Revised February 12, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20293
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Deneen Ford,
Plaintiff-Appellee,
versus
City of Hunstville; Hank Eckhardt,
Defendants-Appellees,
versus
The Huntsville Item,
Movant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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January 22, 2001
Before: KENNEDY,* JONES, and DeMOSS, Circuit Judges.
PER CURIAM:**
Appellant The Huntsville Item, a local newspaper, appeals from the district court’s denial of
its motion to intervene and motion to vacate an agreed order prohibiting disclosure of settlement
*
Circuit Judge of the Sixth Circuit, sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
documents in the underlying lawsuit between appellees, plaintiff Deneen Ford and defendant City of
Huntsville. On appeal, appellant alleges that (1) it had standing to intervene in the original action,
and (2) the district court erred in issuing the confidentiality order. For the reasons stated below, we
grant appellant’s motion to intervene and vacate the district court’s confidentiality order.
I. Background
Deneen Ford filed the underlying lawsuit against the city of Huntsville, Texas and police
chief Hank Eckhardt claiming that her employer, the Huntsville Police Department, racially and
sexually discriminated against her. The local newspaper, The Huntsville Item, reported on the
progress of the suit from its filing. The parties to the suit ultimately reached a settlement, and on
December 22, 1999, the parties filed an Agreed Motion to Dismiss in the district court. (R.55.)
The district court entered an Agreed Order of Dismissal on December 27, 1999. At the initial
request of plaintiff Ford, the parties also jointly submitted an Agreed Order of Confidentiality,
prohibiting disclosure of the terms of the settlement. The district court issued the Agreed Order
of Confidentiality on December 28, 1999.
On January 19, 2000, appellant The Huntsville Item moved to intervene in the original
lawsuit and to vacate the Agreed Order of Confidentiality, alleging that the confidentiality order
was impermissible under the Texas Public Information Act (Texas Act) which provides that a
settlement agreement to which a governmental body is a party is public information.1 The district
1
Section 552.022(a)(18) provides that “a settlement agreement to which a governmental body
is a party” is “public information and not excepted from required disclosure under this chapter unless
[it is] expressly confidential under other law.” Tex. Gov’t Code Ann. § 552.022(a)(18) (Vernon
1999).
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court summarily denied appellant’s Motion to Intervene and Motion to Vacate Agreed Order on
February 16, 2000, without a hearing and without offering any findings or conclusions.
II. Discussion
Appellant raises two issues on appeal. First, appellant challenges the district court’s denial
of appellant’s motion to intervene. Secondly, appellant claims that the district court erred in
issuing the confidentiality order protecting the underlying settlement agreement.
A. Intervention
Appellant alleges that the district court erred in denying its motion to intervene as of right
under Fed. R. Civ. P. 24(a)(2), and that the district court abused its discretion in denying
appellant’s motion under the standard for permissive intervention under Fed. R. Civ. P. 24(b)(2).
The district court made no findings of fact or conclusions of law to support its denial of
appellant’s motion to intervene.
A district court’s denial of intervention as of right is reviewed de novo. Taylor
Communications Group, Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999).
Intervention as of right is governed by Rule 24(a) which provides that “[u]pon timely application
anyone shall be permitted to intervene in an action . . . 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 parties.” Fed. R. Civ. P. 24(a)(2). To intervene as of right under Rule 24(a)(2),
appellant must meet a four prong test. Each of the following four requirements must be satisfied:
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(1) the application for intervention must be timely; (2) the applicant must have an
interest relating to the property or transaction which is the subject of the action;
(3) the applicant must be so situated that the disposition of the action may, as a
practical matter, impair his ability to protect that interest; (4) the applicant’s
interest must be inadequately represented by the existing parties to the suit.
Taylor, 172 F.3d at 387.
Under the first requirement, the district court should have considered four factors to
determine whether appellant’s application for intervention was timely. The four factors are:
(1) The length of time during which the would-be intervenor actually knew or
reasonably should have known of its interest in the case before it petitioned for
leave to intervene; (2) the extent of the prejudice that the existing parties to the
litigation may suffer as a result of the would-be intervenor’s failure to apply for
intervention as soon as it knew or reasonably should have known of its interest in
the case; (3) the extent of the prejudice that the would-be intervenor may suffer if
intervention is denied; and (4) the existence of unusual circumstances militating
either for or against a determination that the application is timely.
Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). Although a district court’s
determination regarding the timeliness of intervention is typically reviewed for abuse of discretion,
it is reviewed de novo where the district court failed to make any findings regarding its timeliness
conclusion. Sierra Club, 18 F.3d at 1205 n.2. In the present case, the district court did not
address the question of timeliness.
Appellant filed its motion to intervene on January 19, 2000, twenty-two days after the
entry of the confidentiality order on December 28, 1999. Appellees, the original parties to the
case, filed their motion for the confidentiality order on December 27, 1999. (R.14.) Appellant’s
interest in the case is limited to obtaining access to the settlement documents. Appellant had no
reason to think that such access would be denied until the confidentiality agreement was
proposed. Therefore, appellant’s interest in the case did not arise until appellees filed their joint
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motion for the confidentiality agreement. As a result, there were only twenty-three days between
the time when appellant could have learned of its interest in the case and the time at which it filed
its motion to intervene. In Stallworth v. Monsanto Co., 558, F.2d 257, 267 (5th Cir. 1977), the
Fifth Circuit applied the four factors listed above and concluded generally that “[b]y filing their
petition less than one month after learning of their interest in this case, the appellants discharged
their duty to act quickly.” In addition, this court has emphasized that the relevant prejudice is
that created by the intervenor’s delay in seeking to intervene after it learns of its interest, not
prejudice to existing parties if intervention is allowed. Ceres Gulf v. Cooper, 957 F.2d 1199,
1203 (5th Cir. 1992). No apparent prejudice to the original parties resulted from appellant filing
its motion in January as opposed to December, and no such prejudice was alleged. In addition,
because appellant seeks only to litigate the issue of the confidentiality order and not to reopen the
merits of the dispute between the original parties, even a greater delay in the intervention would
not have prejudiced the parties. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780 (3d Cir.
1994). Under the third timeliness factor, appellant could suffer prejudice if its motion is denied,
because if it brings a separate suit to gain access to the information under the Texas Act, any
potential remedy will be restricted by the confidentiality order issued here. There are no unusual
circumstances to be considered under the fourth factor above. Thus, we conclude that appellant’s
motion to intervene was timely.
The second condition to intervention as of right requires that appellant have an interest
relating to the property or transaction that is the subject of the underlying action. In the context
of intervention, the Fifth Circuit has warned against defining “property or transaction” too
narrowly. Ceres Gulf, 957 F.2d at 1203. This court has held that a news agency has a legal
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interest in challenging a confidentiality order, stating that “members of the news media, although
not parties to litigation, can appeal court closure orders or confidentiality orders under the
collateral order doctrine.” Davis v. East Baton Rouge Parish School District, 78 F.3d 920, 926
(5th Cir. 1996). More specifically, appellant has a legal interest arising under the Texas Act,
section 552.022(a)(18), which provides that “a settlement agreement to which a governmental
body is a party,” is “public information and [is] not excepted from required disclosure under this
chapter unless [it is] expressly confidential under other law.” Tex. Gov’t Code Ann. §
552.022(a)(18) (Vernon 1999).
The Third Circuit has explained that “in determining whether the Newspapers have
standing, we need not determine that the Newspapers will ultimately obtain access to the sought-
after Settlement Agreement. We need only find that the Order of Confidentiality being challenged
presents an obstacle to the Newspapers’ attempt to obtain access.” Pansy, 23 F.3d at 777. In the
present case, the confidentiality order issued by the district court presents an obstacle to
appellant’s attempt to obtain the settlement agreement. Standing to challenge the confidentiality
order demonstrates the interest required to intervene under Rule 24(a)(2). For these reasons, we
conclude that appellant has an interest relating to the underlying action and satisfies the second
condition for intervention as of right.
The third condition for intervention as of right requires that the disposition of the case
may impair the applicant’s ability to protect its interest. The confidentiality order which appellant
wants to challenge conflicts with appellants right to access information under the statute. Even
without reaching a conclusion about the validity of the confidentiality order, its existence certainly
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would impede appellant’s ability to bring suit successfully under the Texas Act to gain access to
the settlement agreement.
Finally, the last condition for intervention as of right requires that the interests of the
applicant are inadequately represented by the existing parties. The original parties in this case
jointly moved for the confidentiality order, advocating a position contrary to the interest of
appellant. Therefore, the final condition is satisfied.
Appellant satisfies all four prongs of the test for intervention as of right. As a result, it is
not necessary for us to evaluate appellant’s alternative argument that it satisfied the requirements
for permissive intervention. The district court erred in refusing appellant’s request to intervene.
We reverse the district court and hold that appellant may intervene as of right under Rule 24(a)(2)
in order to challenge the confidentiality order issued by the district court.
B. Confidentiality Order
Upon a joint motion by the parties, the district court entered the Agreed Order prohibiting
the parties from disclosing the settlement documents. The full text of the order is as follows:
Pursuant to Tex. Gov’t Code Ann. § 552.107(2), it is ORDERED that disclosure
of the settlement documents associated with Plaintiff Deneen Ford’s suit against
City of Huntsville, Texas and Hank Eckhardt (“Defendants”) is hereby prohibited.
(R.63.) The district court offered no findings or explanation for the confidentiality order nor did
the parties submit any reasons for its entry beyond their agreement. We review the district court’s
grant of a confidentiality order for abuse of discretion, see Davis, 78 F.3d at 930, Doe v. Stegall,
653 F2d 180, 184 (5th Cir. 1981), but we review the district court’s application of the appropriate
legal standard de novo.
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We should note that we are not asked to grant appellant access to the settlement
documents. Rather, we are asked to determine the validity of the district court’s confidentiality
order. The validity of that order, however, will determine whether appellant will be successful in
obtaining the requested documents.2
In issuing the confidentiality order, the district court cited to section 552.107(2) of the
Texas statute which provides that “[i]nformation is excepted from the requirements of Section
552.021 if: . . . a court by order has prohibited disclosure of the information.” Section 552.021
provides that “[p]ublic information is available to the public at a minimum during the normal
business hours of the governmental body.” Section 552.107(2) establishes an exception to
required disclosure under the Texas Act. Section 552.022(a), however, lists categories of
information which “are public information and are not excepted from required disclosure under
this chapter unless they are expressly confidential under other law.” One of these listed categories
is “a settlement agreement to which a governmental body is a party.” Tex. Gov’t Code Ann. §
552.022(a)(18). Thus, disclosure of a settlement agreement does not fall within the exception
under section 552.107(2). Rather, settlement information involving a governmental body is
subject to required disclosure under Texas Law unless expressly made confidential by other law.
That conclusion does not end our inquiry, however, because we must determine what
discretion a federal judge has to issue a confidentiality order in litigation between a state and its
employee in light of a conflicting state statute. In Davis, the Fifth Circuit addressed a case in
2
If the confidentiality order is valid, a court’s ability to order access to the settlement
documents would be limited by this federal order. In the present case, further legal action will likely
not be required because appellee City of Huntsville has st ated that if the confidentiality order is
vacated, it will make the settlement documents public. (Appellee’s Br. 5.)
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which a news agency sought to invalidate a court order permitting a school board to meet in
private sessions to discuss a desegregation plan, alleging that the order permitted the board to
circumvent requirements of the Louisiana Open Meetings Law, L.R.S. § 42:4.1-11 (West 1990).
78 F.3d at 930. Without stating an opinion as whether the private meetings would comply with
the statute, the court held that “[i]n entering a confidentiality order protecting a public entity, or
an order such as this requiring a public entity to meet in secrecy, the district court should consider
the effect of the order on state freedom of information laws.” Davis, 78 F.3d at 931. The court
also cited the Third Circuit Pansy case with approval, in which the Third Circuit held that “where
a governmental entity is a party to litigation, no . . . confidentiality order shall be entered without
consideration of its effect on disclosure of governmental records to the public under state and
federal freedom of information laws.” Id. (citing Pansy, 23 F.3d at 791). The Pansy court further
held that “where it is likely that information is accessible under a relevant freedom of information
law, a strong presumption exists against granting or maintaining an order of confidentiality whose
scope would prevent disclosure of that information pursuant to the relevant freedom of
information law.” Pansy, 23 F.3d at 791. Explaining the appropriate legal standard, the Davis
court held that “the district court made no effort to explain why the need for confidential Board
meetings outweighed the news agencies’ interest in attending Board meetings protected by the
Louisiana Open Meetings Act.” Davis, 78 F.3d at 931. Similarly in the present case, the district
court gave no indication that it considered section 552.022(a)(18) of the Texas Act, and neither
the court nor the parties offered any explanation as to the need for confidentiality let alone a need
that outweighed appellant’s interest in gaining access to information protected by the Texas Act.
On appeal, no one appeared or filed a brief on behalf of plaintiff Ford in support of maintaining
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the confidentiality order. The City of Huntsville, when questioned at oral argument, could point
to no reason for confidentiality except that plaintiff had requested the agreed order, and the City
acknowledged that plaintiff had not given any reason for her request. Thus, the Davis court’s
ultimate conclusion applies to the present case:
In short, the district court entered a sweeping order requiring a public entity to
conduct confidential meetings which may or may not comply with state law. The
court should not have entered this order without considering whether the meetings
that it ordered complied with the Louisiana Open Meetings Law, or demonstrating
compelling reasons for preempting Louisiana law. We conclude that the district
court abused its discretion in entering the . . . order without considering its effect
on Louisiana law.
Davis, 78 F.3d at 931. While Texas law is not directly binding on a federal court’s ability to issue
orders, the Fifth Circuit has clearly held that, at a minimum, the district court was obliged to
consider the effect of its order on state law. In the present case, the district court abused its
discretion by entering the confidentiality order without considering section 552.022(a)(18) of the
Texas Act. In light of the public information status provided to the settlement by the Texas Act,
the district court also erred by failing to require some competing interest which demonstrates a
compelling reason for entering the order despite the state law. Thus, as the court did in Davis, we
vacate the district court’s confidentiality order.
III. Conclusion
For the reasons stated above, we reverse the district court and hold that appellant is
entitled to intervene, and further we vacate the confidentiality order entered by the district court.
No costs are awarded on appeal.
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