Jurisdiction Over Intervenors

Rule 24 tells a court whether a stranger may join a pending suit; it does not tell the court whether it has power over what the stranger brings along. On timely motion, the court must permit intervention by anyone who meets the criteria of Rule 24(a), and it may permit intervention by anyone who meets one of the grounds in Rule 24(b)(1).¹ Those criteria look to the applicant's tie to the lawsuit: an interest that the judgment may as a practical matter impair, or a claim or defense that shares a common question of law or fact with the main action.² Neither criterion looks to federal jurisdiction. An applicant who satisfies Rule 24 has therefore cleared only the first gate. In a diversity case the applicant also needs an independent basis for federal subject-matter jurisdiction, whether it intervenes of right or permissively.³

Permission and power are different things. Rule 24 supplies permission to enter; the jurisdictional statutes and Article III supply power to decide the intervenor's claim. Because an intervenor who is admitted becomes a party,⁴ its claim meets the same limits as any other party's claim, however strong its Rule 24 motion.

The two subsections that follow take the jurisdictional inquiries in turn: first the statutes that supply or withhold subject-matter jurisdiction over an intervenor's claim, then Article III standing, which arises when an intervenor asks for relief different from what an existing party seeks.

Subject-Matter Jurisdiction

An intervenor's claim can reach federal court by three routes: a federal question, diversity of citizenship, or supplemental jurisdiction under 28 U.S.C. § 1367.⁸ The first two operate for an intervenor as they do for any other claimant. Supplemental jurisdiction is where the law of intervention has shifted, and the 1990 statute changed the old pattern for diversity cases.

Before 1990, courts relied on ancillary jurisdiction. If an intervenor's claim was so closely related to the main action that it could be regarded as ancillary, no independent ground of jurisdiction had to exist, and the difficulty lay in deciding how close the relationship had to be.⁹ The usual rule favored the intervenor of right: independent jurisdictional grounds were required for permissive intervention under Rule 24(b) but not for intervention of right,¹⁰ and courts routinely held intervenors of right to be within their ancillary jurisdiction.¹¹

The Supreme Court's description of ancillary jurisdiction in Owen Equipment & Erection Co. v. Kroger suggests why the line fell there. The Court rejected the idea that a “common nucleus of operative fact” is enough, asking instead for “not mere factual similarity but logical dependence,” and it emphasized that ancillary jurisdiction “typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court.”¹² An intervenor of right, whose ability to protect its interest the judgment may as a practical matter impair,¹³ fits that description more naturally than a permissive intervenor does.

Section 1367, enacted in 1990, replaced the case law. Subsection (a) gives a district court with original jurisdiction over a case supplemental jurisdiction, the new name for ancillary and pendent jurisdiction, over “all other claims that are so related to claims in the action with such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” Its second sentence says this includes claims involving “the joinder or intervention of additional parties.”¹⁴ Kroger had rejected a bare common nucleus of operative fact as enough for ancillary jurisdiction; subsection (a) brings into play the test of United Mine Workers v. Gibbs, so supplemental jurisdiction extends to claims arising out of a common nucleus of operative fact.¹⁵ It no longer matters for jurisdictional purposes whether intervention comes under Rule 24(a) or Rule 24(b).¹⁶ In a federal-question case, the court therefore has discretion to exercise supplemental jurisdiction over properly joined parties, intervenors included.¹⁷

In diversity-only cases, subsection (b) takes most of that grant back. Where jurisdiction is founded solely on the general diversity statute, 28 U.S.C. § 1332, the district courts “shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20 or 24 of the Federal Rules of Civil Procedure, . . . or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.”¹⁸ The inconsistency that matters is a lack of complete diversity, the rule of Strawbridge v. Curtiss that no plaintiff may share state citizenship with any defendant. A plaintiff who intervenes must satisfy it, because after the intervention there would have to be complete diversity.¹⁹

The statute thus moved the line. Before 1990 it ran between Rule 24(a) and Rule 24(b). Under § 1367(a) it disappears in federal-question cases, and in diversity-only cases it now separates the claimant in a defensive posture from the plaintiff: claims by prospective plaintiffs who try to intervene under Rule 24 do not get supplemental jurisdiction, whether the intervention is permissive or of right.²⁰ Some treatises describe the exclusion even more broadly, as removing intervenors from supplemental jurisdiction in diversity cases altogether,²¹ and the safe working rule follows from either description: an intervenor in a diversity case needs a jurisdictional basis of its own.²²

Hypothetical Illustration

Weninger, an Indiana citizen, sues Apex, an Illinois company, in federal court on diversity grounds alone, claiming that the drug Sindox caused a side effect. Garriega, an Illinois citizen who suffered the same side effect, moves to intervene as a plaintiff under Rule 24(b)(1)(B). His claim against Apex shares a common question of fact with Weninger's (did Sindox cause the side effect they both suffered), and Rule 24(b)(1)(B) lets the judge admit parties with similar claims that do not meet the same-transaction-or-occurrence test.²³ Entry would still put Illinois citizens on both sides of the case, and supplemental jurisdiction does not reach a plaintiff who intervenes in a diversity-only case. The court cannot hear Garriega's claim. The answer would not change if his claim were so bound up with the main action that he could intervene of right under Rule 24(a)(2), because the bar covers both tracks.²⁴

The statute's line follows an older preference for parties hauled into court against their will. Before § 1367, courts gave such defendants broad opportunities to settle all claims arising out of the events in suit, and Kroger distinguished jurisdictionally insufficient claims by defendants from those by plaintiffs on that basis. In § 1367 Congress preserved the bias, barring claims by plaintiffs that are inconsistent with complete diversity while allowing similar claims by defending parties.²⁵ A defendant's compulsory counterclaim, one arising out of the same transaction or occurrence as the plaintiff's claim, shows the bias at work: supplemental jurisdiction covers it even when it is for less than $75,000.²⁶ The practical test is posture. Expect supplemental jurisdiction to help only a claimant in a defensive posture, because additional claims and new parties added by plaintiffs generally fall outside it.²⁷

Efficiency alone does not carry an intervenor past these limits. In the English system, the evolution of intervention was affected by the historical belief that the plaintiff should control the shape and direction of the action, because the wider the permissible range of intervention, the greater the risk that the original parties would be prejudiced by delay, expense, and complexity.²⁸ The Supreme Court voiced a related caution about interpleader, which it said was never meant to be an all-purpose “bill of peace.” Had it been, the Court reasoned, provision would have been made so that “a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights—such as the right to choose the forum in which to establish their claims, subject to generally applicable rules of jurisdiction, venue, service of process, removal, and change of venue.”²⁹ The limits on intervening plaintiffs fit that pattern.

Two kinds of applicant sidestep the bar. The first can satisfy § 1332 on its own, with diversity between the intervenor and every defendant, and then only Rule 24 remains.³⁰ The second brings no claim for the bar to test. One court reasoned that nonparties who asked only to modify a protective order needed no independent jurisdictional basis, because they did “not ask the district court to rule on additional claims or seek to become parties to the action,” but asked “only . . . to exercise that power which it already has, i.e., the power to modify the protective order.”³¹

Exam Analysis Steps

Because permission and power are separate questions, an intervention problem is best run through Rule 24 and then through the jurisdictional statutes. The steps are these:

Decide whether the applicant satisfies Rule 24, of right or permissively. That answers only whether it may enter.
Ask whether the applicant brings a claim or defense of its own. An applicant who asks only for the exercise of a power the court already holds, such as modifying a protective order, needs no independent jurisdictional basis.
Test the claim for a basis of its own: a federal question, or diversity between the intervenor and every defendant. If one exists, stop.
In a federal-question case, apply § 1367(a): the court has discretion to exercise supplemental jurisdiction over an intervenor's claim that forms part of the same case or controversy, whether intervention comes under Rule 24(a) or Rule 24(b).
In a case founded solely on diversity, ask whether the applicant seeks to enter as a plaintiff, or whether a plaintiff's claim would run against a Rule 24 party. If so, § 1367(b) denies supplemental jurisdiction when it would be inconsistent with complete diversity, for intervention of right and permissive intervention alike.

Article III Standing

An applicant who satisfies Rule 24(a)(2), by showing an interest in the subject of the action, practical impairment of its ability to protect that interest, and inadequate representation by existing parties, is entitled to enter,³⁴ but the rule says nothing about the Constitution. Before 2017, courts were split over whether a party seeking to intervene must establish Article III standing independently or whether a case or controversy between the original parties is enough. The Supreme Court resolved the conflict in Town of Chester v. Laroe Estates, Inc.³⁵

The facts show what kind of intervenor raises the question. Developer Steven Sherman sued the Town of Chester for a regulatory taking under the Fifth and Fourteenth Amendments, alleging that the Town had obstructed his plans to build a subdivision on land he owned. Laroe Estates, which intervened as of right, was the intervenor.³⁶ In a unanimous opinion, the Court held that an intervenor of right must establish standing independently if it seeks “relief that is different from that which is sought by a party with standing.” That category includes cases in which the plaintiff and the intervenor seek separate money judgments in their own names. If the intervenor seeks the same relief as a party with standing, it need not establish standing of its own.³⁷

The record left open which side of the line Laroe occupied. The Court could not tell whether Laroe sought the same relief as Sherman or additional relief, such as a money judgment in Laroe's own name, so it remanded for further proceedings.³⁸ The answer depends on what the intervenor actually asks the court to do, and the pleading that accompanies the motion to intervene reveals it.

The rule has two halves, and the logic of each is plain. When the intervenor asks for exactly what a party with standing already seeks, the controversy before the court does not depend on the intervenor, and a second voice requesting the same relief adds no new demand. When the intervenor asks for something different, such as a money judgment in its own name, it is in substance pressing a claim of its own, and a claim needs a litigant with a stake in it.

The comparison of relief is the whole inquiry. It is wrong to say that every intervenor must prove standing, because an intervenor seeking the same relief as a party with standing need not. It is equally wrong to say that satisfying Rule 24 settles the constitutional question, because an intervenor seeking different relief must show its own standing.

Chester's holding is stated for an intervenor as of right. A permissive intervenor holds a claim or defense that shares a common question with the main action,³⁹ so it can well ask for relief of its own. On an exam, apply the same comparison of relief to the permissive intervenor and note that the Court's formulation speaks of intervenors of right.⁴⁰

The same logic reaches the appeal, which a later section of this chapter develops. An admitted intervenor becomes a party and may appeal an adverse ruling once there is a final judgment or an applicable exception. If the party on whose side it intervened is not appealing, however, the intervenor must itself satisfy Article III standing, as in Diamond v. Charles.⁴¹ When the original party appeals, a controversy already stands before the appellate court. When that party stops, the intervenor alone keeps the case alive, and its own stake must carry the appeal. A stake that consists only of an unfavorable precedent in some later case does not qualify, because an intervenor the judgment does not directly affect is not sufficiently aggrieved to appeal.⁴²

Exam Analysis Steps

Because the rule turns on the relief requested and not on the strength of the applicant's interest, it is best applied by reading the intervenor's pleading and comparing it with the existing parties' demands. The steps are these:

Decide whether the applicant satisfies Rule 24. Permission to enter is a separate question from the constitutional power to grant the applicant relief.
Read the pleading that accompanies the motion to identify exactly what relief the intervenor seeks.
Compare that relief with the relief sought by an existing party who has standing. If the two are the same, the intervenor need not show standing of its own.
If the intervenor seeks different relief, including a separate money judgment in its own name, require the intervenor to establish its own Article III standing.
If the intervenor is permissive, apply the same comparison and note that Chester speaks of intervenors of right. If the intervenor appeals after the party it joined has stopped, require standing on appeal as well.