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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2003 Decided November 14, 2003
No. 02-7104
MABEL S. JONES, INDIVIDUALLY, AS THE NEXT BEST FRIEND OF,
AND PERSONAL REPRESENTATIVE OF THE ESTATE OF
PRINCE CARMEN JONES JR.,
APPELLEE
v.
PRINCE GEORGE’S COUNTY, MARYLAND, ET AL.,
APPELLEES
PRINCE CARMEN JONES SR., INDIVIDUALLY AND AS CO–LEGAL
CUSTODIAN OF NINA AMAYYE EDEN CHI JONES, A MINOR, AND
CANDACE JACKSON, MOTHER AND NEXT FRIEND,
INDIVIDUALLY AND AS CO–LEGAL CUSTODIAN
OF NINA AMAYYE EDEN CHI JONES, A MINOR,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02902)
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Terrell N. Roberts III argued the cause for appellants.
With him on the brief was Patrick Malone.
Gregory L. Lattimer argued the cause for appellee Mabel
S. Jones. With him on the brief was Ted Williams.
Before: HENDERSON, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this case, we must decide whether
the minor child of the victim of a fatal police shooting may
intervene in a wrongful death action brought by the personal
representative of the victim’s estate. Although we disagree
with the district court that the minor child must have an
independent state-law cause of action in order to participate
in this litigation, we agree with the court that the minor may
not intervene as a matter of right because the personal
representative adequately represents her interests. Accord-
ingly, we affirm the district court’s denial of the motion to
intervene.
I.
Late on an August night in 2000, two Prince George’s
County, Maryland police officers began searching for a man
suspected of stealing a police pistol. Operating undercover,
the officers drove separate unmarked cars and wore jeans
and T-shirts to blend in with the drug underworld in which
they worked. Their search led them into the District of
Columbia and to a man behind the wheel of a black Jeep
Cherokee. The officers followed the Jeep as it was driven
from the District into Maryland, back through D.C., and
ultimately into Virginia. Their pursuit ended with one of the
officers firing sixteen shots from his semiautomatic weapon at
the Jeep, killing its driver. The slain man was not the
alleged gun thief evading police detection. He was Prince
Carmen Jones Jr., a 25-year-old Howard University student
on his way to Fairfax County, Virginia to visit his fianc´e.
e
3
Jones’s death spawned two separate lawsuits against the
Prince George’s County police department, one in the United
States District Court for the District of Columbia—the case
at issue here—and another in Maryland state court. In the
former, Mabel Jones, Jones’s mother and the personal repre-
sentative of his estate (Mrs. Jones), filed suit individually and
on behalf of Jones’s estate against Prince George’s County,
the chief of the Prince George’s County police department,
and the two officers. Her complaint alleged claims under
Virginia’s wrongful death law, Maryland’s survival statute,
and 42 U.S.C. § 1983, among others. In the Maryland
litigation, Candace Jackson, Jones’s fianc´e and the mother of
e
his infant daughter, Nina, along with Prince Carmen Jones
Sr., Jones’s father (Jones Sr.), sued the same Prince George’s
County defendants alleging wrongful death, failure to train
and supervise, and violations of the Maryland Constitution.
As these two suits got underway, each of the plaintiffs
sought to intercede in the other action. Contending that only
she, the personal representative of Jones’s estate, was enti-
tled to sue, Mrs. Jones moved to intervene in, and then
dismiss, the Maryland suit. Finding that Jackson and Jones
Sr. lacked standing to bring claims on Nina’s behalf, the
Maryland court dismissed their case. An appeal of that
decision is now pending.
Additionally, Jackson, on behalf of Nina, and Jones Sr., for
himself and on Nina’s behalf, moved to intervene in Mrs.
Jones’s action in order to participate in the adjudication of
Mrs. Jones’s Virginia wrongful death claim. Both the magis-
trate judge and the district court denied their motion. Citing
this court’s precedent requiring prospective intervenors to
have Article III standing, the district court concluded that
because neither guardian was a proper plaintiff under Virgi-
nia’s wrongful death statute, each lacked standing and there-
fore could not intervene in the pending litigation. See Jones
v. Prince George’s County, No. 00–2902, slip op. at 10–11
(D.D.C. Aug. 12, 2002) (citing City of Cleveland, Ohio v.
Nuclear Regulatory Comm’n, 17 F.3d 1515, 1517 (D.C. Cir.
1994) (per curiam)).
4
Acting on Nina’s behalf, Jackson and Jones Sr. now appeal.
Because a district court’s denial of a motion to intervene as of
right disposes of the movant’s interest, it is a final order that
we may review immediately. See, e.g., Fund for Animals,
Inc. v. Norton, 322 F.3d 728, 732 (D.C. Cir. 2003).
II.
Although the district court denied Nina’s guardians’ at-
tempt to intervene under both Federal Rule of Civil Proce-
dure 24(a) (intervention of right) and Rule 24(b) (permissive
intervention), the only issue that Jackson and Jones Sr. raise
in this appeal is Nina’s motion to intervene as of right. Rule
24(a) provides:
Upon timely application anyone shall be permitted to
intervene in an action TTT when the applicant claims
an interest relating to the property or transaction
which is the subject of the action and the applicant is
so situated that the disposition of the action may as
a practical matter impair or impede the applicant’s
ability to protect that interest, unless the applicant’s
interest is adequately represented by existing par-
ties.
Fed. R. Civ. P. 24(a)(2).
In addition to satisfying the four elements of Rule 24—
timeliness, interest, impairment of interest, and adequacy of
representation—prospective intervenors in this circuit must
possess standing under Article III of the Constitution. See,
e.g., Fund for Animals, 322 F.3d at 731–32; City of Cleve-
land, 17 F.3d at 1517. The parties argue that Nina’s stand-
ing to intervene turns on whether she may bring a cause of
action, a question they agree depends on whether Virginia or
Maryland law applies to this case. Under both the Virginia
and Maryland wrongful death statutes, a decedent’s child may
recover damages to compensate her for the loss she suffers as
a consequence of her parent’s death. See Md. Code Ann.,
Cts. & Jud. Proc. § 3–904(a)(1) (Michie 2002); Va. Code Ann.
§ 8.01–53(A) (Michie 2000 & Supp. 2003). Despite this simi-
larity, Virginia and Maryland law differ on who can bring a
wrongful death action. Under Virginia law, only the dece-
5
dent’s personal representative may sue on behalf of the
statutorily designated wrongful death beneficiary—here,
Nina. See Va. Code Ann. § 8.01–50(B) (Michie 2000) (‘‘Every
[wrongful death claim] under this [statute] shall be brought
by and in the name of the personal representative of [the]
deceased personTTTT’’). In contrast, Maryland law authorizes
wrongful death beneficiaries to initiate suits on their own.
See Smith v. Borello, 804 A.2d 1151, 1154 (Md. 2002).
Mrs. Jones insists that Virginia law applies and that be-
cause Nina’s guardians may not bring a cause of action under
Virginia law, they may not intervene here. Conversely, Nina
argues that Maryland law applies and that she may therefore
intervene in Mrs. Jones’s suit. Staking their positions on this
choice-of-law analysis, the parties wage their legal battle on
the terrain of D.C. choice-of-law principles, the distinctions
between ‘‘procedural’’ and ‘‘substantive’’ law, and the meaning
of lex loci delicti, among other state-law issues.
We believe that the parties are looking at this question
through the wrong analytical lens. In a motion to intervene
under Rule 24(a)(2), the question is not whether the applica-
ble law assigns the prospective intervenor a cause of action.
Rather, the question is whether the individual may intervene
in an already pending cause of action. See Smuck v. Hobson,
408 F.2d 175, 179 (D.C. Cir. 1969) (en banc) (‘‘[I]n the context
of intervention the question is not whether a lawsuit should
be begun, but whether already initiated litigation should be
extended to include additional parties.’’). As the Rule’s plain
text indicates, intervenors of right need only an ‘‘interest’’ in
the litigation—not a ‘‘cause of action’’ or ‘‘permission to sue.’’
See Fed. R. Civ. P. 24(a)(2). In Trbovich v. United Mine
Workers of America, 404 U.S. 528 (1972), the Supreme Court
concluded that the lack of a cause of action does not, in and of
itself, bar a party from intervening. Id. at 537. There, the
Court permitted a union member to intervene in a Labor-
Management Reporting and Disclosure Act suit brought by
the Secretary of Labor to set aside a union election even
though that statute expressly prohibits union members from
initiating such actions on their own. Id. at 530-31. Accord-
ing to the Court, the statute’s ‘‘bare language,’’ which makes
6
suit by the Secretary the ‘‘exclusive TTT remedy,’’ did not, by
itself, defeat the union member’s right to participate in the
pending case. Id. at 531-32 (citing 29 U.S.C. § 483); see also
Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271, 274
(3d Cir. 1980) (per curiam) (assuming that the lack of a
private right of action did not bar an insurer from intervening
in a wrongful death action to protect its subrogation right).
Therefore, contrary to the district court’s reasoning and the
parties’ arguments here, the ‘‘bare language’’ of Virginia law
does not per se deprive Nina of standing to intervene.
This then brings us to the question of whether Nina
satisfies the standing requirements imposed by circuit prece-
dent. See, e.g., City of Cleveland, 17 F.3d at 1517. To be
sure, we have noted that requiring prospective intervenors to
establish Article III standing gives rise to several thorny
issues—the most relevant for our purposes being the tension
between requiring standing of prospective plaintiff-
intervenors while at the same time finding Article III satis-
fied when only one party has standing. See Roeder v. Islam-
ic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003) (citing
Watt v. Energy Action Found., 454 U.S. 151, 160 (1981)). We
need not ‘‘dwell’’ on this issue, id., however, because whether
Virginia or Maryland law governs this dispute—a question we
do not decide—Nina has a concrete and cognizable interest in
this litigation that, under circuit precedent, satisfies Article
III’s demands. Id.; cf. S. Christian Leadership Conference v.
Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984) (stating that Article
III’s ‘‘gloss’’ on Rule 24 requires an intervenor to have a
‘‘legally protectable’’ interest). Nina clearly suffers from an
injury that the Prince George’s County defendants allegedly
caused and that the requested relief would redress: the
shooting deprived Nina of her father’s financial and emotional
support, the shooting indisputably caused her loss, and a
favorable decision would remedy this injury. Nina thus has
standing to participate in this suit.
We turn next to whether Nina satisfies the requirements
for intervention of right under Rule 24(a)(2): timeliness,
interest, impairment of interest, and adequacy of representa-
tion. We can easily dispose of the first two elements. Mrs.
7
Jones concedes that Nina’s guardians timely filed their mo-
tion to intervene, and because Nina has suffered a cognizable
injury sufficient to establish Article III standing, she also has
the requisite interest under Rule 24(a)(2). See Fund for
Animals, 322 F.3d at 735; Mova Pharm. Corp. v. Shalala,
140 F.3d 1060, 1076 (D.C. Cir. 1998) (observing that satisfying
constitutional standing requirements demonstrates the exis-
tence of a legally protected interest for purposes of Rule
24(a)).
This leaves Rule 24(a)(2)’s third and fourth requirements.
Nina argues that the present litigation will impair her inter-
est by virtue of its potential res judicata effect on her
Maryland wrongful death claim. We need not address this
argument, however, for we agree with the district court that
Nina’s motion fails Rule 24(a)(2)’s fourth element—adequacy
of representation—and Nina must satisfy all four elements of
the Rule in order to intervene as of right. See Bldg. &
Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282
(D.C. Cir. 1994).
Both the magistrate judge and the district court found that
Nina’s guardians failed to demonstrate that Mrs. Jones inade-
quately represents her granddaughter’s interests. The mag-
istrate judge concluded that Mrs. Jones’s fiduciary duty to
Nina as the personal representative of Jones’s estate sufficed
to show adequacy. See Jones v. Prince George’s County, 202
F.R.D. 39, 42 (D.D.C. 2001). The district court likewise noted
that ‘‘the movants have failed to show that any interests they
may have are inadequately represented in this case.’’ Jones,
No. 00–2902, slip op. at 13. Nina’s guardians challenge this
conclusion on two grounds.
First, Nina’s guardians contend that Mrs. Jones’s interests
do not coincide with Nina’s. In their view, because the case
caption indicates that Mrs. Jones is suing ‘‘individually’’ and
in her representative capacity, she could pursue her own,
potentially conflicting agenda at Nina’s expense. At oral
argument, however, counsel for Mrs. Jones assured us that
Mrs. Jones has affirmatively disavowed any financial interest
in this litigation. Even more significantly, Mrs. Jones pur-
sues her state wrongful death action, the only claim in which
8
Nina seeks to participate, in her capacity as Nina’s trustee or
fiduciary. See Semler v. Psychiatric Inst. of Wash., D.C.,
Inc., 575 F.2d 922, 925 (D.C. Cir. 1978) (explaining that in a
Virginia wrongful death action, ‘‘‘the personal representative
of the deceased sues primarily as trustee for certain statutory
beneficiaries TTT’’’ (quoting Wilson v. Whittaker, 154 S.E.2d
124, 128 (Va. 1967))); Va. Code Ann. § 26–59(A) (Michie 2001)
(listing a decedent’s personal representative as a type of
fiduciary). Indeed, even if Mrs. Jones were motivated by her
own financial gain despite her promise to the contrary and
her obligations as personal representative, she would have no
way to pursue it at Nina’s expense, for under Virginia law
Mrs. Jones may not recover for her son’s wrongful death.
See Va. Code Ann. § 8.01–53(A) (providing that a decedent’s
parents are entitled to wrongful death damages only if the
decedent has no child). Because Mrs. Jones acts as Nina’s
surrogate in the pending wrongful death action, the interests
of Mrs. Jones as trustee and Nina as beneficiary are perfectly
congruent.
Second, Nina claims that Mrs. Jones has made a series of
strategic blunders that demonstrate her inadequate represen-
tation. Specifically, Nina asserts that Mrs. Jones filed suit in
an inappropriate forum, advanced a disadvantageous choice-
of-law position, and failed to bring a state-law claim that
would have enhanced the estate’s recovery. Nina’s guardians
also fault Mrs. Jones for refusing to cooperate with their
attorneys. Although an existing party who is ineffectual,
incompetent, or unwilling to raise claims or arguments that
would benefit the putative intervenor may qualify as an
inadequate representative in some cases, this is not such a
case. The alleged inadequacies here amount to little more
than quibbles over litigation tactics. ‘‘A mere difference of
opinion concerning the tactics with which litigation should be
handled does not make inadequate the representation of those
whose interests are identical with that of an existing party or
who are formally represented in the lawsuit.’’ 7C CHARLES
ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 1909, at 344 (2d ed. 1986). Nina’s
guardians also argue that Mrs. Jones is an inadequate repre-
sentative because she failed to bring a wrongful death action
9
under Maryland law, the claim they hope to pursue in the
Maryland court. At the same time, however, Nina’s guard-
ians contend that Mrs. Jones’s Virginia wrongful death action,
the only claim in which they seek to participate here, would
yield the same wrongful death damages as their Maryland
wrongful death claim. In other words, Nina’s guardians
effectively concede that Nina has no substantive right to a
wrongful death recovery that Mrs. Jones is failing to protect.
Therefore, their disagreement over Mrs. Jones’s choice of law
boils down to just another dispute over litigation tactics. ‘‘If
disagreement with an existing party over trial strategy quali-
fied as inadequate representation, the requirement of Rule 24
would have no meaning.’’ Butler, Fitzgerald & Potter v.
Sequa Corp., 250 F.3d 171, 181 (2d Cir. 2001); see also Mass.
Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776,
781 (D.C. Cir. 1997) (‘‘[W]e do not think representation is
inadequate just because a would-be intervenor is unable to
free-ride as far as it might wish—a well-nigh universal com-
plaint.’’).
Finally, even if, as Nina’s guardians contend, Mrs. Jones’s
counsel has refused to cooperate or share information with
Nina’s lawyers—a point that Mrs. Jones disputes—this al-
leged deficiency says little about Mrs. Jones’s representative
adequacy for purposes of Rule 24(a)(2). Indeed, we cannot
imagine why an existing party would bear such an obligation
to a prospective intervenor. Not surprisingly, Nina’s counsel
has pointed to no case, nor have we found one, in which an
existing party was deemed inadequate on such grounds.
The district court’s denial of the motion to intervene is
affirmed.
So ordered.