United States v. City of New Orleans

Case: 12-30972 Document: 00512389339 Page: 1 Date Filed: 09/27/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 27, 2013

No. 12-30972 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

CITY OF NEW ORLEANS

Defendant-Appellee
v.

CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE,
INCORPORATED; WALTER POWERS, JR.; COMMUNITY UNITED FOR
CHANGE,

Movants-Appellants

Appeals from the United States District Court
for the Eastern District of Louisiana

Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-30972

Movants Crescent City Lodge No. 2, Fraternal Order of Police,
Incorporated (FOP); Walter Powers, Jr.;1 and Community United for Change
(CUC) appeal the denial of their motions to intervene as of right and
permissively in the consent decree dispute between the United States and the
City of New Orleans related to the operation of the New Orleans Police
Deparment (NOPD). We affirm.
This court reviews de novo the district court’s decision granting or denying
a motion to intervene as of right under Federal Rule of Civil Procedure 24(a).
Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996)(en banc). An
applicant is entitled to intervene in litigation if the four requirements of Federal
Rule of Civil Procedure 24(a)(2) are met: (1) the application for intervention is
timely; (2) the applicant has an interest relating to the property or transaction
which is the subject of the action; (3) the applicant is so situated that the
disposition of the action may, as a practical matter, impair or impede his ability
to protect that interest; and (4) the applicant’s interest is inadequately
represented by the parties to the suit. New Orleans Pub. Serv., Inc. v. United
Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984)(en banc), cert. denied, 469
U.S. 1019 (1984). All four requirements must be met to qualify for intervention
as of right. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
Requirement (1), the timeliness of the motion, is not at issue in this case.
Rather, this case rests on the district court’s conclusion that none of the movants
had a sufficient interest in the litigation under requirement (2).
Under that requirement, the movant must have a “direct, substantial
[and] legally protectable interest” in the subject matter of the proceedings. New
Orleans Pub. Serv., Inc., 732 F.2d at 463. This means something more than an

1
FOP and its president, Walter Powers, Jr., are treated collectively
because their interests are identical.

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No. 12-30972

economic interest. It means an interest “which the substantive law recognizes
as belonging to or being owned by the applicant.” Id. at 464. The district court
correctly ruled that CUC’s motion failed because it lacked a “legally protectable
interest” in the subject matter of this litigation that the substantive law
recognizes. The district court also correctly ruled that FOP’s motion failed
because, while the NOPD officers who are members of FOP are civil servants
who have a property interest in their jobs, they have no legally protectable
interest in the subject matter of the litigation because the consent decree does
not modify the civil service system for NOPD officers.
The district court also did not err in denying the movants’ request for
permissive intervention. Permissive intervention is left to the discretion of the
district court, and is appropriate when the intervention request is timely, the
intervenor’s “claim or defense and the main action have a question of law or fact
in common,” and granting intervention will not unduly delay or prejudice the
original parties in the case. Fed. R. Civ. P. 24(b)(2); Edwards, 78 F.3d at 999;
Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987).
A district court may deny permissive intervention even when the requirements
of Rule 24(b) are met. New Orleans Pub. Serv., Inc., 732 F.2d at 471. This court
will not reverse absent a clear abuse of discretion. Id.
This is a tough standard to meet and cannot be met on the facts of this
case. The district court explained its denial on the basis that allowing the
movants to intervene would unduly delay the proceedings and was not necessary
because the court provided FOP ample opportunity to assist the court in its
consideration of the consent decree and that intervention by CUC would not
significantly assist the court. Movants also make no persuasive argument that
their interests are not adequately represented by the parties to the suit.
For the foregoing reasons, the district court’s denial of the movants’
motions to intervene is affirmed.

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No. 12-30972

AFFIRMED.

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