Concept
Appealing Intervention Rulings
Intervention
Appealing Intervention Rulings
A ruling on a motion to intervene decides who may take part in the case, and each version of that ruling reaches the court of appeals by a different path. Rule 24 sets the trial judge's task: on timely motion the court must permit intervention by an applicant who meets the criteria of Rule 24(a), and it may permit intervention by one who meets the criteria of Rule 24(b).1 The appellate consequences follow the same line between must and may, together with the finality principle, which ordinarily makes a litigant wait until the case below ends before challenging the court's rulings. An order granting intervention waits for final judgment, an order denying intervention of right is appealable at once and reviewed de novo, and an order denying permissive intervention is reviewed only for abuse of discretion.
Orders Granting Intervention
A grant of intervention gives the objecting party no immediate appeal, and the reason shows most clearly beside the rule for denials. A denial is final as to the applicant, who leaves the case with nothing left to litigate in it.2 A grant ends nothing for anyone; it adds a participant to a case that continues. The party who opposed intervention therefore litigates on and raises its objection in the appeal from the final judgment.
Waiting has a price, and the objector pays it in a more crowded case. The wider the range of intervention a court permits, the greater the chance that the original parties will suffer prejudice from delay, expense, and complexity.3 The objector still keeps the objection, which travels to the end of the case and can be raised in the appeal from the judgment.
When the court admitted the applicant under Rule 24(b), the later objection meets the broad discretion that subsection gives the trial judge, who may weigh the extra time that additional parties always take against the advantages of resolving all the claims and defenses in one lawsuit.4
Denial of Intervention of Right
An applicant who loses a motion under Rule 24(a) stands in the opposite position and may appeal at once, even though the main case goes on. Such a ruling is final as to the putative intervenor, and that finality supports an immediate appeal.6 The Supreme Court has said that “denials of such motions are, of course, appealable,” and the Second Circuit calls the rule “well-established.”7
Courts reach that result by calling the denial final as to the applicant, with no detour around the finality principle. A litigant who cannot show finality sometimes argues instead for the collateral order doctrine, a judge-made theory that one court of appeals described as a “detour” around the finality principle and an “exception.” The Supreme Court has said the doctrine is best understood not as an exception to the “final decision” rule.8 A denied applicant needs no such argument, because the ruling is already final as to it.
The standard of review follows from the text of Rule 24(a). Because the court “must permit” a qualifying applicant to intervene, the rule does not leave the outcome to the trial judge's choice once the criteria are met.9 The court of appeals therefore reviews the denial de novo, deciding afresh whether the applicant met the criteria, with one exception: timeliness is reviewed for abuse of discretion.10 The exception follows from the nature of the question. The trial court must judge timeliness in light of all the circumstances and weighs particularly whether delay has prejudiced the existing parties, so it has some discretion in every intervention case, although courts are especially reluctant to call an intervention-of-right application untimely because the applicant may be seriously harmed if kept out.11 Subsidiary factual findings are reviewed for clear error.12
One appeal shows the structure. The district court had held each motion to intervene timely, the plaintiffs did not contest that finding, and the court of appeals therefore treated timeliness as settled and addressed only the three remaining elements: interest, impairment, and representation.13 Set the manufacturer above beside such an applicant. The manufacturer's objection and the applicant's denial both leave the main case pending, yet the manufacturer must wait and the applicant need not, because the manufacturer remains in the case and the applicant has been shut out of it.
The applicant may combine its appeal with an appeal going to the merits, but the court of appeals can reach the merits issues only if it first reverses the intervention ruling.14 The immediate appeal matters because a turned-away applicant is a nonparty, and some circuits decide whether a nonparty may appeal under flexible, case-by-case tests. The Fifth Circuit, for instance, asks whether the putative appellant participated in the district court proceedings to the extent its interests were involved, whether the equities favor hearing the appeal, and whether the appellant has a personal stake in the outcome.15
Denial of Permissive Intervention
A denial of permissive intervention is reviewed only for abuse of discretion.17 The standard follows from the verb in Rule 24(b), which says the court “may permit” an applicant who fits one of its grounds to intervene.18 Once the judge may answer either way, the appellate court asks only whether the choice stayed within the bounds of discretion. The finality reasoning that supports an appeal from the denial of intervention of right reaches any denial, because a nonparty denied intervention may appeal at once from a ruling that is final as to it.19 The difference lies in what the court of appeals asks once the appeal is heard.
The trial court's discretion on this track is broad. Rule 24(b) requires it to consider whether intervention will unduly delay or prejudice the adjudication of the original parties' rights, and it may weigh the fact that additional parties always take additional time against the advantages of disposing of all the claims or defenses in one litigation.20 The judge who has managed the case sees the schedule, the parties, and what the applicant would add, and that vantage explains why an appellate court defers.
Rulings that apply a fixed standard show by contrast what the label means. Removal is proper only if the federal court would have had jurisdiction had the plaintiff filed there, and only a jurisdictional defect bars it; improper venue does not.21 A Rule 12(b)(6) motion takes the facts as alleged to be true and asks only whether governing substantive law allows relief.22 In each of those rulings the judge decides whether a standard is met, while in permissive intervention the judge chooses among acceptable answers.
The Eleventh Circuit states both standards together: it reviews the denial of a motion to intervene as of right de novo and reviews orders denying permissive intervention for abuse of discretion.23 An applicant who pursues both tracks therefore does best to develop the Rule 24(a) argument, the only one of the two denials that receives plenary review.
Delay While the Appeal Runs
An appeal from a denial of intervention of right arrives while the main case is still alive, so the original parties and the trial court must decide how to live with it. If the case pauses, the original parties spend time on a question they did not choose to litigate, and the applicant may stay out anyway. If it goes forward, it may move toward settlement or judgment while the applicant waits outside, and a later reversal would show that someone entitled to take part missed part of the case. The applicant's appeal may be joined with a merits appeal, but the court of appeals reaches the merits only if it reverses the intervention ruling.25
The tension is an old one. Intervention developed as a device that lets litigation continue without prejudice to nonparties, yet the wider the permissible range of intervention, the greater the risk that the original parties will be prejudiced by delay, expense, and complexity.26 The immediate appeal makes both concerns concrete. It protects an excluded applicant who may be seriously harmed if kept out, and it asks the original parties to bear the delay.27
The timing of the motion therefore controls the cost. A court evaluates timeliness in light of all the circumstances, weighs particularly whether delay has prejudiced the existing parties, and may disallow intervention when trial is about to begin.28 A prompt motion lets the judge rule before the schedule hardens, so an appeal from a denial interrupts a case with little invested. A late motion produces the costlier version of the dilemma. An applicant who never moved in the district court has a steeper path still, because courts of appeals allow intervention at the appellate stage where none was sought below only in an exceptional case for imperative reasons.29 Such cases have been found, for example, where an intervenor would present arguments going to subject-matter jurisdiction.30