Intervenor Who Satisfies Rule 24(a)(2) Need Not Also Show Article III Standing in Order to Intervene as of Right — Circuit Split

NAACP, Inc. v. Dulin County, N.C., 2012 U.S. Dist. LEXIS 12513 (E.D.N.C. Feb. 3, 2012):

Rule 24(a)(2) governs intervention by right, and states as follows,

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 that interest.

Fed. R. Civ. P. 24(a)(2).

Thus, in addition to demonstrating timeliness of the motion, the applicant must show: (1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant's interest is not adequately represented by existing parties to the litigation. Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991). "Liberal intervention is desirable to dispose of as much of a controversy 'involving as many apparently concerned persons as is compatible with efficiency and due process.'" Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (quoting Nuess v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967)). ***

Footnote 3. Plaintiffs and defendant Commissioner suggest to the court that defendant intervenors must show that they have Article III standing in order to show that they have a protectable interest under Rule 24(a)(2). The circuit courts are divided on the issue of whether an intervenor, in addition to satisfying the Rule 24 requirements, must also demonstrate standing. Compare Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs., 101 F.3d 503, 507 (7th Cir. 1996) (requiring intervenor to meet the minimal standing required by Article III); United States v. Metropolitan St. Louis Sewer District, 569 F.3d 829, 833 (8th Cir. 2009) ("In our circuit, a party seeking to intervene must establish Article III standing in addition to the requirements of Rule 24"), with City of Colorado Springs v. Climax Molybdenum, Co., 587 F.3d 1071, 1079 (10th Cir. 2009) (parties seeking to intervene as of right or permissively need not have independent standing so long as another party with constitutional standing on the same side as the intervenorremains in the case). Plaintiffs and defendant Commissioner as well as defendant intervenors concede to the circuit split on this issue and acknowledge that the Fourth Circuit has not decided it. Cf. Shaw v. Hunt,154 F.3d 161, 165 (4th Cir.1998) (holding that permissive intervenors do not have to have standing but making no mention of intervenors as a matter of right). Therefore, the court declines to impose the requirement that defendant intervenors must show Article III standing in order to intervene as a matter of right where the Fourth Circuit is silent on the issue and other case law suggests that intervention is desirable to dispose of as much of a controversy as is possible with as many concerned persons as is compatible with efficiency and due process. See Feller, 802 F.2d at 729. To hold otherwise would impose a stricter requirement on Rule 24(a)(2) intervention than what appears to be warranted under the law of this circuit.

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