480 U.S. 370 (1987)
The Stringfellow Acid Pits is an abandoned hazardous waste disposal site near Glen Avon, California.1 In 1983 the United States and the State of California filed suit against twenty-eight petitioners.2 These petitioners formerly owned or operated the Acid Pits or allegedly produced or transported the wastes that were dumped at the disposal site.3 The Government plaintiffs sought injunctive relief that would require petitioners to abate the release of harmful substances from the site and to take remedial steps to correct the unsafe conditions.4 They also requested reimbursement for the costs incurred in bringing about the cleanup.5
Shortly after the complaint was filed, respondent Concerned Neighbors in Action moved to intervene in the litigation.6 CNA is a nonprofit organization whose members live near the dumpsite.7 CNA claimed that it was entitled to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a) because it had a substantial interest in the suit that would not be represented adequately by the existing parties.8 CNA also asserted that the citizen suit provisions of the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Clean Water Act allowed intervention as of right.9 Alternatively, CNA claimed that it should be allowed to intervene by permission pursuant to Rule 24(b).10
The District Court denied the request to intervene as of right but granted CNA’s application to become a permissive intervenor subject to three conditions.11 The court held that CNA could not assert any claim for relief that had not already been requested by one of the original parties.12 It also held that CNA could not intervene in the Government plaintiffs’ claim for recovery of the clean-up costs.13 Finally, the District Court ruled that CNA could not file any motions or conduct its own discovery unless it first conferred with all the original parties. It then had to obtain permission to go forward from at least one of these litigants.14 The court emphasized that CNA had the right to attend all depositions, to participate to the extent not duplicative of the original parties, and to receive copies of all discovery material produced by the other litigants.15
CNA filed an immediate appeal protesting both the denial of the application to intervene as of right and the restrictions imposed on permissive intervention.16 The Court of Appeals for the Ninth Circuit initially dismissed the appeal finding that the District Court order was not a final decision within the meaning of 28 U.S.C. § 1291.17 The court subsequently withdrew its opinion and ruled that denial of intervention as of right is a final appealable order despite the grant of permissive intervention.18 It held that CNA must be allowed to intervene as of right.19
The Supreme Court granted certiorari to resolve the conflict among the Courts of Appeals as to whether this type of pretrial order is subject to immediate appeal.20
Whether a district court order granting permissive intervention but denying intervention as of right is immediately appealable?21
To qualify as a collateral order under the exception to the finality rule of 28 U.S.C. § 1291, a decision must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.22
No. Although the District Court order conclusively determined CNA's right to intervene, the intervention issue is completely separate from the merits of the underlying action.23 The order is not collateral within the meaning of the doctrine because CNA is now a party to the suit by virtue of its permissive intervention.24 CNA can obtain effective review of its claims on appeal from the final judgment.25 An intervenor, whether by right or by permission, normally has the right to appeal an adverse final judgment by a trial court.26
Thus CNA can raise its claims after the trial.27 The court can then decide whether the order was erroneous and if so whether CNA's inability to participate more fully in the proceedings may have affected the final judgment.28
A district court order granting permissive intervention but denying intervention as of right is not immediately appealable under the collateral order doctrine.29
Whether an order granting permissive intervention subject to conditions should be treated as a constructive denial of the right to intervene and therefore immediately appealable?30
No. CNA is a participant in the proceeding and has alternative means for challenging the order through postjudgment appeal.33 The restrictions on discovery and the right to request additional relief do not severely undermine CNA's ability to influence the litigation in a way that makes the order different in effect from one denying all participation.34 None of the limitations interfere with CNA's ability to raise its claims on postjudgment appeal.35
An order granting permissive intervention subject to conditions should not be treated as a constructive denial of the right to intervene and is not immediately appealable.36
Related opinions on this issue
Justice Brennan concurs in the judgment but declines to join Part II-B of the opinion.37 He explains that the Court's reasoning pointing to postjudgment appeal is insufficient because the premise that the right to appeal will be academic at best may be true to some degree.38 Instead he would reject the constructive denial argument because it would be inconsistent to afford a permissive intervenor a right to appeal that would be denied an intervenor of right or an original party.39
The writ of mandamus provides an appropriate avenue for relief from such orders in extraordinary situations.40
Whether such a district court order is appealable under 28 U.S.C. § 1292(a)(1) as a refusal to grant an injunction?41
A party seeking review of an order denying injunctive relief must show that the order will have a serious, perhaps irreparable consequence and that the order can be effectually challenged only by immediate appeal.42
No. Even if the District Court order had the effect of denying an injunction, it still would not satisfy section 1292(a)(1) because CNA can challenge the limitations on its participation during post-trial review.43 The order does not meet the additional requirement of showing a serious irreparable consequence that can only be challenged by immediate appeal.44
The district court order is not appealable under 28 U.S.C. § 1292(a)(1) as a refusal to grant an injunction.45