposing of all the claims or defenses in one litigation.38
The burden grows with the applicant's ambition. The more an intervenor tries to inject new issues, the greater the potential prejudice and delay to the original action.39 The McNeill tenants show the favorable end of the scale. Their claims raised the same constitutional issues as the main claim, and litigating them together would not delay the case, so the court upheld their intervention.40 Nothing new entered the case, and nothing slowed it.
Timing is the other common reason for denial. Courts often deny permissive intervention because the motion comes at a point when it would delay resolution of the case, would require reopening discovery, or because the intervenor did not try to intervene sooner.41 Timeliness matters under both Rule 24(a) and Rule 24(b), but courts are much more inclined to grant a late motion to intervene as of right than a late motion for permissive intervention.42
What the applicant brings to the case sits on the other side of the scale. Intervention is more likely if the applicant can show that it brings a special expertise or a different perspective to the controversy than the original parties offer, or if refusing intervention may lead to other suits litigating the same issues.43 The first two improve the court's decision, and the third warns that denial may only move the same issues to another docket. The converse follows: an applicant that adds nothing the original parties lack contributes cost without benefit, in the form of more lawyers at depositions and more briefs to read.44 The adequate-representation cases under Rule 24(a)(2) express a similar instinct. A proposed intervenor who would offer arguments and theories the existing parties would not meets that standard, but one whose interests are the same as an existing party's and who would make the same legal arguments does not, and courts usually presume that a governmental representative adequately represents the interests of absentees.45 Rule 24(b)(1) does not list adequate representation as an element, but the same reasoning fits naturally into the weighing the rule requires.
The consumer group and the McNeill tenants both share a common question with the main action, so eligibility cannot separate them. The difference lies in what each adds and what each costs the original parties, which is the measurement Rule 24(b)(3) directs the judge to make, and the consumer group's motion fails on grounds courts commonly give.46
Between full party status and refusal lies a third choice. The court may allow intervention for limited purposes or authorize limited participation. For example, it may allow an absentee to intervene to litigate only a single claim or defense, or let the intervenor file briefs and argue motions but not take discovery or present witnesses.47 Limits aimed at the specific source of prejudice let the court keep the applicant's contribution while removing much of the cost.
Because the weighing turns on the schedule, cast of parties, and history of a particular case, a trial judge's ruling is hard to attack. Orders denying permissive intervention are reviewed for abuse of discretion.48 Courts have also treated the two tracks differently for appealability: a denial of intervention of right may be appealed immediately, while a denial of permissive intervention is appealable only if the appellate court finds that the trial court abused its discretion.49 Even review of a denial of intervention of right, which is de novo, gives way to abuse-of-discretion review on the timeliness element.50