Also known as: rights to intervene · right of intervention · intervention as of right
Written by attorneys — see sources below.
An entitlement of a nonparty to join an existing federal civil action on timely motion when a federal statute confers an unconditional right to intervene.
The Department of Agriculture moved to intervene in a wage dispute between Crown Cafe and its employees. A federal statute granted the department an unconditional right to participate in any suit concerning administration of the tip-credit program. The court granted the motion because the statute supplied the required unconditional right.
Seaside Bank sought to intervene in a condominium association's suit against a property manager over reserve funds. A federal statute provided a conditional right to intervene in actions affecting secured lending interests. The court exercised its discretion to permit intervention after finding common questions of fact regarding the reserve account.
White firefighters moved to intervene in a Title VII suit brought by Black firefighters against the city. The proposed intervenors claimed that the consent decree would impair their promotion rights. The court permitted intervention because the existing parties did not adequately represent the distinct seniority interests of the white firefighters.
In 1974 and 1975, the Ensley Branch of the National Association for the Advancement of Colored People and seven black individuals filed separate class-action complaints against the City of Birmingham and the Jefferson County Personnel Board. They alleged racially discriminatory hiring and promotion practices in public service jobs including the fire department in violation of Title VII of the Civil Rights Act of 1964 and other federal law. After a bench trial in 1976 on some issues and a second trial in 1979 focused on promotion practices but before judgment, the parties negotiated two consent decrees. One was between the black individuals and the City, and the other was between them and the Board. These proposed decrees set forth an extensive remedial scheme including long-term and interim annual goals for the hiring of blacks as firefighters and goals for promotion of blacks within the fire department. The District Court entered an order provisionally approving the decrees and directing publication of notice of the upcoming fairness hearings. Notice of the hearings with a reference to the general nature of the decrees was published in two local newspapers. At that hearing the Birmingham Firefighters Association appeared and filed objections as amicus curiae. After the hearing but before final approval the BFA and two of its members moved to intervene on the ground that the decrees would adversely affect their rights. The District Court denied the motions as untimely and approved the decrees in August 1981. Seven white firefighters, all members of the BFA, then filed a complaint against the City and the Board seeking injunctive relief against enforcement of the decrees. The District Court denied relief. Both the denial of intervention and the denial of injunctive relief were affirmed on appeal in 1983. A new group of white firefighters, the Wilks respondents, then brought suit against the City and the Board. They alleged that because of their race they were being denied promotions in favor of less qualified blacks in violation of federal law. The Board and the City admitted making race-conscious employment decisions but argued that the decisions were required by the consent decrees. The District Court granted the motion to dismiss after trial, concluding that the promotions of the black individuals were in fact required by the terms of the consent decree. On appeal the Eleventh Circuit reversed, holding that because the Wilks respondents were neither parties nor privies to the consent decrees their independent claims of unlawful discrimination are not precluded. The Supreme Court granted certiorari in 1988.
Minority students moved to intervene in a challenge to a university's admissions policy. The students asserted that invalidation of the policy would impair their ability to obtain admission under current criteria. The court granted intervention as of right because the university might not fully defend the policy in the same manner as the students.
Before us are two cases in which proposed defendant-intervenors were denied intervention under Federal Rule of Civil Procedure 24(a) and (b). The actions were brought against the University of Michigan to contest the use of an applicant's race as a factor in determining admission. The appeals come from separate district courts but present similar issues. We have therefore consolidated the two cases for purposes of this opinion. In Gratz v. Bollinger, the named plaintiffs are two white applicants who were denied admission to the College of Literature, Arts and Science. They allege that the College's admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. The plaintiffs seek compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the College. The proposed intervenors are 17 African-American and Latino/a individuals who have applied or intend to apply to the University, and the Citizens for Affirmative Action's Preservation (CAAP), a nonprofit organization whose stated mission is to preserve opportunities in higher education for African-American and Latino/a students in Michigan. The district court denied their motion for intervention as of right, holding that the plaintiffs did not have a substantial interest in the litigation and that the University could adequately represent the proposed intervenors' interests. The district court also denied the proposed intervenors' alternative motion for permissive intervention. In Grutter v. Bollinger, the named plaintiff is a white woman challenging the admissions policy of the University of Michigan Law School. She alleges that the race-conscious admissions policy utilized by the law school violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. Grutter seeks compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the law school. The proposed intervenors are 41 students and three pro-affirmative action coalitions. The individual proposed intervenors include 21 undergraduate students of different races who currently attend different undergraduate institutions, all of whom plan to apply to the law school for admission. Five black students who currently attend local high schools also plan to apply to the law school for admission. Twelve students of different races currently attend the law school. A paralegal and a Latino graduate student at the University of Texas at Austin intend to apply to the law school for admission. A black graduate student at the University of Michigan is a member of the Defend Affirmative Action Party. The district court denied the motion to intervene as of right on the basis that the intervenors failed to show that their interests would not be adequately represented by the University. The district court also denied the proposed intervenors' alternative motion for permissive intervention. The plaintiff opposed the motion to intervene, but the defendants, officials of the Law School and the University, did not oppose the motion. The appeals were argued on June 8, 1999, and decided on August 10, 1999.
Official proponents of a state ballot initiative moved to intervene after state officials declined to defend the law. The proponents claimed an interest in preserving the measure they had sponsored. The court denied intervention because the proponents lacked a direct protectable interest sufficient to satisfy the rule.
In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. Later that year, California voters passed Proposition 8, a ballot initiative that amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in the state. The California Supreme Court rejected a procedural challenge and held that the proposition was properly enacted under California law. Respondents, two same-sex couples who wish to marry, filed suit in the United States District Court for the Northern District of California. The complaint named as defendants California's Governor, Attorney General, and other state and local officials responsible for enforcing California's marriage laws. Those officials refused to defend the law, although they continued to enforce it throughout the litigation. The District Court allowed petitioners, the official proponents of the initiative, to intervene to defend Proposition 8. After a twelve-day bench trial, the District Court declared Proposition 8 unconstitutional, permanently enjoined the named defendant officials from enforcing the law, and directed that all persons under their control or supervision shall not enforce it. Those officials elected not to appeal the District Court order. Petitioners appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit certified a question to the California Supreme Court. The question asked whether, under California law, the official proponents of an initiative measure possess the authority to assert the state's interest in the initiative's validity. It also asked whether they may appeal a judgment invalidating the measure when the public officials charged with that duty refuse to do so. The California Supreme Court answered the certified question in the affirmative. Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8 and affirmed the District Court's order on the merits. The Supreme Court of the United States granted certiorari to review that determination and directed the parties to brief and argue whether petitioners have standing under Article III in this case.
Ranchers moved to intervene in a suit brought by environmental groups against the Fish and Wildlife Service. The ranchers asserted that the Service's interpretation of the Endangered Species Act would impair their grazing permits. The court permitted intervention because the ranchers' economic interest could be impaired and was not adequately represented by the agency.
The Klamath Project is a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. It was undertaken pursuant to the Reclamation Act of 1902. The project is administered by the Bureau of Reclamation. In 1988 the Lost River Sucker and Shortnose Sucker were listed as endangered. In 1992 the Bureau notified the Fish and Wildlife Service that operation of the project might affect the two species. After formal consultation, the Service issued a biological opinion. It concluded that long-term operation of the Klamath Project was likely to jeopardize the continued existence of the suckers. The opinion identified reasonable and prudent alternatives that included maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the biological opinion. Petitioners are two Oregon irrigation districts that receive Klamath Project water and the operators of two ranches within those districts. They filed suit against the director and regional director of the Service and the Secretary of the Interior. The complaint alleges that the Bureau has followed essentially the same procedures for storing and releasing water from the reservoirs throughout the twentieth century. No scientifically or commercially available evidence shows the sucker populations have declined or will decline as a result of project operations. No such evidence shows the water-level restrictions will benefit the fish. The complaint further states that petitioners use the reservoirs and related waterways for recreational, aesthetic, commercial, and irrigation purposes. The restrictions recommended in the biological opinion will substantially reduce the quantity of available irrigation water and irreparably damage those uses. The complaint sets forth three relevant claims for relief. The first and second claims allege that the Service's jeopardy determination and the minimum water levels violated section 7 of the ESA. The third claim alleges that the imposition of minimum water elevations constituted an implicit critical-habitat determination that violated section 4 of the ESA because it failed to take economic impact into account. Each claim also asserts that the action violated the APA prohibition on arbitrary, capricious, or otherwise unlawful agency action. The District Court dismissed the complaint for lack of jurisdiction on the ground that petitioners' recreational, aesthetic, and commercial interests did not fall within the zone of interests protected by the ESA. The Court of Appeals for the Ninth Circuit affirmed, holding that only plaintiffs who allege an interest in the preservation of endangered species fall within that zone. The Supreme Court granted certiorari.
A federal statute creates an unconditional right when its text expressly authorizes intervention in the type of litigation at issue. The right is triggered by the subject matter of the suit rather than by the precise relief sought or the level of agency decision-making involved. Courts examine the statute's scope and the complaint's allegations to determine whether the statutory condition is satisfied.
Supporting sources
…University will not adequately represent their interest in educational opportunity. The district court denied their motion for intervention as of right, holding that the plaintiffs did not have a substantial interest in the litigation and that the University could adequately represent the proposed intervenors' interests. The district court…
…Chase National Bank , the drafters cast Rule 24, governing intervention, in permissive terms. See Fed. Rule Civ. Proc. 24(a) (intervention as of right
…(exclusive jurisdiction over reservation domiciliaries), 1911(b) (presumptive jurisdiction over nondomiciliaries), 1911(c) (right of intervention
…(CA5); Glen Falls Indemnity Co. v. United States ex rel. Westinghouse Electric Supply Co. , 229 F. 2d 370, 373-374 (CA9): or intervention as of right, e. g., Phelps v. Oaks , 117 U. S. 236, 241: Smith Petroleum Service, Inc. v. Monsanto Chemical Co. , 420 F. 2d 1103, 1113-1115 (CA5). : See n. 18, supra . : Whether…
The movant must file a timely motion, claim an interest relating to the property or transaction, show that disposition may impair that interest as a practical matter, and demonstrate that existing parties do not adequately represent the interest. The impairment inquiry focuses on real-world consequences rather than formal preclusion. Divergent litigation incentives between the movant and existing parties support a finding of inadequate representation.
Supporting sources
A subcontractor may intervene as of right when an adverse judgment could impair its ability to protect its work or expose it to later indemnity claims. The rule focuses on practical impairment rather than the absence of a direct claim against the plaintiff. Existing parties' representation is inadequate when their incentives differ from the subcontractor's specific exposure.
Supporting sources
A government agency may intervene as of right when a consent order it administers could be impaired by conflicting judicial relief. The agency's institutional interest in consistent regulatory enforcement is distinct from private plaintiffs' damage claims. Existing parties do not adequately represent the agency when their objectives do not align with preserving the negotiated order.
Supporting sources
An economic interest supports intervention when long-term exclusive contracts are tied directly to the facility whose closure is at issue. Practical impairment arises because a closure order would render performance impossible. Existing parties do not adequately represent the interest when their priorities focus on labor or corporate flexibility rather than preserving the supply relationship.
Supporting sources