Intervention

Article — Volume 106, Issue 2

106 Va. L. Rev. 271
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*Emerson G. Spies Distinguished Professor of Law & Caddell and Chapman Professor of Law, University of Virginia. Thanks to Michael Collins, Scott Glass, John Harrison, and Ann Woolhandler for helpful comments.Show More

Ever since the late 1960s, many lower federal courts have interpreted the Federal Rules of Civil Procedure to give outsiders broad rights to become parties to pending lawsuits. Intervention of this sort affects the dynamics of a lot of cases, including many of the highest-profile cases that the federal courts hear. Yet it raises fundamental questions about the structure of litigation: Should status as a party be limited to people who have legal claims or defenses, or do the Federal Rules of Civil Procedure invite intervention by everyone who will feel the practical effects of a judgment? For the last half century, many federal judges and law professors have pushed for expansive understandings of the right to intervene. That impulse is consistent with the “interest representation” model of litigation, which analogizes judicial decisionmaking to other types of policymaking and touts the benefits of broad participation. According to this Article, however, the Federal Rules of Civil Procedure instead reflect a more traditional view of litigation, under which the parties to a case need to be proper parties to a claim for relief.

Introduction

The American system of civil litigation draws important differences between the parties to a case and everyone else. For instance, each party to a suit in federal district court normally can use the full panoply of discovery mechanisms to demand information from other people, and the court stands ready to enforce those demands. Nonparties have no similar power to gather information, even in cases that may affect their interests.1.See Fed. R. Civ. P. 30(a) (authorizing “[a] party” to take depositions); Fed. R. Civ. P. 33(a) (authorizing “a party” to propound interrogatories to any other party); Fed. R. Civ. P. 34(a) (authorizing “[a] party” to demand documents and electronically stored information from any other party); Fed. R. Civ. P. 45(a)(3) (enabling “a party” to use subpoenas duces tecum to obtain documents and electronically stored information from nonparties).Show More Likewise, when the district court enters judgment, only a party normally can appeal.2.See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); cf.Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 2018) (discussing a “limited exception” to this general rule).Show More The judgment’s preclusive effect is correspondingly limited: although the practical consequences of a judgment can radiate outward, typically only the parties are formally bound.3.See Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (identifying some categories of nonparty preclusion, but casting them as exceptions to the general rule).Show More

Given the importance of the distinction between parties and other people, one might expect federal courts to have thought hard about who is eligible to become a party. Under the rubric of “standing” to sue, there has indeed been much discussion of who can initiate a suit in federal court against whom. Once a suit is launched, though, outsiders who are interested in the outcome often seek to intervene as additional parties so that they can conduct discovery, participate fully at trial, and pursue an appeal in the event of an adverse judgment. The law governing such motions is a mess.

The rules that govern intervention in civil actions in federal district court might seem straightforward. Federal Rule of Civil Procedure 24(a) says:

On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) 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.4.Fed. R. Civ. P. 24(a) (emphasis added).Show More

Rule 24(b)(1) adds:

On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.5.Fed. R. Civ. P. 24(b)(1) (emphasis added).Show More

Of these two provisions, Rule 24(b)(1) is easier to interpret. The Federal Rules of Civil Procedure consistently use the word “claim” to mean a “claim for relief.”6.See, e.g., Fed. R. Civ. P. 8(a) (specifying what must appear in “[a] pleading that states a claim for relief,” and requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”); Fed. R. Civ. P. 18(a) (discussing joinder of claims); Fed. R. Civ. P. 54(b) (discussing judgment “[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim”); see also Simona Grossi, The Claim, 55 Hous. L. Rev. 1, 7 (2017) (referring to the claim as “the basic litigation unit” under the Rules).Show More Likewise, a “defense” is a particular type of legal argument that the targets of a claim assert to explain why the court should not grant relief against them.7.See, e.g., Fed. R. Civ. P. 8(b)(1)(A) (“In responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it . . . .”).Show More If these words mean the same thing in Rule 24(b)(1) that they mean elsewhere in the Federal Rules of Civil Procedure, then (in the absence of special statutory authorization) an outsider cannot use Rule 24(b) to become a party to a case simply because the outsider has a practical stake in the outcome. Instead, the outsider needs to be a proper party to a claim for relief. Many judges, however, now permit intervention “even in ‘situations where the existence of any nominate “claim” or “defense” is difficult to find.’”8.EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (quoting Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967) (citation and internal quotation marks omitted)). But see City of Herriman v. Bell, 590 F.3d 1176, 1184 (10th Cir. 2010) (“[T]o intervene under Rule 24(b) the proposed intervenor must have a claim or defense that shares at least some aspect with a claim or defense presented in the main action. Here, . . . Herriman City has no claim and thus cannot satisfy Rule 24(b)’s requirements.”).Show More

The criteria for intervention of right under Rule 24(a) are even less certain. In the words of a leading treatise, “There is not any clear definition of the nature of the ‘interest relating to the property or transaction that is the subject of [the] action’ that is required for intervention of right [under Rule 24(a)(2)].”9.7C Charles Alan Wright et al., Federal Practice and Procedure § 1908.1, at 300 (3d ed. 2007).Show More Commentators agree that the cases on this topic are impossible to reconcile.10 10.See Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250–51, 254 (1990) (noting “the lack of consensus about the type of interest needed for intervention” and citing many different formulations); Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 434 n.132 (concluding that, if anything, “Professor Bandes may have underestimated the number of formulations and the degree of inconsistency”); Eunice A. Eichelberger, Annotation, What Is “Interest” Relating to Property or Transaction Which Is Subject of Action Sufficient to Satisfy That Requirement for Intervention as Matter of Right Under Rule 24(a)(2) of Federal Rules of Civil Procedure, 73 A.L.R. Fed. 448, 458 (1985) (“The courts have developed no discernible standards or criteria, other than [a few] general guidelines . . . , which would explain their divergent rulings in cases involving similar types of litigation and proposed intervenors.”).Show More

The confusion stems partly from the language of the rule. Lawyers often use the word “interest” in a specifically legal sense, to mean a right or other advantage that the law gives one person as against another person.11 11.See Restatement of Prop. § 5, Note on the Use of the Word Interest in the Restatement (Am. Law Inst. 1936) (indicating that with the exception of the Restatement of Torts, all the Restatements published by the American Law Institute use “interest” as “a word denoting a legal relation or relations”); see also id. § 5 (“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them.”); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (laying out the taxonomy of legal relations to which this passage refers); cf. Restatement (Second) of Torts § 1 cmt. f (Am. Law Inst. 1965) (confirming that most of the Restatements use the word “interest” to “denot[e] the beneficial side of legal relations”).Show More (Think, for instance, of what lawyers mean when they refer to present or future “interests” in property.) But the word can also be used in a less technical sense to refer to anything that a person wants, whether or not the law protects that desire.12 12.See Restatement (Second) of Torts § 1(Am. Law Inst. 1965) (“The word ‘interest’ is used throughout the Restatement of this Subject to denote the object of any human desire.”); id. cmt. a (specifying that the word “carries no implication that the interest is or is not given legal protection”).Show More Although lower-court opinions have long reflected this ambiguity,13 13.Compare United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978) (“[W]e have adopted a somewhat narrow reading of the term ‘interest’ . . . .”), with Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right.”). See also Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41–42 (1st Cir. 1992) (contrasting the “liberal approach” of the Second, Sixth, Tenth, and D.C. Circuits with the “more restrictive criteria” applied in the Fifth, Seventh, Eleventh, and Federal Circuits).Show More the Supreme Court has provided little guidance about the nature of the “interest” required for intervention of right.14 14.See Tobias, supra note 10, at 434 (noting the “relative dearth of Supreme Court precedent”).Show More Nor has the Supreme Court ever clarified exactly how the relevant interest must “relat[e] to” a particular transaction or item of property.

To give readers a sense of how some lower federal courts have handled these uncertainties, Part I of this Article surveys cases that have applied Rule 24(a) broadly. Especially in suits about issues of public moment, many federal judges have read Rule 24 to invite intervention by an extraordinary array of people who are not proper parties to any relevant claim for relief but who nonetheless have reason to care about the outcome of the case. In the late 1960s, Judge Harold Leventhal stated the animating idea behind this interpretation: “[T]he ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.”15 15.Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); accord Smuck v. Hobson, 408 F.2d 175, 179–80 (D.C. Cir. 1969) (en banc) (plurality opinion of Bazelon, C.J.) (quoting Nuesse and urging courts to focus less on the “interest” requirement than on “the criteria of practical harm to the applicant and the adequacy of representation by others”); see also Tobias, supranote 10, at 435 (“Insofar as the courts [that take a broad view of Rule 24(a)] rely on any definition of interest, they subscribe to Judge Harold Leventhal’s 1967 enunciation . . . .”).Show More

Part II canvasses the history of Rule 24 and concludes that this broad reading is wrong. To be sure, the 1966 amendment that produced the current version of Rule 24(a) was designed to authorize intervention of right by some outsiders who previously would have qualified only for permissive intervention, and who would have been relegated to separate litigation if their requests for permissive intervention were denied. But the 1966 amendment was not intended to authorize intervention of right by people who previously would not have been proper parties at all (such as the intervenors in the cases described in Part I).

Part III links the technical debate over intervention to fundamental questions about the goals of litigation and the proper role of the courts. In 1976, based partly on then-recent developments in intervention doctrine, Professor Abram Chayes speculated that “[w]e are witnessing the emergence of a new model of civil litigation”—one in which courts decide questions about “the operation of public policy” and “anyone whose interests may be significantly affected by the litigation . . . [is] presumptively entitled to participate in the suit on demand.”16 16.Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282, 1290, 1302, 1310 (1976).Show More Professor Chayes himself hailed the capacity of courts to hear from “the range of interests that will be affected” and to devise better solutions to policy problems than the “bureaucracies” in other parts of the government.17 17.Id. at 1308–10.Show More But the current Supreme Court may well be less sanguine about that prospect, and less willing to cast each federal district judge in the role of “policy planner and manager.”18 18.Id. at 1302.Show More

Unless one is affirmatively trying to facilitate that role, much modern doctrine about intervention seems mistaken. When given its most natural reading, Rule 24 does not depart from traditional party structures nearly as much as current practice assumes.

  1. * Emerson G. Spies Distinguished Professor of Law & Caddell and Chapman Professor of Law, University of Virginia. Thanks to Michael Collins, Scott Glass, John Harrison, and Ann Woolhandler for helpful comments.

  2. See Fed. R. Civ. P. 30(a) (authorizing “[a] party” to take depositions); Fed. R. Civ. P. 33(a) (authorizing “a party” to propound interrogatories to any other party); Fed. R. Civ. P. 34(a) (authorizing “[a] party” to demand documents and electronically stored information from any other party); Fed. R. Civ. P. 45(a)(3) (enabling “a party” to use subpoenas duces tecum to obtain documents and electronically stored information from nonparties).
  3. See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); cf. Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 2018) (discussing a “limited exception” to this general rule).
  4. See Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (identifying some categories of nonparty preclusion, but casting them as exceptions to the general rule).
  5. Fed. R. Civ. P. 24(a) (emphasis added).
  6. Fed. R. Civ. P. 24(b)(1) (emphasis added).
  7. See, e.g., Fed. R. Civ. P. 8(a) (specifying what must appear in “[a] pleading that states a claim for relief,” and requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”); Fed. R. Civ. P. 18(a) (discussing joinder of claims); Fed. R. Civ. P. 54(b) (discussing judgment “[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim”); see also Simona Grossi, The Claim, 55 Hous. L. Rev. 1, 7 (2017) (referring to the claim as “the basic litigation unit” under the Rules).
  8. See, e.g., Fed. R. Civ. P. 8(b)(1)(A) (“In responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it . . . .”).
  9. EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (quoting Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967) (citation and internal quotation marks omitted)). But see City of Herriman v. Bell, 590 F.3d 1176, 1184 (10th Cir. 2010) (“[T]o intervene under Rule 24(b) the proposed intervenor must have a claim or defense that shares at least some aspect with a claim or defense presented in the main action. Here, . . . Herriman City has no claim and thus cannot satisfy Rule 24(b)’s requirements.”).
  10. 7C Charles Alan Wright et al., Federal Practice and Procedure § 1908.1, at 300 (3d ed. 2007).
  11. See Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250–51, 254 (1990) (noting “the lack of consensus about the type of interest needed for intervention” and citing many different formulations); Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 434 n.132 (concluding that, if anything, “Professor Bandes may have underestimated the number of formulations and the degree of inconsistency”); Eunice A. Eichelberger, Annotation, What Is “Interest” Relating to Property or Transaction Which Is Subject of Action Sufficient to Satisfy That Requirement for Intervention as Matter of Right Under Rule 24(a)(2) of Federal Rules of Civil Procedure, 73 A.L.R. Fed. 448, 458 (1985) (“The courts have developed no discernible standards or criteria, other than [a few] general guidelines . . . , which would explain their divergent rulings in cases involving similar types of litigation and proposed intervenors.”).
  12. See Restatement of Prop. § 5, Note on the Use of the Word Interest in the Restatement (Am. Law Inst. 1936) (indicating that with the exception of the Restatement of Torts, all the Restatements published by the American Law Institute use “interest” as “a word denoting a legal relation or relations”); see also id. § 5 (“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them.”); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (laying out the taxonomy of legal relations to which this passage refers); cf. Restatement (Second) of Torts § 1 cmt. f (Am. Law Inst. 1965) (confirming that most of the Restatements use the word “interest” to “denot[e] the beneficial side of legal relations”).
  13. See Restatement (Second) of Torts § 1 (Am. Law Inst. 1965) (“The word ‘interest’ is used throughout the Restatement of this Subject to denote the object of any human desire.”); id. cmt. a (specifying that the word “carries no implication that the interest is or is not given legal protection”).
  14. Compare United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978) (“[W]e have adopted a somewhat narrow reading of the term ‘interest’ . . . .”), with Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right.”). See also Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41–42 (1st Cir. 1992) (contrasting the “liberal approach” of the Second, Sixth, Tenth, and D.C. Circuits with the “more restrictive criteria” applied in the Fifth, Seventh, Eleventh, and Federal Circuits).
  15. See Tobias, supra note 10, at 434 (noting the “relative dearth of Supreme Court precedent”).
  16. Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); accord Smuck v. Hobson, 408 F.2d 175, 179–80 (D.C. Cir. 1969) (en banc) (plurality opinion of Bazelon, C.J.) (quoting Nuesse and urging courts to focus less on the “interest” requirement than on “the criteria of practical harm to the applicant and the adequacy of representation by others”); see also Tobias, supra note 10, at 435 (“Insofar as the courts [that take a broad view of Rule 24(a)] rely on any definition of interest, they subscribe to Judge Harold Leventhal’s 1967 enunciation . . . .”).
  17. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282, 1290, 1302, 1310 (1976).
  18. Id. at 1308–10.
  19. Id. at 1302.

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