United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
S. HUVELLE UNITED STATES DISTRICT JUDGE
case was brought by a smokers' rights organization
against the U.S. Department of Housing and Urban Development
(“HUD”), challenging a regulation banning smoking
in public housing, including in individual residential units.
Kirk Becker, a private citizen who lives in an affected
public housing unit, moves pro se pursuant to Federal Rule of
Civil Procedure 24 to intervene as a plaintiff. (Mot. to
Intervene, Jan. 9, 2019 (ECF No. 15).) For the reasons stated
herein, the Court denies Mr. Becker's motion to
intervene. However, because neither party opposes Mr.
Becker's filing an amicus brief in this case, he may do
Plaintiffs, the nonprofit organization New York City Citizens
Lobbying Against Smoker Harassment (“CLASH”) and
several individuals who are smokers and who live in
apartments subsidized by HUD in various American localities,
initiated this action on July 23, 2018. (Compl., July 23,
2018 (ECF No. 1).) They allege that a HUD rule,
“Smoke-Free Public Housing” (the “HUD
Rule”), which became effective February 2, 2017, 24 CFR
§§ 965.651- 965.655, violates the Administrative
Procedure Act (“APA”) and the Fourth, Fifth,
Tenth, and Fourteenth Amendments and the Spending and
Commerce Clauses of the U.S. Constitution. (See Id.
¶ 1.) Plaintiffs seek vacatur of the HUD Rule, or,
alternatively, modification of the HUD Rule to permit smoking
in private residential units. (See Id. ¶ 183.)
Plaintiffs filed a motion for summary judgment on May 3,
2019. (Pls.' Mot. for Summ. J., May 3, 2019 (ECF No.
January 9, 2019, Mr. Becker, who is a smoker and a public
housing resident, moved to intervene in the lawsuit. (See
Mot. to Intervene.) Mr. Becker lives in HUD-funded public
housing operated by the Housing Authority of the City of
Austin, Texas (“HACA”). Like plaintiffs, Mr.
Becker argues that the HUD Rule is arbitrary and capricious
in violation of the APA; however, he does not reiterate
plaintiffs' other arguments and does not agree with
plaintiffs as to the relief sought. Like plaintiffs, Mr.
Becker argues that the HUD Rule is too severe. However, he
disagrees with CLASH as to the appropriate solution, because
according to Mr. Becker, “he at least endeavors to
recognize the interests of residents who don't
smoke” and the benefits of a ban to those residents.
(Mot. to Intervene ¶ 9.) While CLASH argues that the ban
on smoking in private units should be entirely lifted, Mr.
Becker argues for a “relaxed standard of smoke
free” whereby some areas of public housing complexes
would offer nonsmoking units and others would permit smoking.
(See Mot. to Intervene ¶¶ 44-62.)
parties oppose intervention. (See Pls.' Opp'n to Mot.
to Intervene as Pl., Feb. 1, 2019 (ECF No. 21); Defs.'
Opp'n to Mot. to Intervene, Feb. 15, 2019 (ECF No. 23).)
must permit anyone to intervene by right if the putative
intervenor “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). Courts in this
Circuit look to four factors to determine whether
intervention as of right is due: “(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 interest.” Deutsche Bank Nat'l
Trust Co. v. FDIC, 717 F.3d 189, 192 (D.C. Cir. 2013).
Additionally, as a threshold matter, “an intervenor of
right must demonstrate Article III standing when it seeks
additional relief beyond that which the plaintiff
requests.” Town of Chester, N.Y. v. Laroe Estates,
Inc., 137 S.Ct. 1645, 1652 (2017); see also Fund for Animals,
Inc. v. Norton, 322 F.3d 728, 732-33 (D.C. Cir. 2003) (same).
may grant permissive intervention to anyone who “has a
claim or defense that shares with the main action a common
question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). The
court must consider whether intervention would “unduly
delay or prejudice the adjudication of the original
parties' rights.” Fed.R.Civ.P. 24(b)(3).
“[P]ermissive intervention is an inherently
discretionary enterprise, ” EEOC v. Nat'l
Children's Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir.
1998), and a district court has “wide latitude”
to “deny a motion for permissive intervention even if
the movant established an independent jurisdictional basis,
submitted a timely motion, and advanced a claim or defense
that shares a common question with the main action.”
Id. at 1048.
I. INTERVENTION AS OF RIGHT
motion to intervene, Mr. Becker “seeks additional
relief beyond that which the plaintiff requests.” Town
of Chester, 137 S.Ct. at 1652. Indeed, the primary difference
between Mr. Becker and plaintiffs is that Mr. Becker seeks a
different remedy than that sought by plaintiffs. Therefore,
he may not intervene as of right unless he has demonstrated
that he has Article III standing. Both parties argue that Mr.
Becker has not done so, and the Court agrees. “To
establish standing under Article III, a prospective
intervenor-like any party-must show: (1) injury-in-fact, (2)
causation, and (3) redressability.” Fund for Animals,
322 F.3d at 732-33 (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992)). As a smoker who resides in public
housing, Mr. Becker has established injury-in-fact because
the HUD Rule prohibits him from smoking in his own home.
However, he has not established that his injury was caused by
or is redressable by changing the HUD Rule.
Becker lives in HUD-funded, HACA-operated housing that is
subject to both the HUD Rule, 24 CFR Parts 965, 966, which
became effective February 2, 2017, and to HACA's local
ban on smoking in public-housing residence units that took
effect locally in Austin, Texas in 2015. See Housing Auth. of
the City of Austin, Public Housing Admissions and Continued
Occupancy Policy, Smoke-Free Housing Policy, Ch. 13-I (the
“HACA Policy”) (prohibiting smoking in all public
housing residential units). The HACA Policy carries
enforcement measures providing for escalating sanctions,
whereby a household's fourth violation can result in
“30-day notice of lease termination.”
Id. at Ch. 13-II. Because the local ban on smoking
in private residences operated by HACA pre-dates the HUD
Rule, any injury caused by such a ban was actually caused by
the HACA Policy, and not the HUD Rule. Similarly, even if the
HUD Rule were vacated, the HACA policy would likely remain,
as it existed prior to February 2017 when the HUD Rule took
Becker argues that “the HACA policy was prompted by
defendant HUD, and in any case, is superseded by the HUD
policy before this Court.” (Movant's Reply to
Def.'s Objection to Intervention at 2, Feb. 25, 2019 (ECF
No. 24) (“Reply to Defs.”).) These arguments are
inapposite. It is true that the HACA Policy notes that
“HUD has strongly encouraged public housing authorities
to adopt a smoke free policy since 2009, ” but it was
not until the local policy took effect in 2015 that smoking
was banned in residential units. HACA Policy, Ch. 13. There
is no indication that the HACA Policy would be rescinded if
the HUD Rule were vacated. Indeed, such speculation is wholly
unwarranted, and Mr. Becker's argument that the HACA
Policy was “prompted” by HUD is insufficient to
show that the HACA Policy would not continue to exist even if
the HUD Rule were invalidated. “Because the necessary
elements of causation and redressability . . . hinge on the
independent choices of the regulated third party, ‘it
becomes the burden of the plaintiff to adduce facts showing
that those choices have been or will be made in such manner
as to produce causation and permit redressability of
injury.'” Nat'l Wrestling Coaches Ass'n v.
Dept. of Education, 366 F.3d 930, 938 (D.C. Cir. 2004)
(quoting Lujan, 504 U.S. at 562) (abrogation on other grounds
recognized by Perry Capital LLC v. Mnuchin, 864 F.3d 591, 620
(D.C. Cir. 2017). Mr. Becker has not met this burden.
principles of federal preemption nullify the local ban on
smoking in public-housing units that has been in effect in
Austin since 2015. It is true that the HACA Policy was
revised in 2017 to bring it into alignment with the specific
requirements of the HUD Rule; for example, the HACA Policy
was revised to list specific prohibited items and to specify
that people may not smoke within 25 feet of regulated areas.
See HACA Policy, Ch. 13 (listing a revision date of Dec. 21,
2017 and noting that it “meets the standards of
HUD's final rule”). As relevant to this litigation,
however, the HACA Policy's ban on smoking in private
residential units and its enforcement mechanisms existed
before the HUD Rule.
Becker has not shown that he has Article III standing to
bring this claim, and therefore he may not move to intervene
as of right. II. PERMISSIVE INTERVENTION Mr. Becker also
argues that the Court should permit him to intervene.
“It remains . . . an open question in this circuit
whether Article III standing is required for permissive
intervention.” Defs. of Wildlife & Sierra Club v.
Perciasepe, 714 F.3d 1317, 1327 (D.C. Cir. 2013) (quoting In
re Endangered Species Act Section 4 Deadline Litig.-MDL No.
2165, 704 F.3d 972, 980 (D.C. Cir. 2013)); cf. Deutsche Bank
Nat'l Trust Co., 717 F.3d at 195 (Silberman, J.,
concurring) (stating that a party seeking permissive
intervention must establish standing). Nevertheless, the D.C.
Circuit has repeatedly “declined to review the denial
of a Rule 24(b) motion once [it] determined the potential
intervenor lacked standing.” Defs. of Wildlife &
Sierra Club, 714 F.3d at 1327 (citing Section 4 Deadline