The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Jeffrey Paul, an inmate on death row facing execution by the federal lethal injection protocol, has moved for leave to intervene under Federal Rule of Civil Procedure 24 and for a preliminary injunction barring both the scheduling of his execution and his execution, challenging the federal lethal injection protocol under the Fifth and Eighth Amendments and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. The plaintiffs do not oppose intervention, but the defendants oppose both motions. Because Paul has failed to demonstrate that an impaired interest would stem from being denied intervention rather than from his own failure to timely protect his interest, or that his interests which are virtually indistinguishable from those of the current plaintiffs would be inadequately represented, his motion will be denied.
The plaintiffs in this case were each sentenced to death on one or more of the capital murder charges of which they were convicted. Roane v. Holder, 607 F. Supp. 2d 216, 219 (D.D.C. 2009). The original complaint, alleging constitutional and statutory violations caused by the federal government's intended use of a lethal injection protocol that allegedly exposes inmates to a substantial risk of severe pain, was filed on December 6, 2005. (See Compl. at 3.) On February 2, 2006, Plaintiffs James Roane, Richard Tipton and Cory Johnson moved, in part, for a preliminary injunction barring their execution. (See Pls.' Mot. for a Stay, and for a Prelim. Inj. Barring Their Execution at 1.) The defendants did not oppose the entry of a preliminary injunction with respect to Roane, Tipton and Johnson, and the plaintiffs' motion was granted. See Roane v. Gonzales, Civil Action No. 05-2337 (RWR), 2006 U.S. Dist. LEXIS 31781, at *1-2 (D.D.C. Feb. 27, 2006). Plaintiff Bruce Webster moved unopposed to intervene in January 2007 and for a preliminary injunction in February 2007. (See Webster's Unopposed Mot. to Intervene as Pl. at 1; Webster's Unopposed Mot. for a Prel. Inj. Barring His Execution at 1.) Both motions were granted as unopposed. Two additional plaintiffs, Anthony Battle and Orlando Hall, moved unopposed to intervene in April 2007 and for a preliminary injunction barring the defendants from setting an execution date in their case. (See Unopposed Mot. of Pl. Anthony Battle for Prelim. Inj.; Pl.'s Hall's Unopposed Mot. for a Prelim. Inj. at 1.) Those motions were granted as unopposed. On October 6, 2009, Jeffrey Paul moved to intervene and for a preliminary injunction, which the defendants have opposed.
I. INTERVENTION AS OF RIGHT
Under Rule 24(a), intervention as a matter of right is granted when the movant 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). The four prerequisites to intervention as of right are: "'(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant's interests.'" Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998)).*fn1 For reasons that do not appear in the record, the defendants address solely the third factor. Since all three interest factors and the timeliness factor are interrelated, all will be considered here.
Requiring the presence of a legally protected interest serves "primarily [as] a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Glamis Imperial Corp. v. U.S. Dep't. of the Interior, Civil Action No. 01-530 (RMU), 2001 WL 1704305, at *3 (D.D.C. Nov. 13, 2001) (internal quotation marks omitted); see also S. Utah Wilderness Alliance v. Norton, Civil Action No. 01-2518 (CKK), 2002 WL 32617198, at *5 (D.D.C. June 28, 2002) (applying a "liberal approach" to the Rule 24(a) analysis). It refers "not to any interest the applicant can put forward, but only to a legally protectable one." City of Cleveland, Ohio v. Nuclear Regulatory Comm'n, 17 F.3d 1515, 1517 (D.C. Cir. 1994) (emphasis in original).
Paul's asserted interest in the subject matter of the case is identical to that of the existing plaintiffs, namely, avoiding execution by an allegedly flawed lethal injection protocol. (Mem. in Supp. of Pl. Jeffrey Paul's Mot. to Intervene ("Paul's Mem.") at 6-7.) Citing the plurality opinion in Baze v. Rees, 553 U.S. 35 (2008), Paul states that avoiding execution by an allegedly flawed lethal injection method is a legally protectable interest because "the Supreme Court [has] held than an inmate alleges a constitutional violation by asserting . . . a 'substantial risk' of 'mal-administration' of the government's intended execution procedures, in a manner that results in a substantial danger of inadequate anesthesia." (Paul's Mem. at 7 (citing Baze, 553 U.S. at 41, 48-50, 53).) Paul and the existing plaintiffs assert, in part, that unless the drug is "administered by a qualified individual, the condemned person may . . . [experience] horrific pain[.]" (Compl. ¶ 37.) As Paul has amply demonstrated a clear interest in the outcome of this suit, this factor supports intervention.
However Paul does not find such support in the other three factors. Whether a proposed intervenor is "so situated that disposing of the action may as a practical matter impair or impede [his] ability to protect [his] interest," Fed. R. Civ. P. 24(a)(2), is determined by "looking to the practical consequences of denying intervention, even where the possibility of future challenge to the regulation remain[s] available." Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (internal quotation marks omitted) (alteration in original). Paul certainly does not refute the possibility of a future challenge. He asserts no statute of limitations bar. (Paul's Reply at 2 n.1.) Indeed, Paul argues only that if his "motion for intervention is denied, and [he] is forced to bring his own parallel action, he could be negatively impacted by the resolution of the present case." (Paul's Mem. at 8.) The defendants counter that Paul "cannot demonstrate that disposition of this suit will impede his ability to protect his interest" because he "could have clearly sought the relief that he is requesting . . . [in] the jurisdiction in which he committed his crime[.]" (Defs.' Opp'n to Jeffrey Paul's Mots. to Intervene and for a Preliminary Injunction at 4.)
If the plaintiffs were to prevail here, the federal government could be barred from employing the lethal injection protocol to carry out any capital sentences, benefitting Paul. If the defendants were to prevail in this action, no such bar would prevent Paul from being subject to lethal injection under the federal protocol. Paul's interest, then, may be impaired by an unfavorable outcome of this litigation in the sense that countering such a ruling in a subsequent case could be "difficult and burdensome." Fund for Animals, 322 F.3d at 735.
It is not, however, denying Paul's motion to intervene that will have impaired Paul from protecting his interest; rather it is Paul's failure to file timely his own method of execution challenge that will have impaired his interest. Paul's direct appeal concluded in 2001. He cites to no factual or legal basis justifying his failure to raise a method of execution challenge then. Nor does he justify his failure to intervene in this suit at or near its onset.
In ruling on a motion to intervene, "the Court must first determine whether the application to intervene is timely." Cooey v. Strickland, No. 2:04-cv-1156, 2008 ...