United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 1998 Decided July 17, 1998
No. 97-5209
Equal Employment Opportunity Commission,
Appellee
v.
National Children's Center, Inc.,
Appellee
Lillie Grier, Individually and as Mother and Next Friend of
Linita Grier,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 94cv00642)
Melissa Rhea argued the cause for appellant. James W.
Taglieri was on the brief.
Alan D. Titus argued the cause for appellees. H. Alan
Young, Thomas L. McCally and William J. Carter were on
the brief.
Before: Edwards, Chief Judge, Silberman and Sentelle,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Lillie Grier appeals from the
district court's denial of her motion to intervene for the
limited purpose of obtaining access to documents under seal
and to depositions covered by a protective order. We con-
clude that the district court abused its discretion in denying
the motion, and accordingly vacate and remand.
I.
On March 10, 1995, Grier filed suit in the Superior Court of
the District of Columbia against the National Children's
Center ("NCC" or "Center"), Steve Austin (a bus driver
employed by NCC), and the District of Columbia. The
complaint stemmed from an alleged sexual assault of Grier's
blind and mentally handicapped daughter, who received care
at the Center. Grier alleged that Austin, when he was
supposed to be driving the younger Grier to her home,
sexually assaulted her while she was in the supervision of the
Center on July 24, 1994. Grier sought recovery from the
defendants based on claims of assault, battery, negligence,
and intentional infliction of emotional distress.
Upon agreement of all parties, the District was dismissed
as a party shortly after the filing of the complaint. Following
discovery, the Superior Court granted NCC's motion for
summary judgment, concluding that Grier had failed to offer
any evidence that Austin had acted within the scope of
employment.
A few months later, we issued our decision in EEOC v.
National Children's Center, Inc., 98 F.3d 1406 (D.C. Cir.
1996) ("NCC"). The underlying suit was a Title VII action
brought against NCC in response to allegations of sexual
harassment, including both quid pro quo and hostile work
environment. After the filing of EEOC's action, two employ-
ees of the Center intervened as plaintiffs and alleged viola-
tions of Title VII and state law. The parties eventually
settled all suits, and a consent decree was entered in the
EEOC action. Over the Commission's objection, the district
court sealed the consent decree and portions of the record,
and also issued a protective order that prohibited the use of
the depositions taken in the case. Upon review, we reversed
the district court's order sealing the consent decree, and
remanded the case so that the district court could explain
both its decision to seal portions of the record and its decision
to issue a protective order as to the depositions. Specifically,
we required the district court to articulate its reasons for
sealing the record in light of the six factors delineated in
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), and
to consider whether "good cause" existed for issuance of a
protective order as explained in Seattle Times Co. v. Rhine-
hart, 467 U.S. 20 (1984).
After becoming aware of our ruling while reading The
Daily Washington Law Reporter, Grier suspected that there
might be additional information as to whether NCC knew or
should have known about the misconduct of its employees.
Grier searched through portions of the record not covered by
the district court's order, and discovered that Ron Austin,
NCC's Transportation Director and the brother of Steve
Austin, had been the subject of a number of sexual harass-
ment complaints in connection with his work at NCC. Grier
also learned that three former employees had filed sexual
harassment claims of their own against NCC. Based on this
new information, Grier filed a motion with the Superior Court
to vacate the order of summary judgment. The court grant-
ed the motion, observing that it appeared from the motion
and the attachments that NCC "may have been aware of
complaints about Defendant Steve Austin prior to the filing of
the instant action."
Before responding to our decision, the district court ruled
on a motion to intervene filed by the three women who had
brought sexual harassment claims against NCC. The mov-
ants sought access to the sealed documents and to the
depositions covered by the protective order in NCC. The
court first granted their motion to intervene, observing that
"[i]ntervention is the proper vehicle by which third parties
should seek to alter protective orders and obtain access to
sealed documents even after a case is over...." The court
then ruled that they should have access to the documents and
depositions, subject to a protective order that restricted their
use and prohibited their public dissemination. The court
explained that the movants were "pursuing nearly identical
litigation against the same defendant in this Court and have a
significant interest in obtaining access to the documents in
the instant case." Granting access to the materials, the court
added, would "serve[ ] the interests of justice as well as
judicial economy, since plaintiff-intervenors might reasonably
seek to re-depose the participants in this case if they were
denied access."
Upon remand, the district court decided that a majority of
the Hubbard factors weighed in favor of keeping the docu-
ments under seal, except for three exhibits that it decided to
release. The court also found that good cause existed for
issuing the protective order, reasoning that the release of
untested allegations of wrongdoing would serve no useful
purpose and would invade the personal privacy of the individ-
uals who were involved. Neither the EEOC nor NCC ap-
pealed the court's order.
Shortly thereafter, Grier filed a motion with the district
court to intervene in NCC. Like the three movants who had
successfully intervened before her, Grier sought intervention
so that she could obtain access to the documents under seal
and to the depositions covered by the protective order. The
district court denied her motion without explanation.
Grier filed a timely notice of appeal.
II.
Third parties who seek to intervene in an action in federal
court must proceed according to Rule 24 of the Federal Rules
of Civil Procedure. Rule 24 outlines two different avenues by
which a court can allow an outsider to intervene--interven-
tion of right, and permissive intervention. Fed. R. Civ. P. 24.
This case involves only a motion for permissive intervention,
as Grier has never asserted that she had a right to intervene
in the NCC action.
Before addressing the issue of whether the district court
should have granted Grier's particular motion to intervene,
we pause to address the anterior question of whether inter-
vention is a procedurally appropriate course for third-party
challenges to confidentiality orders.
A.
Rule 24(b) sets the basic parameters for permissive inter-
vention: "Upon timely application anyone may be permitted
to intervene in an action: (1) when a statute of the United
States confers a conditional right to intervene; or (2) when an
applicant's claim or defense and the main action have a
question of law or fact in common." Fed. R. Civ. P. 24(b).
When "exercising its discretion," the district court "shall
consider whether the intervention will unduly delay or preju-
dice the adjudication of the rights of the original parties." Id.
On its face, Rule 24(b) would appear to be a questionable
procedural basis for a third-party challenge to a confidentiali-
ty order. Absent a statutory basis for intervention, Rule
24(b) requires that the would-be intervenor advance a "claim
or defense" that shares a common question with the claims of
the original parties, with the apparent goal of disposing of
related controversies together. See Diamond v. Charles, 476
U.S. 54, 76 (1986) (O'Connor, J., concurring) ("The words
'claim or defense' manifestly refer to the kinds of claims or
defenses that can be raised in courts of law as part of an
actual or impending law suit ...."); see also Security Insur-
ance Co. v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995)
("Perhaps the most obvious benefits of intervention in general
are the efficiency and consistency that result from resolving
related issues in a single proceeding."). Rule 24(c), which
establishes the procedure for intervention, similarly requires
the movant to "serve a motion to intervene upon the parties,"
and to include "a pleading setting forth the claim or defense
for which intervention is sought." Fed. R. Civ. P. 24(c). This
language appears to limit permissive intervention to circum-
stances in which the putative intervenor seeks to become
involved in an action in order to litigate a legal claim or
defense on the merits. Intervenors such as Grier, however,
do not seem to fit within these parameters. Grier does not
seek to resolve an issue on the merits that is in common with
the claims of parties to the main action, but simply wants
access to materials gathered or prepared by the original
parties in the course of their litigation. Nonetheless, despite
the lack of a clear fit with the literal terms of Rule 24(b),
every circuit court that has considered the question has come
to the conclusion that nonparties may permissively intervene
for the purpose of challenging confidentiality orders. See
Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st
Cir. 1988); Martindell v. International Telephone and Tele-
graph Corp., 594 F.2d 291, 294 (2nd Cir. 1979); Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 778 (3rd Cir. 1994); In
re Beef Industry Antitrust Litigation, 589 F.2d 786, 789 (5th
Cir. 1979); Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823
F.2d 159, 162 (6th Cir. 1987); Grove Fresh Distributors, Inc.
v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994);
Beckman Industries, Inc. v. International Insurance Co., 966
F.2d 470, 473 (9th Cir. 1992); United Nuclear Corp. v. Cran-
ford Insurance Co., 905 F.2d 1424, 1427 (10th Cir. 1990).
Several courts have interpreted the "claim or defense" lan-
guage to apply to suits brought in other jurisdictions, see, e.g.,
United Nuclear Corp., 905 F.2d at 1427; Meyer Goldberg,
Inc., 823 F.2d at 162, while other courts have allowed outsid-
ers such as newspapers to intervene, even though they did
not seek the information for use in other litigation, see, e.g.,
Pansy, 23 F.3d at 777-78; Grove Fresh Distributors, 24 F.3d
at 895-96. Although a strict reading of the rule might
suggest a contrary result, courts have been willing to adopt
generous interpretations of Rule 24(b) because of the need for
"an effective mechanism for third-party claims of access to
information generated through judicial proceedings." Public
Citizen, 858 F.2d at 783.
In our prior cases, we have expressed a willingness to
adopt flexible interpretations of Rule 24 in special circum-
stances. See Textile Workers Union of America, CIO v.
Allendale Co., 226 F.2d 765, 767 (D.C. Cir. 1955) (en banc)
("Obviously tailored to fit ordinary civil litigation, these provi-
sions require other than literal application in atypical cases.");
see also id. at 768 ("[F]ailure to come within the precise
bounds of Rule 24's provisions does not necessarily bar
intervention if there is a sound reason to allow it."). In
particular, we have eschewed strict readings of the phrase
"claim or defense," allowing intervention even in "situations
where the existence of any nominate 'claim' or 'defense' is
difficult to find." Nuesse v. Camp, 385 F.2d 694, 704 (D.C.
Cir. 1967) (citation and internal quotation marks omitted).
The force of precedent therefore compels a flexible reading of
Rule 24(b). Given this flexible approach and our longstand-
ing "tradition of public access to court records," In re Report-
ers Comm. for Freedom of the Press, 773 F.2d 1325, 1333
(D.C. Cir. 1985), we construe Rule 24(b) as an avenue for
third parties "to have their day in court to contest the scope
or need for confidentiality." Pansy, 23 F.3d at 780. Accord-
ingly, we hold that third parties may be allowed to permis-
sively intervene under Rule 24(b) for the limited purpose of
seeking access to materials that have been shielded from
public view either by seal or by a protective order.
B.
We turn next to the question of whether the district court
erred when it denied Grier's motion for permissive interven-
tion. As its name would suggest, permissive intervention is
an inherently discretionary enterprise. Hodgson v. United
Mine Workers of America, 473 F.2d 118, 125 n.36 (D.C. Cir.
1972). Rule 24(b) provides that anyone "may" be permitted
to intervene if the requirements of the rule are satisfied, and
makes reference to the fact that a court must "exercis[e] its
discretion" when deciding whether to allow intervention. Cf.
Fed. R. Civ. P. 24(a) (providing that anyone "shall" be
permitted to intervene in two specific circumstances). In
keeping with the wide latitude afforded to district courts
under the rule, we review the denial of a motion for permis-
sive intervention under the abuse of discretion standard.
Twelve John Does v. District of Columbia, 117 F.3d 571, 575
(D.C. Cir. 1997).
In order to litigate a claim on the merits under Rule
24(b)(2), the putative intervenor must ordinarily present: (1)
an independent ground for subject matter jurisdiction; (2) a
timely motion; and (3) a claim or defense that has a question
of law or fact in common with the main action. Beckman, 966
F.2d at 473. Because the district court denied Grier's motion
to intervene, without a recorded rationale, we do not know
whether the court concluded that Grier had failed to satisfy
one or more of the requirements, or whether the court had
some other reason for denying her motion. Whatever the
district court's rationale, we conclude that the denial of
Grier's motion to intervene without further explanation con-
stituted an abuse of discretion.
The first requirement for permissive intervention--an inde-
pendent basis for jurisdiction--stems not from any explicit
language in Rule 24(b), but rather from the basic principle
that a court may not adjudicate claims over which it lacks
subject matter jurisdiction. See Fed. R. Civ. P. 82 ("These
rules shall not be construed to extend or limit the jurisdiction
of the United States district courts...."). Prior to the
enactment of the current statute governing supplemental
jurisdiction, 28 U.S.C. s 1367, courts granted intervention as
of right without requiring an independent jurisdictional basis,
on the theory that such claims were within the ancillary
jurisdiction of the district courts. See Turner/Ozanne v.
Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). Permis-
sive intervention, in contrast, has always required an indepen-
dent basis for jurisdiction. See 7C Charles Alan Wright et
al., Federal Practice and Procedure s 1917, at 464-70 (2nd
ed. 1986); 6 Moore's Federal Practice s 24.22 (3rd ed. 1998).
Requiring an independent basis for jurisdiction makes sense
in cases involving permissive intervention, because the typical
movant asks the district court to adjudicate an additional
claim on the merits. No less than the original claimants, a
third party who seeks to intervene in a federal action and
litigate a claim on the merits must demonstrate that the claim
falls within the court's limited jurisdiction.
Notwithstanding the general requirement of an indepen-
dent jurisdictional basis, courts have crafted a narrow excep-
tion when the third party seeks to intervene for the limited
purpose of obtaining access to documents protected by a
confidentiality order. See Beckman, 966 F.2d at 473; Pansy,
23 F.3d at 778 n.3. The rationale for this exception is
simple--such intervenors do not ask the district court to
exercise jurisdiction over an additional claim on the merits,
but rather to exercise a power that it already has, namely the
power to modify a previously entered confidentiality order.
See In re "Agent Orange" Product Liability Litigation, 821
F.2d 139, 145 (2nd Cir. 1987) ("It is undisputed that a district
court retains the power to modify or lift protective orders
that it has entered."); see also 8 Charles Alan Wright et al.,
Federal Practice and Procedure s 2044.1, at 574-77 (2nd ed.
1994). An independent jurisdictional basis is simply unneces-
sary when the movant seeks to intervene only for the limited
purpose of obtaining access to documents covered by seal or
by a protective order, because the third party does not ask
the court to rule on the merits of a claim or defense.
Because Grier does not seek intervention to litigate a sub-
stantive claim, but rather to challenge the entry of an order
of confidentiality, the general requirement of an independent
jurisdictional basis would not prevent the district court from
granting her motion to intervene.
The second prerequisite under Rule 24(b)(2) is a timely
motion. Grier filed her motion to intervene on July 21, 1997,
almost two years after the original parties had settled the
case. Despite this considerable lapse in time, NCC concedes
that Grier's motion was timely, and we see no reason to reject
this concession. We simply note that there is a "growing
consensus among the courts of appeals that intervention to
challenge confidentiality orders may take place long after a
case has been terminated." Pansy, 23 F.3d at 779; see also
United Nuclear Corp., 905 F.2d at 1427 (allowing intervention
three years after the case had been settled because interven-
tion "was for the sole purpose of challenging a protective
order"). As the Tenth Circuit explained, "Rule 24(b)'s timeli-
ness requirement is to prevent prejudice in the adjudication
of the rights of the existing parties, a concern not present
when the existing parties have settled their dispute and
intervention is for a collateral purpose." United Nuclear
Corp., 905 F.2d at 1427.
The third requirement for permissive intervention under
Rule 24(b)(2) is a claim or defense that shares a common
question of law or fact with the main action. As we stated
above, other courts have afforded this requirement considera-
ble breadth when the movant seeks to intervene for the
collateral purpose of challenging a confidentiality order. Sev-
eral courts have held that the movant can satisfy the require-
ment by raising a common question in a suit in another
jurisdiction. See United Nuclear Corp., 905 F.2d at 1427;
Meyer Goldberg, Inc., 823 F.2d at 162. Other courts have
gone so far as to hold that the issue of the scope or need for
the confidentiality order itself presents a common question
that links the movant's challenge with the main action. See
Pansy, 23 F.3d at 777-78.
We need not conclude, as the Third Circuit appears to have
done in Pansy, that the commonality requirement is satisfied
whenever a third party objects to a confidentiality order,
because Grier's suit in the Superior Court plainly shares
common questions with the main action in NCC. The actions
brought by the EEOC and Grier have a number of factual
similarities: both suits were brought against NCC, based on
acts of sexual misconduct, that were allegedly committed by
NCC employees (two of the alleged perpetrators, it turns out,
were brothers), in the transportation department, during
roughly the same period of time. Grier's action is likely to
raise questions about the operation of the Center that were
also raised in the EEOC action, including whether there is a
pattern of sexual misconduct at the Center, whether NCC
knew or should have known about the alleged malfeasance of
its employees, whether NCC employees received adequate
training and supervision, whether NCC took sufficient steps
to prevent such incidents, and so on. Indeed, in a motion to
seal the record filed with the district court, NCC came close
to conceding not only that there may be common questions,
but also that the record material in NCC might shed light on
the substance of Grier's suit: the Center specifically asked
the court to "seal those pleadings which are part of the record
which make reference to rape, sexual activities and sexually
offensive conduct...." Defendant National Children's Cen-
ter, Inc.'s Supplement to its Motion to Seal the Record,
EEOC v. NCC, No. 94-0642, at Docket No. 153.
The Center, quite tellingly we believe, does not deny that
some of the material covered by the confidentiality order
might be useful to Grier in her action in Superior Court.
Instead, the Center draws attention to the legal and factual
differences between the two cases. It reminds us, for exam-
ple, that the action brought by the EEOC dealt with the
sexual harassment of NCC employees, whereas Grier's suit in
Superior Court involves an alleged assault of a student/client
of NCC. We think, however, that the Center misses the
message of the case law that it repeatedly cites in its brief,
which is that "no particularly strong nexus of fact or law need
exist between the two suits" when a nonparty seeks to
intervene for the sole purpose of gaining access to documents
subject to a confidentiality order. United Nuclear Corp., 905
F.2d at 1427; see also Beckman, 966 F.2d at 474; Meyer
Goldberg, Inc., 823 F.2d at 164; Pansy, 23 F.3d at 778.
Indeed, courts have explicitly held that "specificity, e.g., that
the claim involve ... the same legal theory [as the main
action], is not required when intervenors are not becoming
parties to the litigation." Beckman, 966 F.2d at 474.
In sum, Grier plainly satisfied all three of the requirements
for permissive intervention under Rule 24(b)(2). We do not
know the basis for the district court's denial of her motion,
but if it was premised upon the misapprehension that Grier
had failed to satisfy one of the requirements in the rule, that
decision would warrant reversal even under the deferential
abuse of discretion standard.
C.
Our conclusion that Grier satisfied all of the requirements
of Rule 24(b)(2) does not compel the holding that the district
court committed reversible error in denying her motion to
intervene. Rule 24(b) vests district courts with considerable
discretion, providing that the court "may" allow intervention
if the requirements of the rule are met. Fed. R. Civ. P.
24(b). District courts have the discretion, in other words, to
deny a motion for permissive intervention even if the movant
established an independent jurisdictional basis, submitted a
timely motion, and advanced a claim or defense that shares a
common question with the main action. A district court's
exercise of this discretion, however, is not free from review.
As we stated above, the denial of a motion to intervene will be
reversed if the district court committed an abuse of discre-
tion. Twelve John Does, 117 F.3d at 575.
Reversal of a district court's denial of permissive interven-
tion is a "very rare bird indeed." United States v. Pitney
Bowes, Inc., 25 F.3d 66, 73 (2nd Cir. 1994). Nonetheless, on
the present record we cannot uphold this denial. Grier's
request for permissive intervention followed the court's con-
sideration of a motion for intervention filed by the three
individuals who had filed a sexual harassment case against
the Center. Like Grier, the three movants sought to inter-
vene "for the limited purpose of obtaining access to the
documents under seal and subject to protective order in this
case." The district court granted their motion to intervene,
noting that the "motion was timely" and that "[i]ntervention
is the proper vehicle by which third parties should seek to
alter protective orders and obtain access to sealed documents
even after a case is over." The court went on to hold that the
three intervenors should have access to the materials, subject
to a protective order that prohibited their public dissemina-
tion. Given the district court's decision to grant the motion
filed by those three movants, the unexplained denial of Gri-
er's motion to intervene does not withstand scrutiny. The
lower court was presented with two different motions to
intervene in NCC, and in both instances the movants sought
intervention for the collateral purpose of obtaining access to
materials covered by the court's confidentiality order. In
both cases, the putative intervenors sought the materials for
use in litigation against the Center, and in both cases the
underlying litigation involved allegations of sexual misconduct
by NCC's employees. The district court granted the first
motion, but denied the second without offering an explanation
for the disparate treatment. Perhaps the district court found
enough difference in the motions to support this difference in
result, but it did not provide us with a sufficient record to
support that exercise of its discretion. We therefore conclude
that we must vacate the court's decision denying without
explanation Grier's motion for permissive intervention.
III.
We vacate and remand the district court's order denying
Grier's motion for permissive intervention under Rule 24(b)(2)
for the limited purpose of obtaining access to the materials
covered by the court's confidentiality order. We remand the
case to the district court for further proceedings consistent
with this opinion.