Thursday, April 21, 2011

Stand in the Place Where You Live?: DDC Opinion Raises Questions About Whether Prospective Intervenors in D.C. Circuit Must Establish Article III Standing

Should prospective intervenors have to establish standing before intervening? After the Supreme Court amended Federal Rule of Civil Procedure 24(a)(2) in 1966, federal courts largely agreed for the next 25 years or so that the answer was "no." See Carl TobiasStanding to Intervene, 1991 Wis. L. Rev. 415 (1991). But thereafter, "[a]n increasing number of circuit and district courts...demanded or suggested that [prospective intervenors] have an 'interest' greater than, or equal to, that necessary for standing or comply with certain standing requirements." Id. In its 1986 opinion in Diamond v. Charles, 476 U.S. 54 (1986), the Supreme Court noted this circuit split, pointing out that "[t]he Courts of Appeals have reached varying conclusions as to whether a party seeking to intervene as of right must himself possess standing." Ultimately, however, the Court concluded, "We need not decide today whether a party seeking to intervene before a District Court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III."

In the wake of Diamond v. Charles, the circuit split persists. And for years, the D.C. Circuit was on the side of the split requiring prospective intervenors to establish standing. But did that change with the D.C. Circuit's opinion in Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003)? According to Judge Roberts of the United States District Court for the District of Columbia in Akiachak Native Community v. U.S. Dept. of Interior, 584 F.Supp.2d 1 (D.D.C. 2008), the answer is "yes." But according to Judge Kennedy of the same court in his opinion last week in Center for Biological Diversity v. U.S. E.P.A., 2011 WL 1346965 (D.D.C. 2011), the answer is "no." So, who is right, and which position makes more sense? Let's go to the scorecards!

Before the D.C. Circuit's opinion in Roeder, it was clear that the court required prospective intervenors to establish standing. For instance, in its 1994 opinion in Building and Const. Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275 (D.C. Cir. 1994), the D.C. Circuit noted that "we have held that because an intervenor participates on equal footing with the original parties to a suit, a movant for leave to intervene under Rule 24(a)(2) must satisfy the same Article III standing requirements as original parties."

But fast forward 9 years, and you have the D.C. Circuit's opinion in Roeder. In Roeder, Americans taken hostage during the 1979 Iran Hostage Crisis brought a class action on behalf of themselves, their spouses, and their children, against the Islamic Republic of Iran and its Ministry of Foreign Affairs. The United States District Court for the District of Columbia eventually

entered a default judgment against Iran on liability and scheduled a date for trial on the damages. On the eve of trial for damages, however, the State Department, which had only recently become aware of the action, attempted to intervene, and to have the judgment on liability vacated and the suit dismissed. For the State Department, resolution of Roeder in the executive's favor (which, ironically, now meant in Iran's favor) was essential, not merely to protect Iran's frozen assets, but also to prevent the potential disregard of the Algiers AccordsW. Michael Reisman & Monica Hakimi2001 Hugo Black LectureIllusion and Reality in the Compensation of Victims of International Terrorism, 54 Ala. L. Rev. 561, 576 (2003).

After a handful of further zigs and zags in the case, the court dismissed the action, prompting the plaintiffs to appeal, claiming, inter alia, that the State Department lacked standing to intervene in the action. In rejecting this argument, the D.C. Circuit held that

Although the government...satisfied the requirements of Rule 24(a), decisions of this court hold an intervenor must also establish its standing under Article III of the Constitution....The court's opinion in Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 538 (D.C. Cir. 1999), identified a split in the circuits on the subject of intervenor standing.... Still, there is no need to dwell on the issues thus raised. With respect to intervention as of right in the district court, the matter of standing may be purely academic. One court has rightly pointed out that any person who satisfies Rule 24(a) will also meet Article III's standing requirement. Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000). So here. The United States established that it was in imminent danger of suffering injury in fact - a breach of its obligations under the Accords. There was a "causal connection between the injury and the conduct complained of" and the injury was capable of judicial redress....The United States therefore had standing as a defendant-intervenor.

In his aforementioned opinion in Akiachak, Judge Roberts found that the State of Alaska satisfied Rule 24(a) and then cited Roeder for the proposition that "[t]he standing inquiry is repetitive in the case of intervention as of right because an intervenor who satisfies Rule 24(a) will also have Article III standing." In other words, according to Judge Roberts, when a prospective intervenor satisfies Rule 24(a), it automatically has Article III standing. 

But last week, Judge Kennedy rejected this conclusion in his opinion in Center for Biological Diversity for three reasons:

First, the Roeder court itself engaged in a standing inquiry, albeit a very brief one....Second, as a three-judge panel, the Roeder court had no authority to abrogate the clear rule announced in prior three-judge panel cases...Third and finally, subsequent decisions of the D.C. Circuit and this district flatly state that putative intervenors must meet Article III's standing requirements.

Judge Kennedy is correct that subsequent decisions in the D.C. Circuit have held that prospective intervenors must meet Article III's standing requirements, but none of them had held that a prospective intervenor satisfying Rule 24(a) failed to establish standing. And Judge Kennedy did not reach such a conclusion in Center for Biological Diversity, instead finding that the prospective intervenors before him lacked Article III standing, meaning that he did not even need to decide whether they satisfied Rule 24(a). So, can prospective intervenors in the D.C. Circuit who satisfy Rule 24(a) fail to meet Article III's standing requirements? I don't know.

One seeming solution to this problem would be to have courts apply Rule 24(a) with an eye toward the Article III standing analysis, thus harmonizing the two doctrines. In fact, that is exactly the approach suggested by Professor Tobias in the article I cited in the introduction to this post.  According to Professor Tobias, courts should rarely require prospective intervenors to establish standing, but the standing analysis should inform how courts decide whether there can be intervention under Rule 24(a). Under Professor Tobias' proposed intervention analysis,

in considering intervention requests courts should treat as paramount applicants' potential contributions to issue resolution.

The essential intervention inquiry should be whether an applicant promises to help resolve issues that warrant consideration before the court makes a decision on the merits of the dispute. This may be ascertained by examining numerous relevant factors that comprise particular factual contexts....

The most significant consideration is the potential quality of the applicant's proposed participation. Is the applicant likely to provide expertise, information, or legal or policy perspectives that contribute to a court's understanding of questions already in issue? Correspondingly, will the applicant raise, and help resolve, new questions that the judge should consider?....

A court may want to analyze whether, and if so how much, the applicant's involvement promises to improve its substantive decisionmaking. For instance, will the potential intervenor help give specificity to a statutory standard that asks which agency choice will best effectuate the "public interest"? Correspondingly, is the applicant likely to provide facts that other participants do not or cannot, thereby increasing the court's understanding of how challenged governmental practices allegedly injure citizens or violate pertinent constitutional commands?....

Once the court evaluates what the applicant will offer, it should permit intervention by an applicant that clearly will contribute to issue resolution, unless the involvement will impose undue costs on the judicial system or the original parties, and, even then, the judge should seriously consider allowing intervention and conditioning it. If the court is less certain that an applicant will facilitate issue resolution, the judge should estimate as accurately as possible the value of the applicant's projected participation and attempt to ascertain the disadvantages, especially in terms of expenditures of time, money and effort, that intervention will occasion for the civil justice system and the existing litigants.

An important consideration in many cases will be how much the intervention is likely to delay the dispute's resolution, potentially undermining judicial economy and prejudicing parties. The court might want to consult the nature of the applicant's involvement, what form the participation will assume, at which stage of the litigation the involvement will occur, and how much it promises to complicate the lawsuit. For example, will such a substantial amount of data be tendered or the information be so tangentially related to the central questions in dispute that the material inundates the judge, obfuscating, rather than clarifying, the issues and protracting the litigation? 

The court then should informally balance the benefits and disadvantages of granting intervention. This task is problematic, principally because it is virtually impossible to assign values to the relevant considerations in a way that permits refined comparison....

The problems, especially the difficulty of making the assessments with exacting precision, mean that in situations where the advantages and disadvantages seem relatively comparable, and even in some circumstances when intervention is more clearly warranted, the court should consider the possibility of conditioning intervention. The judge, in close cases thus may want to grant intervention motions rather flexibly but adjust the participation permitted to factors, such as the court's perceptions of its need for the intervenors' decisional input, the potential quality of contributions, and the time required and available to treat the involvement.

This approach makes a lot more sense to me than courts either finding that the  Rule 24(a) analysis as it currently exists is coextensive with the Article III standing analysis or conducting a two-step analysis in which the former analysis tells us nothing about the latter analysis. And, if you want to see an example of Professor Tobias' suggested approach in action and some further justifications and explanations of his approach, you should check out his terrific article, which I have only briefly excerpted here.

-Colin Miller

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