Statutory Right to Intervene

Statutory Right to Intervene

Rule 24(a) opens with a command: on timely motion, the court "must permit anyone to intervene" who satisfies one of the grounds listed beneath it.¹ The first ground belongs to anyone who "is given an unconditional right to intervene by a federal statute."² It asks one question: has Congress already granted this applicant the right? The second ground asks much more. Under Rule 24(a)(2), the applicant must claim an interest relating to the property or transaction that is the subject of the action. It must also show that disposing of the action may as a practical matter impair or impede its ability to protect that interest, and that existing parties do not adequately represent it.³ An outsider who cannot meet those criteria may nonetheless intervene automatically if a federal statute gives her the right.⁴ Timeliness still counts, because the opening words of Rule 24(a) govern every ground beneath them.

Intervention costs the original parties something. The wider the permissible range of intervention, the greater the risk that delay, expense, and complexity will prejudice them.⁵ A statute that confers an unconditional right takes that concern out of the judge's hands for the cases it covers. The court must permit intervention, and the showings required by Rule 24(a)(2) drop away.

The most important such statute lets the United States or a state intervene when the constitutionality of an Act of Congress or a state statute is in question.⁶ For the federal government, 28 U.S.C. § 2403(a) authorizes the United States to intervene in any action "wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question."⁷ Some states have similar statutes authorizing their attorneys general to intervene in actions that challenge state statutes.⁸ The reason for such a right is easy to see. When a private litigant attacks a law, the court is about to decide whether the law survives, and the parties before it may include no one responsible for the law.

Statutory rights do not belong only to governments. Some statutes authorize private parties to intervene in particular types of cases. An aggrieved party, for example, is entitled to intervene in a Fair Housing Act case brought by the attorney general.⁹

Two words in Rule 24(a)(1) limit its reach. The first is federal. Rule 24 governs intervention in federal actions, and state law does not,¹⁰ so a right that rests only on state law does not fit the rule's text. The second word is unconditional. A right that depends on a further finding by the court is not unconditional, and Rule 24(b)(1)(A) addresses it separately: it applies to anyone "given a conditional right to intervene by a federal statute."¹¹ Rule 24(b) is the permissive ground, which rests in the court's discretion.¹² Even an unconditional right reaches only the cases its statute describes. Section 2403(a) speaks of an action in which constitutionality is "drawn in question." A dispute over what an Act means does not draw its validity into question, so the government would need another ground to enter that case.¹³

Winning the right to enter the case does not by itself settle whether the court has jurisdiction over what the intervenor asserts. In a diversity case, for example, § 1367(b) withholds supplemental jurisdiction over claims by persons "seeking to intervene as plaintiffs under Rule 24" when exercising it would be inconsistent with the requirements of § 1332.¹⁴ The jurisdiction section below returns to the point.