FILED
NOT FOR PUBLICATION
JAN 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINEWORKERS’ PENSION SCHEME No. 16-16937
and BRITISH COAL STAFF
SUPERANNUATION SCHEME, D.C. No. 2:12-cv-00555-DGC
Plaintiffs,
MEMORANDUM*
v.
FIRST SOLAR INCORPORATED; et al.,
Defendants-Appellees,
v.
CLIFFORD TINDALL; et al.,
Movants-Appellants.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted January 12, 2018**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.
Appellants appeal from the district court’s denial of permissive intervention.
The district court denied intervention on the basis that it “would be tantamount to
permitting [Appellants] to conduct discovery in aid of their demand futility
argument,” which the court had already declined to do twice. We review this
decision for an abuse of discretion. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d
470, 472 (9th Cir. 1992). We conclude that the district court did not abuse its
discretion, and therefore dismiss the appeal for lack of jurisdiction. Perry v.
Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009).
The parties do not dispute that Appellants have met Rule 24(b)’s minimum
requirements for permissive intervention. Rather, they dispute whether the district
court could, nonetheless, exercise its discretion to deny intervention to prevent
Appellants from circumventing its prior rulings.
“[P]ermissive intervention is committed to the broad discretion of the district
court.” United States v. $129,374 in U.S. Currency, 769 F.2d 583, 586 (9th Cir.
1985). Courts may consider various factors, such as the “nature and extent of the
intervenors’ interest, their standing to raise relevant legal issues, the legal position
they seek to advance, and its probable relation to the merits of the case.” Spangler
v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977). We have held
2
the denial of permissive intervention to avoid circumvention of a court’s prior
rulings meets this liberal standard. See $129,374 in U.S. Currency, 769 F.2d at 589
(holding the district court properly denied a motion to intervene where the putative
intervenor was seeking to “relitigate” district court’s prior factual findings). Our
sister circuits have reached similar conclusions. See U.S. Bank Nat. Ass’n v. State
Farm Fire & Cas. Co., 765 F.3d 867, 870 (8th Cir. 2014) (holding the district court
did not abuse its discretion by denying a motion to intervene as untimely because it
“was not required to permit [putative intervenor], at a later date, essentially to
circumvent the prior rulings by intervening in its own name”); AT&T Corp. v.
Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) (holding the district court properly
denied plaintiff’s motion to intervene where it was “an attempt to circumvent the
close of discovery in his State Court Action”).
Appellants’ argument that the district court failed to consider “any of the[]
factors” set forth in Spangler is wholly without merit. First, Spangler’s factors are
“nonexclusive.” Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). Courts
are free to consider other factors in their analysis. See Estate of Dixon v.
Commissioner, 666 F.2d 386, 389 (9th Cir. 1982) (holding the tax court properly
denied intervention where it “might cause a ‘flood’ of motions for intervention”).
Second, the district court cited Spangler expressly and its factor of the “nature and
3
extent of the intervenors’ interest.” The district court’s consideration of why
Appellants sought intervention bears precisely on this factor. This argument also
belies Appellants’ other argument that the district court should not have treated
them differently from the rest of the public. Appellants cannot both argue that the
district court erred by failing to consider their interest, while also arguing the court
should have ignored that same interest to treat them as any other member of the
public. Accordingly, the district court properly considered that Appellants’ motion
was “not a First Amendment inquiry from a generally interested citizen, but a clear
attempt to avoid the Court’s previous rulings.”
Appellants try mightily to frame the denial here as turning on an erroneous
interpretation of law, thereby invoking the de novo standard of review. San Jose
Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999)
(applying de novo review to the district court’s denial of permissive intervention
where “it premised its denial” on an erroneous interpretation of law). This
argument fails because the district court did not premise its denial on any error of
law. Contrary to Appellants’ assertion, Beckman does not stand for the proposition
that they are “entitled to intervene” for the purpose of unsealing documents.
Beckman held that a district court could use its discretion for this purpose, not that
it must do so. 966 F.2d at 473.
4
Appellants’ reliance on American Pipe is similarly misplaced. In American
Pipe, the district court erred by concluding that it had no discretion because
permissive intervention was barred as a matter of law. Am. Pipe & Constr. Co. v.
Utah, 414 U.S. 538, 560 (1974). The Supreme Court “merely directed that
discretion be exercised.” Id. at 560. But here, the district court never determined it
was without discretion to grant intervention; it simply declined to exercise it.
Appellants’ assertion that the district court concluded they “were prohibited
from seeking additional facts to bolster demand-futility allegations” is also without
merit. To the contrary, the district court said that “while discovery is not available”
Appellants have “many avenues available to obtain information,” including the
availability of a books and records inspection under Delaware law.
Lastly, Appellants make several arguments as to why the protective order
should be modified. We emphasize that “this is an appeal from a denial of
permissive intervention, not a challenge to a denial of a modification to the
Protective Order.” AT&T Corp., 407 F.3d at 561. “The question of whether a party
is allowed to intervene is distinct from the issue of whether the party’s motion to
unseal should be granted.” Flynt v. Lombardi, 782 F.3d 963, 967 n.3 (8th Cir.
2015); see also Empire Blue Cross & Blue Shield v. Janet Greeson’s A Place For
Us, Inc., 62 F.3d 1217, 1221 (9th Cir. 1995) (denying a motion to intervene for the
5
purpose of modifying protective order without considering the merits of the
protective order). Because Appellants have not shown the district court abused its
discretion in denying intervention, we need not reach the merits of their arguments
about modifying the protective order.
In sum, the district court did not abuse its broad discretion by denying
Appellants’ motion for permissive intervention. Because there was no abuse of
discretion, we dismiss the appeal for lack of jurisdiction. See Perry, 587 F.3d at
955.
Appellants’ and Appellees’ unopposed requests for judicial notice are
granted.
DISMISSED.
6
FILED
Mineworkers’ Pension Scheme v. First Solar Inc., Case No. 16-16937
JAN 22 2018
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.