PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-4305
________
UNITED STATES OF AMERICA
v.
TERRITORY OF THE VIRGIN ISLANDS
*RONALD EDWARD GILLETTE by his Next
Friend Joseph A. DiRuzzo, III, Esq.,
Appellant
*(Pursuant to Rule 12(a) Fed. R. App. P.)
*(Amended in light of the Court Order dated 1/29/13)
____
On Appeal from the District Court
of the Virgin Islands
(D. VI. No. 1-86-cv-00265)
District Judge: Honorable Wilma A. Lewis
______
Argued December 9, 2013
Before: FISHER, COWEN and NYGAARD, Circuit Judges.
(Filed: April 11, 2014)
Joseph A. DiRuzzo, III, Esq. ARGUED
Jeffrey J. Molinaro, Esq.
Fuerst Ittleman David & Joseph
1001 Brickell Bay Drive
32nd Floor
Miami, FL 33131
Jennifer L. Eichhorn, Esq. ARGUED
Mark L. Gross, Esq.
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Angela P. Tyson-Floyd, Esq.
Office of United States Attorney
1108 King Street
Suite 201
Christiansted
St. Croix, VI 00820
2
Paul J. Paquin, Esq. ARGUED
Carol L. Thomas-Jacobs, Esq.
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Appellant Ronald E. Gillette seeks to intervene in this
twenty-eight year old litigation between the United States and
the Territory of the Virgin Islands (collectively, “Appellees”).
At issue are the conditions in the Golden Grove Adult
Correctional Facility (“Golden Grove”), which is located on
St. Croix. Both the United States and Gillette, who is
incarcerated at Golden Grove, seek to improve conditions at
the facility that allegedly fall below the minimum standards
required by the United States Constitution. Because we
conclude that the United States adequately represents
Gillette’s interests in this case and that Appellees will be
prejudiced if intervention is permitted, we will affirm the
District Court’s order denying his motion to intervene.
3
I.
A.
This litigation began in 1986 when the United States
sued the Virgin Islands pursuant to the Civil Rights of
Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997,
seeking to enjoin the Virgin Islands from allegedly depriving
inmates at Golden Grove of their Eighth Amendment rights.1
That same year, Appellees entered into a Consent Decree,
which provided that the Virgin Islands would attempt to
remedy the conditions at Golden Grove. The Consent Decree
recognized the need to protect inmates from “‘unreasonable
fire safety risks to their lives and safety’ and ‘wanton and
reckless physical violence by other inmates or staff,’ as well
as providing ‘minimally adequate sanitation to protect
inmates from unreasonable risks to their physical health’ and
‘minimally adequate medical care for the serious medical
needs of inmates.’” App. at 63 (quoting the Consent Decree
at 3-4).
Following entry of the Consent Decree, Appellees
continued to litigate over the conditions at Golden Grove.
The District Court entered several additional orders when the
conditions at Golden Grove failed to improve according to
plan, including a 1990 Plan of Compliance, a 2003 Stipulated
Agreement, a 2007 Remedial Order, and three additional
1
Documents related to this case filed prior to February
1996, including the complaint, are not available
electronically. The historical facts of this case are largely
undisputed and are therefore taken from the District Court’s
opinions dated February 8, 2012 (App. at 61-91) and
November 7, 2012 (App. at 7-16), along with the parties’
briefs.
4
orders in December 2009, February 2010, and December
2010. The ongoing litigation relates in large part to the
Virgin Islands’ compliance with the Consent Decree and
these subsequent orders.
In July 2011, the Virgin Islands filed a motion to
terminate prospective relief pursuant to the Prison Litigation
Reform Act (“PLRA”), 18 U.S.C. § 3626(b), (e). Upon the
filing of the motion to terminate, the automatic stay
provisions of the PLRA operated to stay the District Court’s
orders pending a hearing on the motion and its resolution. In
approximately September 2011, the parties began discovery
regarding conditions at Golden Grove in preparation for
further litigation, while at the same time engaging in
settlement negotiations. By opinion dated February 8, 2012,
the District Court concluded that all but one of the orders
entered after the 1986 Consent Decree constituted prospective
relief under the PLRA, and that those orders did not include
the findings required under the statute. The District Court
ordered an evidentiary hearing to determine whether
“prospective relief remains necessary to correct a current and
ongoing violation of a federal right at Golden Grove under §
3626(b)(3) of the PLRA, and, if so, to ensure that the
prospective relief is narrowly tailored to that violation in the
manner required by the PLRA.” App. at 62.
B.
Gillette is a prisoner at Golden Grove who is no
stranger to this Court. He was convicted on April 11, 2008 of
several territorial crimes and sentenced to 300 months’
imprisonment on June 19, 2009. Gillette filed a timely appeal
5
of his sentence with this Court on June 22, 2009.2 He also
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in the District Court on January 31, 2012. In
his habeas petition Gillette cited extensively to statements
made by the United States in its pleadings in the present
litigation. Those statements list the alleged unconstitutional
conditions at Golden Grove. See Supp. App. at 3-7. The
District Court found that it lacked jurisdiction to consider
Gillette’s habeas petition and dismissed it sua sponte,
concluding that the petition should have been brought as a
civil rights claim pursuant to 42 U.S.C. § 1983. The denial of
Gillette’s habeas petition is currently pending before this
Court. See Gillette v. Territory of the Virgin Islands, No. 13-
2530, -- F. App’x -- (3d Cir. Apr. 11, 2014).
Gillette filed a motion to intervene in the present case
on July 21, 2012, one day after the United States filed a
motion to dismiss his habeas petition. Gillette’s motion
sought leave to intervene as of right pursuant to Federal Rule
of Civil Procedure 24(a), or, in the alternative, for permissive
intervention pursuant to Rule 24(b). Gillette argued that: (1)
as an inmate at Golden Grove, he had a cognizable interest in
the subject of the litigation; (2) his interests would be
impaired if he were not permitted to intervene; (3) the United
2
Gillette sought to voluntarily withdraw the direct
appeal of his criminal conviction despite counsel’s objection,
and this Court remanded to the District Court for a
determination of Gillette’s competency to withdraw his
appeal. Following a hearing, the District Court concluded
that Gillette was not competent to do so, and the direct appeal
was argued on April 24, 2013. We rendered a decision
affirming his conviction on December 6, 2013. United States
v. Gillette, 738 F.3d 63 (3d Cir. 2013).
6
States will not adequately represent his interests in the
litigation; and (4) his motion to intervene was timely.
Gillette’s memorandum in support of the motion extensively
quoted the representations about the conditions at Golden
Grove made by the United States in this case. Both Appellees
responded to Gillette’s motion.
The District Court denied Gillette’s motion to
intervene by order dated November 7, 2012.3 The
accompanying memorandum opinion concluded that the
motion to intervene as of right failed for two independent
reasons. First, the motion was untimely because of: (a) the
advanced stage of the proceedings; (b) the prejudice to the
parties caused by permitting intervention on the eve of
settlement (the District Court was informed that the parties
had reached a settlement only twelve days after Gillette’s
motion was fully briefed); and (c) the lack of a good reason
for Gillette’s delay in seeking to intervene. Second, Gillette
failed to establish that the United States would not adequately
represent his interests, particularly in light of his extensive
reliance on the United States’ pleadings in outlining his
grievances about Golden Grove. The District Court denied
Gillette’s motion for permissive intervention for “the same
reasons” that it denied the motion to intervene as of right.
App. at 16.
By the time the District Court denied Gillette’s motion,
Appellees had already submitted a proposed Settlement
Agreement to the District Court on August 31, 2012. The
Settlement Agreement identifies ways to remedy the deficient
conditions at Golden Grove in the areas of: (1) medical and
mental health care; (2) inmate safety and supervision
3
Gillette timely filed a notice of appeal of the District
Court’s order on November 14, 2012.
7
(including classification of inmates for housing and use of
force policies); (3) fire and life safety; (4) environmental
health conditions (including housekeeping, sanitation, and
physical plant conditions); and (5) training of Golden Grove
staff. Most relevant to the present case, the Settlement
Agreement included detailed provisions related to medical
and mental health care, “including screening, assessment,
treatment, and monitoring of prisoners’ medical and mental
health needs.” App. at 232-34. The District Court ordered
further briefing with respect to a dispute over the selection of
an appropriate monitor, but on May 14, 2013, it entered an
order adopting the United States’ proposed findings of fact
and conclusions of law in support of the Settlement
Agreement, granted the Appellees’ joint motion to enter
consent judgment, and accepted the Settlement Agreement.
II.
The District Court had jurisdiction pursuant to 48
U.S.C. § 1612 and 42 U.S.C. § 1997a. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the denial of a
motion to intervene pursuant to Rule 24 for abuse of
discretion. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.
1987). “We note, however, that our review of district court’s
[sic] decisions denying intervention of right is more stringent
than the abuse of discretion review accorded to denials of
motions for permissive intervention.” Id. A district court’s
denial of a motion pursuant to Rule 24(a) may be reversed “if
the [district] court ‘has applied an improper legal standard or
reached a decision that we are confident is incorrect.’” Id.
(quoting United States v. Hooker Chems. & Plastics Corp.,
749 F.2d 968, 992 (2d Cir. 1984)). We are, however, “more
reluctant to intrude into the highly discretionary decision of
whether to grant permissive intervention.” Brody ex rel.
Sugzdinis v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992).
8
III.
Rule 24 provides for intervention as a matter of right
and permissive intervention. Because Gillette’s motion
sought each in the alternative, we will discuss them both in
turn.
A.
1.
Intervention as of right must be granted when a party
“claims an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).
A potential intervenor must satisfy four criteria to succeed on
a motion pursuant to Rule 24(a)(2): “(1) the application for
intervention is timely; (2) the applicant has a sufficient
interest in the litigation; (3) the interest may be affected or
impaired, as a practical matter by the disposition of the
action; and (4) the interest is not adequately represented by an
existing party in the litigation.” Harris, 820 F.2d at 596
(citing Commw. of Pa. v. Rizzo, 530 F.2d 501, 504 (3d Cir.
1976)). “Although these requirements are intertwined, each
must be met to intervene as of right.” Id. (citing New Orleans
Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452,
463 (5th Cir. 1984)). Intervention as a matter of right
presents a situation where “[t]he facts assume overwhelming
importance in [the] decision.” Kleissler v. United States
Forest Serv., 157 F.3d 964, 972 (3d Cir. 1998).
Under the facts of this case, the District Court found
that Gillette satisfied the sufficiency of interest and
impairment of interest elements. Gillette challenges the
District Court’s determination to the extent it found that he
9
failed to meet the timeliness and adequacy of representation
elements. We need only address the latter element to affirm
the District Court’s conclusion in this case. See Harris, 820
F.2d at 596 (requiring that each element be met before
intervention is proper).
2.
The adequacy of representation element requires the
applicant to demonstrate “‘that his interests are not
adequately represented by the existing parties.’” Brody, 957
F.2d at 1123 (quoting Hoots v. Pennsylvania, 672 F.2d 1133,
1135 (3d Cir. 1982)). Inadequate representation can be based
on any of three possible grounds: “(1) that although the
applicant’s interests are similar to those of a party, they
diverge sufficiently that the existing party cannot devote
proper attention to the applicant’s interests; (2) that there is
collusion between the representative party and the opposing
party; or (3) that the representative party is not diligently
prosecuting the suit.”4 Id. A presumption of adequacy
attaches, however, “if one party is a government entity
charged by law with representing the interests of the applicant
for intervention.” Id. (citing Del. Valley Citizens’ Council for
4
Although the District Court concluded that Gillette
failed to establish any of the three grounds for adequacy of
interest, Gillette’s challenge on appeal appears to only relate
to the first ground; i.e. that his interests diverge from those of
the United States. See Appellant’s Br. at 23-26. Because
Gillette makes at most only a passing reference to the other
two factors in his opening brief, those arguments are waived.
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler
Energy Corp., 26 F.3d 375, 389 (3d Cir. 1994). In any event,
there does not appear to be any evidence of collusion or lack
of diligence in this case.
10
Clean Air v. Pennsylvania, 674 F.2d 970, 973 (3d Cir. 1982)).
In such an instance, a potential intervenor can only overcome
the presumption and thereby intervene by making a
“‘compelling showing . . . to demonstrate why [the
government’s] representation is not adequate.’” Mountain
Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72
F.3d 361, 369 (3d Cir. 1995) (quoting 7C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1909 (1986)). Gillette failed to make such a showing here.
The United States argues correctly that the
presumption of adequate representation applies to this case,
since CRIPA gives the Attorney General the authority to
enforce its provisions:
Whenever the Attorney General has reasonable
cause to believe that any State[5] or . . . official,
employee, or agent thereof . . . is subjecting
persons residing in or confined to an institution
. . . to egregious or flagrant conditions which
deprive such persons of any rights, privileges,
or immunities secured or protected by the
Constitution or laws of the United States
causing such persons to suffer grievous harm . .
. the Attorney General, for or in the name of the
United States, may institute a civil action in any
appropriate United States district court against
such party . . . .
42 U.S.C. § 1997a(a) (emphasis added). The United States
relied on CRIPA when it filed suit in 1986 to combat the
5
“State” is defined for purposes of § 1997 as including
territories of the United States. See 42 U.S.C. § 1997(4).
11
allegedly unconstitutional conditions at Golden Grove.
Because that statute authorizes the Attorney General to
pursue civil rights actions on behalf of prisoners who are
suffering deprivations of their constitutional rights, we
presume that the United States adequately represents the
interests of those prisoners. Brody, 957 F.2d at 1123. Gillette
therefore must make a “compelling showing” as to why his
interests are not so represented. Mountain Top Condo., 72
F.3d at 369 (internal quotation marks omitted).
3.
Gillette relies on two decisions in an effort to show
that he satisfied his burden in this case: Kleissler, and United
States v. Oregon, 839 F.2d 635, 636 (9th Cir. 1988).
Kleissler addressed a district court’s denial of a motion to
intervene filed by “local governmental bodies and business
concerns in litigation brought by environmentalists to restrict
logging activities in a National Forest.” 157 F.3d at 967. The
plaintiffs in the underlying suit challenged, on environmental
conservation grounds, the use of a logging practice known as
“even-aged management.” Id. at 968 (internal quotation
marks omitted). The challenged logging projects, which were
approved by the Forest Service, “called for substantial tree
harvesting . . . [and] contemplate[d] clearing designated areas
of all trees, rather than focusing on individual trees within the
given tract, the latter being far more costly and time-
consuming for timber companies.” Id.
The proposed intervenors included local area school
districts and municipalities that asserted a financial interest in
the suit “because they receive[d] funds from receipts of
logging operations in the forest.” Id. Those funds were used
by the municipalities and school districts for public schools
and roads. Id. Several timber companies also sought to
12
intervene on the grounds that they: (1) held timber contracts
in the forest; (2) were successful bidders on timber contracts;
or (3) generated most of their income from timber contracts
with the Forest Service. Id. The district court denied the
motions to intervene by all but two of the timber companies
because those two parties’ existing timber contract rights
would have been threatened if the plaintiffs prevailed. Id.
The district court also denied the motions to intervene filed
by the school districts and municipalities. Id.
On appeal, we acknowledged the presumption that the
government will adequately represent the concerns of a
proposed intervenor. Id. at 972. We also noted, however,
that “when an agency’s views are necessarily colored by its
view of the public welfare rather than the more parochial
views of a proposed intervenor whose interest is personal to
it, the burden [for proving the right to intervention] is
comparatively light.” Id. In light of that lower burden, we
concluded that the relief the plaintiffs sought in the
underlying suit “would have an immediate, adverse financial
effect on the school districts and municipalities,” and that all
proposed intervenors had a direct economic interest in the
litigation. Id. at 972 (recognizing that “the polestar for
evaluating a claim for intervention is always whether the
proposed intervenor’s interest is direct or remote”).
Ultimately, we noted that the potential intervenors’
interests contrasted with those of the government, which
represented
numerous complex and conflicting interests in
matters of this nature. The straightforward
business interests asserted by intervenors here
may become lost in the thicket of sometimes
inconsistent governmental policies. . . .
13
Although it is unlikely that the intervenors’
economic interest will change, it is not realistic
to assume that the [government’s] programs
will remain static or unaffected by unanticipated
policy shifts.
Id. at 973-74 (citations omitted). Intervention was therefore
proper based on the conflict between the intervenors’ direct
economic interests and the government’s shifting public
policy interests (which included balancing, at least in part,
economic gain from timber harvesting with the need to
preserve the environment). Id. at 974.
In articulating his asserted interests in this case,
Gillette’s memorandum in support of the motion to intervene
demonstrates a substantial overlap between his interests and
those of the United States. Specifically, Gillette extensively
quotes from the United States’ pleadings in this case,
indicating that Golden Grove has:
“failed to: 1) [p]rovide inmates with ‘minimally
adequate medical care for their serious medical
needs;’ 2) [p]rotect prisoners from
‘unreasonable fire safety risks to their lives and
safety;’ 3) [a]fford the necessary staff
supervision and security to protect inmates from
‘wanton and reckless physical violence by other
inmates or staff;’ and 4) [p]rovide ‘minimally
adequate sanitation to protect inmates from
unreasonable risks to their physical health.’”
App. at 108-09 (quoting the District Court’s February 8, 2012
opinion, which in turn quotes the United States’ complaint in
14
this case) (emphasis and alteration in original). This reliance
upon the United States’ pleadings belies Gillette’s argument
that his interests diverge from those of the United States. In
fact, as discussed above, his grievances dovetail with the
terms of the Settlement Agreement in this case. To that end,
Gillette’s interests not only overlap with those of the United
States, they are essentially identical.
Gillette’s reliance upon Kleissler is misplaced because
the proposed intervenors in that case all had a singular, direct
financial stake in the underlying litigation that was
necessarily in tension with the “thicket of sometimes
inconsistent [Forest Service] policies.” 157 F.3d at 974. In
that case, the conflict arose from the Forest Service’s broad
public policy goals, specifically those related to conserving
and protecting the environment. Id. The potential
intervenors’ financial interests were more limited and thus in
tension with those of the government. Gillette fails to
demonstrate a similar conflict here and instead relies almost
exclusively upon the United States’ allegations in defining the
scope of his own. Even though the United States seeks to
secure changes at Golden Grove on a number of levels, its
ultimate goal is to achieve constitutionally required
conditions at the facility. Gillette shares that goal, and does
not argue that any of the sought improvements would be
antithetical to his personal interests—indeed, he listed most of
them in his motion.
Gillette argues that negotiations between the Virgin
Islands and the United States will necessarily involve some
balancing, and likens the problems at Golden Grove and their
resolution in the Settlement Agreement to “‘a spider web, in
which the tension of the various strands is determined by the
relationship among all the parts of the web, so that if one
pulls on a single strand, the tension of the entire web is
15
redistributed in a new and complex pattern.’” Appellant’s
Reply Br. at 13 (quoting Brown v. Plata, --U.S.--, --, 131 S.
Ct. 1910, 1937 (2011)). The metaphor recognizes that there
are many issues to be addressed at Golden Grove, with
medical and mental health care being only one component.
While this point is well-taken, it does not change the
underlying fact that Gillette is challenging the
constitutionality of the conditions at Golden Grove and that
the United States is charged by law with securing the same.
See 42 U.S.C. § 1997a(a). The fact that the United States
may seek broader changes in the Settlement Agreement than
those sought by Gillette, however, is more akin to a
“difference of opinion concerning the tactics with which the
litigation should be handled [and] does not make inadequate
the representation of those whose interests are identical with
that of an existing party.” Wright & Miller, supra, at § 1909.
This tactical give-and-take identified by Gillette, however,
must ultimately survive constitutional scrutiny under the
PLRA in this case. See 18 U.S.C. § 3626(a)(1)(A)
(recognizing that prospective relief under the PLRA is not
available unless “the court finds that such relief is narrowly
drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right”).
Unlike in Kleissler, therefore, shifting policy considerations
are less of a concern when constitutionally guaranteed rights
are at stake.
A more analogous case is United States v. City of Los
Angeles, in which community groups and individual
community members appealed the denial of a motion to
intervene as of right. 288 F.3d 391, 396-97 (9th Cir. 2002).
The underlying litigation involved allegations by the United
States that the city and its police department “engaged in a
16
pattern or practice of depriving individuals of constitutional
rights through the use of excessive force, false arrests and
improper searches and seizures . . . .” Id. at 396. The
individual community members seeking to intervene
“submitted uncontroverted declarations stating that they [had]
suffered from, and [were] likely to continue [suffering] from,
the unconstitutional police misconduct that form[ed] the basis
of the United States’ suit against the City.” Id. at 397
(emphasis added). In concluding that the district court
properly denied the motion to intervene as of right, the court
of appeals acknowledged the presumption that the United
States would adequately protect the proposed intervenors’
interests. Id. at 402. Specifically, the court noted that “both
the individual and organizational community members are the
exact constituents the United States is seeking to protect in
this action. Thus, this case is not like Forest Conservation
Council, in which the intervention applicants had ‘more
narrow, parochial interests’ than did the existing government
plaintiff.” Id. (emphasis added) (quoting Forest Conservation
Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir.
1995)).
Like in City of Los Angeles, Gillette’s argument that
his interests diverge from those of the United States is not
persuasive because he, as an inmate at Golden Grove, is the
“exact constituent” the United States is attempting to protect
in this case. Id. Like the United States, Gillette simply
wishes to “ensure that [the Settlement Agreement] is strictly
enforced. Thus, [he shares] the same objective as the United
States. Any differences [he may have] are merely differences
in strategy, which are not enough to justify intervention.” Id.
The mere fact that he is but one individual while the United
States is seeking systemic change at Golden Grove is not
17
relevant under the facts of this case, since their interests are
not in conflict—as was the case in Kleissler.
Gillette relies upon a second case, United States v.
Oregon, in which individual residents of a state-run
institution sought to intervene in an action brought under
CRIPA “claiming failure to provide minimally adequate
training, medical care, sanitation and trained staff.” 839 F.2d
at 636. In addressing whether the proposed intervenors’
interests were adequately represented, the court noted that
the applicants set forth claims for injunctive and
other relief affording residents of the facility
access to better conditions in the facility,
sufficient training in self-care skills and
sufficient community-based programs to insure
freedom from unnecessary institutionalization. .
. . The government has limited its complaint to
seeking injunctive relief for the more
outrageous conditions existing within the
facility.
Id. at 637-38. Although the court acknowledged that both the
United States and the potential intervenors shared the “goal of
vindicating the constitutional rights of [the] residents,” the
difference in the scope of the relief sought required
intervention. Id. at 638.
In this case, it is clear that no such difference in scope
exists because Gillette expressly relied upon the United
States’ pleadings, as discussed above. If anything, the scope
of changes sought by the United States in this case is broader
than Gillette’s individual complaints, because his specific
grievances are largely limited to the availability of
constitutionally adequate medical and mental health care.
18
The United States, on the other hand, seeks systemic change
at Golden Grove that will ensure constitutional conditions for
all inmates. In that sense, Gillette is likely to reap even
greater benefits as a result of the United States’
representation.6
In light of the above, we conclude that Kleissler and
United States v. Oregon do not apply where, as here, a
government agency has both a constitutional interest in and
the statutory authority to seek systemic change that will
ultimately provide an individual intervenor with an even
greater benefit than that originally sought. In such cases, the
“personal” and “parochial views” of the proposed intervenor
align with the constitutional interests of the particular
government agency, Kleissler, 157 F.3d at 972, and
intervention as of right pursuant to Rule 24(a) is not
appropriate.
B.
Rule 24(b) provides that a “court may permit anyone
to intervene who . . . has a claim or defense that shares with
6
We note also that United States v. Oregon is of
questionable reliability in light of our Court’s precedent.
Specifically, the Ninth Circuit applied a de novo standard of
review and did not apply the presumption in favor of
adequate representation. 839 F.2d at 637 (citing In re Benny,
791 F.2d 712, 721 (9th Cir. 1986)). As discussed above, we
apply a presumption of adequacy when the United States is
charged with protecting the applicant’s rights. Brody, 957
F.2d at 1123. We also apply a more deferential abuse of
discretion review to motions to intervene. Id. at 1115. In
light of these facts, United States v. Oregon is easily
distinguishable and is not persuasive.
19
the main action a common question of law or fact.” Fed. R.
Civ. P. 24(b)(1)(B). “In exercising its discretion, the [district
court] must consider whether the intervention will unduly
delay or prejudice the adjudication of the original parties’
rights.” Fed. R. Civ. P. 24(b)(3). As already noted, district
courts have broader discretion in making a determination
about whether permissive intervention is appropriate as
opposed to intervention as of right. Brody, 957 F.2d at 1115.
The District Court in this case denied Gillette’s Rule
24(b) permissive intervention motion for the same reasons it
denied the motion pursuant to Rule 24(a). Specifically, it
noted that Gillette’s motion “[was] untimely, would delay
litigation and prejudice the parties, and his intervention [was]
unnecessary given that the United States adequately
represents his interests in this matter.” App. at 16. In light of
our deferential standard of review, we agree with the District
Court that Appellees would be prejudiced by allowing
Gillette to intervene at this time (and need not delve into the
District Court’s other reasons).
Courts have recognized that prejudice can result when
a party seeks to intervene at a late point in litigation. In
United States v. Tennessee, the Sixth Circuit affirmed the
denial of a motion to intervene as of right where the parties
had negotiated a tentative settlement agreement involving
complicated issues related to unconstitutional conditions at
state facilities, but where the district court had not yet
approved the final settlement agreement. 260 F.3d 587, 591-
92 (6th Cir. 2001) (addressing whether the existing parties to
the litigation would be prejudiced by allowing intervention
pursuant to Rule 24(a)). The district court concluded that the
intervenor’s participation vis-a-vis the remedial policies in the
settlement agreement could prejudice the parties by leading to
collateral litigation. Id. at 594. Likewise, in D’Amato v.
20
Deutsche Bank, the Second Circuit agreed with the district
court that, among other reasons for denying a motion to
intervene, “late intervention would potentially derail the
settlement and prejudice the existing parties, who had been
engaging in settlement negotiations for several months.” 236
F.3d 78, 84 (2d Cir. 2001) (intervenor sought to challenge the
adequacy of a settlement and add defendants to the action by
motion filed three days before a scheduled fairness hearing).
Appellees in the present case would be prejudiced if
forced to engage in further litigation in response to Gillette’s
potential objections to the Settlement Agreement, particularly
in light of this case’s lengthy history. See Tennessee, 260
F.3d at 592. That prejudice is further compounded by the fact
that Gillette’s intervention is unnecessary due to the United
States’ adequate representation in the ongoing litigation.
Intervention at this stage would therefore result in the
duplication of effort that is unnecessary and unwarranted.
We accordingly conclude that the District Court properly
exercised its discretion by denying Gillette’s motion for
permissive intervention pursuant to Rule 24(b). See Brody,
957 F.2d at 1124 (“[I]f intervention as of right is not
available, the same reasoning would indicate that it would not
be an abuse of discretion to deny permissive intervention as
well.”).
IV.
Gillette’s interests in this litigation are nearly identical
with those of the United States and he fails to make a
compelling showing that his interests are not being
adequately represented by the United States. We therefore
affirm the District Court’s denial of Gillette’s motion to
intervene as of right pursuant to Rule 24(a). We likewise find
that the District Court did not abuse its discretion in denying
21
Gillette’s motion pursuant to Rule 24(b) because Appellees
would be prejudiced by permitting intervention at this stage in
the litigation.7 We therefore affirm.
7
In light of our conclusions, we affirm the District
Court’s denial of Gillette’s motions. We note, however, that
our holding today leaves open the possibility, albeit remote,
that the United States’ position would change so drastically in
relation to Gillette’s interests as to justify intervention. In
such a circumstance, Gillette would need to clear an even
higher hurdle by demonstrating that “extraordinary
circumstances” justify revisiting the intervention issue.
Benjamin ex rel. Yock v. Dep’t of Public Welfare of Pa., 701
F.3d 938, 948-49 (3d Cir. 2012) (applying the law of the case
doctrine to a subsequent motion for intervention). We are
satisfied that at this time, however, Gillette has not
sufficiently demonstrated a divergence of interests that
warrants intervention.
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