UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
June 14, 2000
LINDA R. TRIPP, PLAINTIFF,
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS
The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
MEMORANDUM AND ORDER (APPLICATION FOR INTERVENTION)
This matter comes before the court on the Application for Intervention of Cara Leslie Alexander, et al., plaintiffs in Alexander v. FBI, et al., Civ. Nos. 96-2123 & 97-1288 (D.D.C.) ("Alexander"). The Alexander plaintiffs move to intervene as of right, FED. R. CIV. P. 24(a), or in the alternative, for permissive intervention. FED. R. CIV. P. 24(b). Upon consideration of the application, the oppositions thereto, the applicable law, and for the reasons set forth below, the court hereby DENIES the application for intervention.
The instant case concerns the release of information from Linda Tripp's security clearance application by the Department of Defense ("DoD") to Jane Mayer, a reporter from The New Yorker magazine. See Tripp v. Executive Office of the President, Civ. No. 99-2554, Memorandum & Order (Recusal), at 1-2 (D.D.C. June 14, 2000)(detailing alleged circumstances of the release). Claiming that the release violated her rights under the Privacy Act, 5 U.S.C. § 552a (1994), Tripp seeks damages and injunctive relief against the Executive Office of the President ("EOP"), the Federal Bureau of Investigation ("FBI") and the United States Department of Defense ("DoD"). She also seeks recovery from certain named individual defendants, Kenneth Bacon, Clifford Bernath, and Jane and John Does 1-99, for an alleged conspiracy to violate Tripp's civil rights under the Civil Rights Act of 1871, 17 Stat. 13, cl. 2 and 42 U.S.C. § 1985(2). In addition, Tripp brings pendent state common law claims against defendants Bacon and Bernath based on the torts of invasion of privacy and civil conspiracy.
As noted above, the Alexander plaintiffs propose to intervene in this case, either as a matter of right or permissively, pursuant to Rule 24 of the Federal Rules of Civil Procedure. More commonly known as "Filegate," the Alexander case has been filed as a class action and involves allegations that plaintiffs' privacy interests were violated when, in 1993 to 1994, the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations. Alexander v. FBI, et al., 186 F.R.D. 180, 182 (D.D.C. 1999). Over the course of discovery in Alexander, this court has authorized discovery into the circumstances of the Tripp release, having determined that this avenue of discovery is appropriate insofar as "plaintiffs may seek to create the inference that if the White House misused government information for political purposes in the case of the Tripp release, such evidence may be circumstantial evidence of the similar conduct alleged in plaintiffs' complaint." Alexander v. FBI, et al., 186 F.R.D. 154, 158 (D.D.C. 1999). And, the court has determined that the Tripp case and the Alexander case are related cases under Local Civil Rule 40.5(a). See Tripp v. Executive Office of the President, Civ. No. 99-2554, Memorandum & Order (Related Case Objection), at 11 (D.D.C. June 14, 2000).
A. Intervention of Right Under Rule 24(a)(2) Rule 24(a)(2) of the Federal Rules of Civil Procedure 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).
Courts examine four factors to determine whether to grant a motion for intervention under Rule 24(a)(2): (1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction that is the subject of the action; (3) whether 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 and (4) whether the applicant's interest is adequately represented by the existing parties. Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998). In evaluating these factors, "[t]he decision whether intervention of right is warranted thus involves an accommodation between two potentially conflicting goals: to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending." Smuck v. Hobson, 408 F.2d 175, 178 (D.C. Cir. 1969). In addition, a proposed Rule 24 intervenor must satisfy the same requirements for Article III standing as the original parties. Building & Const. Trades Dep't v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994).
Plaintiffs contend that they have met the threshold requirements for intervention as of right under Rule 24. They assert that their application is timely because it was filed during the early stages of the Tripp case. With respect to their interest in the subject of Tripp's action, the Alexander plaintiffs contend that, like the intervenors in Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981), "they have suffered injury from the same or very similar wrongful acts as those complained of by the original plaintiff and [their] claims for relief are founded on the same statutory rights." Foster, 655 F.2d at 1324-25. Moreover, they advance that the "interest requirement" is to be liberally construed, stating that it is "primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Id. at 1324. The Alexander plaintiffs further assert that their interests could be impaired by an adverse ruling in the Tripp case and that "the opportunity to raise the same issue in another forum [is] no bar to intervention as of right." Nuesse v. Camp, 385 F.2d 694,700 (D.C. Cir. 1967). Finally, the proposed intervenors contend that their interests are not adequately represented in Tripp because they seek to vindicate "broader, though similar harms, inflicted on a group of similarly-situated persons." Application for Intervention, at 15. Defendants EOP, FBI, DoD, Kenneth Bacon, and Clifford Bernath oppose intervention by the Alexander plaintiffs. As a preliminary matter, they note that proposed intervenors' application is procedurally defective, as it was not "accompanied by a pleading setting forth the claim or defense for which intervention is sought." FED. R. CIV. P. 24(c).
Next, they assert that the proposed intervenors present only a speculative interest in the Tripp litigation. Alternatively, they contend that even if a sufficient interest does exist, no impairment would result if their application were denied because they have the opportunity to protect their interests in their own case.
The court finds that allowing the Alexander plaintiffs to intervene would make the Tripp case "[in]compatible with efficiency," Foster, 655 F.2d at 1324, and would result in the Tripp case becoming "fruitlessly complex and unending." See Smuck, 408 F.2d at 178. First, even if their application for intervention was timely insofar as it was brought early on in the Tripp litigation, the two cases are at radically different stages of litigation.*fn1 Specifically, the Alexander case has been underway for over three years, and has entailed considerable discovery, including numerous depositions. By contrast, as the proposed intervenors acknowledge, the Tripp case is in the nascent stage, with an amended complaint having been filed early this year and no discovery undertaken to date. Second, even though the two cases share common issues of fact, as this court has concluded in finding that the two cases are related for purposes of Local Rule 40.5, see Tripp v. Executive Office of the President, Civ. No. 99-2554, Memorandum & Order (Related Case Objection), at 11 (D.D.C. June 14, 2000), that fact alone is not sufficient to warrant intervention here. Proposed intervenors fail to articulate any manner, beyond mere speculation, in which their interests might be impaired in the Tripp case. Nor do the proposed intervenors demonstrate that their interests will not be adequately represented in Tripp, where plaintiff Tripp's interests can hardly be characterized as adverse to the Alexander plaintiffs. And, notwithstanding these considerations, the proposed intervenors already have a forum--their own case--in which to protect their interests.
Moreover, the court finds Foster v. Gueory, on which proposed intervenors principally rely, to be readily distinguishable from this case. In Foster, three proposed intervenors sought to intervene in an already pending class action. Notably, the intervenors in Foster did not have their own case already pending. By contrast, in Alexander, more than 700 putative class members seek intervention in a single plaintiff suit. Allowing the Alexander plaintiffs to intervene would unnecessarily complicate and protract the adjudication of Tripp's case. And, rather than serve judicial economy, intervention here would only frustrate the judicial task. Indeed, because extensive discovery has already been concluded in Alexander, intervention would make discovery rulings an endlessly complex task, as the court would have to carefully scrutinize every discovery request posed by the intervenors to ensure that they were not using their intervenor status in Tripp to obtain what they would not be entitled to get in their own case. In short, intervention would spawn numerous collateral issues that would not necessarily be germane to Tripp and would greatly impair her ability to move her case forward. Furthermore, this result is further compelled by the fact that, unlike the Foster intervenors, the Alexander plaintiffs have their own case that has been underway for several years, in which considerable discovery has already been conducted. Thus, given the radically different postures of the two cases, the court finds that the balance between accommodating the conflicting goals of judicial economies of scale and avoiding unmanageable complexity weighs against intervention, particularly, where, as here, proposed intervenors have failed to demonstrate in any meaningful way how their interest might be adversely impacted or inadequately represented in Tripp.
B. Permissive Intervention Under Rule 24(b)
Rule 24(b) provides that
[u]pon 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).
A successful applicant under Rule 24(b)(2) must demonstrate a "(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." Equal Employment Opportunity Comm. v. National Children's Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (citations omitted). Moreover, "[a]s its name would suggest, permissive intervention is an inherently discretionary enterprise." Id. at 1045; see also id. at 1048 (stating that "[d]istrict courts have discretion . . . to deny a motion for permissive intervention even if a movant has established an independent jurisdictional basis, submitted timely motion, and advanced a claim or defense that shares a common question with the main action"). To that end, Rule 24(b) further provides that "[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." FED. R. CIV. P. 24(b).
The court also finds that permissive intervention under Rule 24(b) is not appropriate. As noted above, permissive intervention rests largely in the discretion of the district court, who must consider "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." FED. R. CIV. P. 24(b). The same considerations that compelled the court to decline intervention as of right are equally applicable here. See supra pp. 7-8. As explained above, the collateral issues and undue complications that would ensue from intervention by the Alexander plaintiffs would unreasonably frustrate and prolong the Tripp case, to say nothing of how it would negatively impact the court's ability to manage both of these cases.
For the foregoing reasons, it is hereby ORDERED that the Alexander plaintiffs' application for intervention is DENIED.