Two Routes to Intervention

Intervention Under Rule 24

Two Routes to Intervention

Rule 24 of the Federal Rules of Civil Procedure lets a stranger to a pending lawsuit ask to join it, and it offers two routes in.¹ Intervention is the procedure by which a person not named as a party enters an existing case on that person's own initiative; the rule allows entry but never compels it.² Bystanders seem unlikely to want a part in someone else's litigation, yet it happens with surprising frequency.³

The two routes differ by a single verb. Under intervention of right, the court "must permit" anyone to intervene who meets the criteria of Rule 24(a), if the motion is timely.⁴ Under permissive intervention, the court "may permit" anyone to intervene who meets the criteria of Rule 24(b)(1), again on timely motion.⁵ The rest of this discussion turns on that choice between must and may.

The verbs settle who has the last word. When an applicant fits Rule 24(a), the judge has no discretion to refuse. When an applicant fits only Rule 24(b)(1), the judge may admit the applicant or not. Two competing interests explain the split, and every application to intervene sets them against each other.⁶ Each added party raises the price of the case for everyone already in it: five lawyers at a deposition instead of two, several lawyers cross-examining at trial instead of one, crossclaims and counterclaims that enlarge the case, more notices to serve, and more briefs and arguments for the court to absorb.⁷ On the other side stands the outsider whom a judgment may injure. English courts developed intervention for that reason. They needed a way to keep litigation moving without prejudicing nonparties, and the device matured fastest in proceedings where outsiders were likely to be hurt. A judgment in an admiralty in rem proceeding, for instance, bound the world, so a nonparty with an interest in the property the court held would lose the chance to present a claim after the action ended unless allowed to take part.⁸ Rule 24's two verbs are best read as its answer to that tension: a command for applicants whose claim to be heard is strongest, and discretion for the rest.

The mandatory track appears in the litigation over race-conscious admissions at the University of Michigan. In two separate suits, a group of students and one or more coalitions appealed the denial of their motions to intervene. One of those suits, Gratz v. Bollinger, was brought by two white applicants who were denied admission to the College of Literature, Arts and Science and who alleged that the College's admissions policy violated the Equal Protection Clause.⁹ The court of appeals consolidated the two appeals and held that in both the district courts erred in denying intervention under Rule 24(a).¹⁰ The court treated the denial as legal error under Rule 24(a), not as a judgment call that the district courts were free to make.

Compare an applicant whose only link to the case is a shared question. Suppose Chung sues Ace Power Tool Company for an injury caused by a defectively designed saw, and Noriega, hurt at a different time and place by the same model, moves in time to intervene. Noriega has no stake in Chung's accident; his claim shares only the question whether the saw was defectively designed. That common question makes him a candidate for permissive intervention under Rule 24(b)(1)(B), a standard taken up in its own section below. A candidate is all he is. His presence would mean another lawyer at every deposition and more briefs for the court to read, and the judge may weigh that cost and refuse.¹¹ The Michigan applicants satisfied Rule 24(a), so the denial was error. Noriega can claim only a shared question, so he can ask only that the court exercise its discretion in his favor.

Neither route compels the absentee to act. Even an applicant who qualifies for intervention of right is under no duty to intervene, because Rule 24(a) authorizes intervention without forcing anyone to use it.¹² Martin v. Wilks shows what that freedom is worth. The petitioners argued that respondents, who knew the underlying suit might affect them, had passed up a chance to intervene and so could not later attack actions taken under the consent decree; any such challenge, they said, was an impermissible "collateral attack." The great majority of courts of appeals had accepted that position, but the Supreme Court sided with the Eleventh Circuit and rejected it.¹³ Rule 19 marks the contrast. It directs the court to consider whether a person who was not made a party should be made one, while Rule 24 lets an absentee who learns of the action decide to become one.¹⁴ The next section begins with the statutory right to intervene.