Judicial Barriers: Why the Supreme Court Should Not Impose an Additional Requirement on Rule 24 Intervenors

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

The Federal Rules of Civil Procedures were enacted to “secure the just, speedy, and inexpensive determination of every action and proceeding.”[1] Pursuant to these rules, the federal courts possess a duty to exercise authority in a way that all cases will be resolved fairly. Unfortunately, rules that are ambiguous or not clearly defined can be interpreted in many different ways by these courts, causing confusion and variations of legal standards. When this occurs, it is the duty of the Supreme Court to resolve these issues and allay any doubt about what rule, standard, or interpretation governs.

The Supreme Court recently granted certiorari in a land dispute case to answer the underlying question of what the proper standard is for a party moving to intervene in a case.[2] The District Court held that the moving party could not intervene because it lacked proper Article III standing under the United States Constitution.[3] However, the Second Circuit overturned the District Court’s decision, holding that “there is no need to impose the standing requirement upon a proposed intervenor where the existence of a case of controversy has been established in the underlying litigation.”[4] In so ruling, the Second Circuit joined six other circuits in interpreting the Federal Rules to not require Article III standing. However, three other circuit courts have consistently held that Article III standing is required and will deny a moving party the right to intervene if it cannot show it possesses standing. It is this type of unjust and unfair outcomes that the Federal Rules were enacted to prevent. Granting certiorari in Laroe Estates, Inc. v. Town of Chester, the Supreme Court will soon have a chance to remedy the confusion among the courts.

Understanding Justiciability Requirements

A. Article III Standing

Article III of the United States Constitution vests the judicial power of the United States in the Supreme Court and in any inferior courts Congress may from time to time ordain and establish.[5] Article III limits the federal courts to hear only actual cases and controversies.[6] This requirement promotes the founder’s idea of separation of powers within the federal government with respect to the judiciary branch.[7] An essential part of this checks and balances system is that a plaintiff must establish they possess the standing to sue.[8] In essence, this requirement asks “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”[9] Standing acts as a threshold question for every federal case and will prevent a plaintiff from moving forward without identifying a personal injury, caused by the defendant(s), and redressable by the court.[10]

B. Rule 24 Intervention

The doctrine of intervention relies on the basic rationale that a judgement from a court in a particular case may affect the rights of nonparties who are entitled to the right to be heard.[11] A party who seeks to intervene in a case has two options available under the Federal Rules of Civil Procedure: intervention of right and permissive intervention.[12] Only the intervention of right under Rule 24(a)(2) will be analyzed in this article. For intervention of right, under Rule 24(a)(2), a court must grant an applicant’s motion to intervene if (1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the application is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the other parties.[13] An intervening party is required to meet all of the requirements, and failure to establish even one will render an intervention of right futile.[14]

Two Frames of Thought Awaiting Affirmation

A party is undoubtedly required to have an interest in the property or transaction prior to joining the case.[15] However, a new question has arisen in the federal courts: whether an intervenor must also have individual Article III standing to join a case.[16] The Supreme Court has historically explicitly refused to address this question, and the issue was left largely to the lower courts.[17] This question has gone before ten of the thirteen circuit courts and resulted in a wide 7-3 split. Seven of the circuits held that an intervening party has no standing requirement so long as the underlying litigation has established proper standing.[18] However, three circuit courts disagree and treat standing as an additional requirement to those found in Federal Rules of Civil Procedure 24. On January 13, 2017, the Supreme Court granted certiorari to settle the dispute among the circuits.[19]

A. Rule 24 Plus Standard

While the majority of the courts have found that an intervenor is not required to show Article III standing, three courts have often denied an intervention if the party failed to demonstrate they possessed standing.[20] It seems that these courts have established an additional requirement on a party seeking to intervene under Rule 24; the party must meet all of the requirements for Rule 24 intervention plus show an additional requirement of individual Article III standing to intervene.

For example, the Eighth Circuit argues that once an intervenor who lacks standing joins a case or controversy, there is no longer an appropriate case or controversy to allow justiciability by a federal court.[21] Therefore, the Eighth Circuit imposes an Article III standing requirement on a plaintiff and all intervenors in a case. The District of Columbia Circuit came to a similar conclusion, but articulated different reasoning.[22] In Building and Construction Trades Department v. Reich, the DC Circuit Court held an intervenor must satisfy the same Article III standing requirements because the intervenor will stand on “equal footing” with the original party of the suit.[23] Furthermore , the Seventh Circuit has suggested the interest of an intervenor should be greater than that necessary to satisfy the typical Article III standing requirement.[24] Although this is not the rule the Seventh Circuit imposes on intervenors today, the Seventh Circuit remains the strictest on interest requirements when it comes to intervention in a case.[25]

B. Rule 24 Standard

Most of the courts who have considered this question have decided an intervenor need not have individual standing to join an already established litigation.[26] Most recently, the Second Circuit has joined this majority which explicitly note that Article III standing is not required when a proper case or controversy has already been established.[27] For instance, the Fifth Circuit noted that “Rule 24, authorizing intervention, presumes that a justiciable case or controversy already exists before the court”.[28] The Fifth Circuit points to a case decided by the Eleventh Circuit holding that because a court’s subject matter jurisdiction is already established before intervention, a party seeking to intervene need not possess individual standing.[29]

The Third Circuit joined these courts in not requiring an intervenor to have Article III standing to intervene.[30] Relying on McConnell v. Federal Election Commission, the Third Circuit pointed to a particular phrase in the opinion.[31] “It is clear however, that the [named defendant] has standing, and therefore we need not address the standing of the intervenor-defendants . . .”[32] Finding this persuasive, the Second Circuit recently noted reliance on the Supreme Court’s “sub silentio” precedent of allowing intervening without determining whether those parties independently have standing.[33] 

Supreme Court to Remedy the Circuit Split

As with any circuit split without Supreme Court intervention, the law is uncertain and varies from jurisdiction to jurisdiction. While a party attempting to intervene in Ohio or Kentucky who has met the requirements of Rule 24 will be permitted to intervene without further inquiry into their standing, that same party wishing to intervene in Indiana has a more substantial burden. As a state in the Seventh Circuit, a party in Indiana must meet the requirements of Rule 24 plus prove they possess sufficient Article III standing to join the litigation. This type of inequity in the judicial system must be remedied. Those searching for a definitive answer may be in luck with a recent grant of certiorari. The question of intervenor standing will be decided this year by the Supreme Court in Town of Chester v. Laroe Estates, Inc.[34] Whether the Supreme Court decides intervening parties are required to meet the Rule 24 plus standard or not, at minimum all intervenors will be subjected to the same constitutional burden.

The Supreme Court should find that a Rule 24 intervenor need not show individual Article III standing to intervene in a case. As the Supreme Court alluded to in McConnell, as long as the primary party has standing to bring the case to a federal court, that court does not need to inquire whether the intervening party also has standing.[35] There is a procedural difference between whether a party is a proper plaintiff and whether a party is a proper intervenor.[36] In order to be a proper plaintiff, the party must have Article III standing. However, in order to be a proper intervenor, the party must satisfy all requirements set forth in Rule 24. To impose an additional standing requirement into the Federal Rules would be to read into the rules something that was not intended.

However, there should be limitations on intervenors without Article III standing. The Fifth Circuit notes that the intervenor does not need to show Article III standing so long as: (1) the intervention is into a subsisting and continuing Article III case or controversy, and (2) the ultimate relief sought by the intervenor is also being sought by at least one subsisting party with standing to do so.[37] Additionally, as noted in Diamond, an intervenor who solely wishes to appeal a case without the primary party doing the same shall be required to show individual Article III standing.[38] If the primary party accepts a ruling and does not wish to appeal, the original case or controversy is complete. To continue an appeal, an intervenor must show that they have standing to bring a case or controversy in order for a federal court to maintain ability to decide the case. Requiring these limitations on an intervenor furthers the purposes of the Federal Rules of fairness and the just, speedy, and inexpensive determination of every action and proceeding.[39]

Conclusion

The Federal Rules of Civil Procedure govern the federal courts in all cases and controversies. The Supreme Court must not read an additional requirement into Rule 24 and require intervenors to show Article III standing before being permitted to intervene. Rule 24 sets out four elements which ensure that an intervention will provide a fair and equitable determination for all parties with an interest in the subject of the case. If an additional Article III standing requirement is imposed, the opportunity for intervenors to join a case will be substantially burdened. The Supreme Court should not impose this judicial barrier on intervenors.

[1] Fed. R. Civ. P. 1.

[2] Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60 (2nd Cir. 2016).

[3] Sherman v. Town of Chester, 2015 U.S. Dist. LEXIS 43322 (S.D.N.Y. Mar. 31, 2015).

[4] Laroe Estates, Inc. 828 F.3d at 64.

[5] U.S. Const. art. III, §2.

[6] Id.

[7] Flast v. Cohen, 392 U.S. 83, 95 (1968) (“And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.”).

[8] Raines v. Byrd, 521 U.S. 811, 818, 117 S. Ct. 2312, 2317 (1997).

[9] Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205 (1975)

[10] Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

[11] § 1903History of Rule, 7C Fed. Prac. & Proc. Civ. § 1901 (3d ed.)

[12] Fed. R. Civ. P. 24.

[13] Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998).

[14] Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

[15] § 1908Intervention under the 1966 Amended Rule—In General, 7C Fed. Prac. & Proc. Civ. § 1908 (3d ed.)

[16] Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60 (2nd Cir. 2016); United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829 (8th Cir. 2009); Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998).

[17] Diamond v. Charles, 476 U.S. 54, 68-69 (1986).

[18] See, e.g. King v. Governor of N.J., 767 F.3d 216 (3rd Cir. 2014); Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998); Yniquez v. Arizona, 939 F.2d 727 (9th Cir. 1991); San Juan Cnty. v. United States, 503 F.3d 1163 (10th Cir. 2007) (en banc).

[19] Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60 (2nd Cir. 2016), cert. granted, No. 16-605.

[20] Circuits denying intervention without Article III standing are the Seventh, Eighth, and District of Columbia Circuits.

[21] Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir. 1996) (“an Article III case or controversy, once joined by intervenors who lack standing, is – put bluntly – no longer an Article III case or controversy.”).

[22] Bldg. & Constr. Trades Dep’t v. Reich, 40 F.3d 1275 (D.C. Cir. 1994).

[23] Bldg. & Constr. Trades Dep’t v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994).

[24] United States v. 36.96 Acres of Land, 754 F.2d 855, 859 (7th Cir. 1985).

[25] Kerry C. White, Rule 24(A) Intervention of Right: Why the Federal Courts Should Require Standing to Intervene, 36 Loy. L.A. L. Rev. 527 (2002).

[26] These courts include the Third, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits.

[27] Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998).

[28] Id. at 832.

[29] Chiles v. Thornburgh, 865 F.2d 1197, 1212-13 (11th Cir. 1989).

[30] King v. Governor of N.J., 767 F.3d 216 (3rd Cir. 2014).

[31] Id. at 246.

[32] McConnell v. Federal Election Comm’n, 540 U.S. 93, 233 (2003).

[33] Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60, 65 (2nd Cir. 2016)

[34] Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60 (2nd Cir. 2016), cert. granted, No. 16-605.

[35] McConnell, 540 U.S. at 233 (2003).

[36] David L. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 726 (1968) (“Perhaps it should go without saying, but it must be understood that there is a difference between the question whether one is a proper plaintiff or defendant in an initial action and the question whether one is entitled to intervene.”).

[37] Fifth Circuit

[38] Diamond v. Charles, 476 U.S. 54, 68 (1986).

[39] Fed. R. Civ. P. 1.

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