Concept
Conditions on Intervention
Intervention
Conditions on Intervention
Rule 24 describes the court's task with two verbs. On timely motion the court “must permit” an applicant who meets the criteria of Rule 24(a) to intervene, and on timely motion it “may permit” an applicant who meets the criteria of Rule 24(b)(1) to do so.1 Read quickly, the verbs suggest an all-or-nothing result: the applicant becomes a party or stays a stranger. The suggestion misleads. A court may admit an applicant for limited purposes or on a single claim,2 and the power matters because of what intervention is. Intervention allows, but does not compel, an outsider to enter a pending suit on the appropriate side, and the worry is that the outsider will complicate or even commandeer a lawsuit that belongs to others.3
Conditions let the judge reconcile two interests that pull against each other throughout Rule 24. Intervention exists so that litigation can continue without prejudice to the rights of nonparties, yet the wider the range of permissible intervention, the greater the risk that delay, expense, and complexity will prejudice the original parties.4 A court limited to granting or denying the motion would have to give an applicant every tool of a party when the applicant needs one, or send away an applicant with a legitimate reason to be heard. A conditioned admission fits the intervenor's role to its need and aims each limit at one source of burden. This unit takes up limits on permissive intervenors, intervention for a single limited purpose, and the unsettled question of how far a court may restrict an intervenor of right.
Limited Roles and Terms
A court may admit an absentee to litigate only a single claim or defense, or let the intervenor file briefs and argue motions but not take discovery or present witnesses.5 Each limit removes one expensive tool of a party and leaves the applicant's voice intact. An unconditioned intervenor participates as a full party, and every tool of a party carries a cost for the others. New claims enlarge what the original parties must prove or defend, discovery consumes calendar time, and witnesses add days to trial. Withholding the tool that generates the cost protects the original parties without silencing the applicant.
In Stringfellow v. Concerned Neighbors in Action, a hazardous-waste cleanup case, the court admitted a citizens group on three conditions. The group could not assert any claim for relief the original parties had not already requested, could not intervene in the cleanup-costs claim, and could not file motions or conduct its own discovery unless it first conferred with all the original parties and obtained the permission of one of them.6 Each condition answers a separate burden. The bar on new claims keeps the controversy within the boundaries the original parties set. The exclusion from the cleanup-costs claim keeps the group out of the part of the case that decides who pays. The conferral requirement makes the group coordinate with the people already in the case before it multiplies motions or depositions.
The power to attach such terms is undoubted when intervention is only permissive.7 The rule's own verb explains why: a court that “may permit” intervention may refuse the applicant altogether, and a court that may refuse may admit the applicant on narrower terms.8
Had the association instead demanded to depose the developer's officers and add a damages claim of its own, the court would face the added issues and delay that the discretionary weighing of permissive intervention exists to catch. It could refuse the motion or admit the association on tighter terms.
Limited-Purpose Intervention
Sometimes the limit comes from the applicant's own aim. In a standard illustration, a newspaper seeks to intervene in an employment discrimination case to obtain a settlement agreement the court sealed. The newspaper does not want to litigate the underlying claim or assert any defense on the merits, so it very likely lacks the interest in the property or transaction that intervention of right under Rule 24(a)(2) requires.10 It does share a question with the parties, namely whether the court properly sealed the agreement, and a number of courts have allowed the media to intervene permissively to challenge denial of public access to court documents.11 That route runs through Rule 24(b)(1)(B), which asks only for a claim or defense that shares a common question of law or fact with the main action.12
Decided cases follow the same pattern. In Pansy v. Borough of Stroudsburg, a group of newspapers moved to intervene in a civil rights action to challenge a protective order, a court order restricting who may see or use material in the case, that kept the public from a settlement agreement filed in the court. In Public Citizen v. Liggett Group, Inc., a citizens' group intervened solely to seek access to discovery documents produced in the litigation.13 The first concerned a settlement agreement filed with the court and the second concerned materials the parties exchanged, yet each applicant wanted one thing from a case between others, and that thing defined the intervention.
Because these applicants litigate no claim on the merits, the usual requirements relax. In Jochims v. Isuzu Motors, Ltd., the court explained that permissive intervention to litigate a claim on the merits requires an independent ground for jurisdiction, a timely motion, and a common question of law and fact between the movant's claim or defense and the main action. A party who does not intend to litigate a claim on the merits needs no independent jurisdictional basis.14 The same opinion adds that when a collateral litigant seeks permissive intervention solely to gain access to discovery subject to a protective order, no particularly strong nexus of fact or law need exist between the two suits.15 Permissive intervention under Rule 24(b) is thus an accepted route for a collateral litigant who wants access to protected discovery. Such an applicant asks the court to exercise a power it already holds over its own order and does not ask it to decide additional claims.
The relaxed requirements follow the applicant's aim, not its label. An applicant who wants a ruling on a claim must clear the full set of requirements, while one who wants only to unseal or modify gets by with less. The limited aim therefore does the work a formal condition does in Stringfellow: the intervenor is in the case to litigate the access question, and nothing in its showing carries it further into the merits.
Limits on Intervenors of Right
Conditions rest on firmer ground for permissive intervention, where the court could have refused entry altogether, than for intervention of right, where Rule 24(a) says the court “must permit” the applicant to intervene.17 Once an applicant meets the criteria, the court must allow intervention. Whether it may then confine the intervenor to certain issues or proceedings is unclear under the case law, and courts are usually reluctant to try.18 The authorities describe the power at different strengths. One account gives the court at most limited power to condition intervention of right.19 Another says the trial judge has discretion to impose conditions and restrictions so as to redress whatever imbalances arise between the intervenor's interests and those of the original parties.20
Each position has a reason behind it. The case for power rests on the balance Rule 24 itself strikes: an intervenor of right can create delay, expense, and complexity as readily as a permissive one, and the original parties bear that cost.21 The case against power rests on the verb. Rule 24(a) reflects a judgment that some applicants belong in the suit, and an applicant who would otherwise sue separately is better admitted, so that one suit resolves the issues and binds both the original parties and the intervenors.22 A condition imposed afterward arguably reopens a balance the rule has already closed. A condition that stripped the applicant of the very argument that justified entry, such as one the existing party would never make, would also leave it a party in name only, without the protection the rule promises.
Two limits apply however that question is resolved. The first is the threshold: an applicant must qualify before conditions matter, and a mere interest in favorable precedent cannot be the basis for intervention. In the fireworks example, A and B are both injured at a stadium display, A sues the stadium, and B seeks to intervene on similar grounds with only her hope of establishing a favorable precedent as her “interest.” Intervention is denied.23
The second is jurisdictional. An intervenor of right must establish standing independently if it seeks relief different from that sought by a party with standing, but it needs no standing of its own if it seeks the same relief.24 In a case founded solely on diversity, the supplemental-jurisdiction statute, 28 U.S.C. § 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 § 1332.25 Neither limit depends on the court's discretion to condition.
The same restriction therefore stands on different footing on each track, and a bar answer should say so. For an applicant who has satisfied Rule 24(a)(2), state that the court ordinarily admits the intervenor as a full party, that courts are reluctant to restrict that intervenor, and that the law on the court's power is unsettled. Do not present either position as the rule. An applicant refused entry may still be heard as an amicus, the subject of the next section.