United States District Court, District of Columbia
G. Sullivan, United States District Judge.
Freedom of Information Act (“FOIA”) lawsuit,
plaintiff Organization for Competitive Markets
(“OCM”) seeks to compel defendant the Office of
Inspector General (“OIG”) of the United States
Department of Agriculture (“USDA”) to produce
documents related to OIG's 2011 audit of USDA's
Agricultural Marketing Service (“AMS”) regarding
AMS's oversight of USDA's beef promotion program. Now
pending before the Court is a motion to intervene filed by
prospective defendant-intervenor National Cattlemen's
Beef Association (“NCBA”). Upon consideration of
the motion, the response and reply thereto, the applicable
law, and the entire record, NCBA's motion to intervene is
to avoid unfair delay, NCBA's participation in this
litigation is LIMITED to (1) reviewing documents and records
for its confidential and proprietary business information and
(2) objecting to the production of documents and records to
OCM exclusively on the basis that those documents and records
contain its confidential and proprietary business
to federal statute and regulation, the Cattlemen's Beef
Promotion and Research Board (“Beef Board”)
administers a program of beef promotion and research. Mem.
Supp. of NCBA's Mot. to Intervene (“Mem.
Supp.”), ECF No. 34 at 3. Part of the Beef Board's
promotion program includes what is known as the “beef
checkoff.” Id. at 4; see Compl., ECF
No. 1 ¶¶ 1, 11. USDA provides oversight for the
Beef Board and its beef checkoff through a component agency,
AMS. Mem. Supp. at 4; cf. Compl. ¶ 20.
2011, USDA OIG initiated an audit to determine if AMS's
oversight procedures with regard to the beef checkoff were
adequate and in compliance with federal law and regulation.
Mem. Supp. at 4; Compl. ¶ 12. Concerned with
inconsistent findings between that 2011 OIG audit and an
independent accounting firm's 2010 review of the beef
checkoff program, on April 11, 2013 OCM submitted a FOIA
request to OIG seeking records related to its 2011 audit.
Compl. ¶¶ 14-15. After approximately a
year-and-a-half of back-and-forth between OCM and OIG and a
series of administrative appeals regarding OCM's request,
see generally Id. ¶¶ 17-39, on November
12, 2014 OCM filed suit against OIG in this Court. See
generally Id. OCM's complaint alleges that OIG
wrongfully withheld records by making overbroad claims of
exemption from disclosure and that OIG exceeded the time
limits for making its final determinations as to OCM's
FOIA request. Id. ¶¶ 40-48.
to a joint status report OIG and OCM subsequently filed with
the Court, the parties agreed that OIG would produce
responsive documents to OCM on a rolling monthly basis.
See Joint Status Report, ECF No. 12. The Court, in
turn, ordered OIG to file monthly status reports summarizing
its monthly production and overall progress in relation to
fulfilling OCM's FOIA request. See Minute Entry
of April 15, 2015. Over the course of the next 16 months, it
appeared that OIG was progressing towards finalizing its
production of documents to OCM. See, e.g., Joint
Status Report, ECF No. 27; Joint Status Report, ECF No. 29.
However, in late August of this year, OIG transmitted 9, 358
additional responsive pages to AMS for an AMS review that
will take place prior to any of those pages being produced by
OIG to OCM. Declaration of William Allen (“Allen
Decl.”), ECF No. 33-2 ¶ 15. Those 9, 358 pages
appear to be in addition to approximately 14, 000 pages AMS
still has to review based on prior transfers of documents
from OIG to AMS. Id. Apparently AMS did not review
the bulk of those 14, 000 earlier-received pages because it
thought OIG had determined that they were not responsive or
were duplicates of other documents. Id. ¶ 11.
on September 13, 2016, NCBA filed a motion to intervene as a
defendant in this matter. See generally Mot. to
Intervene, ECF No. 34. Although NCBA was “vaguely aware
that there may have been a FOIA request to AMS relating
to” the 2011 OIG audit, NCBA was not notified of this
FOIA request until August 3, 2016, when an AMS FOIA
specialist submitted a document to NCBA for its review. Mem.
Supp. at 4. Then on August 31, 2016, NCBA received 500
additional pages from AMS for its review. Id. at 5.
NCBA alleges that it was then first made aware of this
litigation on September 6, 2016, when “its attorneys
searched for and identified the case and the docket
sheet.” Id. Concerned that many of the
responsive documents at issue contain confidential and
proprietary NCBA information, NCBA filed its motion to
intervene “so as to protect from disclosure its
business confidential and proprietary information.”
Id. at 6. NCBA's motion to intervene is now ripe
and ready for the Court's adjudication.
seeks to intervene as a matter of right under Federal Rule of
Civil Procedure 24(a) or, in the alternative, under Rule
24(b)'s permissive intervention standard. See
generally Mem. Supp. Because this Court finds that NCBA
is entitled to intervene as of right, permissive intervention
need not be addressed. See Hardin v. Jackson, 600
F.Supp.2d 13, 15 (D.D.C. 2009) (citing Fund for Animals,
Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003)).
24(a)(2) provides in relevant part:
On timely motion, the court must permit anyone to intervene
who . . . 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
Fed. R. Civ. P. 24(a). Thus the party applying to intervene
must satisfy four conditions: (1) its motion must be timely;
(2) it must demonstrate an interest relating to the property
or transaction which is the subject of the action; (3) it
must be so situated that the disposition of the action may as
a practical matter impair or impede its ability to protect
that interest; and (4) it must demonstrate that its interest
cannot adequately be represented by the existing parties.
Hardin, 600 F.Supp.2d at 15 (citing Fund for
Animals, 322 F.3d at 731). In addition, “a party
seeking to intervene as of right must demonstrate that it has
standing under Article III of the Constitution.”
Fund for Animals, 322 F.3d at 731-32.