March 26, 2012 Top Story

Intervenors Still in Limbo on Standing Requirements

Courts consider whether intervenors must establish Article III standing under FRCP 24

Renee Choy Ohlendorf

Would-be intervenors continue to face differing standards for joining a lawsuit under Federal Rule of Civil Procedure 24. Federal circuit courts remain divided over whether it is sufficient for intervenors as of right to meet the “interest” requirement of Rule 24(a) or whether they must also independently establish standing under Article III of the Constitution.

Rule 24(a) requires a court to permit anyone to intervene who has an unconditional right to do so under a federal statute. In the alternative, a court must give leave to intervene to a movant who “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 [intervenor’s] ability to protect its interest, unless existing parties adequately represent that interest.”

Article III of the Constitution vests in the judiciary the power to decide “cases” or “controversies.” Standing under Article III is jurisdictional in nature and requires an injury in fact or an injury to a legally protected interest.

District Court Holds That No Standing Required

A recent case out of North Carolina looks at the issue in one of the circuits that has not yet ruled on the question. In NAACP, Inc. v. Duplin County, N.C., plaintiffs sought to enforce a consent decree governing the election method for Duplin County’s Board of Commissioners and Board of Education.

In June 2011, the North Carolina General Assembly passed House Bill 528, which allegedly violated the consent degree by amending the county’s election procedure. The bill’s sponsor and fourteen registered voters moved to intervene by right. They argued they had a special interest in the viability of the bill, consent decree, and methods of voting in the county.

The Eastern District of North Carolina declined to require the intervenors to establish Article III standing. It concluded that the intervenors’ interest in the lawsuit was sufficient under Rule 24(a)(2), and that no existing party would adequately represent that interest.

In so holding, the court noted that while the U.S. Court of Appeals for the Fourth Circuit has not ruled on standing requirements for intervenors by right, it does not require standing for permissive intervenors under Rule 24(b). (Unlike intervenors of right, permissive intervenors are not required to establish impairment of their ability to protect their interest to join the suit.) The NAACP court also observed that the Fourth Circuit applies a liberal standard for intervention as a matter of efficiency by consolidating related issues into one action.

The Circuit Split on Intervenor Standing Requirements

The Second, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits do not require intervenors to establish Article III standing independently. The intervenor may instead satisfy Article III by “piggybacking” onto the standing of a current party that is on the same side of the action. That way, there is still a “case or controversy” before the court. Proponents of this approach emphasize the judicial efficiency achieved by consolidating and disposing of related claims in one lawsuit and reason that Article III requirements are established by plaintiff at the outset.

By contrast, the Seventh, Eighth, and District of Columbia Circuits do require intervenors to establish independent Article III standing. The view in these courts is that Congress cannot legislate around constitutional standing requirements.

Section Leaders Weigh In on Standing

Intervenors seeking court relief should be required to have standing, opines Joan K. Archer, Kansas City, Missouri, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. “If you look at the reason for the standing requirement, you need to look at the possibility of blurring the separation of powers through that granted standing. One has to question whether that’s a bad thing for our system to allow erosion of that aspect of separation of powers,” she notes.

Other commentators disagree that independent standing should be required. “Intervention under Rule 24 does or should focus on finality, efficiency and fairness,” argues Robert E. Schaberg, San Francisco, member of the Section of Litigation’s Federal Practice Task Force. “If there is a party or parties whose interests are being implicated by a particular ruling, and those parties’ views or interests are not being represented by the parties to the litigation, I think the court should allow those parties to appear and be heard,” he says.

“If the Rules Committee was of the opinion that an Article III standing requirement was necessary, they would have referenced it or indicated somehow that it was a requirement,” explains Schaberg.

Is the Interest Requirement a Substitute For Article III Standing?

It is not clear whether an interest asserted under Rule 24(a) may also satisfy Article III standing.  “Article III standing is similar to, but not quite the same as the interest requirement [of Rule 24(a)],” explains Archer. “It depends a bit through what type of lens you view the interest requirement because it’s a very fact-specific evaluation that is undertaken. If you view it through the lens of erring on the side of finding an interest, you may end up with an outcome that is crosswise with the standing requirement. Whereas if you view it through the lens of saying an interest must be proven, I think there is likely sufficiently overlap with Article III standing depending upon the facts,” she states.

The word to the wise is, for the moment, to know how your circuit treats this issue. As to whether there will be a resolution of the circuit split any time soon, “that’s up to the Supreme Court,” says Schaberg.

Renee Choy Ohlendorf is an associate editor for Litigation News.

Keywords: FRCP 14, Rule 24, NAACP, Duplin County, Article III standing, intervenor standing

Related Resources

  • NAACP, Inc. v. Duplin County, N.C., 2012 LEXIS 12513 (E.D. N.C. Feb. 2, 2012).
  • U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978).
  • Shaw v. Hunt, 154 F.3d 161, 165 (4th Cir. 1998).
  • Feller v. Brock,, 802 F.2d 722, 729 (4th Cir. 1986).
  • Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir. 1998).
  • Shaw v. Hunt, 154 F.3d 161, 165 (4th Cir. 1998).
  • Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994).
  • , 101 F.3d 503, 507 (7th Cir. 1996).
  • Flying J, Inc. v. J.B. Van Hollen, 578 F.3d 569, 571 (7th Cir. 2009).
  • U.S. v. Metropolitan St. Louis Sewer District, 569 F.3d 829, 833 (8th Cir. 2009).
  • U.S. v. Imperial Irrigation Dist., 559 F.2d 509, 521 (9th Cir. 1977).
  • City of Colorado Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1079 (10th Cir. 2009).
  • Clark v. Putnam County, 168 F.3d 458, 463 (11th Cir. 1999).
  • Rio Grande Pipeline Co. v. F.E.R.C., 178 F.3d 533, 538 (D.C. Cir. 1999).
  • Juliet Johnson Karastelev, On the Outside Seeking In: Must Intervenors Demonstrate Standing to Join a Lawsuit?, 52 Duke L.J. 455 (2002).

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).